Sisalem v The Herald and Weekly Times Pty Ltd
[2017] VSC 254
•18 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 03276
| ALADDIN SISALEM | Applicant |
| v | |
| THE HERALD & WEEKLY TIMES PTY LTD | Respondent |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2017 |
DATE OF JUDGMENT: | 18 May 2017 |
CASE MAY BE CITED AS: | Sisalem v The Herald & Weekly Times Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 254 |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (‘VCAT’) – Leave to appeal – Order dismissing application for breach of s 8 of the Racial and Religious Tolerance Act 2001 – Catch the Fire Ministries v Islamic Council (2006) 15 VR 207 – Where article published in newspaper reporting comments as to links between Islamic teaching and terrorism – Whether the VCAT failed to consider content of the article as evidence of breach – Victorian Civil and Administrative Tribunal Act 1998 s 148(1) – Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48 – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| Applicant appeared in person | ||
| For the Respondent | Mr H Hassan | In house counsel |
HIS HONOUR:
Introduction
On 30 November 2015 an article under the headline ‘ISLAM MUST CHANGE’ appeared in the print edition of the Herald Sun newspaper. The Herald and Weekly Times Pty Ltd (the ‘HWT’) is the publisher of the Herald Sun. The article reported comments and views of a number of federal coalition Members of Parliament on the topic of the link between Islamic teaching and terrorism. Mr Sisalem filed a complaint with the Victorian Civil and Administrative Tribunal (VCAT) alleging that publication of the article by HWT was a breach of s 8 of the Racial and Religious Tolerance Act 2001 (the ‘RRT Act’) because the article incited, or was likely to incite, hatred against the followers of the religion of Islam. Following a contested hearing at the VCAT, the application was dismissed by Member Grainger on 19 July 2016.[1]
[1]Sisalem v The Herald & Weekly Times Ltd (Human Rights) [2016] VCAT 1197 (‘Sisalem’).
Mr Sisalem now applies for leave to appeal the order of the Tribunal dismissing his application and, if leave is granted, for the appeal to be allowed. Mr Sisalem argues first, that the Tribunal erred by failing to take account of the content of the article as evidence that publication of the article was likely to incite hatred of Muslims; and second, that the presiding Member took into account an irrelevant matter when she concluded that Mr Sisalem was offended by the article. HWT opposes Mr Sisalem’s application arguing that the reasons of the Tribunal disclose no error and further that the application alleging breach of s 8 lacks merit and on that basis the justice of the case dictates that leave should be refused. By notice of contention HWT argues that it had defences available under s 11 of the RRT Act. The application for leave to appeal and the notice of contention raise the following issues for determination:
(a)Did the Tribunal err by failing to take into account the content of the article as evidence that publication of the article was likely to incite hatred against Muslims because of their religious beliefs?
(b)Did the Tribunal err by taking into account as an irrelevant consideration that Mr Sisalem was offended by the article?
(c)Should the appeal be dismissed as lacking utility because HWT has established a good defence to the s 8 application, pursuant to s 11(1)(b)(ii) and s 11(1)(c) of the RRT Act?
Legislative provisions
Appeals from the VCAT to this Court are governed by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), which provides that a party to a proceeding may, subject to the granting of leave, appeal on a question of law. The principles which apply to applications for leave to appeal under s 148 of the VCAT Act set out by the Court of Appeal in Department of Premier and Cabinet v Hulls[2] were later summarised in Myers v Medical Practitioners Board of Victoria[3] by Warren CJ as follows:
· Whether leave is granted or not must always depend upon the justice of the particular case.
· If leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing.
· The applicant need not establish an error below — that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists.
· Although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave.
· Once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect.
· Where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
[2][1999] 3 VR 331 (‘Hulls’).
[3](2007) 18 VR 48 [28]–[34] (citation omitted).
Section 8 of the RRT provides that:
Religious vilification unlawful
(1)A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
The decision of the Court of Appeal in Catch the Fire Ministries v Islamic Council[4] contains an authoritative analysis of the requirements to establish breach of s 8 of the RRT Act. Nettle JA, with whom Ashley and Neave JJA agreed on these points, said in Catch the Fire Ministries:
…Contrastingly, s 8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s 8 must be applied so as to give it that effect.
… So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience.
…Accordingly, s 8 goes no further in restricting freedom to criticise the religious beliefs of others than to prohibit criticism so extreme as to incite hatred or other relevant emotion of or towards those others. …
…As has been seen, the prohibition in s 8 is not a prohibition against saying things about the religious beliefs of persons which are offensive to those persons, or even against saying things about the religious beliefs of one group of persons which would cause another group of persons to despise those beliefs. It is against saying things about the religious beliefs and practices of persons which go so far as to incite other persons to hate persons who adhere to those religious beliefs. And as a matter of logical analysis, it does not suffice to establish incitement to hate a group of persons to show that scorn has been poured on the religious beliefs or practices of that group of persons (although it may be relevant).[5]
When considering the question of breach of s 8 it is necessary to consider whether the natural ordinary effect of the conduct is to incite hatred.[6] Where the conduct complained of is publication of an article, whether the prescribed response is incited depends on a consideration of the whole of the publication.[7]
[4](2006) 15 VR 207 (‘Catch the Fire Ministries’).
[5]Ibid [15], [16], [34] and [80] (citations omitted).
[6]Ibid [19], [158].
[7]Ibid [117].
Section 11 of the RRT Act sets out the defence for ‘public conduct’ and relevantly provides:
Exceptions – public conduct
(1)A person does not contravene section 7 or 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith –
…
(b)in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for –
(i)any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c)in making or publishing a fair and accurate report of any event or matter of public interest.
The evidence before the Tribunal
As stated, the article appeared under the headline ‘ISLAM MUST CHANGE’. There were additional headings which read: ‘War hero MP Andrew Hastie leads radical push’, ‘PM Turnbull faces tough calls on terror’ and ‘MPs say Islam must change’. The body of the article consisted of report of the comments and views of a number of federal coalition Members of Parliament on the topic of the link between the teachings of Islam and terrorism, and the perceived need for Islam to change or reform. Under a final heading ‘WHAT THEY SAID’ brief direct quotes of six Members of Parliament are reported.
In his application to the VCAT, Mr Sisalem set out briefly his basis for complaint and the relief sought. Prior to the VCAT hearing Mr Sisalem gave expanded particulars of complaint which included the following:
…
2. The published MPs views consisted of statements that are likely to incite hatred against the religion of “Islam” and those who are engaged in its practices. These statements include,
a.“There is a problem with Islam”. This statement is suggesting that “Islam” contain unlawful or criminal element in its religious belief or view.
b.“We need to acknowledge the significant of this threat, to acknowledge that religion is part of this problem, and thirdly, because this is the key point, we need to deal with it at a hard edge with military response but we also need to deal with it with a counter-narrative”. This statement can only mean countering “that religion”, as a positional category in tension with another category. But it is also a threatening statement as “we need to deal with it at a hard edge with military response” can only mean taken violent action against “that religion”. Hence, inciting threats of violence against people engaging in the activities of “that religion”.
c.“It’s clear that Islam hasn’t had the same reformation that occurred in Christianity which means some of these medieval teachings and practices have not been stamped out”. By not specifying what teachings and practices are meant by “these”, this statement leave the reader to associate any medieval teaching or practice with the religion of “Islam” despite how immoral, criminal or wrong this teaching or practice may be.
d.“Modern Islam needs to cohere with the Australian way of life, our values and institutions. In so far as it doesn’t, it needs to reform”. This statement is isolating any Australian citizen or member of the Australian society who practice or engaged in the activities of the religion of “Islam” from the Australian “values and institutions”, alienating this class of persons from their society and encouraging others to see them as such.
e.“If you look at recent terror attacks around the world, they are suicide bombings where people kill not only themselves but innocent people”. This statement was directly followed by, “It’s got everything to do with Islam. The terrorists say as they are doing it that it is in the name of Allah”. This is clearly accusing the religion of “Islam” of serious crimes such as killing of innocent people which can diffidently incite hatred and even violence against “Islam”, thus, against class of persons engaging in its religious practice which is not in the public interest.
…
Mr Sisalem added that the views or statements reported in the article do not reflect any debate, that the article did not contain fair reporting of contrasting views or statements, and that the views reported were factually unsupported but made serious criminal accusations on the grounds of the religious belief of a class of persons and the article was therefore likely to incite hatred or even threats of harm to persons or to the property of persons who are followers of Islam.
The following statement, contained in Mr Sisalem’s written contentions to the VCAT, was treated by the Tribunal as evidence:
The only personal feeling I have been experiencing in relation to the 30 November 2015 front page article of the Herald Sun newspaper is the fear of being a victim of unlawful danger or discrimination because of my religious belief or activity which are a [sic] lawful beliefs and views under the Australian law and I only seek to practice and hold these views with freedom and safety.[8]
Mr Sisalem gave oral evidence at the VCAT hearing which is recorded in the reasons of Member Grainger as follows:
Mr Sisalem explained that in his view, the article vilified Muslims because it suggested to the reader that a “legitimate discussion” about Islam had taken place when the article really only consisted of “casual comments brought together to look like a discussion”. He said that the article vilified Muslims when it defamed Islam by making “outrageous accusations” against Islam, by, for example accusing Islam of serious crimes such as killing innocent people without providing any evidence in support of these accusations. Mr Sisalem gave evidence that “people [he knows] may believe” this claim and that such accusations may lead to “personal safety issues, isolation, discrimination and personal harm”. Mr Sisalem told the Tribunal “this is not about personal feelings, this is about personal safety”.
Mr Sisalem also told the Tribunal the article was not a fair report because it failed to include quotes from any Muslim scholars who would have explained that the Koran does not contain “medieval teachings and practices” as claimed by Victorian MP Michael Sukkar or justify the actions of Islamic State terrorists as claimed by Western Australian MP Andrew Hastie. Mr Sisalem contended that because there were no “opposite opinions in the article”, there was “nothing to make the reader rethink the comments” of the members of Parliament who were quoted in the article. Mr Sisalem gave evidence that these members of Parliament were not “qualified to comment on [Islam]” because they were not scholars. Mr Sisalem also claimed that it was unfair that Ms Whinnett described Mr Hastie as a “war hero” in order to give weight to “the serious accusations made in the article without evidence” and without including comments from someone who was able to “defend” the accusations.
Mr Sisalem contended that the article vilified Muslims because it “just feeds fears and concerns”, “turn[s] people against each other” and is “creating war against Islam”. He said that the effect of the article was to alienate and isolate Muslim Australians from Australian “values and institutions” and encouraged others to see them as not a part of Australian society.
Mr Sisalem also said that by attacking Islam in the article, the HWT was attacking all Muslims and that the effect of the article was to make many people hate his religion and as a result, hate him. Mr Sisalem commented “how can the religion exist without the people practising it?” He also said that the HWT should not “incite hatred against me in the community because of my religion and my beliefs”.[9]
[8]Sisalem [2016] VCAT 1197 [37].
[9]Ibid [41]–[44].
The respondent relied on a statement of evidence made by the author of the article which set out the context in which the article was written and published and otherwise contained evidence directed more to the ‘public interest’ and ‘fair and accurate report’ exceptions in s 11 of the RRT Act. In submissions to the Tribunal, counsel for HWT argued that the article ‘falls well short of the type of noxious behaviour that the [RRT] Act seeks to prescribe’.
The reasons of the Tribunal
The Tribunal gave the following reasons for concluding that Mr Sisalem had failed to establish that the conduct of HWT in publishing the article breached s 8 of the RRT Act:
Did the article incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims?
Mr Sisalem bears the burden of proving his case. This is not an easy task, taking into account the wording of s 8 of the RRT Act and the Court of Appeal’s decision in the Catch the Fire Ministries regarding how it must be construed. Indeed, none of the handful of claims made under s 8 of the RRT Act to date have succeeded.
I have no doubt that Mr Sisalem regards the comments made by the politicians quoted in the article as inaccurate, unfair, unbalanced and deeply offensive. I also have no doubt that many other members of our community (Muslim and non-Muslim alike) share his views. I also accept that Mr Sisalem was considerably distressed by the publication of the article and that, as a Muslim, he holds genuine concerns for his personal safety.
However, this is not enough to establish a breach of s 8 of the RRT Act. As Nettle JA explained in Catch the Fire Ministries (and set out in paragraph 49 above), s 8 of the RRT Act does not prohibit a person from saying things about the religious beliefs of persons which are offensive to those persons. Section 8 does not even prohibit a person from saying things about the religious beliefs of one group of persons which would cause another group of persons to despise those beliefs.[10]
Nor is it enough to show that the comments made by the politicians in the article, or that aspects of the article itself were inaccurate or unbalanced to establish a breach of s 8 of the RRT Act.[11]
Rather, as established in Catch the Fire Ministries, Mr Sisalem must provide the Tribunal with evidence that shows that the natural and ordinary effect of the publication of the article to an ordinary reader of the Herald Sun was to incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims.
As Senior Member Megay observed in Unthank v Watchtower Bible and Tract Society of Australia, “there needs to be some evidentiary basis for the conclusion of unlawfulness that section 8 speaks to”.
…
Ultimately, Mr Sisalem’s only evidence in support of his claim was limited to his own opinion that the article breached s 8 of the RRT Act. This evidence cannot be regarded as independent or objective and no other evidence was given or called by Mr Sisalem to establish that the contents of the article were likely to incite hatred against Muslims.
Whilst I accept that Mr Sisalem’s concerns about certain aspects of the article are genuine and arguably, reasonable, he did not provide the Tribunal with any evidence that could support a finding that the natural and ordinary effect of the publication of the article by the HWT incited or was likely to incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims because of their religious beliefs, in the minds of ordinary readers of the Herald Sun. Mr Sisalem merely asserted this in his application, his particulars of claim and in his written and oral contentions and evidence.
Accordingly, Mr Sisalem has not satisfied me that the publication of the article incited or was likely to incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims because of their religious beliefs.[12]
[10]Catch the Fire Ministries (2006) 15 VR 207 [80].
[11]Ibid [36].
[12]Sisalem [2016] VCAT 1197 [58]–[63], [66]–[68].
Grounds of appeal
On this application for leave Mr Sisalem filed an originating motion, a brief affidavit and an outline of his submissions. The questions of law on which Mr Sisalem sought to appeal the VCAT orders that were set out in his appeal documents required some clarification at the hearing before me. Some time was spent in discussion with Mr Sisalem and counsel for HWT in order to clearly and accurately identify the two grounds upon which Mr Sisalem sought leave to appeal.
Mr Sisalem expressed the first ground as follows:
The error is more to interpreting the word of section 8. Section 8 as I can understand it, it doesn’t specify that incitement has already occurred. … So in this case the member didn’t exercise her judgment in reviewing the article and deciding whether or not the comment or the wording can incite hatred.
The article is the evidence, and the respondent doesn’t deny that they published this article.
The evidence, the article was not taken into consideration.
Therefore, Mr Sisalem’s first ground was that the Tribunal erred by failing to take into account a matter it was bound to take into account, namely the content of the article which was evidence that the publication of the article was likely to incite hatred of Muslims and was therefore a breach of s 8 of the RRT Act. Mr Sisalem said that this was his primary ground of appeal.
Mr Sisalem’s second ground was explained by him in the following exchange with me:
MR SISALEM: Well, I believe the member also misinterpreted my claims in stating that I was offended by the article, and there’s nowhere in my submission that I claimed that I was offended. In fact, I assured the member during the hearing that I was not offended by the article but just fear for my well-being and what could happen to me by this publication, which I already explained in (indistinct).
HIS HONOUR: So is the second point that you argue that the member took into account an irrelevant consideration by reference to you being offended by the article?
MR SISALEM: Yes, Your Honour, she relied on that in her decision.
HIS HONOUR: And you say it’s irrelevant?
MR SISALEM: I say that’s a misinterpretation. My claim were on the base of fear of hatred, not on the base of offended by what it was said in article.
Therefore, Mr Sisalem’s second ground was that the Tribunal erred by taking into account the irrelevant consideration that Mr Sisalem was offended by the article.
Did the Tribunal err by failing to take account of the article as evidence that it incited or was likely to incite hatred against Muslims because of their religious beliefs?
Failure by the Tribunal to take into account a matter it was bound to take into account is a vitiating error. Whether a matter is a mandatory consideration depends on the subject matter, scope and purpose of the enabling enactment.[13] Section 8 of the RRT Act required consideration of evidence which bore upon the question of whether publication of the article was likely to incite hatred of the followers of Islam. Failure to refer to a piece of evidence, or to analyse it in detail, may not lead to an inference that the Tribunal failed to consider the evidence. The Tribunal reasons should be read as a whole and in context, and not with an eye to discerning error.
[13]Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40; Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 (19 December 2013).
The reasons do not support the inference that the presiding Member failed to have regard to the article. For the following reasons I conclude that the application for leave on ground 1 fails. First, the presiding Member correctly identified the question she was required to consider by reference to the decision of the Court of Appeal in Catch the Fire Ministries.[14] Second, the article was attached to the Tribunal reasons, and was referred to repeatedly by the presiding Member in the reasons. The reasons show that the presiding Member read and considered the article.
[14](2006) 15 VR 207.
Third, the reasons demonstrate that the presiding Member considered the content of the article when determining whether breach of s 8 of the RRT Act had occurred. The reasons detail the evidence and contentions of both Mr Sisalem and HWT, most of which went to the content of the article, the context in which it was published, and by reference to the content whether the article was likely to incite the response of hatred of Muslims.
The reasons demonstrate that the presiding Member considered Mr Sisalem’s evidence and submissions as to the content of the article and the response it was likely to elicit from readers. Mr Sisalem relies on the statement in paragraph [66] of the reasons that the ‘only evidence in support of [Mr Sisalem’s] claim was limited to his own opinion that the article breached s 8 of the RRT Act’ as supporting an inference that the presiding Member did not take into account the content of the article when considering the issue of breach. However, given that Mr Sisalem’s evidence and submissions were directed to the content of the article and the likely effect of the article, it is artificial to read the reasons as demonstrating that the presiding Member gave consideration to the evidence and submissions of Mr Sisalem but not to the content of the article itself. For instance, in the second sentence in paragraph [66] the Member was directing her attention to the question of whether it was established that the content of the article was likely to incite hatred of Muslims. Further, paragraph [59] demonstrates that the presiding Member considered the content of the article and concluded that many members of the community (Muslim and non-Muslim alike) would share the views of Mr Sisalem that quotes reported in the article were inaccurate, unfair, unbalanced and deeply offensive. It is clear that the presiding Member gave consideration to the likely impact the content of the article might have when read by ordinary members of the community. In paragraph [67] the presiding Member, having accepted the concerns of Mr Sisalem about the article as being genuine, concluded that there is no evidence to establish that the article was likely to incite the response of hatred of Muslims. In my view, the Tribunal reasons sufficiently demonstrate that the presiding Member considered the content of the article and the evidence and submissions of Mr Sisalem in concluding that she was not satisfied ‘… that the publication of the article incited or was likely to incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims because of their religious beliefs’.[15]
[15]Sisalem [2016] VCAT 1197 [68].
Fourth, there is nothing about the nature of the Tribunal’s decision which supports an inference that the presiding Member erred by failing to take into account the content of the article. As Cavanough J said in XYZ v State Trustees Limited:[16]
It is not enough to show that the decision-maker’s reasons are so expressed as to suggest the possibility that the decision-maker proceeded on a wrong view of the law. The Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
The presiding Member recognised that to establish breach of s 8 required cogent evidence of conduct so extreme as to incite hatred.[17] The analysis of evidence and submissions relevant to the breach of s 8 was undertaken on that background. It is not the task of the Court on this application to review the merits of the decision at first instance. However, I do comment that the conclusion that the evidence relied on by Mr Sisalem fell short of the level necessary to establish breach of s 8 of the RRT Act is unsurprising.
[16][2006] VSC 444 (22 November 2006) [31] (citations omitted) (‘XYZ’).
[17]Catch the Fire Ministries (2006) 15 VR 207.
Mr Sisalem’s application for leave to appeal on ground 1 is dismissed.
Did the Tribunal err by taking into account as an irrelevant consideration that Mr Sisalem was offended by the article?
A tribunal may fall into error by taking into account an irrelevant matter.[18] However, where the enabling enactment does not forbid consideration of a matter the tribunal will not err if the matter was considered by it.[19]
[18]Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280.
[19]Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 (19 December 2013) [21].
This ground focuses on paragraph [59] of the Tribunal reasons, which record the finding of the presiding Member that Mr Sisalem regarded the comments reported in the article as deeply offensive. Mr Sisalem submitted that this was an irrelevant finding which should not have been taken into consideration by the presiding Member in determining the s 8 application.
The presiding Member gave consideration to the content of the article and its probable impact not just on Mr Sisalem but on other members of the community, concluding that while many members of the community were likely to regard the content of the article as inaccurate, unfair, unbalanced and deeply offensive that was not sufficient to establish breach of s 8 of the RRT. Consideration of the response the article was likely to elicit from a reader was directly relevant to determination of the question of breach of s 8 of the RRT Act. The presiding Member was undertaking that analysis in accordance with the decision in Catch the Fire Ministries.[20] The application was not dismissed because the presiding Member concluded that Mr Sisalem and other readers may find the contents of the article offensive, but because she was not satisfied by the evidence led ‘that the article was likely to incite hatred against, serious contempt for, or revulsion or severe ridicule of Muslims because of their religious beliefs.’[21]
[20]Ibid.
[21]Sisalem [2016] VCAT 1197 [68].
Mr Sisalem’s application for leave to appeal on ground 2 is dismissed.
Should the appeal be dismissed as lacking utility?
HWT relied on defences under ss 11(1)(b)(ii) and 11(1)(c) of the RRT Act when the matter ran before the Tribunal. The defences only come into play if breach of s 8 is established. No breach of s 8 was found and the presiding Member concluded that she did not need to consider the s 11 defences.
I will dismiss Mr Sisalem’s application for leave to appeal. Therefore it is not necessary that I consider the merit of the s 11 defences. Had I determined the either ground 1 or 2 in Mr Sisalem’s favour then it would have been appropriate to refer the matter back to the VCAT for determination of the s 8 application and the s 11 defences.[22]
[22]m3 Property (Vic) Pty Ltd v Whitehorse Towers Pty Ltd [2012] VSC 109 (27 March 2012) [30]; XYZ [2006] VSC 444 (22 November 2006) [64].
Conclusion
For the reasons given I will dismiss Mr Sisalem’s application for leave to appeal the VCAT decision. I will hear from the parties as to consequential matters.
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