Riaz v City of Greater Dandenong
[2023] VSCA 190
•18 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0004 |
| SHAGUFTA RIAZ & ARSHAD ALI KHAN | Applicants |
| v | |
| CITY OF GREATER DANDENONG | Respondent |
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| JUDGES: | McLEISH and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 18 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 190 |
| JUDGMENT APPEALED FROM: | [2022] VSC 680 (John Dixon J) |
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PRACTICE AND PROCEDURE – Application for leave to appeal decision of trial judge dismissing appeal from decision of judicial registrar summarily dismissing application for leave to appeal from VCAT decision – Applicants purchased property in subdivided development – Applicants claimed there were issues of public works compliance with standards and plans endorsed on the planning permit for subdivision and provided for in the planning scheme – One or more applicants made six successive applications to VCAT seeking to compel either the subdivider or council to carry out further works – Sixth application dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 as misconceived, lacking in substance and abuse of process – Application for leave to appeal pursuant to s 148 VCAT Act dismissed summarily by judicial registrar – Appeal from decision of judicial registrar dismissed by judge of the trial division – Jurisdictional misconception as to the nature of VCAT’s power pursuant to s 149B of the Planning and Environment Act 1987 and as to power to reinstate previous applications to VCAT – Whether permit or planning scheme impose obligations after plan of subdivision registered – Effect of previous decision of Court of Appeal in Khan v Victoria Civil and Administrative Tribunal [2018] VSCA 351 – Principles governing summary judgment – Subsidiary arguments considered by judge of the trial division – Written case raising hopeless arguments – No real prospects of success – Leave to appeal refused – Application for leave determined pursuant to s 14D(1) Supreme Court Act 1986 – Determination that application totally without merit within the meaning of s 14D(3) Supreme Court Act.
Victorian Civil and Administrative Tribunal Act 1998, ss 75, 148; Planning and Environment Act 1987, s 149B; Supreme Court Act 1986, ss 14C and 14D.
Khan v Victoria Civil and Administrative Tribunal [2018] VSCA 351 applied.
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| Counsel | |||
| First Applicant: | In person | ||
| Second Applicant: | In person | ||
| Respondent: | Mr N Petrie | ||
Solicitors | |||
| First Applicant: | — | ||
| Second Applicant: | — | ||
| Respondent: | Maddocks | ||
MCLEISH JA
OSBORN JA:
Introduction
In September 2009, the respondent, Greater Dandenong City Council[1] (‘the Council’) issued a planning permit for a staged subdivision of land within its municipality.
[1]A predecessor of the respondent.
In due course the subdivision proceeded. The applicants, Shagufta Riaz and her partner Arshad Ali Khan, purchased a residential lot and constructed a house upon it.
Subsequently, the applicants formed the view that road and drainage works within the subdivision had not been constructed to the full dimensions and standards contemplated by endorsed plans comprised in the original planning permit. In consequence, the applicants (in various combinations) have issued a series of applications to the Victorian Civil and Administrative Tribunal (‘VCAT’) seeking, in various ways, to obtain orders which would require either the subdivider or the Council to carry out further public works. By the present application to the Court of Appeal, the applicants seek leave to appeal from a decision of John Dixon J[2] dismissing an appeal from a decision of Keith JR,[3] in which he summarily dismissed an application for leave to appeal from a decision of VCAT.
[2]Zaric v City of Greater Dandenong [2022] VSC 680 (‘Reasons’).
[3]Zaric v City of Greater Dandenong [2020] VSC 756 (‘Keith JR Reasons’).
The application dismissed by Keith JR was brought by one Gordana Zaric together with the present applicants. She has not actively participated in the present application for leave to appeal.
For the reasons set out below, the proposed appeal has no prospects of success and is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.
Background facts
The planning permit to subdivide land granted in September 2009 enabled the subdivision of the land into residential lots by stages. The planning permit required the completion of various works by way of the provision of public infrastructure including roads and drains to the satisfaction of the Council as a condition of the subdivision. The most significant conditions in this regard were conditions 9 and 29.[4]
[4]Conditions 9 and 29 were in the following terms:
9.Before a Statement of Compliance is issued for the subdivision or any future stage of the subdivision, the land owner must ensure that the following issues have been complied with or completed (notwithstanding the provisions of Condition 30) all to the satisfaction of the Responsible Authority).
9.1Provision of reticulated water, sewerage and underground electricity made available.
9.2The provision of drainage to each lot shown on the endorsed plans.
9.3All new streets fully constructed to the satisfaction of relevant authority, in accordance with plans and specifications approved by Responsible Authority, including the provision of any traffic management devices and items required in the Traffic Impact Assessment required under this permit.
9.4All required underground drains fully constructed and operational so as to serve all new lots, in accordance with plans and specifications approved by Council.
9.5Pay the following to Council: i. Supervision fee; ii. Fee for checking the engineering plans; iii. Costs for the provision of street trees to Councils requirements (except where street trees are planted by the subdivider prior to the issue of a Statement of Compliance).
9.6Provide original transparencies and plans in digital format, and as constructed plans of the various road drainage and infrastructure work to the Responsible Authority. The plans must also show any cut and fill that has been carried out and any alterations made to the land during construction.
9.7The lighting of streets designed and provided in accordance with Australian Standard 1158.1 (1986). All reserves maintained and fenced to the satisfaction of the Responsible Authority
29.Prior to the Statement of Compliance being issued, all civil works and lighting must be completed to the satisfaction of the Responsible Authority. An electronic copy of the “as constructed” subdivision design drawings (in DXF or AutoCAD DWG format) and as “as constructed” schedule of quantities (in PDF format) must be submitted to the Responsible Authority for record keeping purposes.
Earlier appeal reasons set out the permit conditions more fully: see Khan v Victoria Civil and Administrative Tribunal [2018] VSCA 351 (‘Court of Appeal Reasons’).
The works were completed to a standard satisfactory to the Council and the Council issued a statement of compliance pursuant to s 21 of the Subdivision Act 1988 with respect to the plan. The plan was registered on title, and in consequence, the roads and drains vested in the Council. The individual lots created by the subdivision were on-sold to members of the public. Presumably the price paid on the open market reflected in part both the costs to the subdivider of the provision of the works now in issue and the actual physical state and adequacy of the works apparent to the purchaser.
In or about 2013, the applicants acquired one of the lots within the subdivision and constructed a home.
Subsequently, the second applicant, Mr Khan formed the view that public works (footpaths, roads and drainage) had not been constructed to the standard contemplated by the planning permit. In particular, he formed the view that the works were deficient by reason of an absence of footpaths; inadequate width of roads; the profile of kerbing; the length of road signs; and inadequacy of drainage works.
Mr Khan (alone or with others) has filed six successive applications to VCAT seeking to compel either the subdivider or the Council to carry out rectification works. As the Court of Appeal has previously made clear,[5] the applicants face five fundamental problems in pursuing the relief which they wish to obtain pursuant to the Planning and Environment Act 1987 (‘P&E Act’). These problems flow from the relevant statutory provisions contained in the P&E Act and the Subdivision Act 1988;[6] the terms of the planning scheme which the applicants invoke;[7] and the terms of permit conditions upon which the applicants rely.[8] We gratefully adopt the previous elaboration of each of these matters by the Court of Appeal. We do not propose to repeat them. The five basic problems confronting the applicants are as follows.
[5]Ibid.
[6]Ibid [7]–[23].
[7]Ibid [48].
[8]Ibid [28]–[34], [49].
(a)The provisions of the planning scheme which the applicants rely on are statements of policy objectives. They inform the application of the planning permit process for subdivision but do not of themselves state enforceable obligations.[9]
[9]Ibid [48], [129].
(b)The works were constructed in accordance with a planning permit requiring construction of works to the satisfaction of the Council. As the Court of Appeal said of the conditions relating to the road works:
99As part of condition 9, the owner was required to pay the Council a supervision fee and a fee for checking engineering plans. As well, the owner was required to provide to the Council original transparencies and plans in digital format and ‘as constructed’ plans of the various road drainage and infrastructure work. Those plans were required to show any cut and fill that had been carried out and any alterations made to the land during construction.
100To the extent that any obligation in relation to the creation of roads was imposed by the permit, it was an obligation imposed on the owner to undertake roadworks to the satisfaction of the Council.
101The statement of compliance could only be issued once the Council was satisfied that all requirements under the Planning and Environment Act relating to public works had been met. As noted above, the Council issued a statement of compliance on 7 December 2010 stating that the requirements under pts 2 and 3 of the Subdivision Act had been satisfied.
102Even if it could be shown that the width of the roads created on the subdivision were narrower than as stipulated in the endorsed plans, that would not avail Mr Khan because the obligation was to do no more than undertake the works to the satisfaction of the Council.[10]
[10]Ibid [99]–[102] (citations omitted). The effect of other conditions put in issue were summarised at Court of Appeal Reasons, [124]–[127].
(c)The Council issued the statement of compliance under s 21 of the Subdivision Act 1988 and in so doing declared its satisfaction with the road and drainage works. The obligation imposed by the relevant planning permit conditions is spent.
104The terms of condition 9, which are predicated on the developer constructing public works to the satisfaction of the Council before the issuing of a statement of compliance, simply do not allow for any revisiting of the standard of work after the statement of compliance has issued. Condition 9 does not provide for any obligations to subsist after the statement of compliance has issued
105The point may be tested this way. Once the certificate of compliance had issued attesting to the Council’s satisfaction and the plan was registered it would not be open to the Council to contend that the construction of the roads did not reflect the terms of the permit issued under the Planning and Environment Act and ask the permit holder to fix them. To the extent that the permit holder had any ongoing obligations in relation to the standard of work, they were not to be found in condition 9. No different result can follow simply because the application for enforcement is brought by someone else.[11]
(d)Since registration of the plan, the developer no longer has an interest in the land containing the public works[12] and hence is not amenable to enforcement proceedings under the P&E Act as the owner or occupier of the land or the person on whose behalf the development was carried out.[13]
106Further, to allow the enforcement of a permit condition of the kind expressed in condition 9 as against the developer after title in the land had vested in the Council would conflict with the statutory scheme which provides for the subdivision of land into lots and the vesting of roads in favour of the Council free from encumbrances.
107As noted above, the respondents to the application were Places Victoria and Melbourne Water Corporation. Those two entities were the holders of the permit and were subject to the terms of the permit in the carrying out of the subdivision. However, since registration of the plan, the roads within the subdivision are owned by the Council as registered proprietor and Places Victoria and Melbourne Water Corporation no longer have any entitlement to that land. Section 119 does not authorise VCAT to make orders to remedy or restrain contraventions of the Act against persons who are not themselves in breach of the Act or permit or who, unless restrained, would be in breach of the Act or permit.[14]
(e)The relevant public works are now vested in the Council[15] which, we add, has the power to upgrade road works under the Local Government Act 2020 but no obligation under the P&E Act to do so.
[11]Ibid [104]–[105].
[12]Subdivision Act 1988, s 24.
[13]See P&E Act, s 114(3)(a)–(d).
[14]Court of Appeal Reasons, [106]–[107] (citations omitted).
[15]See Subdivision Act 1988, s 24 and Court of Appeal Reasons, [107].
We also note that s 62(2) of the P&E Act expressly provides that a planning permit may include ‘a condition that specified things are to be done to the satisfaction of the responsible authority a Minister, public authority, municipal council or referral authority’. This in effect provides for a process of secondary approval under the permit. It is conditions of this kind which are fundamentally in issue in this case. In turn, s 149(1)(a) of the P&E Act provides for the review of the decision of a specified body, including a responsible authority,[16] in relation to a matter if a permit contains a condition that the matter must be done to the satisfaction of the specified body. The right of review is limited to specified persons namely:
(a)the owner, user or developer of the land directly affected by the matter; or
(b) a specified body; or
(c) if the matter affects Crown land, the occupier of the Crown land.[17]
[16]P&E Act, s 148.
[17]Ibid.
An application for review of such a decision must be made within 28 days after the day on which the decision is made.[18] The applicants were not specified persons at the date of the decision in issue and the 28 days for review has long since passed. They do not come within the scheme provided for in the P&E Act for review of the kind of decision which they now seek to challenge.
[18]Ibid s 149(2).
Moreover, there is now no power under the P&E Act to compel by way of summary procedure before VCAT either the subdivider or the Council to carry out the works which the applicants seek to have undertaken. More particularly, no basis remains open for the bringing of enforcement proceedings pursuant to ss 114 to 119 of the P&E Act by reference to the conditions contained in the planning permit or by reference to the planning scheme.
Six VCAT proceedings
The appeal from Keith JR was an appeal by way of hearing de novo.[19] The proceedings with which the trial judge was in turn concerned arose out of applications to VCAT which represented the culmination of a series of unsuccessful and fundamentally flawed proceedings. These were summarised by the trial judge as follows:[20]
[19]Supreme Court (General Civil Procedure) Rules 2015 r 84.05.
[20]Reasons, [14] (citations in original).
14There have been six proceedings before VCAT in respect of these issues, beginning in 2017. These were summarised in the judicial registrar’s judgment and no issue was taken with that summary. For my purposes, I note that:
(a)First VCAT proceeding: In January 2017, Mr Khan sought the cancellation or amendment of the planning permit under ss 87 and 89 of the P & E Act. This was dismissed on the basis that he did not have standing and, in any event, the order could not be granted because the development had been completed.[21]
[21]VCAT Act s 88.
(b)Second VCAT proceeding: In March 2017, Mr Khan and Ms Riaz sought enforcement orders under s 114 of the P & E Act. This was struck out on the basis that s 114 did not provide for an enforcement order directed to the Council and was therefore misconceived.
(c)Third VCAT proceeding:
(i)On 6 June 2017, Mr Khan and Ms Riaz made application against the developers of the subdivision. The proceeding was rejected by the Principal Registrar of VCAT, which was affirmed by VCAT, on the basis that VCAT did not have jurisdiction to consider the subject matter, which was an enforcement order under s 114 of the P & E Act.
(ii)Champion J dismissed an [application for leave to] appeal, holding that the planning permit was ‘spent’ upon completion of the subdivision and that the statement of compliance issued pursuant to s 21 of the Subdivision Act 1988 (Vic) was conclusive evidence that the requirements of that Act had been met.[22]
(iii)The Court of Appeal refused Mr Khan’s application for leave to appeal this decision on the grounds that the application could not succeed because even though VCAT did have jurisdiction to hear the matter, and should have determined it on the merits, Mr Khan would nevertheless not have succeeded on the merits.[23] This was because Mr Khan was claiming contravention of the planning scheme and subdivision permit but the relevant obligations imposed by the scheme and permit did not survive the registration of the plan of subdivision.[24]
(d)Fourth VCAT proceeding: In May 2019, the appellants sought declarations under s 149A of the P & E Act against the Council. The proceedings were rejected by the Principal Registrar, which decision was affirmed by VCAT, because the proceedings did not state the remedy sought and the appellants were unable to articulate the declarations they wanted VCAT to make.
(e)Fifth VCAT proceeding: In late 2019, the appellants again sought declarations under s 149A but the proceeding was dismissed on the basis that the issues raised had already been determined. The appellants could not bring proceedings seeking to have the subdivision reconsidered on the basis of a failure to comply with the planning scheme, which was [the source] of the subdivision permit, because the permit was ‘spent’ when the subdivision was completed following the issuing of the statement of compliance.[25]
(f)Sixth VCAT proceeding: In January 2020, the appellants again applied to VCAT and it is the outcome of that application that is the subject of these proceedings.
[22]Khan v VCAT [2018] VSC 549.
[23]Khan v VACT [2018] VSCA 351.
[24]Ibid [129].
[25]Khan v Greater Dandenong CC [2019] VCAT 1914, [15]–[16].
The sixth VCAT application sought:
(a)declarations under s 149B of the P&E Act that previous orders made by VCAT determining the issues agitated by the applicants in the fourth, fifth and sixth VCAT proceedings, should be set aside;[26]
(b)an order that a previous application (the fifth VCAT proceeding), or any other previous application VCAT considered appropriate, should be ‘reinstated’; and
(c)enforcement orders be issued under s 119(b) of the P&E Act to ensure compliance with the P&E Act, planning scheme, permit conditions or s 173 agreement, pertaining to the residential subdivision.
[26]Section 149B of the P&E Act provides:
(1)A person may apply to the Tribunal for a declaration concerning—
(a)any matter which may be the subject of an application to the Tribunal under this Act; or
(b)anything done by a responsible authority under this Act.
(2)On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.
(3)The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.
The sixth application stated that there was no evidence that the VCAT member who granted the impugned order in the fifth VCAT proceeding was properly qualified.
The sixth application was dismissed by Deputy President Dwyer pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).[27] In his reasons, the Deputy President stated:
[27]Sections 75(1) and (5) of the VCAT Act relevantly provide:
75Summary 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.
…
(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
10Mr Khan’s application is based on a misconception about the extent of the power under section 149B of the P&E Act. In particular:
·when advised by the VCAT registry that he could not use section 149B as a means of reviewing or appealing an earlier decision of the Tribunal, he complained that only a presidential member could deal with the matter – even procedurally – and still sought for the matter to be referred to a presidential member.
·Mr Khan contends … that, because section 149B allows a presidential member to make a declaration about ‘any matter’ which may be the subject of an application to VCAT under the PE Act, the power allows for any application that has been previously before the Tribunal to be re-opened, overturned, or dealt with again in a different way. This is clearly not the case.
·Mr Khan also contends that, because section 149B allows a presidential member to make a declaration about anything done by a responsible authority under the PE Act, the power allows the Tribunal to investigate the past actions of the Council in relation to the Subdivision Permit. Theoretically, that may be correct if the Subdivision Permit was still operational. But the court and VCAT have determined that the Subdivision Permit has expired.
11One of the reasons that Mr Khan seeks to have the 2019 decision of Senior Member Rickards set aside is that he claims that Ms Rickards is not an ‘Australian lawyer’ for the purpose of the VCAT Act, and that she was therefore unable to deal with the section 149A application. This is also misconceived, and it is perhaps worthwhile putting this issue to rest as it has been the subject of other complaints made by Mr Khan. Mr Khan had written to the Victorian Legal Services Board, and received a response that Ms Rickards was not a registered ‘Australian legal practitioner’ holding a current practising certificate. That is correct. But the Legal Profession Uniform Law Application Act 2014 (and its predecessor) distinguishes in its definitions between an ‘Australian legal practitioner’ (who holds a current practising certificate) and an ‘Australian lawyer’. The latter is defined to mean a person admitted to the Australian legal profession in Victoria or any other jurisdiction, and that person does not need to hold a current practising certificate. Ms Rickards was admitted to the Australian legal profession in Victoria over 40 years ago, and she is an ‘Australian lawyer’ for the purpose of the VCAT Act. She could not have otherwise been appointed by the Governor-in-Council as a VCAT member.
…
15 In relation to the specific declarations sought by Mr Khan:
·section 149B of the PE Act cannot be used to set aside the 2019 decision of Senior Member Rickards, or to reinstate the matters raised in the proceeding. The proper (and only way) of challenging the 2019 decision was to seek leave to appeal to the Supreme Court pursuant to section 148 of the VCAT Act. No appeal has been filed, and any appeal would now be out of time. Mr Khan is familiar with this process, having previously (albeit unsuccessfully) appeal than [sic] earlier decision of the Tribunal to the Supreme Court.
·Section 149B of the PE Act cannot be used as a basis for VCAT to issue enforcement orders to ensure compliance with the PE Act or the planning scheme or the conditions of the Subdivision Permit. There are two reasons for this. First, the proper process for seeking an enforcement order is to make application under section 114 of the PE Act. Mr Khan has previously made two applications for enforcement orders, both of which have been unsuccessful. Secondly, having regard to the specific circumstances of this matter, the Subdivision Permit has expired. Mr Khan has previously made applications contending a different position, which have been unsuccessful at both VCAT and in the Courts.
16I accept what is said in the Council’s submission about the specific provisions of the planning scheme that Mr Khan seeks to re-agitate. These generally provide criteria in the nature of objectives and standards through which an application is to be assessed at the time it is being considered by a responsible authority. They are not controls that dictate a particular outcome. Moreover, consistent with general authority, and as a general rule, a planning permit for a subdivision will be spent once the plan of subdivision has been registered in [sic] new titles have issued.
17Both the Supreme Court and, on appeal, the Court of Appeal found that the relevant provisions of the planning scheme raised by Mr Khan identified the standards which inform the content of the plan of subdivision. They did not survive, in the sense of imposing ongoing obligations, after the plan of subdivision had been registered.
18I also accept what is said in the Council’s submission about the two permit conditions in the Subdivision Permit that Mr Khan seeks to re-agitate. Condition 23 merely required that the plan submitted for certification be referred to Telstra or other licensed telecommunication carriers. This cannot be used, for example, as a basis for Mr Khan’s claim for a declaration that Telstra is not in the development or that the two service providers that are in the development of [sic] charging rates above market price. Condition 30 required that plans of the civil works be submitted for approval, including civil works in accordance with the Council’s Subdivision Design Manual. This cannot be used as a basis for Mr Khan to seek a declaration that the civil works now be re-assessed in accordance with a later 2015 version of the design manual.
19Both the Supreme Court and, on appeal, the Court of Appeal found that these two conditions were ‘conditions precedent’ to the subdivision and that they were ‘clearly not intended to survive the completion and registration of the subdivision’.
20I agree with the findings of the Supreme Court and the Court of Appeal. In any event, I am bound by the decisions of the court.
21Not only is the current application misconceived and lacking in substance. In my opinion, it is an abuse of process for Mr Khan to continually attempt to litigate the same subject matter through a variety of different proceedings when the fundamental issue that underpins all of this litigation (namely an assertion that the Subdivision Permit is still operational, and that certain provisions of the planning scheme still apply) is itself misconceived.
22All of these matters were considered by Senior Member Rickards in the 2019 decision. She found that the issues that Mr Khan was attempting to raise under the guise of the section 149A proceeding [were] the same as those that were raised under previous applications to the Tribunal and the court.
23The fact that Mr Khan has now sought to make an application under section 149B does not change anything. He is still attempting to raise under the guise now of a section 149B proceeding the very same issues as those that have been raised in the previous applications.
24I also agree with the Council submission that Mr Khan’s application does little more than highlight a few provisions of the planning scheme in relation to the subdivision, but that this does not in itself provide a basis for a retrospective assessment. What Mr Khan is essentially asking VCAT to do is to engage in a theoretical or hypothetical reassessment of actions taken under a permit that has already been acted upon, and that is now spent. There is no practical use or utility in doing so.[28]
[28]Khan v Greater Dandenong CC [2020] VCAT 412, [10]–[11], [15]–[24].
In our view, Dwyer DP’s reasoning was patently correct. No error has been identified in it by the applicants.
Application for leave to appeal the sixth VCAT decision
Nonetheless, the applicants (which in that matter also included Ms Zaric) sought leave pursuant to s 148 of the VCAT Act to appeal the decision of Dwyer DP on questions of law.
The notice of appeal stated the following putative questions of law:
2.VCAT Act s. 75 (5) states that the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
3.Pursuant to VCAT Act - SECT 52(1) Limitation of courts’ jurisdiction in planning matters
(1)The Supreme Court, the County Court or the Magistrates’ Court does not have jurisdiction to hear, or continue to hear, or determine any proceeding in which a person bringing the proceeding brings in issue the matter of the exercise of, or the failure to exercise, a power under a planning enactment if—
(a)the Tribunal has jurisdiction to review the matter of the exercise of, or the failure to exercise, that power; and
(b) the matter—
(i)has not been the subject of a proceeding in the Tribunal; or
(ii)if it has been the subject of a proceeding in the Tribunal, has not been determined by the Tribunal; or
(iii)if it has been determined by the Tribunal, the time for appeal against an order of the Tribunal in the proceeding has not expired; or
(iv)if an appeal has been brought against an order in the proceeding, the appeal has not been determined.
4.As stated in PE Act - Sect 60 (1) Before deciding on an application, the responsible authority must consider— (a) the relevant planning scheme.
5.According to PE Act sect 68 (1) A permit for the development of land expires if
(a)the development or any stage of it does not start within the time specified in the permit; or
(aa)the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of the permit, unless the permit contains a different provision; or
(b)the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.
6.Even [when] there has been earlier determinations, PE Act sect [149B(1)] empowers the Tribunal to make general application for declaration that is
(1)A person may apply to the Tribunal for a declaration concerning—
(a)any matter which may be the subject of an application to the Tribunal under this Act; or
(b)anything done by a responsible authority under this Act.
7.Section 149B (2) of Planning and Environment Act empowers the Tribunal to make any declaration it thinks appropriate in the circumstances but the Tribunal has so far rejected the application to reach that stage and refused to exercise those powers.
The proposed grounds of appeal were:
8. The application was aimed at
1)a matter that was subject to the applications previously made to the Tribunal Pursuant to PE Act; VCAT Ref (P109/2017, P598/2017, P1283/2017, P932/2019, P1467/2019)
2)the decision made by City of Greater Dandenong in issuing Permit PLN-07.0439.03 pursuant to PE Act.
9. The Permit was subject to Greater Dandenong Planning Schemes.
10. There is no mention of relevant planning schemes in the order.
11.Certification of the Permit was issued by the Dandenong Council within the prescribed time.
12. The Honourable Member in the reasons stated in s 10 of the order stated that the Permit has expired.
13.According to PE Act sect 68 (1) A permit for the development of land expires if the certification is not issued and as stated in s 11 above the certification was issued within the time frame.
14.According to Andrew Grear, Executive Director of DEWLP, the Certification under Subdivision Act bears no relation to Compliance to PE Act.
15.According to SUBDIVISION ACT 1988 - SECT 21 1 (b) a Council must issue a statement of compliance to the applicant in the prescribed form as soon as possible (ii) it is satisfied that—
1all requirements of and under this Part and the Planning and Environment Act 1987 that relate to public works have been met; or
2there is an agreement to secure compliance with those requirements.
16.Therefore the statement of compliance can be issued even [if] the public works have not been completed yet.
17.Section 149B (2) empowers the Tribunal to make any declaration it thinks appropriate in the circumstances.
18.No such declarations were made pursuant to s.149B or any section of PE Act by the Tribunal.
19.Pursuant to VCAT Act - SECT 52(1), the application has never been determined by the Tribunal and all the pervious [sic] applications made pursuant to PE Act (P109/2017, P598/2017, P1283/2017, P932/2019, P1467/2019) were struck out/dismissed pursuant to s 75 of VCAT Act and were never determined pursuant to PE Act by the Tribunal.
20.Never the less, even if there have been pervious [sic] determinations under PE Act, the application can be made pursuant to 149B of PE Act for a declaration.
21.Pursuant to PE Act s 126 contravene the scheme, permit or agreement is an offence.
The application for leave to appeal was out of time. VCAT made its sixth decision on 30 March 2020. The notice of appeal was filed on 29 May 2020.
The Council then made application by summons for summary dismissal of the application for leave to appeal. The summons was referred to Judicial Registrar Keith for hearing and determination by order of Richards J on 17 August 2020. Keith JR delivered judgment on 16 November 2020.
Judicial Registrar Keith summarised the tortuous history of the six applications which had been made to VCAT.[29]
[29]Keith JR Reasons, [8]–[30].
His Honour concluded:
This summary shows the sixth VCAT proceeding did not seek any new relief. The proceeding sought to have orders made about earlier proceedings, and sought enforcement orders which had, in effect, been refused in earlier proceedings. The Tribunal reviewed the nature of the relief sought, as well as the history of earlier proceedings and then dismissed the sixth proceeding.[30]
[30]Ibid [31].
His Honour concluded:
•No appeal proceedings had been instituted in respect of the fifth VCAT proceeding.[31]
•Section 149B did not enable what was in effect the grant of appellate relief.[32]
•Enforcement proceedings under ss 114 to 119 of the P&E Act cannot be brought against the Council.[33]
•Dwyer DP had further explained why no enforcement orders could be made on the merits in any event.[34]
[31]Ibid [36].
[32]Ibid [41]–[43].
[33]Ibid [44]–[47].
[34]Ibid [48].
His Honour then set out the applicants’ proposed grounds of appeal and dealt with them comprehensively.[35]
[35]Ibid [49]–[62].
He further set out the sources of power enabling summary dismissal in cases such as the present quoting Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, r 4.08(8); s 62 of the Civil Procedure Act 2010; and r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015.[36] His Honour further concluded:
[36]Ibid [63]–[65].
•The proposed appeal had no prospect of success.[37]
•Refusal of leave would impose no substantial injustice on the applicants.[38]
•It was open to VCAT to conclude the sixth proceeding was an abuse of process or otherwise vexatious.[39]
•The proceeding seeking leave to appeal was itself an abuse of process.[40]
•The proceeding should be dismissed as an abuse of process and vexatious.[41]
•An extension of time should not be granted having regard to the lack of merits in the applicants’ case.[42]
•The Court may grant leave to appeal only if satisfied the appeal has a real prospect of success. The present proposed appeal had no such prospects.[43]
•The proceeding should be dismissed on the basis that the claims made within it had no real prospect of success and did not found an arguable case. The discretion to extend time should not be exercised when there is no real prospect of success.[44]
•Two incidental errors in the documentation filed by the Council were of no significance.[45]
[37]Ibid [67].
[38]Ibid [71].
[39]Ibid [72].
[40]Ibid [73]–[76].
[41]Ibid [78].
[42]Ibid [80]–[81].
[43]Ibid [82].
[44]Ibid [82]–[85].
[45]Ibid [86]–[92].
Application for leave to appeal the decision of Keith JR
Undeterred, the applicants sought to appeal the decision of Keith JR to a judge of the Trial Division.
In turn, not surprisingly, John Dixon J summarily dismissed the application for leave to appeal. As his Honour observed:[46]
26The appellants’ case remains predicated on the permit not having been spent upon completion of the subdivision. However, the Court of Appeal has held that the conditions in the permit do not provide for any obligations to subsist after the statement of compliance has been issued. The provisions of the planning scheme did not survive, in the sense of imposing ongoing obligations, after the plan of subdivision was registered.
…
45The appellants are aggrieved that no court will consider the merits and instead dismiss their concerns on procedural technicalities, but even if this court accepted the appellants’ invitation to reconsider the merits of their claims about compliance with the permit conditions and planning scheme by all those involved in the Meridian Estate development, those conditions and the planning scheme do not impose any presently enforceable obligation on Council or the owner/developers.
[46]Reasons, [26], [45].
His Honour reiterated the fundamental legal problems preventing recourse by the applicants to arguments based on the permit conditions.[47] He then addressed the principle of finality and characterised the application before VCAT as ‘a transparent attempt to circumvent the principle of finality of judgments by artificially adding another plaintiff and invoking another provision of the P&E Act.’[48] We agree with this characterisation.
[47]Ibid [38]–[44].
[48]Ibid [53].
His Honour concluded:[49]
57The principles applicable on summary judgment applications are well-established. In particular, the court will find that a proceeding constitutes an abuse of process where the use of the court’s procedures is unjustifiably oppressive to one party; it would bring the administration of justice into disrepute; the claim is foredoomed to, or would inevitably fail; or the claim may be regarded as frivolous and vexatious.[50] Whether under r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), s 62 of the Civil Procedure Act 2010 (Vic), or r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the application for leave to appeal is an abuse of process and falls to be summarily dismissed.
58The appellants must accept that their complaints about various features of the public areas in Meridian Estate cannot be resolved by making repeated applications to VCAT in hope of [a] different outcome. The appellants raise the same arguments repeatedly without regard to the careful reasoning given by VCAT, the Court of Appeal and the judicial registrar. This court will not abide this vexatious approach. It is a waste of resources and contrary to the public’s interest in the finality of litigation. While the appellants may have complaints about the public spaces in their local area and regardless of whether these complaints are legitimate, the legal mechanisms by which they attempt to address these complaints are not available to them.
[49]Ibid [57]–[58] (citations in original).
[50]See, eg, Brown v Corrections Victoria [2022] VSC 217, [26], [27], [29] and the authorities cited therein.
No arguable error has been demonstrated in these conclusions.
His Honour further considered a series of subsidiary arguments raised by the applicants.[51]
[51]Reasons, [60] (emphasis in original) (citations in original). See also Reasons, [34]–[37].
60While it is unnecessary to do so, to ease the appellants’ minds in the hope that the appellants will have regard to my reasons despite their disregard for the reasoning of the Court of Appeal, I will add some further brief comment on their submissions.
(a)Section 149B of the P & E Act cannot be used for what is effectively an appeal or to revive a concluded proceeding. The appellants cannot overcome this procedural hurdle. The basis for any claim of wrongdoing against the Council would be the obligations flowing from the permit conditions or planning scheme. Those obligations were not the Council’s obligations, but were imposed on the developer and owner and were discharged on registration of the subdivision.
(b)In contending that the permit conditions were not spent, the appellants cited, as noted earlier Bayside CC v Sullivan.[52] This decision is consistent with what the Court of Appeal explained when it dismissed the third VCAT proceeding. It cannot advance the appellants’ arguments.
(c)The appellants’ complaint that a relevant authority, namely the Department of Planning, is not joined to the proceeding, is a criticism of the appellants’ own conduct as they instituted the sixth VCAT proceeding. When this was put to Mr Khan during the hearing, he said this court’s Registry precluded the appellants’ attempts to do so. A new party cannot be added to an appeal in this way, but assuming it could, the appellants could not demonstrate why the Department should be added, or how this would make any difference to the outcome of this proceeding.
(d)Section 24 of the Charter – the right to a fair hearing – is not engaged because there was already a fair hearing before VCAT and the Court of Appeal, as well as this court, on the relevant issues. The previous hearings were not only determined on technical legal issues without exploring the merits. The Court of Appeal considered and determined the merits of the appellants’ claim.
(e)Section 60 of the P & E Act sets out the matters that a responsible authority must consider when determining an application for a permit. This includes the relevant planning scheme. This section cannot have any application in this case.
(f)Section 126 of the P & E Act makes it an offence for any person to use or develop land in contravention of, or fail to comply with, a planning scheme, or a permit. If the permit and its conditions were no longer capable of imposing obligations after the Council and the appellants (and other residents of Meridian) took title of the roads and subdivided land respectively, then their use of the land cannot be in contravention of the permit. Those are the only parties to this proceeding.
(g)The Council’s submissions addressed s 68 of the P & E Act and I accept its analysis.
(h)Presidential members and Australian lawyers: The appellant is correct that only a ‘presidential member’ who is an ‘Australian lawyer’ may exercise power under s 75 of the VCAT Act to dismiss unjustified proceedings. The only relevant VCAT proceeding for which this question might arise is the sixth proceeding. Dwyer DP is a presidential member and an Australian lawyer. A presidential member is defined in the Act as ‘the President, a Vice President or a Deputy President’. Dwyer DP is a Deputy President and therefore a presidential member. An Australian lawyer is defined in the Legal Profession Uniform Law (Vic); the Act distinguishes between an Australian lawyer and an Australian legal practitioner. An Australian lawyer is ‘a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction’. Another category of lawyer is an ‘Australian legal practitioner’ who is required to hold a current Australian practising certificate.
(i)The appellant provided no evidence whatsoever for the contention that Dwyer DP is not an Australian lawyer. Mr Khan submitted from the bar table that (on a generous interpretation of what he said) he had made some calls to the Victorian Legal Services Board and they had advised that Dwyer DP did not hold a valid practising certificate. Accepting that to be true for present purposes, as has been explained to Mr Khan very clearly on prior occasions, not holding a practising certificate cannot establish that Dwyer DP is not an Australian lawyer. Section 75 of the VCAT Act does not require the decision maker to be an Australian legal practitioner for good reason. Judicial officers cannot hold practising certificates because they do not practice law, they adjudicate legal disputes as independent arbiters. This was explained to Mr Khan by Dwyer DP in VCAT, and by me during the hearing of this matter.
(j)Vexatious proceedings: Relatedly, power exercised under the Vexatious Proceedings Act 2014 (Vic) must be exercised by an Australian lawyer but not by someone who holds a practising certificate. This is of no moment because there has not been any exercise of powers under that Act in these proceedings. The appellants conflated the concept of vexatiousness in summary judgment applications under, for example, the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the concept of a vexatious proceeding or litigant under the Vexatious Proceedings Act. This Act concerns, among other things, orders restraining parties from bringing proceedings and is irrelevant in this case in understanding why the application for leave to appeal is vexatious.
(k)Section 27 of the Oaths and Affirmations Act: The affidavit identified the affidavit taker’s address and capacity, albeit not straight after her signature, because she is the solicitor on the record and her details appear on the front of the affidavit. To the extent the affidavit does fail to comply with the strict requirements of s 27(1)(c), s 29 provides that an ‘affidavit is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the affidavit’. I find that this omission does not materially affect the nature of the affidavit and must have been inadvertent, and that the defects alleged by the appellants are of no consequence. In any event, it is not necessary for the court to refer to the matters deposed to in the affidavit.
[52][2000] VCAT 672.
Application in Court of Appeal
The application for leave to appeal to this Court asserts that:[53]
(a)s 149B of the P&E Act empowered VCAT to make the declaration sought by the applicants before it; and
(b)there are certain ‘[o]ther laws/legislation which still need to be considered’.
[53]Appendix A sets out the proposed grounds of appeal.
No intelligible basis for the first proposition is advanced in the applicants’ written case. Moreover, as we have stated, the decision of the Deputy President in this regard was plainly correct. Section 149B does not enable VCAT to review its previous decisions let alone those of the Supreme Court.
The subsidiary points raised before John Dixon J were more than adequately dealt with by him. Nonetheless the applicants’ written case returns to them and contends that:
•John Dixon J did not consider that the appellants before him had not been given the chance to have a fair trial.
•None of the judges/VCAT members have considered the P&E Act properly.
•Section 52 of the VCAT Act gave VCAT the exclusive jurisdiction to hear planning issues and the Supreme Court does not have the jurisdiction to determine any proceeding which brings in issue the exercise of or the failure to exercise a power under a planning enactment.
•Sections 6 and 9 of the Vexatious Proceedings Act 2014 were not considered appropriately by the trial judge.
•There were discrepancies in the respondent’s documents.
•The Department of Planning should have been included as a party to the proceeding before VCAT.
It will be apparent from what we have already said that these grounds materially misrepresent the trial judge’s decision.
•The trial judge did consider the fairness of the hearing accorded to the applicants.[54]
•As John Dixon J recorded, the merits of the applicants’ case with respect to the provisions of the P&E Act have been considered and are the subject of a previous decision by the Court of Appeal. His Honour also dealt with the applicants’ arguments addressed to specific provisions of the P&E Act.[55]
•The s 52 argument is entirely misconceived. Section 52 does not deprive this Court of its supervisory jurisdiction.[56]
•His Honour explained clearly why the argument based on the Vexatious Proceedings Act 2014 was misconceived.[57]
•The discrepancies in documents referred to are of no significance. His Honour dealt with this point which has no bearing on the merits of the application.[58]
•If the Department of Planning was not included in the proceeding, that was as a result of the applicants’ choice at the time of the institution of the application before VCAT and is in any event of no significance to the Tribunal’s conclusions at first instance.[59]
[54]Reasons, [34(c)], [60(d)].
[55]Ibid [45], [60(a)], [60(e)–(g)].
[56]Ibid [27(c)], [44].
[57]Ibid [60(h)–(j)].
[58]Ibid [36], [60(k)].
[59]Ibid [60(c)].
Each of the arguments advanced in the applicants’ written case is hopeless.
Conclusion
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015, the Registrar of the Court of Appeal referred the application for leave to appeal to a single judge of appeal for it to be considered and determined. In turn, McLeish JA referred the application for determination by the Court of Appeal constituted by two judges of appeal.[60]
[60]Rule 64.15(5)(c).
We have considered the application pursuant to s 14D(1) of the Supreme Court Act 1986 without an oral hearing. We have adopted this course consistently with our duty to give effect to the overarching purpose stated in ss 7, 8 and 9 of the Civil Procedure Act 2010, namely to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.
We have concluded that, for the reasons we have set out above, the applicants’ proposed appeal has no real prospect of success.[61] Accordingly, leave to appeal must be refused. Additionally, and for the same reasons, we have concluded that the application is totally without merit within the meaning of s14D(3) of the Supreme Court Act 1986.
[61]See s 14C of the Supreme Court Act 1986.
It also follows from our conclusions that subject to any further submission from the applicants, the respondent is entitled to its costs of the application for leave to appeal on an indemnity basis. In dealing with the matter on the papers however we have incidentally sought to limit the applicants’ financial self-harm.
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APPENDIX A
The Judicial Officers/VCAT members dismissed the applications/leave to appeal on basis of issues that have been finally determine ed [sic] by the court of appeal and they must follow
The Supreme Court Judicial officers/VCAT member made error that the current proceedings were pursuant to 149B of PE Act which empowers the Tribunal to make any declaration it thinks appropriate in the circumstances regarding
(a)any matter which may be the subject of an application to the Tribunal under this Act; or (b) anything done by a responsible authority under this Act.
The legislation 149B of PE Act is not just to associated [sic] to any permit but any matter or decision related to PE Act.
The previous proceedings at Supreme Court-Court of Appeal were pursuant to VCAT Act 148 where appeals can only be made on question of law and no determination has been made
Other laws/legislation which still need to be considered are as follows
Planning and Environment Act 1987 Planning and Environment Act 1987[sic]
I.Sec 60 What matters must a responsible authority consider?
II.Sec 87 What are the grounds for cancellation or amendment of permits?
III.Sec 89 Request for cancellation or amendment
IV.Sec 91 Determination by Tribunal
V.Sec 126 Offence to contravene scheme, permit or agreement
VI.Sec 68 When does a permit expire?
Victorian Civil and Administrative Tribunal Act 1998
I.Sec 75 Summary dismissal of unjustified proceedings
II.Sec 52 Limitation of courts’ jurisdiction in planning matters
III.Sec 96 Referral of questions of law to Court
Oaths and Affirmations Act 2018
Sec 27 Jurat
Constitution Act 1975
Sec 16 Legislative power of Parliament
Charter of Human Rights and Responsibilities Act 2006
Sec 24 Fair hearing
VEXATIOUS PROCEEDINGS ACT 2014 -
I.Sec 6 Application of Act
II.Sec 9 Constitution of VCAT
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