Johnson v Russell

[2006] VSC 373

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7129  of 2006

SONDRAE JOHNSON	Plaintiff
v
ROBERT RUSSELL	Respondent
GREATER SHEPPARTON CITY COUNCIL	Second Respondent
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Third Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2006
DATE OF RULING:	4 August 2006
CASE MAY BE CITED AS:	Johnson v Russell & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 373	1st Revision 23/10/06

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Leave to appeal from the planning division of the Victorian Civil and Administrative Tribunal – determination to grant permit for use and development of brothel – alleged question of law – no arguably vitiating error – s148 Victorian Civil and Administrative Act 1998 – ss73 and 74 of Prostitution Control Act 1994

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Watson-Jones	Lewis Holdway
For the First Defendant	Mr M Dreyfus QC with Mr A Ritchie	George Henderson
For the Second Defendant	Mr R Appudurai	Russell Kennedy

HIS HONOUR:

1. In this matter the plaintiff seeks leave to appeal pursuant to s.148 of the Victorian Civil & Administrative Tribunal Act 1998.  The plaintiff was an objector to the grant of a permit for the development and use of a brothel at premises located in an industrial zone at Shepparton.  The brothel is an innominate s.2 use within the relevant zone.  The permit was initially granted by the responsible authority and subsequently confirmed by decision of the Tribunal in May of this year.

When leave to appeal is to be granted under s.148

1. The plaintiff seeks leave to appeal on the basis that the Tribunal erred in law.  The Court of Appeal in Secretary to the Department of Premier and Cabinet v Hulls[1] stated the following guidelines which should govern a leave to appeal application under s.148 of the Victorian Civil & Administrative Tribunal Act 1998.  Ordinarily, the applicant must identify a question of law and establish that there is a real or significant argument in favour of the applicant on the identified question of law, at least to the extent that there is sufficient doubt about it to justify the grant of leave.   Additionally, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice.  The Court of Appeal, however, stressed that these are merely guidelines and that s.148 confers a discretion to grant leave in untrammelled terms and cannot and should not be fettered by judicial decision.  Ultimately, the decision of whether leave is granted or not “must always depend upon the justice of the case, as it appears to the court from whom leave is sought.”[2]

Error of law identified by the plaintiff

[1][1999] 3 VR 331 at 335-337.

[2]Ibid at 335.

1. The formulation of the asserted error of law is not to be discerned from the draft notice of appeal and this formulation has varied somewhat in argument.  As I understand the essential contention of Mr Watson-Jones, it is that in exercising its discretion the Tribunal was bound to have regard to the purpose and objectives of the PCA generally and further, it was required to construe the provisions of s.73 of the PCA in the light of those objectives. 

1. In written submission the plaintiff identified the following questions:

"1.Whether, when determining an application for a permit to use and develop land for the purposes of the operation of a brothel, the purpose and objectives of the Prostitution Control Act are considerations to which the responsible authority and therefore the Tribunal must have regard?

2.Can a responsible authority and therefore the Tribunal refuse to grant a permit to use and develop land for the purposes of the operation of a brothel where it can be reasonably apprehended that to do so would facilitate prostitution occurring in circumstances where it is probable that the purpose of the Prostitution Control Act will be undermined?"

The Tribunal’s Decision

1. The Tribunal was required to exercise its discretion in part having regard to the policy provisions contained in cl.19.04 of the State Planning Policy framework of the Planning Scheme made under the Planning and Environment Act 1987. The objective of that policy is to provide consistent planning controls for the establishment and expansion of brothels throughout Victoria, coordinated with the provisions of the Prostitution Control Act 1994 ("the PCA"). The general implementation provisions state that the responsible authority should consider the matters set out in s.73 of the PCA before deciding an application to use or develop land for a brothel. Section 73 of the PCA is as follows:

“Without limiting section 60 of the Planning and Environment Act 1987, before deciding on an application for a permit for a use or development of land for the purposes of the operation of a brothel, the responsible authority must consider—

(a)       any other brothel in the neighbourhood;

(b)      the effect of the operation of a brothel on children in the neighbourhood;

(c)except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and La Trobe Streets, whether the land is within 200 metres of a place of worship, hospital, school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreational or cultural activities and, if so, the effect on the community of a brothel being located within that distance of that facility or place;

(d)other land use within the neighbourhood involving similar hours of operation and creating similar amounts of noise or traffic (including pedestrian traffic);

(e)any guidelines about the size or location of brothels issued by the Minister administering the Planning and Environment Act 1987;

(f)       the amenity of the neighbourhood;

(g)      the provision of off-street parking;

(h)      landscaping of the site;

(i)       access to the site;

(j)the proposed size of the brothel and the number of people that it is proposed will be working in it;

(k)      the proposed method and hours of operation of the brothel.”[3]

[3] The responsible authority should also refuse a permit to use or develop land for a brothel in accordance with the restrictions contained in s.74 of the PCA unless s.76(2) of that Act applies.

1. There is no doubt that the Tribunal did consider the provisions of s.73 of the PCA in detail, but nevertheless the plaintiff contends that the Tribunal somehow misapprehended the statutory scheme.

1. The main purpose of the PCA as stated in s.1 is to “seek to control”, not prevent, prostitution.  The objects stated in s.4 are as follows:

(a)        to seek to protect children from sexual exploitation and coercion;

(b)to lessen the impact on the community and community amenities of the carrying on of prostitution-related activities;

(c)       to seek to ensure that criminals are not involved in the prostitution industry;

(d)to seek to ensure that brothels are not located in residential areas or in areas frequented by children;

(da)to seek to ensure that no one person has at any one time an interest in more than one brothel licence or permit;

(e)       to maximise the protection of prostitutes and their clients from health risks;

(f)       to maximise the protection of prostitutes from violence and exploitation;

(g)to ensure that brothels are accessible to inspectors, law enforcement officers, health workers and other social service providers;

(h)      to promote the welfare and occupational health and safety of prostitutes.

1. The Tribunal did have regard to the PCA and there is no patent error in the manner in which the Tribunal applied the provisions of the PCA (including its objectives). On its face s.73 sets out those matters which the Tribunal was required to consider by the PCA and there is no dispute that it considered these matters.  Nevertheless I am prepared to accept for present purposes that the effect of the statutory scheme created by the two relevant Acts is not so clear that it is entirely beyond argument.

1. The fundamental difficulty in the present case seems to me to be that although it is suggested the Tribunal erred in principle in the manner in which it analysed the relevant legislative scheme, the asserted error has not been shown to crystallise even arguably, in any specific wrong conclusion of fact or error in the exercise of the Tribunal's discretion.  Put another way, it seems to me that if the relevant statutory scheme was not properly applied, it is incumbent upon the plaintiff to show how that misapplication arguably resulted in an error on the facts of the case.  If the plaintiff does not so demonstrate, then it cannot be contended that there is real or significant argument that a vitiating error has occurred and it is well established in appeals of this type[4] that such an error must ultimately be demonstrated.  The possibility of an abstract error is not sufficient.

   [4]Portland PropertiesPty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18.

1. The submissions made on behalf of the plaintiff referred to evidence with respect to four matters.  One, the prevalence of commercial sexual activity involving minors, usually homeless youths and the number of youths of that kind in Shepparton itself.  Two, prostitution's utility as an available income stream and the high incidence of unemployed individuals in Shepparton, coupled with the lack of exit programs and support services in the municipality.  Three, the prevalence of illegal brothels, and four the conduct of brothels and the treatment of those working within them as the sex workers. 

1. It is not sufficient to say that there was evidence before the Tribunal as to these matters.  It must be shown that such evidence logically gives rise to the possibility the tribunal committed a vitiating error of law.  The argument which has been hypothesised as to the theoretical framework within which the Tribunal should approach the matter, simply does not lead to this conclusion.  Moreover, I am not persuaded that the Tribunal did other than fully and properly address the factual arguments addressed to it.

1. In this regard I note that the Tribunal specifically referred in its decision to the evidence called by Mr Watson-Jones and explained why it was not persuaded the brothel would cause net adverse social (or economic) effects in the community.  In my view its conclusions (whether right or wrong) were clearly open to it and were fatal to the plaintiff's case with respect to the social considerations it seeks to agitate by reference to the PCA. They are in any view entirely inconsistent with the view that the grant of the permit would “facilitate prostitution occurring in the circumstances where it is probable that the purpose of the Prostitution Control Act would be undermined”.

1. The plaintiff submitted that the Tribunal should have construed the phrase “proposed method and hours of operation” of the brothel under s.73(k) of the PCA wide so as to take into account what goes on inside the brothel, how patrons are serviced and what the internal arrangements are. The Tribunal heard evidence on behalf of the plaintiffs from Ms Isis about problems she had experienced as a sexual service provider at some 17 other brothels, relating in particular to health and safety. The Tribunal also heard evidence on behalf of the respondent about the proposed health and safety measures that would be taken in the particular brothel the subject of this application. The Tribunal decided (correctly in my view) that such considerations concerning proper health and safety checks and employment conditions of the people employed by the business were not relevant in determining a planning permit application by reference to s.73(k). The Tribunal also noted that Ms Isis’ evidence of her experiences was of little relevance in considering the particular type of use to be permitted on this land. I am not persuaded by Mr Watson-Jones that the Tribunal’s finding in this respect would constitute a vitiating error of law sufficient to warrant granting leave to appeal.

1. If leave were to be granted in cases where an abstract error of approach could be suggested in the Tribunal's reasoning, then it would be open to interfere with decisions of the Tribunal where any such error could be hypothesised or identified, no matter how peripheral to the substance of the matter and the fairness of the outcome.  That is not the way in which leave applications are intended to work.  It is incumbent upon an applicant to identify not only some arguable error of approach in principle on the part of the Tribunal, but also a consequence of such error which may be regarded as a vitiating error.  It is not of course incumbent upon an applicant to demonstrate in final terms, a vitiating error at this stage, but the potential for such an error must be shown.  I am not satisfied that such potential has been demonstrated in the presence case, and accordingly the application for leave will be dismissed.

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