1. The decision of the respondent is set aside.
2. The application is remitted back to the respondent to be decided in accordance with these reasons.
3. In the event that the parties are unable to agree on a proper form of order in regard to the remitter, there shall be liberty to either party to apply.
4. Reserve costs.

1. This is an application to review a decision of the respondent made on 27 August 2010. The decision was to refuse the applicant a taxi licence pursuant to s 143A(2) of the Transport (Compliance and Miscellaneous) Act 1983 (the Act).
2. The application to this Tribunal has been made pursuant to s 143C of the Act which relevantly reads as follows :

143C Review by Tribunal of refusal to grant licence

(1) An applicant may apply to the Tribunal for review of a decision by the licensing authority to refuse to grant an application for a commercial passenger vehicle licence other than an application in respect of a vehicle which is to operate as a public commercial passenger vehicle

1. In December 2009 the Victorian Government determined that it would release up to 530 new taxi cab licences in Greater Melbourne area. The release process was referred to as the Greater Melbourne Taxi Licence Release (GMTLR). The taxi licences available through the GMTLR were 10 years fixed-term licences.
2. Two types of licences were released through the GMTLR. One being up to 200 conventional fixed-term licences and up to 330 wheelchair accessible taxi-cab fixed-term licences. On 26 July 2010, the applicant purportedly made an application for a conventional fixed-term licence under the GMTLR.
3. The licences were to be released pursuant to s 143A of the Act. That section relevantly reads -

143A Power to make Orders for the granting of taxi-cab licences in taxi-cab zones

(1) The Minister may, by Order published in the Government Gazette -

(b) specify whether the fees to be paid for taxi-cab licences are to be determined by tender or are to be a fixed price;

(c) specify the classes of people and the qualifications of people eligible to apply and the procedures to be followed for the granting of taxi-cab licences;

(d) specify the particulars that must be included in an application for a taxi-cab licence;

of a taxi-cab, the licensing authority may grant the owner or intending owner a taxi-cab licence.

(7) An application for a taxi-cab licence must be accompanied by -

(b) the appropriate application fee determined under section 147B.

(8) The licensing authority may grant taxi-cab licences to applicants at any time within one year of the closing date for applications.

1. Purportedly, acting under the power given to the Minister pursuant to s 143A, on 28 June 2010 in the Victorian Government Gazette No S246, the Minister published a Ministerial Order and Rules attached thereto relating to the granting of the GMTLR. The Ministerial Order relevantly reads as follows :

Class and qualifications of persons eligible to apply

1. specify that a person is eligible to apply for a Fixed-Term Licence if and only if the person satisfies the eligibility requirements specified in rule 6.2 of the Rules;

1. specify that each application for Fixed-Term Licence must be lodged with the licensing authority on or before the relevant due date; and
2. the relevant due dates are :
   • 10.1 Conventional Fixed-Term Licences: 26 July 2010; and
   • 10.2 WAT Fixed-Term Licences: 13 September 2010.
3. Further, attached to the Ministerial Order, were Rules. Those Rules relevantly state as follows :
   • 2.2 Purpose of Rules

The purpose of these Rules is for the Minister to specify criteria and procedures that determine :

2.2.1 who is eligible to apply for a Fixed-Term Licence;

2.2.2 how many Fixed-Term Licences are available to be granted by the Licensing Authority;

2.2.3 which applicant may be granted a Fixed-Term Licence;

2.2.4 how many Fixed-Term Licences each Applicant may be granted; and

2.2.5 the amount of the Licence Fee payable for each Fixed-Term Licence.

There are three phases in the Application Processes for Fixed-Term Licences governed by these Rules:

3.6.1 Phase 1: Initial Application Process (described in Part B)

(a) Applicants lodge their Applications using the applicable Application Form and are assessed against the Eligibility Criteria

(b) Applicants who meet the Eligibility Criteria become Phase 2 Applicants.

(c) Applicants who do not meet the Eligibility Criteria are ineligible for a Fixed-Term Licence and their Application will be refused by the Licensing Authority.

3.6.2 Phase 2: Tender Process (described in Part C)

(a) Phase 2 Applicants progress to the Tender Process.

(b) The Tender Process will rank the Bids that have been made by Phase 2 Applicants highest to lowest based on Bid Amounts, and the Licensing Authority will then determine which Bids are selected to be offered the opportunity to proceed to the Accreditation Process. The Applicants with Selected Bids who pay the Initial Instalment become Phase 3 Applicants.

(c) Applicants who are not Phase 3 Applicants will have their Applications refused by the Licensing Authority.

3.6.3 Phase 3: Accreditation Process (described in Part D)

(a) Phase 3 Applicants progress to the Accreditation Process.

(b) The Licensing Authority must not grant a Fixed-Term Licence to an Applicant unless the applicant :

(i) is accredited under the Transport Act as a taxi-cab licence holder and a taxi-cab operator; and

(ii) is the owner, or intending owner, of a taxi-cab

Note: These are requirements under sections 143A(2), (12) and (13) of the Transport Act.

(c) Accordingly, in this phase of the Application Process, Phase 3 Applicants must obtain accreditation under the Transport Act and provide evidence of ownership (or intending ownership) of a taxi-cab before the Licensing Authority may grant the Phase 3 Applicant a Fixed-Term Licence.

(d) If the Phase 3 Applicant satisfies the requirements of the Transport Act, the Licensing Authority may grant that Applicant a Fixed-Term Licence under section 143A(2) of the Transport Act.

5.1.1 persons who wish to apply for one or more Fixed-Term Licences lodge their Applications using the Application Form; and

5.1.2 the Licensing Authority checks each Application received to determine whether the Applicant is eligible to lodge an Application.

6.1.1 A person is only eligible to apply for a Fixed-Term Licence if that person satisfies the Eligibility Criteria.

6.1.2 Each person who satisfies the Eligibility Criteria may lodge one Conventional Application Form and/or one WAT Application Form.

6.2.1 The person must be :

• (a) a natural person;

6.2.2 The person's Application must :

• (a) be lodged with the Victorian Taxi Directorate on or before the applicable Due Date;

(c) include the following information or documentation:

• (i) if the Applicant is a natural person :
  • the Applicant's full name and one or more of the following :
    • - valid residential address;
    • - valid contact phone number; or
    • - valid email address;
  • copies of two forms of proof of identity evidence in compliance with the requirements statement in the Application Form;
  • a copy of a signed privacy consent and statutory declaration in compliance with the requirements stated in the Application Form;

6.2.6 At the time of lodging the Application, the person must be able to provide evidence to the Licensing Authority that the person has the financial capacity to act as a taxi-cab licence holder and taxi-cab operator for the maximum number of Fixed-Term Licences applied for by the person in the Application (with such evidence to be signed by an accounting practitioner and provided in a form determined by the Licensing Authority and included in the Application Form).

7.1 Application Form

7.1.1 All Applications for Conventional Fixed-Term Licences must be made using a Conventional Application Form.

7.1.2 All Applications for WAT Fixed-Term Licences must be made using a WAT Application Form.

7.1.3 Applicants must complete all information as required in the applicable Application Form and must provide all documents and evidence requested in the Application Form.

The Licensing Authority will check all Applications lodged in accordance with these Rules to determine whether the Applicant has met the Eligibility Criteria.

8.2.1 If an Applicant meets the Eligibility Criteria, that Applicant becomes a Phase 2 Applicant and the Application will progress to the Tender Process.

8.2.2 If an Applicant does not meet the Eligibility Criteria, the Licensing Authority must refuse the Application.

11.2 Licensing Authority will determine numbers

The quantity of Fixed-Term Licences available is subject to the following maximum limits :

11.2.3 200, in total Conventional Fixed-Term Licences (whether to operate in the Metropolitan Taxi-cab Zone or the Outer Suburban Taxi-cab Zone);

13.1.1 conducted in two stages (Conventional Fixed-Term Licence Applications first, then WAT Fixed-Term Licence applications); ...

13.2 Stage 1: Conventional Fixed-Term Licence Applications

The conventional Uniform Price is the amount that is equal to the lowest Bid Amount of the Selected Bids held by Phase 3 Applicants.

1. The respondent rejected the applicant's application in Phase 1 of the application process referred to in Rule 3.6.1 (see above). The reason for the rejection was that :

(a) pursuant to 6.2.2 the applicant failed to have his two forms of identity certified as true and correct as required by Rule 6.2.2 and section D of the application form which stated :

"photocopies of original POI documents need to be certified by one of the following ..."

(b) the applicant did not complete a statutory declaration contained in section L of the application form in relation to :

"a copy of a signed privacy consent and statutory declaration in compliance with the requirements stated in the application form"; and

(c) pursuant to Rule 6.2.6 in relation to his financial capacity to pay the amount which he had bid for the licence of $200,001. This requirement was described by Mr Nekvapil, counsel for the respondent, in his submissions as follows :

The Certificate of Financial Capacity is a document that requires an accountant to certify that the applicant has (to the best of the accountant's knowledge and belief having made reasonable enquiry) the financial capacity to hold and/or operate the number of taxi-cab licences the applicant was applying for in the application. The Certificate includes the following certification to be given by the accountant :

'I certify that at this time, to the best of my knowledge and belief, and having made reasonable enquiry, that this applicant has the financial capacity to hold and/or operate the number of Taxi-cab(s) as stated above ...'

(a) space for the number of licences applied for in the application to be completed (consistent with the reference in the certification to 'as stated above'); and

(b) space for the accountant to sign and stamp the certification.

The Certificate included in the Application was not acceptable because the Applicant (or his nominated accountant) did not specify the number of licences the Applicant was bidding for in the Application (as referred to in the actual certification being provided by the accountant by signing the Certificate). As the certification required by the Director ... specifically required this information to be completed for the certification to be effective, the Certificate could not be accepted by the Director as evidence of financial capacity as required by the Eligibility Criterion. Accordingly, it was determined that the Applicant had failed to satisfy this Eligibility Criterion.

1. Because the applicant's application was rejected, in Phase 1 of the tender process, the substance of the applicant's application was not considered and the fact that his bid for the licence exceeded the minimum bid which would have been successful, in all probability, without determining the same, it is likely that had the problems referred to in the application form not occurred, the applicant would have been successful in his bid. Of course, I am unable to determine that factor with any certainty. However, it is clear that substantive parts of the application were not considered in Phase 2 or acted upon in Phase 3 because the applicant's application did not pass Phase 1.
2. It is common ground that if the only problem that existed with the application was the one relating to the financial matters, the respondent would have been likely to contact the applicant and give him a chance to rectify the difficulties in that part of his application. It is clear that other applicants were given such an opportunity where the financial part of the application form was the only problem.
3. It was accepted by the parties that if the applicant had been given the opportunity, he would probably have been able to rectify any deficiencies in his application.
4. At paragraph 8 of the applicant's statement which part of his statement was uncontradicted, the applicant stated as follows :

Had I been contacted and told about the deficiencies in my application I would have rectified those. The deficiencies in my application were only minimal in any event. For example, I only needed to verify my Citizenship Certificate and Driver's licence and needed to complete the statutory declaration and consent form. My accountant who had completed the statement of financial capacity simply needed to add some further information in regards to the number of licences applied for. These matters in their totality were all relatively simple and if I had been told about them I could have rectified them easily.

1. It is also clear from the evidence of Mr Hayward (the Director of Commercial and Services Project) of the respondent that the licence was a competitive project where applicants had to lodge their form by 26 June 2010 and the final decision was made by the respondent on 27 August 2010.

1. In Dimitrakopoulos v Director of Public Transport (2010) VCAT 2025 14 December 2010, I made a decision to inter alia set aside the order of the respondent with facts not dissimilar to the situation in this proceeding. The major difference in the Dimitrakopoulos case was that the only alleged breach of the eligibility criteria in the Rules was that the applicant failed to have statutory declaration as to privacy declared before a person who was eligible to take such declaration. In that proceeding I found at paragraph 14 :

.... it would have been possible for the respondent to contact the applicant and request that the statutory declaration be rectified or a new declaration made that is properly declared by someone who has the ability to take a statutory declaration ....

1. As a consequence, I set aside the order of the respondent and the parties then agreed on further consequential orders which I made.
2. Mr Nekvapil, who appeared in the Dimitrakopoulos proceeding and in the present proceeding for the respondent in both cases, stated that I should not follow the Dimitrakopoulos case because :

In reaching its decision in that case, the Tribunal had not been assisted by written submissions or evidence from the Director. The point was only substantively raised with the Director on the day of the hearing.

On the hearing of this case, the Director is in a better position to assist the Tribunal with authority, carefully prepared submissions and comprehensive evidence.

1. Mr Nekvapil then cited what he believed were the reasons for the decision in the Dimitrakopoulos case. He stated :

Two possible reasons for decision may be discerned in paragraphs [15] and [17] of Dimitrakopoulos.

(a) First, it was said that because the eligibility criteria are procedural only, failure to meet them can be corrected: that is, the Tribunal interpreted the eligibility criteria in rule 6.2.2(c) as though they were not strict eligibility criteria.

(b) Second, it was said that the Director could have invited the applicant to correct his application so that he did meet the eligibility criteria.

1. Mr Nekvapil stated that at the time of the decision in this proceeding, being 27 August 2010, the applicant was ineligible to be granted a taxi licence and therefore his application could not pass to Phase 2 of the tender process. He referred to the eligibility criteria in paragraph 6 of the Rules and in particular to 6.2.2 which he said the use of the word "must" makes it mandatory for an applicant at the time of lodgement of the tender to have completed his form in the way prescribed by the Ministerial Order, the Rules and the form itself. He said as the applicant had not completed his form in that manner, he was ineligible to participate further in the tender process. Mr Nekvapil also contrasted the wording of 6.2.2 with the wording of 6.2.6 which relates to certification of the applicant's financial position. There the wording used was: "must be able to provide evidence to the Licensing Authority that the person has financial capacity to act as a taxi-cab licence holder ...". He stated that what was required by that Rule was the person needs to demonstrate that he had the financial capacity at the time of lodging the tender but he did not have to demonstrate that capacity at the time of lodgement. He stated this as the reason why the Director was able to contact a number of applicants during the decision-making process in order to clarify deficiencies in their form relating to financial capacity.
2. He stated that in reviewing the decision, the words of the Ministerial Order and Rules were intractable and that I was compelled to see, as the Director was, whether the applicant had complied with the Rules and if he had not, then he was ineligible. Mr Nekvapil stated at paragraph 54 of his submissions :

In this case, there is no ambiguity in the language, and no ambiguity in its application to the facts of the instant case. Nor are there any interpretive factors tending against the eligibility criteria being anything other than that: eligibility criteria.

1. He therefore concluded that at the time when the respondent made his decision, he had no choice or discretion but to find that the applicant was ineligible for consideration in relation to the licence. He stated this is because of the way the legislation must be interpreted. As authority for this proposition, Mr Nekvapil referred to paragraph 92 of the decision of Shi v MARA [2008] HCA 31; (2008) 235 CLR 286 at 311 where Hayne and Heydon JJ, members of the High Court determining that proceeding stated :

As this Court has so often emphasized in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases and other secondary material must not be permitted ...

1. Mr Nekvapil also referred to writings by Francis Bennion in Bennion on Statutory Interpretation (5th ed) 208 at 441. There the learned author said :

.... the interpreter is required to determine and apply the legal meaning of the enactment, that is the meaning that correctly conveys the legislative intention .... If however the verbal formula, in its application to the fact of the instant case, is ambiguous the legal meaning will be in doubt. Even where the verbal formula is not ambiguous there may be real doubt as to the legal meaning because the relevant factors drawn from the criteria laid down by the law as guides to the legislative intention tend in different directions.

1. Mr Nekvapil also referred to Mr Hayward's evidence that made it clear that the process of selecting the successful licence applicants was a competitive process. There was going to be a limited number of successful applicants and the consideration of the tenders could not start until after 26 June 2010 and needed to be completed by 27 August 2010. Mr Hayward then said that it was thus necessary to include "the formal details determined to be eligibility criteria by the Minister".
2. In this particular instance, it is clear from s 143A(1)(c) that the legislature has used the words in relation to the eligibility criteria: "specify the class of people and the qualifications of people eligible to apply" (highlight supplied).
3. In Words and Phrases Legally Defined Volume (Fourth Edition) at p 714, the authors dealing with the word "qualified" cite from the Canadian case Schauerte v Wawanesa Mutual Insurance Co (1959) 27 WWR 618 at 620, Alta SC, per Cairns J; affirmed 29 WWR 560, Alta SC, when they state :

It is a matter of fact whether anyone may or may not be qualified [to drive a motor vehicle], in other words, qualified is synonymous with competent or being capable of driving ... In my view, the principle established ... is not that 'qualified' goes to the matter of obtaining a permit, but qualified means exactly what it says, that is, whether a person is or is not capable of operating a motor vehicle, and if he is so the policy is not voided'.

1. In this particular instance, it is clearly incorrect to say that the ability to fill out the forms correctly can amount to a qualification. It cannot. Therefore, in my view, it cannot relate to eligibility.
2. I note that s 143A(7) enables the Minister to require particulars by the order. Mr Nekvapil stated that he was not relying on sub-section (7) and, in any event, he said that would give power to the Minister to make the eligibility requirements in Rule 6.
3. I accept that the Minister could say in the Ministerial Order or the Rules that, "failure to complete the form perfectly could render applications void" and if that was the case, the Tribunal would not have authority to deal with a question of eligibility.
4. In Project Blue Sky v ABA (1998) 194 CLR 355 at 384 [78] McHugh, Gummow, Kirby and Hayne JJ stated :

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

1. In this particular instance, reading the words in the way suggested in the Project Blue Sky case means that the criteria referred to in 6.2.2 and 6.2.6 of the Rules cannot and is not eligibility criteria even though that is the heading that that section of the rules contains.
2. I accept that if the Minister wished, he does have power pursuant to the statute to make a rule saying that particular matters are essential to an application and if those matters are not completed 100% correctly then the applicant would not be able to take part in the selection of the application process. The Minister has not stated that matter or any other similar matter in the Rules. Merely by putting requirements in a particular place in the order, as has happened here, does not, without being clarified by the Minister, make those requirements essential parts of the application which cannot be looked at or varied during the consideration process, that is, between 26 June and 27 August 2010. Put a different way, even though the requirements in 6.2.2 and 6.2.6 appear to make those matters eligibility criteria, they are in fact not eligibility criteria, they are as I said in Dimitrakopoulos merely procedural matters which could be corrected. Neither does it assist looking at the definition in the Ministerial Order that "Eligibility Criteria means the criteria described in rule 6.2". The Minister has not said what criteria should in fact be eligibility criteria in itself. Merely putting criteria under the heading of "Eligibility Criteria" does not make it eligibility criteria per se particularly in light of the reading of s 143A(1)(c).
3. Thus I have come to the view as I did in Dimitrakopoulos case (referred to above) that not filling in the forms correctly and not having the identity certified, does not invalidate the application or make the applicant ineligible to pass through to Phase 2 of the assessment process. To take a different interpretation would be contrary to the legislative intention of s 143A and the objects contained in s 4(1) of the Transport Act 1983. Those objects are :

(1) The objects of the Department under this Act are -

(a) to improve the efficiency and effectiveness of transport facilities and networks to meet the needs of the community; and

(b) to ensure that a public transport system is provided in Victoria that is efficient, effective, safe and reliable and has due recognition for the needs and interests of the users of that system and the taxpayers of Victoria; and

(c) to ensure the achievement of optimum overall transport outcomes by undertaking integrated transport planning and integrated transport system and service development linked to the overall planning strategies and other policies of the Government.

Nor does the Tribunal have jurisdiction or power to reach a different conclusion on review. When the Director made the decision, he had no jurisdiction to grant an application by an ineligible person; the Tribunal cannot have any greater jurisdiction on review of the decision.

1. The power to review the respondent's decision is contained in s 143C(1) of the Act. Mr Nekvapil in his submissions at paragraph 72 ff outlined what he submitted was the correct approach in reviewing the decision in this instance. He stated :

The Tribunal's task is to review 'the decision itself', in order to determine whether it is the 'correct or preferable one on the material before the Tribunal. Before embarking on a review, 'the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review'.

The Tribunal is required to 'address the same question [or questions] as the original decision-maker was required to address'. Once that question or those questions have been properly identified, it will be possible to determine.:

(a) whether each question must be asked at the time of the hearing, or whether it is fixed by reference to some earlier point in time; and

(b) what material is properly before the Tribunal to answer each question.

The question before the Director was 'was Mr Ali a person who was eligible to apply for a taxi-cab licence?'

This required him to ask several further questions :

(a) had Mr Ali's application been lodged with the Victorian Taxi Directorate on or before the due date?

(b) if so, did it include the required things at that date?

(c) at the time of lodging his application, was he able to provide evidence to the Director that he had the financial capacity to act as a taxi-cab licence holder and taxi-cab operator for the maximum number of licences applied for by him in his application (with such evidence to be signed by an accounting practitioner and provided in a form determined by the Licensing Authority and included in the Application Form)?

If Mr Ali was not eligible to apply, the Director had no jurisdiction to further consider his application, and was bound to refuse it. That is the second point.

1. As I have already found that the alleged eligibility criterion was not in fact an eligibility criterion, it necessarily follows that because there was a failure to complete the forms in the way required by the Director, that he is not entitled to refuse the application without going further.
2. Thus, the Tribunal is able to ask itself should the Director have in fact gone further and given the applicant the opportunity to correct or complete deficiencies that were in his application form. There seems to be no reason why the Director could not have contacted the applicant and people in such a position and given them the opportunity to correct the forms. That was done by the Director in relation to matters in 6.2.6. Therefore, it is hard to accept that there would have been difficulties in contacting the people concerned and allowing them to make corrections before 27 August 2010. Mr Nekvapil said that there were over 1000 applications. While it may have required the application of further resources of the Director, that in itself does not make the task not practical.
3. It is also necessary to ask what were the components of the Director's decision. Clearly, the Director refused to grant the application. But in making that decision, the Director necessarily made a number of other decisions including not to give the applicant and other relevant applicants a chance to correct deficiencies in their form. Section 4(1)(h) of the Victorian Civil and administrative Tribunal Act 1998 makes it clear that it is a 'decision' where a person, "does or refuses to do any other act or thing". Thus, refusing to give the applicant an opportunity to amend matters that were purely formal in the application form is a decision of the Director and is subject to review. That decision is one of the components that made up the decision of the Director of 27 August 2010 which is the decision under review by this Tribunal.
4. It is important that the meaning of "decision" be given a liberal meaning so that justice may be done. This is particularly so in a situation like the present where the application process was conducted by the Director in less than ideal circumstances. In Part 9 p 32 of the Greater Melbourne Tax Licence Release - Application Information Booklet refers to a telephone number and an email address as to where questions can be put by intending applicants. I was told by Mr Hayward when giving evidence that the telephone number was the number of a call centre operated by the respondent. He said further that if an intended applicant needed face to face assistance, they were told that prior to lodging their tender, they could speak to somebody at the respondent's offices at 80 Collins Street, Melbourne. He said that the person at the counter at 80 Collins Street, Melbourne, would be able to check the form.
5. The difficulty from the applicant's point of view that he in all likelihood did not realise at the time that he was completing his application form that he had not completed certain parts or not completed other parts in their proper form. It is most unlikely that somebody in that situation would have been contacting a call centre to ask particular questions as to the application. Therefore, it necessarily follows that the applicant would not have known of the service that was offered at 80 Collins Street. That is, there would be a person available to help in completion of forms.
6. To make this process fair, the information booklet should have contained words in large letters making it clear that applicants would be able and are advised to have their application form checked by an officer of the Department prior to lodging. Similar to what happens in a post office where a person is seeking a passport application.
7. Though the tender process was secret, the secrecy principle would not be breached by providing a review limited to matters of form. This sort of assistance was being offered by the call centre. Further, given circumstances like the present, it would have been quite possible to establish a "Chinese wall" between the person or persons at the counter giving advice and those involved in the actual selection process.
8. As I stated in the Dimitrakopoulos case at paragraph 13 :

.... this Tribunal is a merits review tribunal and it does have jurisdiction if a proper procedure has not been followed, that is a proper and fair procedure. I am bound to come to the proper and preferable decision and substitute my decision for that of the respondent. That is done by a hearing 'de novo'.

1. Therefore, I find that the Tribunal has power to review the whole decision, which includes the decision not to give the applicant a chance to remedy procedural defects in his application form.

1. Mr Nekvapil stated that the question must be decided in this proceeding by the state of affairs as existed at 26 July 2010. He said therefore it would have been inappropriate for the Director to allow any alteration to the application form after that date. He said because this was a competitive process (approximately 1000 applicants wanted licences that were restricted to 200) to allow an alteration after that date would be unfair to the other applicants. Therefore, he concluded that the Tribunal is limited to answering those questions considering the state of affairs at the lodgement date. He referred to s 143(2) of the Act which dealt with the granting of normal taxi-cab licences as compared with s 143A which dealt with the granting of taxi licences of the type I am concerned with in this application. He stated that s 143 had no temporal elements while s 143A(2) to the relevant Ministerial Order. By the Minister being obliged to include dates upon which the application was to be lodged, introduced a temporal element which meant that the applicant must be eligible as at that date, in this instance 26 June 2010.
2. Mr Nekvapil referred to the decision of the Queensland Court of Appeal in Waratah Coal Pty Ltd v Mitchell [2010] QCA at p 36 ff where the court held that a competitive process that assesses numerous applications against each other is by its very nature likely to require consideration of the state of affairs at the closing date for the application.
3. In that proceeding Waratah and one other lodged an application for a permit to explore coal. Waratah's application and the other application were lodged on the same day. The permits were to be awarded in a competitive process. After the closing date Waratah desired to lodge further financial information which would help support and improve its application. The Court stated at paragraph 36 ff as follows :

The plain meaning of s 134A(2) is that the Minister is to make a comparison of like with like. What is to be compared are the applications, as described by s 133, lodged on the same day. There would not be a comparison of like with like if the Minister considered one application lodged on (say) 1 November 2006 and another consisting of documents lodged on 1 November 2006 and 7 March 2007.

Waratah's submissions are predicated on the unexpressed premise that the Minister must determine which of two competing applicants will be the better explorer and thus exploiter of minerals in order to provide the best financial return to the State with the least "land use conflict" and environmental damage. The terms come from s 2 of the Act, the designation of its "principal objectives". It is argued that to achieve this end the Minister is required to undertake a continuous assessment of applications and base a decision on the most recent and comprehensive information available. This is said to be the source of the obligation to request an applicant to improve a defective application.

The submission that the Minister was under an obligation to request further information from an applicant in circumstances where its application would attract neutral scores under the policy should also be rejected. There is nothing in the terms of s 134A which suggests such a duty. Moreover the duty is inconsistent with what I regard is the clear construction of s 134A(2), that the assessment of relative merit is to be made by reference to the applications (and accompanying statements) as lodged.

Nor is there anything in the policy which would found such a duty. The policy conferred on the Minister a right, to be exercised as a matter of discretion, to request further information for limited purposes. It confers no obligation to seek information. In any event the terms of the policy cannot affect the operation or meaning of s 134A.

There is a practical reason for rejecting the submission. An assessment of relative merit can be made between two applications differing in quality. Suppose one application contained comprehensive statements, carefully compiled and including much detail, and another was scant in content, marked by error and inconsistency, and lacking detail. It would be relevant to the assessment that one applicant had much to say, and said it carefully and provided verification for its assertions, and the other had not. The appellant's submission would require the Minister to ignore the obvious superiority of one application and insist upon the indolent or inefficient applicant putting together a better application. (underlining supplied)

1. In my view, the facts in this particular instance are entirely different from those in the Waratah case. While both this proceeding and the Waratah proceeding concerned a competitive process of a commercial nature that would seem to be where the similarity starts and ends. In the Waratah application, clearly large businesses interested in coal exploration were seeking a permit to be able to advance their business. Presumably, those applicants would have been in a position and probably did seek expensive legal accounting and tactical advice in relation to lodging their application.
2. In this particular instance, the applicant's position was quite different. He is a person who is seeking to earn a living from owing a taxi-cab. He has driven taxi-cabs for many years. It is unlikely that he would have the access to advice that the applicants in the Waratah case no doubt were able to avail themselves of.
3. Further, and more importantly, the applicant would not and should not have been given the chance to boost his application by providing new substantive information. He would have at the highest have cured matters of procedure in his form. In this particular instance, the only way that the applicant could have boosted his chances against the other applicants was to increase his tender amount. Clearly, he would not have sought to do that and he should not have been given that opportunity. However, amending procedural defects in an application is a different matter altogether. It cannot be said that it would give him any advantage that would not have been anticipated either by the legislature or by the Minister when making the Ministerial Orders.
4. However, it is correct to say, as was said by Kiefel J in Shi's case at paragraph 132 that :

The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function.

1. In this proceeding, I have already referred to the fact that even though the requirements of 6.2.2 and 6.2.6 refer to eligibility requirements, it was clearly not the intention of the Minister that there should be eligibility requirements. If the Minister had intended there should be, he could have stated so clearly in the order, he did not. Merely putting those requirements under the heading of "eligibility" does not, in my view, alter their character.
2. Mr Nekvapil submitted that there was a distinction between the words contained in 6.2.2(a), (b) and (c)(i) and 6.2.6. As I have previously said, he referred to the word "must" in 6.2.2 and referred to the words "must be able to provide evidence" in 6.2.6. He therefore concluded that evidence as to financial matters could be provided after the closing date provided the applicant would have been in a position to provide that information prior to or at the closing date. That is in fact what happened. However, Mr Boden for the applicant submitted that when 6.2.6 should be read as a whole, and when read that way, it is clear that there is really no distinction from that of 6.2.2(a), (b) and (c)(i). In particular, he referred to the words in brackets at the conclusion of 6.2.6: "with such evidence to be signed by an accounting practitioner and provided in a form determined by the Licensing Authority and included in the application form".
3. Looking at 6.2.6, I agree with the submission of Mr Boden, solicitor for the applicant. As such, it seems quite incredible that applicants whose only transgression in filling out the form was in financial matters were given an opportunity to rectify that but applicants with transgressions relating to 6.2.2 were not given such liberty.
4. Mr Nekvapil said that because applicants were given an opportunity to rectify their failure in 6.2.6 does not mean that they should have been entitled to. He further said that they were given that liberty because it was a fault of the accountant not ticking the right boxes rather than the applicants themselves. In my view, this is not a proper distinction to draw, because in both situations the discrepancies were procedural and in effect made no difference to the substance of the application that was before the Director.

WHETHER THE TRIBUNAL HAS JURISDICTION OR POWER TO WAIVE APPLICANTS' INELIGIBILITY OR REMEDY IT

1. Mr Nekvapil submitted that the Tribunal has neither jurisdiction nor power to waive the applicant's ineligibility or remedy it. He referred to s 51(1)(a) of the VCAT Act which states :

In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; ...

This does not mean that the Tribunal acquires all of the jurisdiction, authority, powers and duties of the Director, but only those 'necessary to review the decision' of the Director referred to in section 143C of the Transport Act.

1. Mr Nekvapil's argument in relation to this matter depended upon the interpretation that the applicant was ineligible because he had not provided all the required information contained in Rules 6.2.2 and 6.2.6. As such, he submitted that the applicant was ineligible.
2. I have already dealt with this point of ineligibility earlier. In my view, on the proper reading of the statute and the rules, the matters referred to in this proceeding, while they are under the heading of "eligibility" in Rule 6, are not in fact matters that deal with eligibility. They are procedural only.
3. Mr Nekvapil further submitted that the Director had no power to waive the requirements of 6.2.2(c) of the Rules.
4. I do not agree with this submission for the reasons stated above. However, what the applicant would be seeking was the ability to remedy the problem, not have it waived.
5. Mr Nekvapil said that the Tribunal does not have any function that would allow it to remedy the applicant's ineligibility on the basis of the failure to include the requirement before the due date. In Australian Securities and Investments Commission v Donald [2003] FCAFC 318, the full Federal Court of Australia were called upon to decide where the Federal AAT could accept an undertaking. The relative circumstances of that proceeding were that the Australian Securities and Investments Commission (ASIC) made a banning order on Mr Donald. Mr Donald sought to give an undertaking but ASIC would not allow it. However, on review, the AAT decided that it could take the undertaking. This decision was appealed to the Federal Court. At paragraph 30 on p 15 of the decision, Kenny J stated as follows:

When the Tribunal stands in the stead of the Commission, it is no less favourably placed than the Commission. The Tribunal has all the powers and directions that are vested in the original decision-maker, provided that their exercise is only for the purpose of reviewing a decision that the Tribunal has power to review. For the purpose of reviewing the Commission's decision under ss 829 and 830 of the Corporations Law, the Tribunal had, by virtue of s 43(1) of the AAT Act, the same powers and discretions as the Commission. In determining whether the Commission made the correct or preferable decision, the Tribunal was also bound to consider the powers and discretion that were exercisable by the Commission and were relevant to its consideration of the decision that should be made in respect of the respondent as a consequence of the Commission's investigation. This included the power conferred on the Commission by s 93AA of the ASIC Act. As Hill J said in Hodgson at 40:

It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercise by the Tribunal is necessarily involved in the making of the decision under review.

Of course, the Tribunal is not entitled to exercise a power conferred on a decision-maker for some purpose unrelated to the decision under review. What this means in a given case must be determined by reference to the nature of the decision that the original decision-maker was required to make. Although the decision under review as made under the Corporations Law, the nature of the decision that the Commission was called on to make must be judged in its proper context. In this case, the Commission had to decided what response it should make following its investigation into the respondent's activities at the close of trading on 29 May 1998. as Finn J said in Comcare v Burton at 76 :

The process of reviewing [the reviewable] decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the Tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the ... decision-maker: Hospital Benefit Fund [of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225] at 234; 575.

1. Mr Nekvapil also relied on paragraph 59 of that decision which relevantly stated, referring to Re BHP Petroleum Pty Ltd and Minister for Resources (1993) 30 ALD 173 at 178, and then stated :

In that case the Minister for Resources had refused an application for a certificate. In the Tribunal it appeared that the applicant had failed to comply with a mandatory condition precedent. Although the failure could have been rectified, by the time the matter came before the Tribunal, it was too late. However, the Minister could have acted on his own volition, pursuant to another provision, to issue a certificate. Properly analysed that was a case in which the jurisdiction of the Tribunal was not enlivened because of the failure to comply with the mandatory condition precedent. Lacking jurisdiction, the Tribunal had no power to seize itself with jurisdiction in the way the Minister might have been able to. Adopting the above analysis the Tribunal lacked jurisdiction in the subject matter because the condition precedent had not been complied with and jurisdiction could not be conferred by a provision relating to remedies. ....

Once it is accepted that the Tribunal had jurisdiction over the subject matter Burton (Lees) supports the proposition that it had available to it all the powers and discretions available to the decision-maker.

1. In this particular instance, there appears to be no reason why the Director could not have allowed procedural matters to be rectified in the application form. That could have been done at any time up to 27 August 2010 when the decision was made.
2. Given those circumstances following what was said in the ASIC case, it would appear to me that there is no reason why this Tribunal could not give the applicant power to remedy his application even if though it is clearly after 27 August 2010.
3. The powers of this Tribunal in the review jurisdiction are to enable any correction of a wrong by a decision-maker. In this particular instance, in my view, it is wrong that the decision-maker did not notify the applicant of the defects in his application and allow the same to be corrected. Therefore, there is no reason why this Tribunal does not have jurisdiction to do the same.

WHETHER THE TRIBUNAL SHOULD EXERCISE ITS DISCRETION TO ENABLE THE APPLICATION FORM TO BE REMEDIED

1. Mr Nekvapil submitted that the Tribunal should not exercise its discretion to allow the applicant at this stage to remedy the defects in his application form. He referred to the evidence of Mr Hayward and stated :

.... there was a carefully considered policy in place with respect to clarifications. This policy was developed in the context of resource and time constraints. It was developed in light of significant probity issues, affecting the integrity of the whole process, should errors going to eligibility criteria be retrospectively corrected in a way that might be seen to privilege some applicants over others. These concerns go to the heart of the competitive character of the process.

1. Mr Nekvapil also submitted that it was inappropriate for the Tribunal at this point to disregard the clarification policy, strictly followed by the Director and his delegates when making the decision. He stated this was a large scale competitive process and that there was no reason to change the non-clarification policy of the Director. He further stated that the respondent neither had the time nor resources available to it to notify applicants of defects in their application and allow rectification of those defects.
2. Mr Boden in his submissions referred to the doctrine of "Stare decisis" and said that it is important that I should follow my own decision in Dimitrakopoulos.
3. It is noted in that proceeding that the Director had every opportunity through its counsel to make any submissions that he so desired or call any evidence he so desired. The Director should have been prepared to answer any questions that were put and make full and proper submissions as he has done in this particular proceeding.
4. Further, it is clear that even though I am not bound to follow my previous decision in Dimitrakopoulos, it is important that there be consistency on matters of law.
5. In Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; [2000] 16 VAR 334 at 343, her Honour Balmford J stated as follows :

The Tribunal was, of course, not bound to follow the decision of the AAT, any more than a judge is bound to follow a decision of a single judge of the same court. The approach conventionally adopted by single judges, however, as a matter of judicial comity, is encapsulated in the following passage from the judgment of Blackburn CJ of the Supreme Court of the Australian Capital Territory in Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32:

As a judge of this court I should follow a decision of another judge of the court unless there is a clear reason for not following it. In this case I find no such clear reason. It is not part of a judge's function to give effect to his sympathy with the plaintiff by altering the law on the ground that decisions more favourable to plaintiffs have been given elsewhere in Australia, under corresponding but not identical legislation.

Similarly, Burchett J of the Federal Court said in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204:

The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. . .. But the practice in England, and I think also in Australia, is that "a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance . . . unless he is convinced that the judgment was wrong": Halsbury, 4th ed, Vol 26, para 580. The word "usually" indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.

(As to appeal courts, see the interesting discussion in chapter 8 of MacAdam & Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths 1998.)

The AAT was the predecessor of the Tribunal, with a similar jurisdiction under the Act, and for this purpose can be regarded as the same tribunal. Given the wide jurisdiction of the Tribunal in planning matters, there would be many cases where the circumstances were such as to give room for a divergence of views between differently constituted tribunals. However, the issue in question is indubitably a matter of law (see paragraph 19 above), as to which different considerations apply from those in planning matters. Further, the AAT in Chasers Cabaret was presided over by His Honour Judge Fagan, giving greater weight to the decision on that question of law, and I note that on the hearing of the matter each party was represented by senior and junior counsel. The comment of the Tribunal, cited in paragraph 24 above, courteously expressed though it is, is not in my view sufficient explanation of the failure of the Tribunal to follow that decision, given the obvious desirability of consistency in Tribunal decisions in matters such as that in issue here. However, I am not to be taken as finding that the absence of express justification for that failure to follow the decision of the AAT necessarily constitutes an error of law on the part of the Tribunal. Section 98(1)(b) of the VACT Act provides that the Tribunal "is not bound by . . . any practices or procedures applicable to courts of record, except to the extent that it adopts those . . practices or procedures." Nevertheless, the Tribunal should always be conscious of the importance of consistency in decisions on questions of law, which is fundamental to any system aimed at the attainment of justice.

1. Given these matters, in my view, it is proper that I exercise the discretion I may have in favour of the applicant. To do otherwise would work a considerable injustice to him. In Dimitrakopoulos at paragraph [17], I stated :

In my view, it cannot be the purpose of this legislation, that is, the Transport (Compliance and Miscellaneous) Act 1983 or the Ministerial Rules that only suitable and eligible applicants are those that are able to meticulously fill in a form and have it signed and be correct in every detail. This is not an application for lawyers to practise, it is an application for people to obtain a taxi licence. One would not expect those people to be meticulous in every detail in filling out a form in the sense that one would expect of a lawyer. In my view, the part of the Rule that is relevant here, that is the one relating to the statutory declaration in 6.2.2(ii) dot point 3, is a procedure in form only.

1. In all the circumstances of this proceeding, I find that the respondent erred in not giving the applicant an opportunity to correct matters concerning his application and it is proper that I exercise my discretion and allow the applicant to rectify the problems in his application. That being the case, it is proper that the order I should make is to set aside the decision of the respondent and remit the matter back to the respondent to be decided in accordance with the above reasons.

2. I note that in the Dimitrakopoulos case, the parties were then able to decide on a proper form of order that should follow the remitter. Given those circumstances, I will reserve leave to the parties to apply for further specific orders about the remitter.