Ralena Pty Ltd v VCAT (Ruling no 2)

[2007] VSC 11

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9115 of 2006

RALENA	Applicant
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Respondent
XTSEA PTY LTD	Second Respondent
MOTOR CAR TRADERS GUARANTEE FUND CLAIMS COMMITTEE	Third Respondent

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2007
DATE OF JUDGMENT:	30 January 2007
CASE MAY BE CITED AS:	Ralena v VCAT & Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 11

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RESTITUTION – Repayment of monies to a third party pursuant to a grant of certiorari – Inherent jurisdiction of the court to make orders consequent upon grant of substantive relief by review – Section 7 Administrative Law Act – Third party seeking restitution – Exercise of discretion – Slip rule.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Palmer	Lewenberg & Lewenberg
For the First Respondent	No appearance
For the Second Respondent	Mr J. Slonim	Kliger Partners
For the Third Respondent	Ms  J. Lardner	Victorian Government Solicitor

HIS HONOUR:

1. These proceedings originated in a proceeding commenced before the Victorian Civil and Administrative Tribunal by the second respondent, XTSEA Pty Ltd. By an order made on 11 September 2006, the Deputy President of the Tribunal ordered that the third respondent, Motor Car Traders Guarantee Fund Claims Committee (“the committee”), pay the second respondent (“XTSEA”) compensation in the amount of $33,000 pursuant to the Motor Car Traders Act. A demand was made for that amount, and it was duly paid to XTSEA by the committee.

1. Ralena Pty Ltd, which is the applicant in these proceedings, was not a party to the proceedings before the Tribunal, but was interested in and affected by the decision.  It sought to review the decision of the Tribunal.  That application for review came before me last November. 

1. By a judgment dated 29 November, I quashed the decision of the Deputy President in the proceedings in the Tribunal.  Accordingly, I quashed the decision pursuant to which the respondent had become obligated to pay and had in fact paid $33,000 to XTSEA. 

1. By a summons dated 8 December 2006, the committee now seeks repayment from XTSEA of the sum of $33,000.  The application by the committee is based on what is said to be the inherent jurisdiction of the court to make orders which are consequential upon the grant of substantive relief, either by way of review or appeal. 

1. It is clear that courts of appeal have had a long‑standing power to make orders for restitution where, on the conclusion of the appeal, the court has set aside a judgment of a lower court pursuant to which moneys have been paid.  (See for example Burke v Gillett;[1] Commonwealth of Australia v McCormack.[2]

   [1][1996] 1 VR 196 at 201.

   [2](1984) 155 CLR 273.

1. Although Mr Slonim, who appeared on behalf of XTSEA, did not accede to the proposition, nonetheless I consider that there is sound authority in support of the proposition that the same principles apply where proceedings in the nature of claims for prerogative relief have been brought before a judge at first instance, and the judge has granted orders quashing the decision of a tribunal.  See Production Spray Painting and Panel Beating Pty Ltd & Ors v Newnham & Ors (No. 2);[3] and see also National Australia Bank Ltd & Ors v Bond Brewing Holdings Ltd.[4] 

   [3](1992) 27 NSWLR 659 especially at 661.

   [4][1991] 1 VR 386 at 597, per Brooking J.

1. The inherent power of a court to grant such relief upon a successful appeal, or upon the grant of prerogative relief, is grounded in the principle of restitution, so that where an order of a lower court or tribunal is set aside, the court has inherent power to grant relief by way of restitution to order a refund of payments made pursuant to the orders set aside.

1. Mr Slonim, who addressed thorough and skilled arguments before me, submitted that the concluding words of s.7 of the Administrative Law Act 1978 preclude the existence of the inherent jurisdiction in applications by way of administrative review made under that Act.

1. In my view, such a submission misconstrues the concluding words of s.7. The effect of s.7 is to ensure that the court has the same powers which it would otherwise have to grant prerogative relief by way of certiorari and the like. Section 7 has been recognised, not as a substantive section, but as a section affecting matters of procedure. I do not consider that s.7 at all restricts or excludes the power of the court to make orders such as those sought before me by exercise of its inherent jurisdiction.

1. Mr Slonim further submitted that the power sought to be exercised by me is not incidental to the principal relief which I granted to Ralena by way of certiorari, but rather is separate and distinct relief sought by the committee against XTSEA. 

1. The fact that it is not Ralena which is seeking restitution is, in my view, of no moment.  The underlying principle of restitution applies, whether it is in favour of the applicant for prerogative relief, or another party to those proceedings necessarily affected by the application.  In my view, this approach is supported by the speech of Lord Cairns in Roger v Comtois Visconte de Paris,[5] which was quoted with approval by the High Court in Commonwealth v McCormack.[6] 

   [5](1871) LR 3 PC 465 at 475.

   [6][1984] HCA 57 at 276.

1. Indeed, there is no basis in principle why a party in the position of the committee ought to be refused access to the restitutionary powers of the court simply because it does not have the status in this proceeding as the original applicant for certiorari.  The committee was a necessary and proper party to the application made by Ralena.  It was a party necessarily affected by the decision of the tribunal, and thus affected by the application by Ralena for principal relief.

1. The summons was issued after I pronounced final judgment.  However, it has been recognised that, while the application ought to have been made before pronouncement of final judgment, nonetheless the court may exercise its jurisdiction by accessing the slip rule; see Commonwealth v McCormack.[7]

   [7]at 277.

1. In those circumstances I do not consider the fact that it is the committee seeking to utilise the incidental power, nor the fact that it made its application after I pronounced final orders, as taking the application outside one for the exercise of the incidental and inherent power which this court does have to order restitution. 

1. Competing submissions have been made to me as to whether the court in those circumstances has a discretion.  Ms Lardner, who also presented a thoroughly prepared and highly competent submission, submitted that I do not do so and she relied on the Production Spray case[8].  On the other hand Mr Slonim has submitted to me that I do have such a discretion. 

   [8]at 662.

1. Assuming, without deciding, that I do have such a discretion, this is not an appropriate case to exercise the discretion against the grant of the order to which the committee would otherwise be entitled.  The simple fact is that the committee, pursuant to the order of the tribunal, became legally obliged to make the payment to XTSEA.  Upon demand by XTSEA it made that payment.  As matters now stand the tribunal’s decision has been quashed.  Thus, the obligation which gave rise to the payment has been removed.  In those circumstances it would be inappropriate for me to exercise the discretion against the committee. 

1. Mr Slonim has relied on the affidavits which have been filed in the matter on behalf of the directors, which indicate that there may be a further application made to the tribunal.  That may or may not be so, and I say nothing about the potential fate of such an application.  Nonetheless, the existence of that potential application ought not preclude me from making an order which I have power to make, and which is restitutionary relief I consider appropriate to grant.  Accordingly I accede to the application made by the third respondent on 8 December 2006.

1. I thus make an order that the second respondent repay the third respondent the amount of $33,000 paid to the second respondent by the third respondent pursuant to the decision of Deputy President McNamara, the Victorian Civil and Administrative Appeals Tribunal dated 11 September 2006.

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