The Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd

[2002] VSC 108

t

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 8757 of 2001

THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD (ACN 003 038 702)

Appellant

v

BEVENDALE PTY LTD (ACN 006 392 267)

WHITTLESEA CITY COUNCIL

ISPT PTY LTD (ACN 067 493 074)

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

First Respondent

Second Respondent

Third Respondent

Intervener

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and  27  March, 3, 5 and 8 April 2002
DATE OF JUDGMENT:	12 April 2002
CASE MAY BE CITED AS:	The Warehouse Group v Bevendale
MEDIUM NEUTRAL CITATION:	[2002] VSC 108	Revision 1

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ADMINSTRATIVE LAW – Appeal from the Victorian Civil and Administrative Tribunal – appeal allowed – the proper constitution of a Tribunal for the purposes of a proceeding under a planning enactment – distinction between the President’s administrative decision and a decision as a member – the Tribunal’s decision as to its proper constitution is a question of law – failure to challenge the Member’s qualification at the VCAT hearing does not supersede the essentiality of the proper constitution of the Tribunal as envisaged by Parliament – meaning of ‘sound knowledge of, and experience in, planning or environmental practice’ in clause 52 of Schedule 1 of the VCAT Act – distinction between planning practice and practice in planning – the intention of Parliament as to the appropriate member to determine planning enactment

Administrative Appeals Tribunal Act 1984 – section 20A
Administrative Appeals Tribunal (Planning)  Act 1991
Constitution Act 1975 – section 75B
County Court Act 1958 – section 8(1)
Courts and Tribunal (General Amendment) Act 1996
Extractive Industries act 1996 – sections 31A, 41A
Planning and Environment Act 1987
Planning and Environment (Amendment) Act 1989
Victorian Civil and Administrative Tribunal Act 1998 – sections 10, 30, 33, 64, 108, 148(1); clause 52 of Schedule 1
Supreme Court (General Civil Procedure) Rules 1996 – order 56 of Chapter I; rule 4.11(2)(a) of Chapter II
Victorian Civil and Administrative Tribunal Rules 1998 – rule 2.06

City of Greater Geelong v Herd (1997) 94 LGERA 149
Coulton v Holcombe (1986) 162 CLR 1
Cozens v Brutus [1973] AC 854
Downey v O’Connell [1951] VLR 117
Eastrise Constructions Pty Ltd v Glen Eira City Council
Francheschini v MMBW (1980) 57 LGRA 284
G J Coles & Co v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49
St Leonards Municipality v Williams [1966] Tas SR 166

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S R Morris QC with Ms S Brennan	Deacons
For the First Respondent	Mr H McM Wright QC with Mr A J Finanzio	Freehills
For the Third Respondent	Mr L Schwarz	Holding Redlich
For the Intervener	Mr D Graham QC, Solicitor-General for the State of Victoria, with Mr J O’Bryan	James Syme, Victorian Government Solicitor

HER HONOUR:

Introduction

1. This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against the order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by a Member of the Tribunal (“the Member”), on 5 December 2001, in its Planning List. The order of the Tribunal was, in summary, that the appellant (“Warehouse”) cease using that part of the land at 560-602 High Street Epping which is occupied by it (“the subject land”) as a shop for the sale or hire of goods other than goods which fall within the categories specified in paragraphs (a) to (l) of the definition of “restricted retail premises” in the Whittlesea planning scheme. That order was made under Division 1 - Enforcement Orders of Part 6 of the Planning and Environment Act 1987 (“the Planning Act”).

1. Section 148(1) of the VCAT Act reads:

148.Appeals from the Tribunal

(1)a party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding¾

(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others;  or

(b)to the Trial Division of the Supreme Court in any other case¾

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

In the present matter, leave to appeal was granted by this Court on 22 February 2002.

1. The proceeding before the Tribunal was initiated by the first respondent (“Bevendale”), the owner of the shopping centre known as Epping Plaza, which is opposite the subject land.   Bevendale sought from the Tribunal an enforcement order to prevent the use of the subject land as a shop other than “restricted retail premises”.   The third respondent (“ISPT”) is the owner of the subject land.

The preliminary point

1. At the outset of the hearing Mr Graham QC, Solicitor-General, with Mr O’Bryan, sought leave to intervene on behalf of the Attorney-General in respect only of ground 16 in the Notice of Appeal filed on 1 March 2002.   That application was unopposed and was granted, and it was agreed that ground 16 should be dealt with as a preliminary point.   Mr Schwarz, for ISPT, made no submissions as to ground 16.   At the conclusion of submissions on ground 16 the Solicitor-General and Mr O’Bryan were excused from further attendance.

1. Ground 16 reads:

16.The Tribunal had no power to hear and determine the  proceeding as it was not constituted by a member who has sound knowledge of, and experience in, planning or environmental practice in Victoria.

1. The sections of the VCAT Act which relate to the constitution of the Tribunal for hearing particular proceedings are sections 10, 30, 33, 64, and 108, which read as follows, so far as relevant:

10.President

(1)The President must be a judge of the Supreme Court who is recommended for appointment by the Minister after consultation with the Chief Justice.

(2)Subject to this Act, the President holds office for the period, not exceeding 5 years, specified in his or her instrument of appointment.

(3)The appointment of a judge of the Supreme Court as President does not affect his or her tenure of office or status as a judge nor the payment of his or her salary or allowances as a judge nor any other rights or privileges that he or she has as a judge.

(4)Service in the office of President must be taken for all purposes to be service in the office of judge of the Supreme Court.

(5)Nothing in this Act prevents a judge of the Supreme Court appointed as President from constituting the Supreme Court for the purpose of the exercise by the Supreme Court of any of its functions.

30.Administrative functions of President and Vice Presidents

(1)Subject to this Act and the rules, the President and the Vice Presidents are to direct the business of the Tribunal.  .  .  .

33.Delegation by President and Vice Presidents

(1)The President may delegate to any member or class of members or to the principal registrar any function of the President under this Act, the rules or an enabling enactment, other than this power of delegation.  .  .  .

64.Constitution of Tribunal in proceedings

(1)Subject to the rules, the Tribunal is to be constituted for the purposes of any particular proceeding by 1, 2, 3, 4 or 5 members.

(2)If the Tribunal is to be constituted at a proceeding¾

(a)by one member only, that member must be a legal practitioner;  and

(b)by more than one member, at least one must be a legal practitioner.

(3)The President determines how the Tribunal is to be constituted for the purposes of each proceeding.

108.Reconstitution of Tribunal

(1)At any time during the hearing of a proceeding a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.  .  .  .

1. Also relevant to the constitution of the Tribunal is Rule 2.06 of the Rules made by the Rules Committee established by section 150 of the VCAT Act (“the Rules”), which appears in the Rules after the provisions providing for the Tribunal to exercise its functions in lists, and establishing the planning list. Schedule 1 of the Rules provides for the specific functions to be exercised in each list.

1. Rule 2.06 reads:

2.06Assignment of members

(1)The President must assign a member other than a Vice President to one or more lists  .  .  .

(2)In making an assignment of a member to a particular list, the President must have regard to any special knowledge or experience relevant to determining the class of matters in respect of which functions may be exercised by the Tribunal in that list.

1. Parts 3 and 4 of the VCAT Act set out the general jurisdiction, functions and procedure of the Tribunal (see sections 39 and 58) and Schedule 1 sets out variations from Parts 3 and 4 for certain proceedings under certain enabling enactments (see clause 1 of Schedule 1). Clause 52 of Schedule 1 reads:

52.Constitution of the Tribunal

(1)The Tribunal is to be constituted for the purposes of a proceeding under a planning enactment by¾

(a)one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria;  or

(b)if it is constituted by 2 members, at least one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria;  or

(c)if it is constituted by 3, 4 or 5 members, at least 2 members who have sound knowledge of, and experience in, planning or environmental practice in Victoria.

(2)Section 64(2) does not apply to a proceeding under a planning enactment.

The expression “planning enactment” is defined in clause 2 of Schedule 1 to include the Planning Act.

1. A letter from the Victorian Government Solicitor, representing the Attorney-General, addressed to the legal advisers of Warehouse, sets out the curriculum vitae of the Member. It was admitted and marked as Exhibit B over the objection of Mr Wright, for Bevendale, on the ground that it had not been before the Tribunal. Exhibit B was apparently written in response to the foreshadowing of an application for the issue of a subpoena. That document makes clear that the Member is a legal practitioner, with extensive qualifications and experience in the law relating to planning in Victoria as a practising barrister, as a member of panels appointed to advise on amendments to planning schemes under section 153 of the Planning Act, for which no particular qualification is required, and as a member of the Tribunal in its planning list. No other qualifications or experience are mentioned in the document, and it may be assumed, from the facts that it was obtained in the context of this appeal, and that its accuracy was not challenged, that it is a complete account of the relevant qualifications and experience of the Member.

1. Mr Morris, for the appellant, conceded that Exhibit B demonstrated that the Member had sound knowledge of, and experience in, the law relating to town planning in Victoria. However, he drew a distinction between those qualities on the one hand and on the other hand “sound knowledge of, and experience in, planning or environmental practice in Victoria”, qualities which in his submission the Member did not have. Accordingly, he submitted, the Tribunal, constituted as it was by the Member, was not properly constituted as required by clause 52(1)(a), and accordingly it did not have jurisdiction to make the order which it had made. His further submissions appear at [27] and following below.

The submissions against considering Ground 16

1. The submissions of counsel for the Attorney-General and Bevendale were chiefly directed to the argument that, on various grounds, the issue described in ground 16  was not justiciable in this appeal.

The role of the President

1. Mr Graham, for the Attorney-General, pointed out that the provisions set out in [6] to [8] above indicated that the internal operations of the Tribunal were committed to the President, who was required to be, and was, a Judge of this Court. Accordingly, he submitted, the Court should be reluctant, in the absence of a clear indication to the contrary, to go behind the President’s exercise of the power conferred on him by section 64(3) of the VCAT Act to determine how the Tribunal is to be constituted for the purposes of a proceeding. It was not for the Court to look into the internal workings of the Tribunal. He compared the terms of clause 52 with section 75B of the Constitution Act 1975, providing that a Judge of the Court is to “be or have been a practitioner of the Court of not less than 8 years’ standing” which was a matter of hard fact, readily ascertainable. The interpretation of the expression “sound knowledge of, and experience in, planning or environmental practice in Victoria” in clause 52, on the other hand, was a matter of degree. The Court should assume, in the absence of clear evidence to the contrary, that a person appointed by the President as the sole member to constitute the Tribunal in a matter arising under a planning enactment did have those qualities.

1. Mr Wright, adopting that submission, submitted further that it was apparent from section 148(1)(a) of the VCAT Act that the intention of Parliament was that a decision of the President of the Tribunal should not be interfered with by a single Judge of this Court, but rather was a matter for the Court of Appeal. This intention was relevant even in the present case, where the decision in question was not an order of the Tribunal. It was for the President to decide, on the facts before him, whether a member appointed to constitute the Tribunal for any given proceeding in the planning list met the requirements of clause 52.

1. I do not accept those submissions as relevant to a question of jurisdiction. Section 10 establishes the dual role of the President as both President of the Tribunal and a Judge of the Court. (Sub-section 10(4) clearly relates to the terms of employment of the President in both capacities, and not to his making of decisions, administrative or otherwise.) It does not appear to me that the exercise of his administrative functions by the President, acting in his capacity as President, is to be considered as analogous to the making of a decision by the President, acting in his capacity as a member of the Tribunal, constituting the Tribunal for the purpose of the hearing and determination of a particular proceeding, which decision would, by virtue of section 148(1)(a), be appellable only to the Court of Appeal. The constitution of the Tribunal for the purpose of the proceeding in question here would not have been a matter as to which submissions were made and evidence called before the President sitting in his capacity as a member of the Tribunal. The distinction is highlighted by the power conferred on the President by section 33, which appears in Division 4 - Administration of Part 2 of the VCAT Act, to delegate his functions. There is no evidence before me as to whether the decision constituting the Tribunal was made by the President himself or by a member or registrar of the Tribunal to whom that function had been delegated. However, the existence of the power to delegate indicates, if such indication were needed, that the administrative functions of the President are not to be equated with his role as a member of the Tribunal hearing and determining (with or without other members) matters which come before him in the exercise of the several jurisdictions of the Tribunal. There is also, of course, a clear distinction between a decision of the President in that role and a decision of the individual holding the office of President when he sits as a Judge of this Court.

Question of fact or law

1. Mr Graham’s second submission was that the issue of whether the Member answered the description in clause 52 was a question of fact, not a question of law, and was a threshold question going to the capacity of the Member to hear the proceeding. Accordingly, it could not be ventilated in this proceeding, which is brought under section 148 of the VCAT Act, providing for an appeal to this Court on a question of law.

1. In response, Mr Morris relied on the following passage from the judgment of Gaudron, Gummow, Hayne and Callinan JJ in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[1]:

Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word “appeal”, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. That is not to say that there are no other avenues for judicial review. The VCAT Act makes no express provision excluding the general supervisory jurisdiction of the Supreme Court. It may, therefore, be doubted that s 148 should be understood as doing more than providing, in some cases, an important discretionary reason for not permitting resort to that general supervisory jurisdiction on the basis that s 148 provides a suitable alternative remedy. Nevertheless, it is important to recognise that the essential character of s 148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.

[1][2001] HCA 49 at 15

1. He submitted that the issue raised in ground 16 was in effect a challenge to “the legal correctness of what the Tribunal has done”.   The appeal was brought “from an order of the Tribunal”, in accordance with section 148, and raised the question of the lawfulness of that order.   The argument of his client was that the Tribunal did not have authority to make that order and accordingly it was unlawful.

1. In Francheschini v MMBW[2] Tadgell J adopted the following words of Lord Reid in Cozens v Brutus [3] :

The meaning of an ordinary word of the English language is not a question of law.   The proper construction of a statute is a question of law.   If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is.  .  .  .  It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved.   If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character.   The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.  .  .  .

So the question of law in this case must be whether it was unreasonable to hold that the appellant’s behaviour was not insulting.   To that question there could in my view be only one answer – No.

[2](1980) 57 LGRA 284

[3][1973] AC 854 at 861

1. The extensive submissions of Mr Morris as to the natural meaning of clause 52 are set out at [27] to [38] below. In response, Mr Wright made no submissions at all on that issue, and Mr Graham made one point only, as to which see [39] and [40] below. In the absence of any significant response to the submissions of Mr Morris, it seems to me that there is an unstated concession by both counsel that the Tribunal’s implicit decision that it was properly constituted in terms of clause 52 was unreasonable, on the basis of the ordinary use of language. For this reason, and on the basis of the submission of Mr Morris set out in [18] above, I find that the issue described in Ground 16 was properly raised on this appeal. I note that the content of Exhibit B was unchallenged, and no issue of fact arises before me.

A point not raised below

1. Mr Graham submitted that counsel had been nursing the point, rather than raising it below as should have been done. Even though senior counsel for the appellant had not appeared before the Tribunal, the client should have been aware of the point and it should have been raised there. If it was desired to challenge the Member’s qualification, the issue should have been raised at the outset of the hearing before her, on the basis of evidentiary material raising a case which would throw doubt on her qualification. If that challenge had failed, the next step would have been to seek relief from this Court by way of an order for prohibition under Order 56 of the Supreme Court (General Civil Procedure) Rules. Alternatively, the appellant could have sought reconstitution of the Tribunal pursuant to section 108 of the VCAT Act.

1. Mr Wright, adopting that submission of Mr Graham, relied on the judgment of Batt J in City of Greater Geelong v Herd[4] where His Honour found the following often-quoted passage from the judgment of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe[5] to be apposite to an appeal on a question of law from a Tribunal:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial.   If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.   The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise.   In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards.

[4](1997) 94 LGERA 149 at 167-8

[5](1986) 162 CLR 1 at 7

1. However, it cannot be said that had the issue now sought to be ventilated been raised before the Tribunal, “evidence could have been given which by any possibility could have prevented the point from succeeding”.   The evidence contained in Exhibit B as to the Member’s knowledge and experience was known, best of all, to the Member constituting the Tribunal, and its accuracy has not been challenged before this Court.   As to the suggestion of “nursing the point”, Mr Champion, the solicitor who at the relevant time had the conduct of this matter on behalf of Warehouse, deposes that the significance of the issue was not drawn to his attention until he conferred with Mr Morris after the close of the hearing before the Tribunal but before the provision of the Tribunal’s written decision.   It is not in issue that Mr Morris did not appear for the appellant before the Tribunal.

1. On this issue, Mr Morris relied principally on the decision of the Court of Appeal of the Supreme Court of New South Wales in GJ Coles & Co v Retail Trade Industrial Tribunal [6].   In that case a tribunal was established by statute to consist of a chairman, who was to be advised and assisted by two assessors.   A meeting was held at which the assessors were not present, and an award purported to be made by the chairman, Macken J, alone.   The Court held that the absence of the assessors had the effect of rendering the award invalid.   Kirby P and Hope JA said [7]

   [6](1987) 7 NSWLR 503

   [7]at 513

Where Parliament has created a body constituted in a particular way, that body can only function in that way.  .  .  .  the actual decision making body did not include the participation, as contemplated by the statute, of the assessors.  .  .  . 

They cited with approval the following passage from the judgment of Burbury CJ in what they found to be the analogous case of St Leonards Municipality v Williams[8]:

[8][1966] Tas SR 166 at 168

The Legislature has  .  .  .  given careful attention to setting up a commission composed of persons having appropriate professional qualifications and practical experience to carry out the important functions entrusted to the Commission under the Act.   I should have thought that it was the plain purpose of Parliament in setting up a commission in which professional qualifications and practical experience are so nicely balanced that any decision of the Commission should only be reached at a sitting at which all those nominated by Parliament for their particular qualifications or experience were present and able to make their own contribution.   Otherwise the purpose of the legislature in endeavouring to ensure an informed decision might well be frustrated.

Their Honours went on to consider a submission that the point should have been raised before Macken J at the meeting below.   They said [9]

It cannot be concluded (even if it were relevant) that the claimants, the RTA [the Retail Traders Association of New South Wales] or the solicitor, Mr Marks, consciously decided to proceed before Macken J sitting alone.   We do not accept that they decided to wait and see if the result was unsatisfactory to their interest, before seeking prerogative relief in this Court.   Mr Marks was cross-examined.   He candidly admitted his embarrassment, despite his earlier study of the Act, when counsel had drawn the defect in the composition of the Tribunal to his notice.   It cannot be suggested that Mr Marks, let alone Mr Lawrence [the executive director of the RTA] connived in some improper way in the irregular composition of the Tribunal.   Nor, for the reasons already stated, was it open to the RTA, Mr Marks or even the claimants themselves, to waive compliance with the statute.   The provision for a tripartite tribunal is part of the public law of the State.   The award which the Tribunal makes is a form of delegated legislation.   It is therefore essential that the award should be made by the body envisaged by parliament, duly constituted as Parliament provided.

And, after considering the contemplation of Parliament that the assessors would be in a position to add a new dimension to the argument of the parties, or give fresh information and enhance the perspective of the chairman:

For these reasons, even if there were a discretion, in a matter of this kind, to deny relief to the claimants, who are themselves entirely innocent of the arrangements for the constitution of the Tribunal and the non-participation as assessor of Mr Lawrence, such a discretion would certainly not be exercised.   What is at stake is something far more important than the private interests of the claimants, the RTA or even the assessors.   It is the due observance of the will of Parliament in the provision which it has made for the constitution and convening of a Tribunal, which it has established.

[9]at 517-8

1. I accept the submission of Mr Morris that the passages set out in the preceding paragraph, mutatis mutandis, are applicable to the issue with which I am here concerned.

The Tribunal should be joined

1. Finally, Mr Wright submitted that the question whether the Member met the requirements of clause 52 should not be ventilated without the Tribunal being joined as a party. However, I was advised by Mr Morris that, in accordance with Rule 4.11(2)(a) of Chapter II of the Supreme Court (General Civil Procedure) Rules, material relating to the appeal had been served on the Registrar of the Tribunal, and there had been considerable correspondence with the Tribunal and with the Victorian Government Solicitor. I am satisfied that had it been considered appropriate by those advising the Tribunal that it should be represented, an application to that end would have been made.

The submissions for Warehouse

1. It will be apparent from the foregoing that I am satisfied that ground 16 raises an issue which is proper to be raised on this appeal, and I now turn to consider the substance of that issue. It is convenient at this point to note that at the hearing before me it was tacitly accepted that what was under consideration in clause 52 was the expression “planning practice”, rather than “environmental practice”. There was some consideration of the relevant meaning of the word “planning”, and no challenge was made to the submission of Mr Morris that it could generally taken to be synonymous with the expressions “town planning” and “town and country planning” as used in legislation preceding the Planning Act, and with the more contemporary expression “land use planning”. Accordingly no issue arises as to its meaning.

1. Mr Morris’s essential submission appears in [11] above. He submitted that a lawyer specialising in the field of planning law might be found to have a “sound knowledge of . . . planning practice in Victoria” in terms of clause 52(1)(a), but could not be regarded as having “experience in planning practice in Victoria”. That expression referred to experience in the profession or occupation of planning; it could be described as the repeated performance of planning functions. To say, as the Victorian Government Solicitor says of the Member in Exhibit B, that a barrister has a “town planning practice” is not to say that that barrister has experience in the practice of planning, any more than a barrister said to have a “criminal practice” has experience in the practice of crime. The barrister with a town planning practice practises in planning law, as the barrister with a criminal practice practises in criminal law. Mr Morris referred to the affidavit of Mr Rogers which was before the Tribunal, where the deponent says “I . . . have practised as a town planner in both the public and private sectors for 19 years” as being an example of the sort of practice which is contemplated in clause 52.

1. He referred to the definitions of “practice” in the Macquarie Dictionary (3rd edition) and submitted that the relevant definitions were those numbered six and seven, namely:

6.        the exercise of a profession or occupation, especially law or medicine.

7.        the business of a professional person:  a doctor with a large practice.

Those definitions gave the natural meaning of the word “practice” which was relevant to the expression “experience in planning . . . practice” in clause 52. There were professional qualifications available in planning, and a person with such qualifications and with experience in their exercise, could be regarded as having “sound knowledge of, and experience in, planning . . . practice”.

1. He cited Downey v O’Connell[10] where the question was whether Mr Downey, who held the office of Solicitor to the Public Trustee, had been “practising” as a barrister and solicitor for the period required by public service regulations so as to be qualified for appointment to the office of stipendiary magistrate.   Gavan Duffy and O’Bryan JJ found (Smith J dissenting) that as Mr Downey was not acting as a mere professional assistant to the Public Trustee, but was acting in an independent relationship to him as a solicitor, he was “practising” as a solicitor.   Their Honours said [11]:

The common conception of a practising barrister or solicitor is that of a legally qualified barrister and solicitor who holds himself out to the public in general as willing to act as a direct and responsible personal confidential legal adviser, and to do, and be directly responsible for, legal work generally and who has clients for whom he does legal work in that way.

They held, on the basis of authority, that that conception could be extended to cover the position of an officer of the public service engaged in work of the kind carried out by Mr Downey.

[10][1951] VLR 117

[11]at 122

1. Mr Morris submitted that the cited passage indicated that the use of the word “practising” involved a course of conduct in a professional capacity. The natural meaning of the expression “planning practice” in clause 52 was practice as a planner, whether as a member of a private firm or as an employee of such a firm or of a public body such as a municipal council, involving the application of town planning skills to the repeated performance of town planning functions.

1. He submitted further that the purpose of clause 52(1) was to ensure that when a case arising under a planning enactment was heard by the Tribunal, it would be constituted with at least one member who had a type of qualification and experience which fitted that member for dealing with the work with which the planning enactment was concerned. The juxtaposition of clause 52(1)(a) with clause 52(2), providing that section 64(2) does not apply to a proceeding under a planning enactment, was intended to ensure that where the President had determined that only one person should constitute the Tribunal for such a proceeding, that person did not need to be a legal practitioner, but did need to have experience in planning practice in Victoria. It would appear that, for the hearing of a proceeding under a planning enactment, knowledge of and experience in planning practice were considered by Parliament to be more important than legal qualifications.

1. Mr Morris then went on to refer to the history of corresponding provisions in earlier legislation. Section 20A of the Administrative Appeals Tribunal Act 1984 set out the constitution of the Planning Division of the Administrative Appeals Tribunal (“AAT”) (the predecessor of the Tribunal) to hear a proceeding, “except as otherwise provided in an enactment”. One relevant enactment was the Planning Act. As first enacted in 1987 the Planning Act provided in section 148 that the AAT should be constituted for a proceeding under that Act by a legal practitioner and “at least one member of the Planning division who has experience in town and country planning”, or, if the President so determined in a particular case, “a member of the Planning division who has experience in town and country planning”. Thus it was anticipated by Parliament that there would be cases where the President of the AAT considered experience in town and country planning to be more important than legal qualifications. That situation continues, as set out in the previous paragraph. Mr Morris submitted that “experience in town and country planning” was a broader expression than “experience in planning practice” as appearing in clause 2, and that this supported his submission that “planning practice” meant “the profession or occupation of planning”.

1. By the Planning and Environment (Amendment) Act 1989 and the Administrative Appeals Tribunal (Planning) Act 1991 section 148 was amended to provide that the AAT should be constituted for a proceeding under the Planning Act by “at least one member of the Planning division who has experience in town and country planning”, save in respect of proceedings under section 39 and certain of the provisions of section 149A, as to which the requirement was for one such member and a legal practitioner. Those two sections dealt respectively with review of the procedure for amending planning schemes and the making of declarations as to such matters as the meaning of planning schemes, and were thus, Mr Morris submitted, particularly suited to the participation of lawyers. Those changes in section 148 of the Planning Act, culminating in the current provisions of clause 52, showed, in his submission, that consideration had been given by Parliament from time to time to the qualifications needed for the determination of matters arising under a planning enactment, and that there was a continuing intention of Parliament as to the appropriate type of person for that purpose.

1. Further, he submitted, Parliament must be taken to have been well aware, when clause 52 was enacted, of other possible formulations of qualifications for persons to constitute the Tribunal in particular jurisdictions. Section 41A of the Extractive Industries Act 1966 provided that the AAT should be constituted for the hearing of matters arising under that Act by at least three members of the Planning division, one legal practitioner and at least two others who have “suitable knowledge and experience”.   Section 31A of the Historic Building Act 1981 provided that for the hearing of matters arising under that Act, the AAT should be constituted by three persons, one being the President or a Deputy President or a member of the Planning division who was a senior member; and two other members of the Planning division, one being an architect practising in the area of building restoration or conservation; and one member “who is suitably qualified and experienced”. In his submission, Parliament, in enacting clause 52, had clearly moved away from that kind of broad general expression to more specific words.

1. The next submission of Mr Morris was that legislation should provide for definite outcomes rather than leaving the matter open for debate. He referred to the amendment of section 8(1) of the County Court Act 1958, which formerly provided that a person to be appointed a judge of the County Court should “have practised as a barrister or barrister and solicitor in Victoria for seven years”. That provision was amended by the Courts and Tribunals (General Amendment) Act 1996 to provide that a person to be so appointed must be “a practitioner of the Supreme Court of not less than 7 years’ standing”, a requirement which can be ascertained with precision.

1. Mr Morris referred to the case of Eastrise Constructions Pty Ltd v Glen Eira City Council, decided by the Tribunal, constituted by a Senior Member, on 12 September 2001. It was apparently submitted there that the Senior Member did not meet the requirement of clause 52(1)(a), and as to that submission the Senior Member said at paragraph 8:

The objectors who had originally sought reconstitution were apparently aware that I am a qualified legal practitioner but apparently unaware that I am regarded, and have [been regarded] since my initial appointment to the Planning division of the Administrative Appeals Tribunal (predecessor of the Planning List of this Tribunal) as having a sound knowledge of and experience in planning and environmental practice in Victoria.   It is quite normal for me to sit alone on planning enactment cases on the basis that I am so qualified, and I am satisfied that this course is justified in view of my extensive knowledge and experience as a barrister practising in the fields of local government planning and environmental litigation for many years prior to my initial appointment to say nothing of my years of service on this Tribunal and its predecessor.   My experience as specialist in these fields now amounts to 30 years.

1. Mr Morris produced copies of a number of decisions of the Tribunal indicating that it was normal for the Tribunal to be constituted for a proceeding under a planning enactment by a single member who is a legal practitioner. He submitted that the interpretation of clause 52 adopted by those who ordered that the Tribunal be constituted in that way, and by the Senior Member in Eastrise Constructions, left the door open for the intention of Parliament to be avoided. A legal practitioner with little or no experience in planning law could constitute a Tribunal to hear a planning matter, together with a member with knowledge of and experience in planning practice. After sitting on a number of matters in Tribunals so constituted, the legal practitioner could be described as having acquired experience in planning practice and could be appointed to sit alone in planning matters. This was not the intention of Parliament as demonstrated by the natural meaning of the words used in clause 52.

The submissions for the Attorney-General

1. Mr Wright made no submissions in reply as to the operation of clause 52. Mr Graham, in reply, submitted briefly that the appropriate meaning of “practice” among those meanings comprised in the Macquarie Dictionary definitions was the first:

1.        habitual or customary performance:  normal business practice.

Clause 52 did not refer to the professional practice of planning; the limitation “in Victoria” indicated that what was being described by the expression “planning practice in Victoria” was what happens in Victoria in the practice (in the sense quoted) of planning. It did not relate to what was done by the individual practitioner. That was his only submission as to the substance of ground 16.

1. However, there does not seem to me to be any reason why Parliament, in using the expression “sound knowledge of, and experience in, planning . . . practice in Victoria” should intend it to be interpreted in that somewhat peripheral sense. There is every reason to assume that the view of Parliament was that those who are to decide issues arising under planning enactments (as defined in clause 2 of Schedule 1) should, as is submitted by Mr Morris, have sound knowledge of and experience in the practice of planning as a profession involving the performance of planning functions.

Jurisdiction

1. Having considered the submissions before me, I am satisfied of the distinction sought to be drawn by Mr Morris between on the one hand, sound knowledge of and experience in planning law in Victoria, and on the other hand, sound knowledge of, and experience in, planning practice in Victoria. Given that distinction, it is clear that the undoubted possession of the former qualities by the Member does not confer the latter qualities upon her. That being so, the Tribunal from which this appeal is brought, being constituted as it was by the Member, was not properly constituted in accordance with clause 52 of Schedule 1 of the VCAT Act, and accordingly did not have jurisdiction to make the order which it made. I would also refer in this context to the passages cited in [24] above from St Leonard’s Municipality and GJ Coles & Co.

Conclusion

1. For the reasons given, I find that ground 16 is established.   That being so, it is not appropriate that consideration be given to the issues raised by the remaining grounds of appeal.   The appeal will be allowed.   Counsel may wish to make submissions as to costs and as to the form of the orders to be made.

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