Zaric v City of Greater Dandenong
[2020] VSC 756
•16 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02671
| GORDANA ZARIC & ORS | Applicant |
| v | |
| CITY OF GREATER DANDENONG | Respondent |
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JUDICIAL OFFICER: | Keith JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2020 |
DATE OF JUDGMENT: | 16 November 2020 |
CASE MAY BE CITED AS: | Zaric v City of Greater Dandenong |
MEDIUM NEUTRAL CITATION: | [2020] VSC 756 |
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APPEAL FROM THE DECISION OF VCAT – Review of planning powers of respondent – VCAT summarily dismissed applicant’s proceeding under s 75 VCAT Act on basis of proceedings being misconceived, lacking substance and abuse of process – VCAT asserted proceedings sought to re-agitate issues already decided – VCAT asserted planning permit spent once subdivision work completed – Applicants appeal summary dismissal – Applicant sought to set aside decision of Senior Member Rickards – As no appeal has been lodged, this matter cannot be ruled on – Applicants further sought to reinstate previous proceedings before VCAT under s 149B of the Planning and Environment Act –Act does enable previous orders of VCAT to dismissed or set aside – Applicants further sought enforcement orders pertaining to the planning scheme the subject of this proceeding – Matter previously ruled on by VCAT and Court of Appeal – Council could not be added to this proceeding for enforcement orders – Even if Council were able to be added, enforcement orders could not be made – Applicants argue under s 52 VCAT Act Court of Appeal had no jurisdiction to hear matter – Applicants’ submissions incorrect – Section 52 provided Jurisdiction to Court of Appeal to hear matter – Furthermore, s 52(3) provides rulings of court in the absence of jurisdiction valid – Applicants assert planning permit cannot be expired as per s 68 Planning and Environment Act – Section 68 not exhaustive – Permit expired by virtue of development being completed – Appeal fails to establish any ground of appeal, or show any error in VCAT’s approach and conclusion regarding s 75 VCAT Act – Court satisfied Applicants have no real prospect of success – Matters raised in appeal conclusively ruled upon previously by Court of Appeal – Court needs to conserve its resources –Applicant’s application an abuse of process and vexatious.
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APPEARANCES: | Counsel | Solicitors |
| The Second and Third Applicants in Person | ||
| For the Respondent | Mr B Chessell | Ms M Marshall |
JUDICIAL REGISTRAR:
The respondent has made application by Summons dated 7 August 2020 for orders that the proceeding be dismissed. The respondent relies on an affidavit of Ms Kierra Parker and submissions of counsel. The applicants have filed affidavits and made oral submissions. I heard submissions from the parties on 19 August 2020.
The Summons has been referred to me for hearing and determination by order of Rickards J dated 17 August 2020
Introduction
By Notice of Appeal the three applicants seek leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) from a decision of the Tribunal made on 30 March 2020. The Notice of Appeal was filed on 29 May 2020 and an extension of time is required. The applicants took steps to lodge the appeal on around 19 May 2020, after one of them returned to Australia on 9 May 2020 and was required to be isolated for fourteen days due to the COVID-19 pandemic restrictions.[1]
[1]Shafgufta Riaz, ‘Affidavit’, submission in Zaric v City of Greater Dandenong, S ECI 2020 02671, 7 August 2020; and Arshad Ali Khan, ‘Affidavit’, submission in Zaric v City of Greater Dandenong, S ECI 2020 02671, 7 August 2020 – I consider the extension of time application at the conclusion of these reasons.
The respondent is the City of Greater Dandenong. Each of the applicants are resident within the area of the respondent. The dispute sought to be raised by the applicants in the VCAT proceedings concerned planning decisions by the respondent and the exercise of powers in relation to planning by the respondent. The subject land for the planning issues has been described as “parts of the Meridian Estate, west of Kirkham Road in Dandenong”.
The order of VCAT the subject of the proceeding for leave to appeal is the decision of the Tribunal that the proceeding in the Tribunal is summarily dismissed on the basis the proceeding was misconceived, lacking in substance and an abuse of process.
The order was made pursuant to s 75 of the VCAT Act. Section 75 has a heading “Summary dismissal of unjustified proceedings” and relevantly provides [at s 75(1) and (5):
1.At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
a.is frivolous, vexatious, misconceived or lacking in substance; or
b.is otherwise an abuse of process.
…
5.For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
The Tribunal published reasons for the order and noted[2] “there is a high threshold that must be met before VCAT should exercise its power under section 75” and also that “VCAT should act with caution before dismissing a proceeding, and should do so only to protect the interests of justice and preserve the integrity of the Tribunal’s processes.” The Tribunal found the high threshold had been met.
[2] Khan v Greater Dandenong CC [2020] VCAT 412, [13] (‘Khan’).
Background Circumstances
The matters raised by the applicants involve consideration of events going back to at least September 2009 when the Council issued a planning permit for the staged subdivision of land into residential lots. The Tribunal noted[3] the relevant planning permit was PLN 07/0439.03 and permitted a subdivision on land then owned by Melbourne Water.
[3]Ibid [6].
Mr Khan and Ms Riaz – the third and second applicants respectively - have filed affidavits showing their address as 2 Dedina Walk, Dandenong VIC 3175 and they acquired their land as one of the lots on the subdivision. They subsequently built a house on the property. Ms Shagufta Riaz is a psychologist by occupation and is the partner of Mr Khan[4]. The applicant Gordana Zaric has filed an affidavit showing an address at 45 Rodina Terrace, Dandenong VIC 3175. Ms Zaric did not appear at the hearing before me on 19 August 2020 but the affidavit explains that as a personal carer there would be difficulty in attending the Court hearing.
[4]Shafgufta Riaz (n 1); Arshard Ali Khan (n 1); and see Khan v VCAT [2018] VSC 549, [1] (Champion J) (‘Khan’)
In submissions before me the applicants maintained they wished to raise issues of public safety. The background facts indicate the concerns relate to the subdivision and particularly: the absence of footpaths; the width of roads; the profile of curbing; the length of road signs; and drainage. The applicants are concerned the public works do not comply with the standards and plans endorsed on the planning permit.[5] Reference is also made by the applicants to the Greater Dandenong Planning Scheme.[6]
[5]Khan [2020] VCAT 412, [5] quoting a decision of the Court of Appeal in Khanv VCAT [2018] VSCA 351, [2] (‘Khan’). Additional background appears in the reasons for decision of Champion J in Khan [2018] VSC 549.
[6]Kierra Elizabeth Parker, “Affidavit of Kierra Elizabeth Park” submission in Zaric v City of Greater Dandenong, S ECI 2020 02671, 7 August 2020, [5]
It is necessary to recite the history of applications and proceedings taken by Mr Khan - and in some cases the other applicants - in order to understand the basis for the orders of VCAT the subject of this proceeding and to consider the present application to dismiss the proceeding seeking leave to appeal from the VCAT decision. The respondent before me relied on an affidavit of Ms Parker to summarise the history of other proceedings.[7] No evidence was called by the applicants to contradict that affidavit and no submissions were advanced that it was not accurate.
[7]The affidavit on file at the time of the hearing before me on 19 August 2020 appeared to be defective due to a failure to describe the position held by the authorised functionary before whom the affidavit had been affirmed. Leave was granted to the respondent to rectify that deficiency.
The affidavit of Ms Parker describes[8] the history of five earlier VCAT proceedings between 2017 and 2020.
[8]Kierra Elizabeth Parker (n 6), [6] - [8] and associated exhibits. There is also a description in Khan [2018] VSC 549, [14] - [15] (Champion J)
The First VCAT proceeding was commenced in January 2017 by Mr Khan seeking the cancellation of amendment of the planning permit under ss 87 and 89 of the Planning and Environment Act 1987 (the “P & E Act”). On 24 February 2017, the first proceeding was dismissed. Mr Khan did not have standing to seek relief under the relevant sections as he did not object to the permit and had no relevant interest at the time the permit was granted in 2009. The subsequent interest gained in 2013 did not create a right to seek orders under ss 87 and 89. In addition, the Tribunal held s 88 precluded any order to cancel or amend a permit after the approved development had been completed.
The Second VCAT proceeding[9] was commenced in March 2017 by Mr Khan and Ms Riaz seeking enforcement orders under s 114 of the P & E Act. On 29 May 2017, the Tribunal struck out the second proceeding on the basis s 114 did not provide for an enforcement order directed to the Council. The proceeding was found to be misconceived within the meaning of s 75 of the VCAT Act.
[9]Kierra Elizabeth Parker (n 6), [9] - [11] and associated exhibits. There is also a description in the decision of Khan [2018] VSC 549, [16] - [19] (Champion J).
A Third VCAT proceeding[10] was filed by Mr Khan and Ms Riaz on 6 June 2017 and named as the respondents the developers of the subdivision, Melbourne Water Corporation and Places Victoria. The proceeding was rejected by the Principal Registrar of the Tribunal. The decision to reject the proceeding was affirmed by VCAT on 17 July 2017. The Tribunal rejected the application on the basis VCAT did not have jurisdiction to consider the subject matter which was an application for enforcement orders under s 114 of the P & E Act.
[10]Kierra Elizabeth Parker (n 6), [12] - [13] and associated exhibits. There is also a description in the decision of Khan [2018] VSC 549, [20] - [25] (Champion J).
An application was made for leave to appeal from the VCAT decision dated 17 July 2017. The trial division granted leave to appeal but dismissed the appeal.[11] The decision to dismiss the appeal is explained in the reasons of Champion J.[12] In summary, Champion J concluded the planning permit was “spent” upon completion of the subdivision and that the statement of compliance issued pursuant to s 21 of the Subdivision Act 1988 is conclusive evidence the requirements under the Subdivision Act have been met.[13]
[11]Khan [2018] VSC 549.
[12]Ibid [46] - [61].
[13]Ibid [59].
Mr Khan made application for leave to appeal from the decision of the Trial Division.[14] The Court of Appeal refused leave to appeal on the ground the application to VCAT could not succeed and there would be no utility in the matter returning to VCAT.[15] The Court of Appeal held the Tribunal did have jurisdiction and should have heard the application on its merits. The Court of Appeal considered in detail the question of whether Mr Khan could obtain the relief sought in the application and concluded he could not.[16]
[14]Proceeding S APCI 2018 0131 – heard by Niall JA and Macaulay AJA on 29 November 2018 with the decision published on 20 December 2018 – Case citation Khan [2018] VSCA 351.
[15]Khan [2018] VSCA 351, [131].
[16]Ibid [95] - [130].
In reaching that conclusion, the Court of Appeal reviewed the various clauses of the planning scheme which Mr Khan had alleged were contravened. The Court of Appeal concluded the provisions of the planning scheme did not survive - in the sense of imposing ongoing obligations - after the plan of subdivision had been registered.[17] Although the Court of Appeal commented the significance of the statement of compliance was not that it provides conclusive evidence of compliance[18] but rather that it demonstrates the requirements under the Subdivision Act and the P & E Act that relate to public works had been complied with to the satisfaction of the Council.[19]
[17]Ibid [129].
[18]Contrast the decision of Champion J in Khan [2018] VSC 549 under appeal.
[19]Khan [2018] VSCA 351, [110].
A fourth VCAT proceeding[20] was commenced in May 2019 in which the applicants sought declarations under s 149A of the P & E Act. The Council was named as the respondent in that proceeding. Section 149A is a power to allow the Tribunal to determine matters broadly relating to planning matters. The proceedings were rejected by the Principal Registrar of the Tribunal and the decision was affirmed by the Tribunal on 17 July 2019. The reasons for decision show a procedural obstacle arose as the proceeding did not state the remedy sought and the applicants were not able to articulate the nature of the declarations or remedy sought.[21]
[20]Kierra Elizabeth Parker (n 6), [18] - [20] and associated exhibits.
[21]Kierra Elizabeth Parker (n 6), [20] and relevant exhibit.
A fifth VCAT proceeding was commenced in late 2019 seeking declarations under s 149A of the P & E Act.[22] The Tribunal dismissed the proceeding on 4 December 2019 and ruled the issues raised had already been determined.
[22]Ibid [21] - [23] and associated exhibits.
The Tribunal said in its reasons:[23]
In both the Supreme Court decision and the Court of Appeal decision, it was determined that the permit granting the subdivision was ‘spent’ in other words it is no longer in operation. There is therefore no ability to bring proceedings seeking to have the subdivision reconsidered on the basis of failure to comply with clauses in the planning scheme that were considered as part of the granting of a subdivision permit and conditions in the subdivision permit, as the development the subject of the subdivision permit was completed following the issuing of the statement of compliance.
[23]Khan v Greater Dandenong CC [2019] VCAT 1914, [15] – [16] – exhibit “KP8” to affidavit of Ms Parker.
Summary
By way of overview the several proceedings taken in VCAT have each sought to agitate issues concerning the completion of the subdivision development. Each application has failed for a variety of reasons:
(a) the first VCAT proceeding was pursuant to ss 87 and 89 of the P &E Act but Mr Khan did not have standing to seek such orders, as he had not been an objector. Furthermore, s 88 prevented the cancellation of the permit or any amendment to the permit once the subdivision was completed;
(b) the second VCAT proceeding named the Council as respondent seeking enforcement orders but the power in s 114 of the P & E Act did not allow for such an order;
(c) the third VCAT proceeding sought enforcement orders against the “developers” (in order to overcome the defect in the second proceeding) but the Trial Division on appeal and the Court of Appeal on further appeal held enforcement orders could not be issued after the registration of the planning scheme;
(d) the fourth VCAT proceeding sought to invoke s 149A of the P & E Act but failed to identify the remedy sought and so was not accepted by the Tribunal; and
(e) the fifth VCAT proceeding was dismissed on the basis it sought to raise issues that had been conclusively determined by the Court of Appeal decision. The decision of the Court of Appeal as to the effect of the completion of the subdivision and the registration of the planning scheme had the effect the orders sought in the fifth VCAT proceeding could not be made.
The foregoing summary is necessary in view of the nature of the relief sought, and the terms of the declarations requested, in the sixth VCAT proceeding, lodged by the applicants in January 2020. The VCAT proceeding was made pursuant to s 149B of the P & E Act and sought to have orders made by reference to the earlier applications. The nature of the application is described in the following section. It is the decision of the Tribunal in the sixth VCAT proceeding the subject of this proceeding. The Tribunal’s order dismissing the proceeding pursuant to s 75 of the VCAT Act is the order subject to the challenge in this proceeding.
The Sixth VCAT proceeding
The application form completed by Mr Khan – in this proceeding presented to the court as evidence as exhibit “KP9” of Ms Parker’s affidavit filed 7 August 2020 - is in the usual form for a VCAT application in the planning division. As required by the form, it specifies s 149B of P & E Act as the legislative power to be exercised.
The form then identifies by file reference number three of the earlier applications made to VCAT by Mr Khan, namely
(a) File ref P1283/2017 (which is the application referred to as the third VCAT proceeding);
(b) File ref P932/2019 (which is the application referred to as the fourth VCAT proceeding); and
(c) File ref P1467/2019 (which is the application referred to as the fifth VCAT proceeding).
The Application refers to the three file numbers and in the section of the VCAT form “description of what is proposed” the Applicants have entered:
To make a declaration about the previous application made to VCAT under PE Act
To determine the decisions made by Dandenong Council under PE Act in terms of Greater Dandenong Planning Scheme (followed by 5 section numbers, 56 and 59) and Planning Permit PLN07/0439.03 (followed by reference to section 23 and 30)
The form continues and sets out the orders or relief the Tribunal is asked to make pursuant to s 149B of the PE Act:
The applications seek that
- the order made by Sen Member J G Rickards dated 4 Dec 2019 to be dismissed/set aside
- to reinstate the application P1467/2019 or any other previous application that the Tribunal thinks appropriate made under PE Act
- to issue the enforcement orders as per PE Act 119(B) to ensure compliance with PE Act or the planning scheme, permit condition or agreement under section 173
The form then continues from page 86 – of Ms Parker’s exhibits to her affidavit filed 7 August 2020 - to set out other factors said to be relevant to the application.
In respect of the previous application P1467/2019, the other factors are expressed as:
There is no evidence senior member Rickard qualified to satisfy section 75(3) There is no evidence SMR qualifies to exercise the power under s149A of the PE Act There was an error in failing to consider s52 VCAT Act, and the Tribunal has not determined the issues
From pages 87 of 116 of Ms Parker’s exhibits, the form sets out the argument and issues under the pro form heading “Facts relied on (Statement of Grounds)”. In the section for “Hearing time and complexity” the application shows an estimate of 5 hours to make submissions and present evidence and the number of witnesses is said to be “100+”. Page 93 of 116 of Ms Parker’s affidavit is the VCAT practice day form and contains a statement about the effect of s 52 and the power of the Supreme Court.
This summary shows the sixth VCAT proceeding did not seek any new relief. The proceeding sought to have orders made about earlier proceedings, and sought enforcement orders which had, in effect, been refused in earlier proceedings. The Tribunal reviewed the nature of the relief sought, as well as the history of earlier proceedings and then dismissed the sixth proceeding.
Consideration
It is appropriate to give consideration to the first and second matters of relief sought together as they raise common issues. They are requests to set aside the order of 4 December 2019 and a request to reinstate VCAT proceeding P1467/2019.
The first matter of relief sought in the sixth VCAT proceeding was a determination pursuant to s 149B of the P & E Act that the order made by Senior Member JG Rickards dated 4 December 2019 to be dismissed/set aside.
The order made on 4 December 2019 was made in the fifth VCAT proceeding. The order had the effect that the fifth VCAT proceeding was dismissed.
The relief which sought the order be dismissed or set aside has the appearance of an appeal but is not expressed as an appeal. It is sought in a new proceeding in VCAT and was not filed in the Supreme Court as an application for leave to appeal pursuant to s 148 of the VCAT Act.
No appeal was filed from the December 2019 order and no application is sought for an extension of time to appeal from that order of the Tribunal.
The second matter of relief sought in the sixth VCAT proceeding was a determination pursuant to s 149B of the P & E Act to “reinstate the application P1467/2019 or any other previous application that the Tribunal thinks appropriate made under PE Act”.
The proceeding P1467/2019 has been referred to as the fifth VCAT proceeding and is the proceeding in which the order of 4 December 2019 was made. As I have said, no appeal was filed from that order.
The power given to VCAT by s 149B of the P & E Act is a general power to allow a person to file an application in the Tribunal for declarations. The powers of the Tribunal are to be exercised by a presidential member of the Tribunal.
Section 149B (1) provides:
a person may apply to the Tribunal for a declaration concerning –
(A) any matter which may be the subject of an application to the Tribunal under this Act; or
(B) anything done by a responsible authority under this Act
I consider there is no basis to say the relief sought in relation to proceeding P1467/2019 and the order of 4 December 2019 are matters of application that can be the subject of an application or a declaration pursuant to s 149B.
A declaration may be made pursuant to s 149B if there is a matter which may be the subject of an application to the Tribunal under the P & E Act. There is no such power in the P & E Act to dismiss or set aside an order of the Tribunal. There is no such power in the Act to reinstate a proceeding in the Tribunal. The procedure in the Tribunal is determined by and in accordance with the VCAT Act. The declaration power under s 149B of the P & E Act does not assist the applicants. The relief claimed is not any matter which may be the subject of an application under the P & E Act. It does not assist the applicant to look to the content of proceeding P1467/2019, as the first two declarations sought are procedural – to set aside an order and to reinstate the proceeding.
Deputy President Dwyer published reasons on 30 March 2020 in which the Tribunal explained why the sixth VCAT proceeding was misconceived. With respect, those reasons are correct. Section 149B of the P & E Act cannot be used to seek the relief set out, namely to reinstate earlier VCAT proceedings, or to dismiss or set aside orders made by the Tribunal.
The third matter of relief sought in the sixth VCAT proceeding was a determination pursuant to s 149B of the P & E Act that the Court “issue the enforcement orders as per PE Act 119(B) to ensure compliance with PE Act or the planning scheme, permit condition or agreement under section 173”.
The Greater Dandenong City Council is the named respondent to the sixth VCAT proceeding. The second VCAT proceeding had been dismissed on the ground the enforcement order could not be issued to the responsible authority. The second VCAT proceeding was expressed to be made pursuant to s 114 of the P & E Act. The sixth VCAT proceeding is expressed to be made pursuant to s 119 of that Act.
Section 119(b) says an enforcement order made by the Tribunal “may direct any person against whom it is made to do any one or more of” certain actions set out in s 119. However, that provision does not enlarge the class of persons against whom the order can be made. The persons against whom an enforcement order may be made are specified by the Act in s 114 (3) and the purpose of s 119 is to set out what an enforcement order can provide for.
The determination of the second VCAT proceeding in May 2017 determined no enforcement order could be made against the Council. The Court of Appeal came to the same conclusion in December 2018.[24]
[24]Khan [2018] VSCA 351, [108].
Deputy President Dwyer set out in his reasons on 30 March 2020 further grounds why this relief could not be granted. The Tribunal held the earlier proceedings had determined enforcement orders could not be made. In other words, even if the persons against whom the enforcement orders were intended to be made had been joined to the proceeding the enforcement orders could not have been made. The reasons for that conclusion were stated by the Court of Appeal in the decision of that Court in December 2018 on the appeal in relation to the third VCAT proceeding.
Grounds Of Appeal
In the proceeding filed in this Court seeking leave to appeal pursuant to s 148 of the VCAT Act from the decision of Deputy President Dwyer, the applicants seek to raise the following questions of law on the appeal (which I have summarised or paraphrased):
(a) Section 75 (5) of the VCAT Act is mentioned, to show the exercise of power under s 75 involves a question of law;
(b) Section 52 of the VCAT Act is set out to say there is a limitation upon the jurisdiction of courts, including the Supreme Court, in planning matters;
(c) Section 60 of the P & E Act is mentioned to say that before deciding on an application the responsible authority must consider the relevant planning scheme;
(d) Section 68 of the P & E Act is referred to for the identification of the time at which a permit for development of land expires;
(e) The power of the Tribunal to make a declaration is set out (without reference to but presumably intending to rely upon) in s 149B of the P & E Act; and
(f) Section 149B (2) extends to the Tribunal being empowered to make any declaration it thinks appropriate in the circumstances.
The Notice of Appeal sets out the submission (and argument) for the applicants that the Tribunal has rejected each application, thus preventing it from reaching the stage of making any declaration and has refused to exercise the powers created by the legislation.[25]
[25]Gordana Zaric, Shagufta Riaz and Arshad Ali Khan, ‘Notice of Appeal’, submission in Zaric v City of Greater Dandenong, S ECI 2020 02671, 29 May 2020, [7] - “the Tribunal has so far rejected the application to reach that stage and refused to exercise those powers“.
The Notice of Appeal filed in this proceeding sets out[26] the “grounds relied upon” in the following series of propositions (which I have paraphrased), identified by clause number in the Notice of Appeal:
[26]Ibid [8] – [21].
(a) [8] The application was aimed at a matter that was subject to the applications previously made to the Tribunal and the decision of the Council in issuing the Permit;
(b) [9] The Permit was subject to Greater Dandenong Planning Schemes;
(c) [10] There is no mention of relevant planning schemes in the order;
(d) [11] Certification of the permit was issued by the Council within the prescribed time;
(e) [12] The Tribunal stated in the reasons the permit had expired;
(f) [13] Section 68 of the PE Act sets out when a permit expires;
(g) [14] Certification under the Subdivision Act “bears no relation to Compliance to PE Act”;
(h) [15] Section 21 of the Subdivision Act concerns the issue of a statement of compliance;
(i) [16] The statement of compliance can be issued even if the public works have not been completed;
(j) [17] The Tribunal has power to make any declaration it thinks appropriate in the circumstances;
(k) [18] No declarations were made by the Tribunal;
(l) [19] The application has never been determined by the Tribunal and section 52 of the VCAT Act requires applications be determined by the Tribunal, not a Court;
(m) [20] Nevertheless, even if there has been a previous determination, the application for declarations can be made pursuant to s 149B; and
(n) [21] Section 126 of the P & E Act makes it an offence to contravene the scheme, permit or agreement.
The determination of this matter does not require a specific response to each of the grounds. The following matters show: the Tribunal was correct to dismiss the proceeding; the application by the respondent in this Court should be allowed and this proceeding should be dismissed.
The reliance placed by the applicants on the Greater Dandenong Planning Scheme and the grounds stated in [9] and [10] and s 60 of the P & E Act in relation to the question of law do not create an arguable ground of appeal. The determination of the Tribunal that the decision of the Court of Appeal is binding and has conclusively resolved such issues must be upheld. The Court of Appeal reviewed the statutory schemes and concluded the relief sought in the proceedings then before it (in 2018) could not be granted. The same relief is sought in the new proceedings, namely enforcement orders and nothing has been shown to suggest any change in the law or the circumstances which might result in a different conclusion.
The applicants rely on s 68 to dispute the observation of the Tribunal that the permit has expired – grounds [11] to [13]. There is no merit in this submission. The applicants have incorrectly compared the observation of the Tribunal to an administrative aspect of the planning scheme. Section 68 sets out circumstances in which a permit may expire. That administrative provision relates to a permit which is not taken up or acted upon. It does not exclude the fact a permit might be said to have ‘expired’ in other circumstances. Section 68 does not purport to state conclusively the only situations in which it might be said a permit has expired. The Tribunal observes the permit has expired in the sense the development permitted has been completed and the permit and the conditions on which the permit was granted have served their function and purpose. The permit has ‘expired’ in the sense explained by the Court of Appeal.
The Court of Appeal said[27] “there would be no injustice in allowing the error (as to jurisdiction) to go uncorrected if VCAT and the primary judge were correct in concluding Mr Khan could not obtain the relief sought because neither the permit or the planning scheme imposed relevant continuing obligations on the developer.” The Court of Appeal went on to conclude Mr Khan could not obtain the relief sought. The conditions in the permit do not provide for any obligations to subsist after the statement of compliance has been issued.[28] The Court of Appeal concluded in relation to the provisions of the planning scheme that “They did not survive in the sense of imposing ongoing obligations after the plan of subdivision had been registered.”[29]
[27]Khan [2018] VSCA 351, [92].
[28]Ibid [104], [110] and [121].
[29]Ibid [129].
The grounds stated at [11] to [16] overlap with the matters addressed above, but the emphasis of the submissions for the applicants is directed to the act of, and nature of, certification by the Council. The conclusions made by the Court of Appeal and mentioned above also respond to this topic. The certification does not support any ground for relief sought by the applicants and no enforcement order can be made against the Council.
The grounds at [17] to [19] inclusive contain a complaint that the Tribunal has not made any declaration when it was empowered to do so by s 149B. In support of the submission is the statement at [8] that the subject matter of the applications to the Tribunal are within the scope of s 149B. There is no basis for these submissions of for the complaint the Tribunal has failed to make declarations. The several applications have failed to provide any occasion for a declaration by the Tribunal. The enforcement orders purportedly sought in the sixth VCAT proceeding could not be made against the Council, as has previously been determined by the Tribunal. The determination of the issues including questions of law by the Court of Appeal show the applicants cannot obtain the relief sought. There is no basis for the Tribunal to make declarations and the complaint by the applicants of an error by the Tribunal in not making any declarations is misconceived.
In a related submission the applicants rely on s 52 of the VCAT Act and submit s 52 “requires that applications be determined by the Tribunal not a Court”. In this submission the applicants seek to say the decision of Deputy President Dwyer incorrectly ruled the issues had been determined, because the decision of the Court of Appeal is contrary to s 52 and is not a determination that prevents the further application to the Tribunal.
The submission does not address the part of s 52 (1) (b) that imposes conditions on the limitation imposed on the jurisdiction of the Court. Namely, that the matter has not been the subject of a proceeding in the Tribunal, or if it has been the subject of a proceeding, the matter has not been determined by the Tribunal. In addition, the section imposes a condition that if an appeal has been brought, the appeal must not have been determined before the limitation would be imposed.
Contrary to the submission for the applicants, the Court of Appeal has exercised the jurisdiction of the Court and s 52 does not apply to limit the jurisdiction of the Court. The applicants wish to say there have been prior applications to the Tribunal, but the Tribunal has not determined the question. The provision of s 52 limits the jurisdiction of the Court where the matter is within the jurisdiction of the Tribunal (s 52(1)(a)) AND that if an appeal has been brought against an order in a proceeding in VCAT the appeal has not been determined (s 52(1)(b)(iv)). Because Mr Khan took an appeal from the order of VCAT in the third VCAT proceeding and the appeal has been determined, s 52 does not limit the jurisdiction of the Court. It cannot be said the Court of Appeal decision does not determine the matters, or that it is not binding on the Tribunal.
In any event s 52 contains a “saving” provision in s 52 (3) that if a court does determine a proceeding, nothing invalidates the decision of the Court. The applicants’ grounds of appeal and question of law are misconceived. It cannot be said the decision of the Tribunal to dismiss the sixth proceeding is in error for the reason the Tribunal considered itself bound by the Court of Appeal decision, when that decision of the Court of Appeal was contrary to s 52.
The final grounds [20] and [21] do not raise any issue which supports the applicants in this appeal, or in establishing the Tribunal was in error to dismiss the proceeding pursuant to s 75. The question of law as to the application of s 75 does not establish any ground of appeal. Moreover, no error is shown in the Tribunal’s approach and conclusion to the exercise of that power.
The Application By The Respondent
The respondent has applied by Summons dated 7 August 2020 for orders that this proceeding be dismissed. Counsel for the respondent addressed the power of the Court in Order 4 of Part 2 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 and in particular R4.08 (8) which provides:
8.The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if satisfied that—
a.the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
b.the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
c.the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
The application by the respondent also relies on the power of the Court in s 62 of the Civil Procedure Act,[30] which provides “A respondent in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.”
[30]The procedure for such an application has been followed in accordance with Part 3 of Order 22 of the Supreme (General Civil Procedure) Rules 2015 – Rule 22.16 and following.
The respondent also relied on the power of the Court in Order 23 of the General Civil Procedure Rules and particularly R23.01:
1. Where a proceeding generally or any claim in a proceeding—
a. is scandalous, frivolous or vexatious; or
b. is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
The respondent is entitled to the order dismissing the proceeding. The applicants are self-represented litigants and have made submissions in opposition to the application. I have considered each of their submissions and earlier in these reasons I have reviewed the grounds of appeal and questions of law raised in the notice of appeal.
I have concluded the respondent has established the appeal has no real prospect of success within the meaning of s 62 of the Civil Procedure Act. I am also satisfied the applicants do not have an arguable case on appeal within the meaning of Rule 4.08.
The basis for these conclusions is the notice of appeal does not establish an arguable case to overturn the decision of VCAT dismissing the proceeding pursuant to s 75, and the appeal has no real prospect of success. This is established by the respondent because the Tribunal has correctly determined that the Court of Appeal decision has ruled on the issues.
The relief sought in the VCAT proceedings to set aside the order in earlier proceedings and to reinstate earlier proceedings is misconceived. The orders cannot be made pursuant to s 149B of the P & E Act. The orders could not be made in new VCAT proceedings on any basis. There was no appeal from the earlier orders and the time for appeal has expired.
The VCAT proceedings sought enforcement orders against the Council, which is relief that has previously been refused by the Tribunal. Such an application involves an application to consider the same issues the subject of the decision in the Court of Appeal. It remains the case there is no prospect of the applicants obtaining the relief sought in the sixth VCAT proceeding. The Tribunal was correct to dismiss the proceedings pursuant to s 75.
It is also the case that the refusal of leave to appeal would impose no substantial injustice on the applicants in the sense of that phrase in Rule 4.08(8). This follows from the Court of Appeal decision that has already determined the questions and the correct exercise of the power of the Tribunal to dismiss the proceeding.
It was open to the Tribunal to conclude the sixth VCAT proceeding was an abuse of process, or otherwise vexatious. No error of law is shown in that decision of the Tribunal. It is correct that s 75 makes it clear it is a question of law. The appeal to this Court is able to be sought on a question of law, but the appeal does not have prospects of success, or show any error in the approach taken by the Court.
Abuse of process
I also find the proceeding in this Court is properly characterised as an abuse of process, or is vexatious in the sense those terms are used in the Rules and the legislation referred to above. The issues raised by the applicants as to the public works in the development and the conditions of the Scheme and the Permit have been conclusively determined by the Court of Appeal. They have been determined on the basis that as a matter of law from the legislative scheme concerning planning and development the relief sought by the applicants cannot be granted by the Court.
Since the decision of the Court of Appeal in 2018 the same issue has been raised in the fourth VCAT proceedings, the fifth VCAT proceedings and the sixth VCAT proceedings. The appeal to this Court in relation to the dismissal of the sixth VCAT proceeding is a further application by the same parties seeking to agitate the same issues already determined by the Court of Appeal.
The principle of finality of litigation is an important principle in the administration of justice.[31]
[31]D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and also AON Risk Services v Australian National University (2009) 239 CLR 175.
The respondent has been put to cost and inconvenience in responding to litigation on repeated occasions in circumstances where the same issues are agitated. The different form of proceedings and the different statutory provisions sought to be relied upon by the applicants do not overcome the reality that the same issues are the subject of the proceedings. The compliance or non-compliance with the planning scheme and the conditions of the permit underlie each of the proceedings, including this appeal. Those matters have been conclusively determined.
The power of the Court to dismiss proceedings as an abuse of process and as vexatious are to be used by the Court to protect its resources. The applicants appear to believe they are using litigation to raise matters of public importance. The respondent does not agree there is any legitimate use of the processes of the Court in agitating again and again the same mattes that have already been determined.
It is appropriate in the circumstances of this case for the Court to exercise its powers to dismiss this proceeding as an abuse of process and as a vexatious proceeding.
Extension of time to appeal
The notice of appeal by which the applicants seek leave to appeal from the VCAT proceedings were not commenced within twenty eight days of the decision of VCAT as required by s 148 of the VCAT Act.
The applicants have provided some evidence as to the reasons for the delay in the commencement of the proceedings. While the respondent has submitted the explanation is not sufficient to warrant an extension of time, it is not necessary to consider that question at any length. In my view the delay is not so extensive as would cause any prejudice to the conduct of the proceedings. The explanation for the delay is my view sufficient that an extension of time might be considered appropriate, however given my view as to the merits of the proceeding I decline to grant an extension of time.
The cases establish a factor in considering whether to grant an extension of time is whether there is merit in the application for leave, and in the appeal if leave were to be granted.[32] In this case, even accepting the explanation for delay offered by the applicants, any extension of time would be futile as the application for leave to appeal and the appeal grounds have no real prospect of success. The extension of time should be refused on this ground. I express this conclusion should it be necessary to consider the extension of time application separately from the application to dismiss the proceeding.
[32]Jackamarra v Krakouer 195 CLR 516, [7] (Brennan CJ and McHugh J); Muto v Secretary to the Department of Planning and Community Development [2013] VSAC 85, [13] (Nettle J).
The provisions of s 148 of the VCAT Act require this Court grant leave to appeal only if satisfied the appeal has a real prospect of success. I am not so satisfied for the reasons explained elsewhere in these reasons. I would refuse to grant an extension of time to appeal.
Conclusion
The proceedings are dismissed on the basis the claims made in the proceeding have no real prospect of success and do not present an arguable case. This conclusion supports an order pursuant to s 62 of the Civil Procedure Act as well as pursuant to the Rules of Court.
The conclusion means there is no need to base the orders on my view the proceedings are an abuse of process of the court and are vexatious. However, I have set out my reasons for that conclusion and the proceeding is liable to be dismissed on that basis if there was any doubt as to my earlier conclusion.
The extension of time should be refused were it necessary to consider it separately on the basis that any extension of time would be futile as there is no prospect of a grant of leave to appeal. Section 148 of the VCAT Act requires there be a real prospect of success before a grant of leave to appeal can be made. The discretion to extend time to appeal should not be exercised in a case such as this where there is no real prospect of success.
Procedural matters
The Summons filed on 7 August 2020 contains an error in the name of the respondent in the title to the proceedings. The correct proceeding number has been used, but the respondent is shown as the Casey CC when it should of course be Dandenong CC. The error has no consequence for the application before me, or for this decision.
I do not consider there to be any utility in requiring the respondent to amend the Summons to include a correction to the name (Casey should be Dandenong) on filed documents. In view of the decision I have reached, it will only be in the event of further hearings that the Court may need to consider if there should be any amendment to the record.
The respondent relied on Ms Parker’s affidavit filed on 7 August 2020, but the jurat does not show the date on which the affidavit was made, nor the capacity in which the witness was authorised to take the affidavit.
Order 43 regulates the use of affidavits. Rule 43.08 permits the use of an affidavit notwithstanding any irregularity in the form of the affidavit. I grant leave to the respondent to use the affidavit of Ms Parker, notwithstanding the irregularities in form as to the absence of a date in the execution and the absence of the statement of the capacity in which the person had authority to take the affidavit of Ms Parker in accordance with R43.01.
Section 27 of the Oaths and Affirmations Act 2018 specifies the requirements for the jurat:
1.An authorised affidavit taker before whom any affidavit is made must do the following—
a.state truly in the jurat at what place and on what date the affidavit was sworn or affirmed;
b.complete and sign the jurat;
c.legibly write, type or stamp below that affidavit taker's signature the following—
i.the authorised affidavit taker's name and address (whether personal or professional);
ii.a statement of the capacity in which the affidavit taker has authority to take the affidavit.
Section 29 of the Act provides “An affidavit is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part that does not materially affect the nature of the affidavit.”
I am satisfied the non-compliance is such that the affidavit may nevertheless be relied on for the purpose of the proceeding.
ORDERS
1 I grant leave to the respondent to rely on the affidavit of Ms Parker filed on 7 August 2020 notwithstanding the irregularities in form of that affidavit.
2 The proceeding be dismissed.
3 The applicants pay the respondent’s costs of the proceeding.
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