Red Gem Growers v Longwarry (Eastbound) & Ors

[2007] VSC 533

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING DIVISION

No. 9196 of 2007

RED GEM GROWERS	Plaintiff
v
LONGWARRY (EASTBOUND) AND OTHERS	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2007
DATE OF RULING:	30 NOVEMBER 2007
CASE MAY BE CITED AS:	RED GEM GROWERS v LONGWARRY (EASTBOUND) & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 533

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APPLICATION for leave to appeal pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998 – Interlocutory decision by Tribunal refusing to strike out application for review – application for leave refused – ss 75, 148 Victorian Civil and Administrative Tribunal Act 1998

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Porter	Falcone and Adams
For the Defendants	Mr A. Finanzio	Allens Arthur Robinson

HIS HONOUR:

1. This is an application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”).  The principles I have to apply in deciding whether to grant leave are well accepted.[1]

   [1]           Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 and Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163.

1. The applicant seeks leave to appeal the decision of Deputy President Dwyer, a legal member of the Tribunal, to refuse to strike out an application for review pursuant to s 75 of the Act.[2]

   [2]Section 75 Summary dismissal of unjustified proceedings

   (1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion-

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) is otherwise an abuse of process.

1. Mr Dwyer stated in part:

1The applicants for review are objectors to the respondent’s applicant for a permit for a Freeway service centre at Nar Nar Goon. The applicants for review are in the course of constructing two Freeway service centres at Longwarry, some 19 kilometres from the Nar Nar Goon site.

…

4In the event, I have decided to refuse the application to summarily dismiss or strike out the application for review. My reasons may be summarised as follows:

•There can be little doubt that there is an element of commercial motivation in the application for review, it having been brought by those constructing a competing facility a little further along the Princes Freeway. However, the fact that the objectors are a commercial competitor does not necessarily mean that the objection is devoid of merit – see Countrywide Retail Management Pty Ltd v Yarra Ranges Shire Council.

•As has been noted in many cases, the power to order summary dismissal or a strike out of a proceeding should only be exercised with great care, and should only be exercised in the most obvious cases where it is clear that there is no real question to be tried.

•It is fair to reflect, as Mr Porter for the respondent pointed out, that the applicant’s grounds of objection in this case are somewhat “thin”, and some of the grounds are similar to those rejected by the Tribunal in another proceeding concerning a Freeway service centre proposed on the Geelong Bypass – see Bredix Pty Ltd v Greater Geelong City Council. It is therefore quite possible, in the absence of further submissions or evidence, that the application for review will ultimately not be successful. However, it is not apparent to me that the application for review is so patently lacking in merit that it should be summarily dismissed just because of the decision in Bredix. It cannot necessarily be said that the consideration and application of the Freeway service centre guidelines to a site on the Princes Freeway at Nar Nar Goon would necessarily be identical to the way in which those guidelines were considered and applied to the Geelong Bypass.

•In the extensive extract from Bredix provided by Mr Porter in his written submissions, he emphasised a passage which he indicated was the determinative matter, being a fundamental question as to whether the proposed Freeway service centre is appropriately located in terms of providing services and facilities which encourage drivers to stop and take an effective break at appropriate intervals in the interest of driver safety, and whether those services are “not readily available nearby”. In considering the Freeway service centre guidelines, there is at least a “live issue” to be tried as to what might constitute a “nearby” centre in relation to the function and context of the Princes Freeway east of Melbourne.  (footnotes omitted)

1. I should record that in my view, the reasons of Mr Dwyer do not disclose arguable errors of law on their face and that the grounds of review before the Tribunal are not, in my view, on their face absolutely hopeless.  Nor in my view are the statement of grounds and further and better particulars so deficient in particularity as to warrant a grant of leave to appeal to this Court.

1. The Court should be reluctant to interfere with the decision of an expert tribunal that grounds directed to planning matters raise matters of arguable substance.  This is essentially a matter of fact.

1. Furthermore the decision appealed against is an interlocutory one.  The matter is fixed for 20 December 2007.  There are strong discretionary reasons for allowing the tribunal to complete its hearing and make a final decision and to discourage appeals with respect to interlocutory rulings.  As Phillips JA stated in Secretary to the Department of Premier and Cabinet v Hulls[3]:

Where the order sought to be appealed is interlocutory (or “interim” in the terminology of the VCAT Act), there may be particular reasons, based in justice to both parties, for not granting leave to appeal. There are strong considerations against the fragmentation of any proceeding, whether it be criminal or civil. Where a Court is invited to grant leave to appeal from an order which is simply interlocutory, the litigation will be interrupted by the appeal, if leave is granted. Usually it is better if litigation is left to run its course, the parties being remitted to such rights of appeal as they have at the end of the day. Not only does that ensure that the litigation is not unnecessarily interrupted and completion not delayed without warrant; it also ensures that any interlocutory dispute will be seen and adjudged in its final context. Indeed, in the context of the final judgment the interlocutory dispute may be seen as having, or having had, little or no significance. Hence, in Niemann it was said that an applicant for leave to appeal from an interlocutory order must show, not only sufficient doubt about the correctness of the order, but also that there would be substantial injustice in leaving that order unreversed.[4]

[3][1999] 3 VR 331.

[4]At [14].

1. The most obvious of those discretionary considerations presently relevant is that the Tribunal's ultimate decision will in all probability subsume consideration of the points raised by Mr Porter today, and resolve them one way or another in the light of a full and proper understanding of the facts.

1. Having regard to these matters, and the matters that I have agitated with Mr Porter during the course of his careful submissions to me, the application will be refused.

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