The Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd (No 2)
[2002] VSC 291
•29 July 2002
| 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) | First Respondent |
| WHITTLESEA CITY COUNCIL | Second Respondent |
| ISPT PTY LTD (ACN 067 493 074) | Third Respondent |
---
JUDGE: | BALMFORD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 and 27 March and 3, 5 and 8 April 2002 | |
DATE OF JUDGMENT: | 29 July 2002 | |
CASE MAY BE CITED AS: | The Warehouse Group v Bevendale (No 2) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 291 | |
---
PRACTICE AND PROCEDURE – appeal from the Victorian Civil and Administrative Tribunal – appeal allowed – a party must be given a reasonable opportunity to present its case – no resulting prejudice from an adjournment was shown – refusal by the Tribunal to grant adjournment constituted a denial of natural justice
Planning and Environment Act 1987 – section 117
Victorian Civil and Administrative Tribunal Act 1998 – sections 97, 98, 102, 148
Attorney-General for the State of Victoria v The Warehouse Group P/L [2002] VSCA 76
Keller v Bayside City Council [1996] 1 VR 356
Little v Minister for Land Management (1993) 79 LGERA 374
McColl v Lehmann [1987] VR 503
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6
Rosebud Village Pty Ltd v Amos and City of Doncaster and Templestowe (1989) 68 LGRA 403
Russell v Duke of Norfolk [1949] 1 All ER 109
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Torrington Investments v Shire of Bulla (1981) 57 LGRA 181
Walker v Walker [1967] 1 All ER 412; [1967] 1 WLR 327
Warehouse Group P/L v Bevendale P/L [2002] VSC 108
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S.R. Morris Q.C. with Ms S.M. Brennan | Deacons |
| For the First Respondent | Mr H. McM Wright Q.C. with Mr A.J. Finanzio | Freehills |
| For the Third Respondent | Mr L. Schwarz | Holding Redlich |
HIS HONOUR:
Introduction
This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 5 December 2001, in its Planning List.
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. On the same date, the operation of an order made on 20 December 2001 staying the execution of the order of the Tribunal was extended to the hearing and determination of the appeal.
The appeal was heard by me over five days in March and April 2002. On 12 April 2002 I delivered judgment [1] , allowing the appeal on the ground (ground 16 of the grounds in the appellant’s Notice of Appeal) that the Tribunal from which the appeal was brought 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 decision under appeal. That being so, I indicated that it was not appropriate that consideration be given to the issues raised by grounds 1 to 15 of the Notice of Appeal.
[1][2002] VSC 108
On 17 May 2002 the Court of Appeal made orders [2] allowing an appeal from that decision, and remitting the appeal by the appellant (“Warehouse”) from the Tribunal to the Trial Division of the Court for determination according to law in the light of the reasons for judgment of the Court of Appeal; that is, on the basis that the Tribunal was properly constituted and had jurisdiction to make the decision which it made.
[2][2002] VSCA 76
Noting that the Court of Appeal had not directed that there be any further hearing of the matter, I caused my associate to communicate with the parties to give them the opportunity of making further oral submissions should they desire to do so. The parties indicated that they would be happy to make further submissions if I felt that it would be of assistance, but would not wish to do so otherwise. Accordingly no further hearing was held, and I proceed to deal with the matter on basis of the submissions made at the hearing as to the remaining grounds of appeal.
The Grounds of Appeal
The remaining grounds of appeal, classified as shown in the Notice of Appeal, are:
Natural Justice (Refusal of Adjournment)
1.The Tribunal denied the appellant natural justice by refusing an adjournment.
2.The Tribunal failed to give the Appellant a reasonable opportunity to be heard, contrary to section 117 of the Planning and Environment Act 1987 (“the Planning Act”).
3.In deciding to refuse an adjournment, the Tribunal erred in law by determining that Mr Rogers’ evidence was not expert evidence.
Exclusion of Evidence
4.The Tribunal erred in refusing to allow the appellant to tender Exhibit SMB1 as evidence.
Conduct of, and Observations Made on, Site Visit
5.The Tribunal failed to observe the rules of natural justice by conducting a site visit, in the absence of the parties, after the completion of the hearing.
6.The Tribunal failed to observe the rules of natural justice by having regard to observations made on the said site visit, without giving the parties any opportunity to make submissions, or lead evidence, in relation thereto.
Application of the Wrong Test
7.The Tribunal erred in holding that to qualify as “restricted retail premises” as defined in the Whittlesea Planing Scheme, the relevant question is to ask whether the goods sold fall within the categories specified in the definition of restricted retail premises.
8.The Tribunal erred in holding that to qualify as “trade supplies” as defined in the Whittlesea Planning Scheme, the relevant question is to ask whether the goods sold fall within the categories specified in the definition of trade supplies.
9.In relation to “restricted retail premises”, the Tribunal erred in finding that the land could only be used for the sale or hire of goods which fell within the categories specified in paragraphs (a)-(i) of the definition of “restricted retail premises” or which were ancillary to the sale of such goods.
10.The Tribunal erred in accepting that the use of the land for the sale of goods which are not within the definition of restricted retail, or ancillary to goods within the definition of restricted retail, could not be ancillary to use of the land for restricted retail premises.
12.The Tribunal failed to have regard to clause 64 of the scheme, which provides in essence, that if a use is ancillary to another use, the first use need not comply with the scheme.
Nature of Order
13.The order made by the Tribunal is legally erroneous, as it is so vague and uncertain that it is impossible for the appellant to know whether the sale of a particular good would contravene the order or not.
14.The order made by the Tribunal is legally erroneous, as it purports to prohibit the sale of particular categories of goods when goods in such categories fall within categories of goods which are within the definition of restricted retail premises or trade supplies (for example, the Tribunal has prohibited the sale of Christmas decorations, cards and gift wrapping, yet the land use term restricted retail premises allows the sale of party supplies).
15.The order made by the Tribunal is legally erroneous, as it fails to specify, as it must, the use which contravenes the planning scheme.
Appeals from the Tribunal
There are a number of well-known authorities relating to appeals from the Planning List of the Tribunal and its predecessors. In Portland Properties Pty Ltd vMelbourne & Metropolitan Board of Works[3] , Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Planning Appeals Board might lead to an order nisi for review being made absolute:
. . . the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
Nevertheless, it is clear that a “vitiating error of law” does not have to be such that without the error the result would necessarily have been different. See Brooking J in Torrington Investments v Shire of Bulla[4] ; and Young CJ in Rosebud Village Pty Ltd v Amos and City of Doncaster and Templestowe [5] .
[3](1971) 38 LGRA 6 at 18
[4](1981) 57 LGRA 181 at 185-6
[5](1989) 68 LGRA 403 at 406
Furthermore, in Spurling v Development Underwriting (Vic) Pty Ltd Stephen J said [6] :
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
[6][1973] VR 1 at 11
The Tribunal Proceeding
The proceeding before the Tribunal was initiated by the first respondent (“Bevendale”), the owner of the shopping centre known as Epping Plaza, which is situated opposite the land at 560-602 High Street Epping which is occupied by Warehouse ("the subject land”). Bevendale sought from the Tribunal an enforcement order to prevent use of the subject land as a shop other than “restricted retail premises”. Objections to the application were received by the Tribunal from Warehouse and from the third respondent (“ISPT”).
The order of the Tribunal under appeal, made under Division 1 of Part 6 of the Planning Act, was in the following terms:
The Contravention
The use of the land contravenes Clauses 31.01-3, Clause 34.04 of the Whittlesea Planning Scheme and amended Planning Permit No. 705225 dated 19 October 2000 allowing the construction of buildings and works for the use of the land for, inter alia, restricted retail premises.
The Tribunal Orders
1.Within fourteen days of the date of service of this Order upon it, [Warehouse] must cease to use the subject land and the building owned by ISPT Pty Ltd 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”.
Without limiting the generality of this order [Warehouse] must cease to use the subject land and aforesaid building for the sale or hire of goods in the following categories listed below, unless the goods are ancillary to goods in the categories listed in the purposes automatically permitted in the zone:
Toys and Craft;
Clothing;
Food, drink and groceries;
Pet supplies;
Compact Discs and cassettes;
Sporting and gym equipment;
Manchester;
Cleaning products;
Wigs, hair care and personal care products;
Kitchen and dining utensils and dinnerware;
Napery;
Ornaments and photo frames;
Luggage and backpacks;
Books;
Stationery other than office supplies;
Cards and gift wrapping;
Christmas decorations.
2.Within fourteen days of the date of service of this Order upon it, [Warehouse] must cease to use the subject land and the building owned by ISPT Pty Ltd for a “shop” as defined by the Whittlesea Planning Scheme other than as “restricted retail premises” as so defined.
3.That the second named Respondent, ISPT Pty Ltd must cease to allow its land and building to be used as specified in orders 1 and 2 above.
4.[as to costs]
The second respondent (“the Council”) was not represented before the Court and took no part in the proceeding. ISPT is the owner of the subject land and landlord of Warehouse. Mr Schwarz, for ISPT, submitted briefly that if the appeal of Warehouse were allowed, then it followed that any order of the Court setting aside the order of the Tribunal made against Warehouse should be accompanied by an order setting aside the order of the Tribunal made against his client.
The Whittlesea Planning Scheme
The subject land is zoned Business 4 in the Whittlesea Planning Scheme (“the Planning Scheme”). The objects of that zone are set out as follows in clause 34.04 of the Planning Scheme:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services.
Clause 34.04-1 of the Planning Scheme relevantly provides that in the Business 4 zone a “Shop” (other than “restricted retail premises”) is a section 3 use, i.e. is prohibited. “Restricted retail premises” and “trade supplies” are section 1 uses, for which a permit is not required.
In clause 74 of the Planning Scheme:
“Convenience shop” is defined as “A building with a leasable floor area of no more than 240 square metres, used to sell food, drinks, and other convenience goods. It may also be used to hire convenience goods.”
“Shop” is defined as “Land used to sell goods or services, or to hire goods, but does not include . . . trade supplies”, and is specifically stated to include “restricted retail premises”.
“Trade supplies” is defined as “Land used to sell . . . goods for use in [a list of specified trades and other activities]”.
“Restricted retail premises” is defined as “Land used to sell or hire:
a)automotive parts and accessories;
b)camping equipment;
c)electric light fittings;
d)equestrian supplies;
e)floor coverings;
f)furnishings;
g)furniture;
h)household appliances;
i)party supplies;
j)swimming pools;
k)videos; or
l)office supplies.”
Also relevant is clause 64 of the Planning Scheme, which reads:
If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.
Grounds 1-3 Natural Justice (Refusal of Adjournment)
The relevant evidence
The application for the enforcement order was filed with the Tribunal on or about 15 August 2001. Paragraph 7 of the grounds set out in the application reads:
7.In or about mid July 2001 [Warehouse] started to use portion of [Warehouse’s] land and [Warehouse’s] building for the sale of a large variety of goods, particulars of which will be supplied at or prior to the hearing. In particular, many of the goods for sale do not fall within any of the categories set out in the definition of “restricted retail premises” contained in Clause 74 of the Planning Scheme.
On or about 5 September 2001 the solicitors for Warehouse notified the Tribunal and the solicitors for Bevendale of their client’s objection to the application, and that they would be applying to the Tribunal for a directions hearing. The solicitors for Bevendale informed the solicitors for Warehouse on or about 10 September that they would be applying to VCAT for a directions hearing and for a speedy hearing of the substantive matter, and accordingly suggested that any request for further and better particulars of the application be sent to them prior to the directions hearing. There is no evidence that either party applied for a directions hearing, and in the event, no directions hearing took place.
Bevendale was notified by the Tribunal that the hearing of the application was listed for Monday 26 November, but this did not come to the notice of the solicitors for Warehouse until 3 October. On 12 October the solicitors for Bevendale reminded the solicitors for Warehouse that a request for further and better particulars of the application would need to be delivered in time to be answered prior to the hearing.
On or about 18 October the solicitors for Warehouse served on the solicitors for Bevendale a request for further and better particulars, which had been prepared on 9 October and sent to counsel for settling prior to service. Particulars were requested of a number of matters including:
(c)The goods [for sale on the subject land] which do not fall within any of the categories set out in the definition of “restricted retail premises”.
The request was said to be made pursuant to clause 2.2 of the Tribunal’s Practice Note Planning List Number 1 (“the Practice Note”). Clause 2 of the Practice Note provides that a party’s statement of grounds “must be sufficiently specific to enable the other parties to understand the case they must meet”, and that a request for further particulars of grounds must be responded to within 10 business days. Clause 4.2(a) of the Practice Note reads:
No later than 10 business days prior to the hearing, each party must file with the Tribunal and serve on the other parties a copy of the report or statement containing the evidence-in chief of any expert witness on whose evidence that party intends to rely.
The solicitors for Warehouse received a response to their request for further particulars from the solicitors for Bevendale late on 13 November, which was one day after the date provided for in the Practice Note. The answer to question (c) listed 35 categories of goods said to be for sale in Warehouse’s store which did not fall within any of the categories set out in the definition of “restricted retail premises”.
On Thursday 22 November, that is, only one clear business day before the date set down for the hearing, the solicitors for Bevendale sent to the solicitors for Warehouse copies of four affidavits (with their exhibits), “to expedite the hearing of our evidence”.
The four affidavits were sworn by Mr Rogers and Ms Hocking, both town planners, Ms Keen, solicitor for Bevendale, and Ms Forde, centre manager for Epping Plaza. The significant affidavit in the present context was that of Mr Rogers, in which he reported at some length on his observations of the goods being sold by Warehouse on the subject land. He listed the goods in 38 categories, setting out for each category the display area and percentage of total floor area which it occupied, and his determination as to whether the category was included in the definition of “restricted retail premises”. It is apparent from paragraph 44 of the Tribunal’s Reasons that the decision of the Tribunal relied substantially on the evidence contained in Mr Rogers’ affidavit.
On the same day, before those affidavits were received by them, the solicitors for Warehouse wrote to the Tribunal requesting an adjournment of the hearing, on several grounds, one ground being that the particulars were inadequate and incomplete, and they were waiting further instructions thereon from their client; another being that witness statements had not been exchanged; another being that Warehouse had applied for a permit for a convenience shop on the subject land; and finally that Woolworths intended to apply to be a party to the application (something which had been foreshadowed but did not occur). Bevendale’s solicitors replied the same day, stating that they did not consent to the application for an adjournment. Written consents to the adjournment (subject in one case to matters of costs) were received from the solicitors for the Council and for ISPT.
The solicitors for Warehouse wrote again on the same day to the solicitors for Bevendale referring to the difficulty of obtaining instructions from an interstate client in the short time available before the hearing, suggesting that, as the particulars were based on inspections undertaken in August, it appeared that the late service of the affidavits was intended to take Warehouse by surprise, and again requesting consent to an adjournment.
The Hearing
The evidence as to what took place at the hearing is contained in the affidavits of Mr Champion, solicitor for Warehouse, and Ms Keen, solicitor for Bevendale, and in a transcript, agreed to be imperfect, of the proceedings on the third day. Reading between the lines, it would appear that there was an inappropriate tension in the atmosphere.
The hearing began on Monday 26 November, being listed for two days. At the outset, Ms Brennan for Warehouse made written and oral submissions in support of an application for an adjournment of the hearing on the grounds that:
q Warehouse was disadvantaged because Bevendale had not particularised its allegations in a timely and proper manner, and by Bevendale’s late circulation of the material on which it relied, in that:
·the particulars were not provided within ten business days of the request as required by the Practice Note;
·two of the affidavits were made by expert town planners and they were not provided with ten business days of the hearing date, as required by the Practice Note for an expert witness statement;
·the particulars were inadequate and incomplete.
q Warehouse was entitled to know the case against it and to have it properly particularised.
q If the hearing proceeded without an adjournment, Warehouse would be unable to present a proper defence and would be denied the opportunity for a fair hearing. It was entitled to consider the particulars and affidavit material, take advice, call expert and other evidence and mount a proper defence.
q The matter was not urgent; Bevendale had not commenced interim enforcement order proceedings, which was the mechanism in the Planning Act for urgent matters.
q The application for a convenience shop should be determined before this proceeding.
The request for an adjournment was opposed by Mr Wright for Bevendale. After retiring to consider the question the Tribunal returned shortly before 1 pm and refused the request.
In the afternoon Ms Brennan informed the Tribunal that she would be unable to proceed and that she was instructed that application would be made to this Court for relief. At the end of the day, when it was apparent that the hearing would not finish on Tuesday 27 November, it was set down to continue on Wednesday 28 November, after a request by Ms Brennan that another day than Wednesday be available to enable Warehouse to present its case.
During the afternoon of that day Ms Brennan cross-examined Ms Keen as to any disadvantage or prejudice experienced by Bevendale (scilicet which would result from the granting of the adjournment which Ms Brennan had requested). Ms Keen was unaware of any disadvantage beyond that recorded in the further and better particulars, namely that Bevendale’s return on its substantial investment at Epping Plaza would be placed at risk by Warehouse’s use of the subject land for a use that was not permitted in the Business 4 zone. Mr Champion deposes that to the best of his recollection at no stage did Mr Wright suggest that Bevendale would suffer any prejudice as a result of the requested adjournment. That statement is not challenged.
When the hearing resumed on 27 November Ms Brennan renewed her request for an adjournment, advising the Tribunal that she would be unable to obtain instructions as to evidence to be put in answer to the affidavits tendered by Bevendale. Her instructing solicitor had obtained some but not all of the instructions he sought, but was hampered by the fact that key personnel from whom instructions were required were in Sydney. The town planner whom they were proposing to call would not be available until 28 November, and her instructor did not expect to be able to receive advice from him until the middle of the week commencing 3 December, and might require further expert advice. The material before me does not state the length of the adjournment sought. However, on the basis of this evidence, I assume that Ms Brennan was looking for an adjournment of two or three weeks, but no more. She submitted that if the Tribunal proceeded, Warehouse would be unable to put its case and this was an irreparable denial of natural justice.
Mr Wright indicated that he did not change his position, and the Tribunal refused the adjournment.
The hearing proceeded and evidence was given by the four deponents. Ms Brennan advised the Tribunal that she was not in a position to cross-examine the witnesses.
On 27 November Warehouse made application to Mr Justice Beach in the Practice Court under the Administrative Law Act 1978 for relief in the nature of prohibition. At approximately 3.10 pm His Honour refused to grant the relief sought. His Honour gave no written reasons for his decision, and the evidence before me records only that he indicated that the appropriate course was to wait for the conclusion of the proceedings before the Tribunal before seeking relief.
On Wednesday 28 November Ms Brennan made oral and written submissions. She sought to tender a copy of a chart prepared by the solicitors for Warehouse, referred to in the Tribunal’s Reasons as exhibit SMB1, effectively responding to the affidavit of Mr Rogers. Mr Wright objected to the tender of SMB1, and the Tribunal indicated that it would treat that document as submission and argument by Ms Brennan as to categorisation, and not as evidence.
The hearing concluded, and the Tribunal handed down its decision on 5 December 2001.
The Tribunal’s reasons for rejecting the application for an adjournment are set out at length in its Reasons. In summary they are:
1.There would be no denial of procedural fairness to Warehouse if the case proceeded.
2.The ground of the application was clear and Warehouse could be in no doubt as to what was alleged. The issue was a question of fact and of legal argument.
3.The particulars sought went beyond what was needed to inform Warehouse of the case it had to meet. They were matters within the knowledge of Warehouse, went in part to evidence, and in part to the matters to be determined by the Tribunal, and were “so wide as to require greater time for their preparation and provision”.
4.“Notwithstanding that the applicant considered the breadth of the request vexatious, it acceded thereto in order to press towards a full hearing and not incur delays caused by directions hearings to dispute their propriety.”
5.The submission that Warehouse had awaited the receipt of that material before preparing its own material assumed that the procedure in the Planning List followed a “chronological supply and counter supply of information”, which was not correct. The provision of expert material was required to be by way of contemporaneous exchange.
6.The Practice Note dealt only with expert evidence, and the affidavits were not expert evidence. Although some of the deponents were town planning consultants, the evidence was lay or factual evidence, which they were not disqualified from giving.
7.Warehouse should have sought the opportunity to deal with these matters at a directions hearing.
8.The application for a convenience shop was no reason to delay the hearing.
Natural justice (or procedural fairness)
In National Companies and Securities Commission v News Corporation Ltd[7] , Gibbs CJ quoted with approval the following passage from the judgment of Tucker LJ in Russell v Duke of Norfolk[8] :
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.
Gibbs CJ went on to say:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J said in Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 444, the rules of natural justice “may also vary from case to case although each be conducted before one and the same tribunal or person”.
[7](1984) 156 CLR 296 at 311-2
[8][1949] 1 All ER 109 at 118
The argument before me on this issue was conducted on the basis that the relevant rule of natural justice was the requirement that a person be given a reasonable opportunity to present a case before a decision is made against that person. The law was summarised by Batt J in Keller v Bayside City Council [9] , where His Honour said:
The law in Australia now is . . . that there is a strong presumption that an administrative or executive decision-maker, the repository of a statutory power, owes a duty to accord procedural fairness, and in particular a “hearing” in some form or other, to any person affected or likely to be affected by the decision, and not merely in respect of a legal or proprietary interest, even though that person is not directly involved in the decision-maker’s proceedings; and a clear contrary legislative intent is required to rebut the presumption: Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-6; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360; R v Ludeke; Ex parte Customs Officers’ Association of Australia (1985) 155 CLR 513 at 528; Kioa v West (1985) 159 CLR 550 at 584, 609-12 and 618-19; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 651-3 . . . ; and Annetts v McCann (1990) 170 CLR 596 at 598.
[9][1996] 1 VR 356 at 378
The relevant legislation clearly imposes a duty on the Tribunal to accord procedural fairness, both generally and in the hearing of an application for an enforcement order. Sections 97, 98(1)(a) and 102(1) of the VCAT Act and section 117 of the Planning Act read as follows:
VCAT Act
97.Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98.General procedure
(1)The Tribunal¾
(a)is bound by the rules of natural justice; . . .
102.Evidence
(1)The Tribunal must allow a party a reasonable opportunity¾
(a)to call or give evidence; and
(b)to examine, cross-examine or re-examine witnesses; and
(c)to make submissions to the Tribunal.
Planning Act
117.Determination of Tribunal where objections are received
(1)If the Tribunal receives an objection to the application [for an enforcement order] within the period specified in the notice, the Tribunal must give the following persons a reasonable opportunity to be heard or to make written submissions in respect of the application¾
(a)the responsible authority;
(b)any person against whom the enforcement order is sought;
(c)the owner of the land;
(d)the occupier of the land;
(e)the applicant for the enforcement order;
(f)any other person whom it considers may be adversely affected by the enforcement order;
(g)any person whom it considers has been or may be adversely affected by the contravention.
(2)After hearing any person under sub-section (1) and considering any written submissions made under that sub-section, the Tribunal may¾
(a)make any enforcement order it thinks fit in accordance with section 119 in respect of the land; or
(b)reject the application.
Mr Morris submitted, and I accept, that, taken together, each of those provisions reinforces the others, and they give an overwhelming impression that fairness and the reasonable opportunity to present a case before the Tribunal were regarded by Parliament as important.
The application for an adjournment
The leading Victorian case on the exercise of the discretion to grant an adjournment is McColl v Lehmann[10] , where Kaye J said [11] :
[10][1987] VR 503
[11]at 506
Refusing the application, the Magistrate said: “I see no reason why I should grant the adjournment . . . The matter will proceed today”.
In connection with the application for adjournment it is significant that the facts stated by the applicant’s counsel were neither challenged nor disputed by the prosecutor, and the Magistrate did not expressly reject the truth of the facts so stated. Furthermore, it was not claimed by the prosecutor that the informant or his witness would suffer prejudice if an adjournment were granted.
The decision whether to accede to or refuse the application for adjournment of the hearing was within the Magistrate’s discretion. An appellate court will rarely interfere with a trial judge’s exercise of discretion upon such an application: Bloch v Bloch (1981) 55 ALJR 701, at p. 703; 37 ALR 55 at pp. 58-9, per Wilson J. However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence; in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action – whether civil or criminal – that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge’s discretion. This principle was expressed by Atkin LJ in Maxwell v Keun [1928] 1 KB 655, at p. 653, as follows: “I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is to my mind, its duty to do so.
In Bloch v Bloch Wilson J, with whose judgment Gibbs CJ, Murphy and Aickin JJ agreed, described the passage cited as “the rule in terms which have won general acceptance”. . . .
His Honour went on at 507 to cite from the judgment of Sir Jocelyn Simon P in Walker v Walker[12] :
Sir Jocelyn Simon P . . . referred to the twofold effect of the authoritative guidance provided by the Court of Appeal in Maxwell v Keun in these terms; “First, where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should only be refused if that is the only way that justice can be done to the other party; and, secondly, that although the granting or refusal of an adjournment is a matter of discretion, if an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties, such appellate court has both the power and the duty to review the exercise of the discretion.”
[12][1967] 1 All ER 412 at 414; [1967] 1 WLR 327 at 330
Those extracts are echoed in the well-known passage from the judgment of Dawson, Gaudron and McHugh JJ in State of Queensland v JL Holdings Pty Ltd[13] which was cited by Ms Brennan in her written submissions to the Tribunal in support of the application for an adjournment. Their Honours said:
In our view, the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
[13](1997) 189 CLR 146 at 155
While that passage does not relate directly to an application for an adjournment, it is equally apposite in that context.
The Submissions of Counsel
Mr Morris relied on a passage from Aronson and Dyer, Judicial Review of Administrative Action [14] beginning “Refusal of an adjournment can amount to a denial of procedural fairness”; a proposition which Mr Wright did not seek to deny. That passage concluded:
Essentially, the decision whether to grant an adjournment involves balancing the consequences of refusal for the party who seeks the adjournment (appropriately discounted to the extent that these consequences are due to the “fault” of that party) against the adverse consequences of adjournment for other parties, witnesses, and the public interest in general. Included in the latter group are considerations relevant to the decision-maker’s resources. Adjournments impact on the ability of the decision-maker to consider other pending matters. Beyond a certain point it is not fair to delay other hearings by being too relaxed about adjournments.
[14]second edition, 2000 at 443
He submitted that because the affidavit material had been received only one clear working day before the hearing, and the application for an adjournment had been refused, Warehouse had not had an adequate opportunity to prepare its case in reply. The failure to grant the adjournment had the effect of depriving Warehouse of the opportunity to prepare its case and thus was a denial of procedural fairness. He relied inter alia on the judgment of Fitzgerald P and Derrington J, with whom Pincus JA agreed, in Little v Minister for Land Management[15] where their Honours said:
. . . in an appropriate case, procedural fairness entitles a potential objector to timely access to information reasonably required for the preparation of a properly detailed notice of objection and any subsequent hearing. Procedural fairness also requires that a potential objector be given adequate time for steps required, such as preparation of a notice of objection and preparation for a hearing when one is required.
Mr Morris submitted that in a technical case of the present kind, it was not possible for counsel to cross-examine a witness without preparation. Section 102(1)(b) of the VCAT Act requires the Tribunal to “allow a party a reasonable opportunity to . . . cross-examine witnesses”, and such a reasonable opportunity must involve the allowance of a reasonable time for preparation.
[15](1993) 79 LGERA 374 at 382
In his submission the effect of the refusal to grant an adjournment, resulting in Warehouse being unable to call witnesses, to cross-examine witnesses or to meet the case against it, amounted to a denial of natural justice. Had an adjournment been granted, Warehouse would have been in a position to call evidence differing from the evidence of Mr Rogers, to cross-examine Mr Rogers and to respond fully and properly to the allegations made against it. There was before the Court a copy of a memorandum of advice prepared by Mr Gobbo QC prepared in October 2000 for the then owner of the building, the predecessor of ISPT, which discusses at some length the problems of categorisation of the goods which were proposed to be sold on the subject land, and indicates the difficulties which arise in that context. Mr Morris relied on that memorandum in support of the submission that evidence different from the evidence of Mr Rogers would have been available.
Mr Morris also submitted that an application for an adjournment made, as in this case, at the outset of the hearing, should be more readily granted than such an application in the course of the hearing; he relied on the statement in Aronson and Dyer that “The adversarial model requires a hearing which is, as far as practicable, continuous.” [16]
[16]at 442
The response of Mr Wright, for Bevendale, to these submissions was that the Tribunal was correct in refusing the adjournment. Warehouse was given every opportunity to put its case, to call evidence, and to cross-examine, but chose not to do so. It took either no action, or not enough action, to prepare for the hearing. This might have been a conscious tactical choice or a result of inactivity, but in any event, Warehouse was the sole author of its own position. Ms Brennan, in reply, submitted that that was not so; and even had it been the case, that was not determinative of whether Warehouse was denied natural justice.
In the submission of Mr Wright, Warehouse knew what it was selling on the subject land. It was apparent from the application for an enforcement order dated 15 August 2001 that the substantial issue in the case was the single issue of whether Warehouse was selling goods which did not fall within the categories permitted in “restricted retail premises” which were permitted in a Business 4 zone, and therefore Warehouse was adequately informed of the case against it. Accordingly, Warehouse did not need the further particulars, in particular the information sought in (c), as to such goods, or the affidavit material, before preparing its case.
The submission of counsel for Warehouse was that their client was entitled to know what was being put against it, and, relevantly, it was entitled to know which of the goods being sold on the subject land were, in the submission of Bevendale, outside the permitted categories. It was relevant that the effect of the application for an enforcement order, if successful, would be to put Warehouse out of business on the subject land or to change the nature of the business which it conducted there. While the Practice Note contemplated that expert witness statements would be filed contemporaneously, that would be inappropriate in this case, where the result of the decision could be of such significance. Questions arose as to the categorisation of the goods. What Warehouse needed to know, so as to be able to respond, was not what it knew already, but what was being submitted by Bevendale as to the categorisation. It did not receive that information until the service of the further particulars and Mr Rogers’ affidavit.
Discussion
It is clear that questions arise as to the categorisation of the goods which were being sold on the subject land. Mr Rogers deposed:
After my visit on 12 October 2001 . . . I classified all the goods I had observed displayed for sale on that day into a number of categories. The categories were drawn from common usage and were selected as the most convenient way of compendiously describing all the goods I have observed.
He proceeded to enumerate 38 categories of goods, and to deal with them as set out in [23] above. I note the point made by Ms Brennan in reply that although there was only a single issue in the case, it was a complex single issue, and having perused the affidavit material of Mr Rogers, I would agree.
If the determination of the issue is looked at as a balancing operation, on the basis of the passage cited from Aronson and Dyer [17] , it becomes apparent that there is no evidence before the Court of any adverse consequences of the adjournment for Bevendale, save as set out in [30] above. No submission that there would be any adverse consequences was made; and the evidence of Ms Keen under cross-examination does not suggest that the consequences to which she referred could not be remedied by way of costs. Although there is no evidence before me as to the length of the adjournment which was sought, it is apparent from the reasons given for the application that it would have been for a matter of only two or three weeks [18], and in that context the significance of any disadvantage would not have been great. In any case, as I have said, Mr Wright made no submission as to disadvantage to his client, and the Tribunal did not find that there would be any such disadvantage.
[17]see [44] above
[18]see [32] above
No considerations as to the adverse consequences of adjournment for other parties, witnesses, the Tribunal [19] or the public interest were expressed by the Tribunal. The Council, which may be regarded as the representative of the public interest in the context, was represented at the Tribunal by its solicitor, who indicated that his client neither supported nor opposed the application for the enforcement order. It was not represented before this Court. Both the Council and ISPT had consented to the adjournment before the commencement of the Tribunal proceeding [20] .
[19]see [44] above
[20]see [24] above
In the context of the passage cited above from JL Holdings [21] , it should be noted that the Tribunal’s reasons for refusing the application for an adjournment did not refer to case management or to the efficiency of the procedures of the Tribunal. However, there is implicit in the Tribunal’s Reasons an assumption that there is a prima facie principle that adjournments should not be granted. That assumption must be grounded in the underlying principle of case management that it is the duty of the court to keep the proceedings moving.
[21]see [43] above
There also appears in the Tribunal’s Reasons an element of punishment of Warehouse for what the Tribunal perceived to be the breadth of the request for particulars, its misapprehension as to the procedure of the Tribunal, and its failure to apply for a directions hearing; and of rewarding Bevendale for not applying for a directions hearing. Like an application to amend a pleading, an application for an adjournment “is not the occasion for the punishment of a party for its mistake” [22] .
[22]see JL Holdings at [43] above
Mr Wright referred to the often-cited passage from Spurling [23] to the effect that the Court should be slow to interfere with a decision of a specialist body such as the Tribunal on an matter within its area of expertise. However, Stephen J was there concerned with questions of fact, and not with the exercise of a procedural discretion.
[23]see [15] above
Mr Wright also referred to section 98(1)(d) of the VCAT Act, providing that the Tribunal:
Must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
He submitted that the effect of that provision was that “there is a prima facie statutory obligation on the Tribunal to hear the case on the appointed day in order to fulfil the requirement to act with such speed as the circumstances permit and that can only be displaced by a compelling reason why it ought not to proceed on the appointed day”. However, that submission is untenable. Section 98(1)(d) is a balancing provision. If Mr Wright’s interpretation were accepted, it would be more difficult to obtain an adjournment in the Tribunal than in a court; a distinction which would be impossible to justify. I note that the Tribunal, in giving extensive reasons for its decision not to grant an adjournment, did not rely on that provision, which in any case cannot override the requirement of section 98(1)(a) of the VCAT Act that it is bound by the rules of natural justice.
Finally, Mr Wright submitted that the submissions of Warehouse on the natural justice issue were identical with those put before Mr Justice Beach on 27 November 2001, and accordingly the matter had already been ventilated in this Court on the same grounds. However, the evidence before me is that His Honour did not decide that application on the merits, but on the ground that the appropriate course was to wait for the conclusion of the proceedings before the Tribunal before seeking relief [24]. That being so, His Honour’s decision does not inhibit this Court in dealing with the submissions before it.
[24]see [34] above
Much time was spent at the hearing on the question as to whether the evidence of Mr Rogers was expert evidence, so as to be subject to the requirement of the Practice Direction that it be filed and served no later than 10 business days prior to the hearing [25] . However, in view of the conclusion I have reached, it is not necessary for me to resolve that issue.
[25]see [20] above
The Council, as I have said, did not take any part in the proceeding, and Mr Schwarz indicated that his client did not oppose the appeal being allowed on the natural justice ground.
Conclusion
Considering the justice of the situation in the light of the issues discussed in the authorities cited in [42] to [45], I have come to the conclusion that in all the circumstances of this case the failure of the Tribunal to grant the application for an adjournment constituted a denial of natural justice to Warehouse, and thus a vitiating error of law in terms of the passage from Portland Properties cited in [7] above.
There will be an order that the orders of the Tribunal as against both Warehouse and ISPT be set aside and the matter remitted to the Tribunal to be heard and determined by a differently constituted Tribunal. Counsel may wish to make submissions as to the form of the order and as to costs.
---
2
0