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Muto v Shepparton City Council

Muto v Shepparton City Council

Case [2018] VSCA 73 27 March 2018

Jurisdiction

Appeal

Standing

Statutory Interpretation

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0066

MILVAN FRANK MUTO	Applicant
v
SHEPPARTON CITY COUNCIL	Respondent

S APCI 2017 0129

MILVAN FRANK MUTO	Applicant
v
SHEPPARTON CITY COUNCIL	Respondent

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JUDGES:	KYROU and McLEISH JJA and McDONALD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2018
DATE OF JUDGMENT:	27 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 73
JUDGMENTS APPEALED FROM:	Muto v Shepparton City Council [2017] VSC 210 (Keogh J) Janover v Muto [2017] VCC 811 (Judge Marks)

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (VCAT) – Refusal of leave to appeal from VCAT – Matter heard and determined by single member – Victorian Civil and Administrative Tribunal Act 1998, cl 46E(1) of sch 1, required VCAT be constituted by two members – Requirement removed by amendment to cl 46E(1) made after hearing and before determination – Whether VCAT properly constituted – Whether order within VCAT jurisdiction – Effect of transitional provision – Appeal allowed – VCAT order set aside – Proceeding remitted to VCAT – Victorian Civil and Administrative Tribunal Act 1998, cls 46E and 46F of sch 1 – Local Government Act 1989 ss 81J(1)(b), 249.

ADMINISTRATIVE LAW – Appeal – Paragraph of County Court statement of claim seeking costs in VCAT struck out – Where basis for strike out is VCAT order as to costs – Effect of invalidity of VCAT’s order and remitter of proceeding to VCAT – Whether utility in County Court proceeding – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J A F Twigg QC with Mr N Wallwork	Duty Barristers’ Scheme
For the Respondent	Mr D B Clough	Crow Legal

KYROU JA:

Introduction and summary

These reasons deal with two applications for leave to appeal brought by Milvan Muto against the Shepparton City Council.

The first application relates to a decision made on 21 April 2017 by Keogh J in the Trial Division, in which he refused leave to the applicant to appeal against an order made on 15 April 2016 by the Victorian Civil and Administrative Tribunal (‘VCAT’).[1] That order (‘VCAT order’) was made on the application of the Council under cl 46F of sch 1 to the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). The VCAT order provided that the Council was not required to pay the applicant’s costs of a proceeding in which VCAT held, on 10 July 2013, that the applicant had engaged in serious misconduct in his capacity as a councillor of the Council (‘serious misconduct proceeding’). That proceeding had been brought against the applicant by six councillors who had been authorised to do so by a Councillor Conduct Panel pursuant to s 81J(1)(b) of the Local Government Act 1989 (‘LGA’).
[1]Muto v Shepparton City Council [2017] VSC 210 (‘Keogh J decision’).

The second application relates to a decision made on 22 June 2017 by Judge Marks in a third party claim that the applicant had made against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muto v Shepparton City Council

Details

AGLC: Muto v Shepparton City Council [2018] VSCA 73
Case: [2018] VSCA 73
Decision Date: 27 March 2018

CaseChat Overview and Summary

Muto v Shepparton City Council involved a dispute between the plaintiff, Muto, and the Shepparton City Council. The plaintiff sought relief from a decision made by the Victorian Civil and Administrative Tribunal (VCAT), which was subsequently amended by legislation before the tribunal made its determination. The case was heard in the County Court of Victoria, where the plaintiff sought to appeal VCAT's decision. The central issue was whether VCAT was properly constituted when it made its decision, as well as the effect of the transitional provision in the amended legislation on the court's jurisdiction and the validity of the tribunal's order.

The court had to decide if the VCAT was properly constituted under the amended legislation when it made its determination. Additionally, the court examined whether the VCAT's order was within its jurisdiction and the impact of the transitional provision on the proceedings. The court needed to determine if the VCAT order was invalid and whether the County Court proceeding retained any utility. The court also had to consider the application for leave to appeal and the consequences of striking out the paragraph of the County Court statement of claim seeking costs in VCAT.

The court found that VCAT was not properly constituted when it made its decision due to a legislative amendment that required VCAT to be constituted by two members. The court held that the transitional provision meant that the amendment did not apply to decisions made before the amendment came into effect. Consequently, the VCAT order was invalid, and the appeal was allowed. The court set aside the VCAT order and remitted the proceeding to VCAT for reconsideration. The court also ruled that the application for leave to appeal was refused as striking out the paragraph of the County Court statement of claim seeking costs in VCAT was no longer necessary due to the remitter of the proceeding to VCAT.

The court ordered that the proceeding be remitted to VCAT for reconsideration in light of the findings that VCAT was not properly constituted and the VCAT order was invalid. The court also ruled that the application for leave to appeal was refused.

Orders