Appellant v First Respondent

20 In the AGL Loy Yang decision, Deputy President Dwyer, as did Ginnane J in the Big Apple case, emphasised that in making consent orders it is primarily exercising a power under s 93 of the VCAT Act. In my view, this is an important consideration, as on this analysis the statutory power, though it may be dependent upon certain preconditions, is a power which does not rely upon the position of the parties, in the sense that the power itself is not one conferred by party agreement. A precondition to its exercise is party consent, but this is not the basis of the statutory power. Consequently, this is not a situation where consideration has been given to the application of the inherent powers and jurisdiction of a superior court to make orders by consent to facilitate a settlement. Against this background, it is helpful to set out some of the reasoning in the decision of Deputy President Dwyer:[37]

15. In Muto v Department of Planning and Community Development,[38] the Court of Appeal noted that the VCAT Act attempts to encourage a variety of forms of dispute resolution, including compulsory conferences in mediation, and the purpose of s 93 was to facilitate settlement proceedings. The Court of Appeal indicated that the power in s 93 of the VCAT Act would have been expressed more restrictively if it were intended to confine its operation only to the settlement of disputes between private individuals. It follows that s 93 also applies to the settlement of review proceedings.

16. Section 93 refers to a circumstance where the 'parties agree to settle a proceeding'. VCAT must therefore carefully identify who are actually the parties to the proceeding whose consent is required, and be satisfied that there is an agreement between those parties to settle the proceeding.

17. Section 93 also empowers VCAT to make 'any orders necessary to give effect to the settlement'. The 'necessary orders' that VCAT might make to give effect to a settlement in a review proceeding will commonly require it to make a consequential order (albeit by consent) under s 51(2) of the VCAT Act to affirm, vary, or set aside and substitute the decision under review.

18. However, in making consent orders to give effect to a settlement in a review proceeding, VCAT is primarily exercising the power under s 93 of the VCAT Act. It is not formally determining the application on its merits pursuant to the enabling enactment that gave rise to the decision under review, but rather it is considering the appropriateness and efficacy of the settlement as a matter of justice. Nor is the VCAT member who makes the consent order taking responsibility for the merits outcome in the same way as if he or she had fully and independently considered the matter and given a reasoned decision. As s 93 expressly states, the orders are to give effect to a settlement agreed by the parties. The very nature of the agreed settlement is that it is avoiding a merits decision being independently considered and imposed by VCAT.

19. In Muto, the Court of Appeal considered that the orders properly made under s 93 were based solely on the settlement reached by the parties. The Tribunal, howsoever constituted, needed to be satisfied of the efficacy of the settlement. Where the issues involved in the proceeding involved more than mere private rights and interests, it may involve the Tribunal being satisfied of the propriety and efficacy of the orders as a matter of public interest. However, this is in reality no different from the general responsibility of any court or tribunal to exercise its judgement in order to determine whether a settlement was appropriate as a matter of justice and, therefore, whether to make the order suggested to give it effect. [The case in Muto concerned a local government disciplinary matter, and the constitution of the Tribunal, but similar 'public interest' considerations will also arise as in many review proceedings.]

20. This position is broadly consistent with other recent judicial opinion in relation to consent orders in a court, albeit not directly arising in relation to s 93 of the VCAT Act or a review proceeding. It has been held that, although a consent order may be given the same legal effect as an order made after a hearing in the court, this does not impute any finding to the court. There is no finding of fact or law by the court that resolves the controversy between the parties. Where a consent order reflects an agreement of the parties in circumstances where no exercise of judicial power is required to determine the terms of the agreement, it is the agreement of the parties that settles the terms, and the consent order merely facilitates the enforcement of the compromise.[39]

21. To take a different view in relation to a VCAT review proceeding would effectively require a hearing by default, before any consent order could be made, with all of the associated costs and delays for the parties, and resource implications for the justice system. This would run contrary to the purpose and intent of s 93. It would be contrary to the purpose and objectives of VCAT in providing a forum for timely and cost-effective dispute resolution, including the use of mediation and compulsory conferences to promote a settlement between the parties.

22. I have indicated above that a potential difference between the settlement of a civil dispute and the settlement of review proceedings is that a decision under review will often involve matters of a public character. It has been suggested by some commentators that, in making a consent order in a review proceeding, VCAT must still be satisfied that the decision agreed to by the parties is the 'correct or preferable decision' under established principles applying to merits review proceedings. I do not disagree with this proposition, provided it is seen in its proper context, and that it is not seen to reinstate, by default, a requirement that VCAT must consider and determine the merits of the proceeding, or examine all of the issues in detail, in order to give effect to a settlement.

23. The key authorities for the proposition that a tribunal in a review proceeding has the function of making the 'correct or preferable decision' ordinarily relate to decisions following a hearing, with the tribunal's underlying task being to reach the correct or preferable decision 'on the material before it'.[40] In a planning context (albeit a little different to the MRSD Act context here), it has been suggested that VCAT is entitled to grant a statutory approval where it is satisfied that the approval will result in a reasonably acceptable outcome having regard to the matters relevant to its decision.[41] VCAT need not search for the ideal outcome.

24. The power under s 93 of the VCAT Act is discretionary. However, in considering whether a proposed consent order is a preferable decision comprising one of acceptable outcomes, it is highly relevant that the agreement reflects and promotes a settlement that is obviously acceptable to the parties. In a review proceeding, where the public decision-maker whose decision is under review is a consenting party to the settlement, VCAT can also reasonably assume that the decision-maker, in giving its consent, has had appropriate regard to all of the relevant matters it was required to consider under the enabling enactment (including relevant matters of a 'public' character) and that the consent position is in conformity with the relevant regulatory regime administered by that decision-maker.

25. In most instances, in exercising the discretion under s 93 in review proceeding, VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review, and that there is nothing overtly wrong or odd about it. VCAT therefore still has an important role to play in providing a 'check and balance', albeit in many cases to a relatively cursory level.

26. Where the decision under review is of a public character, as is often the case in VCAT's Planning and Environment List, VCAT may also properly consider whether the settlement has any overtly unreasonable outcomes in the public interest or for persons not party to the agreement. This is essentially the 'flipside' of the same consideration as to whether the settlement is within the range of acceptable outcomes. By reference to the decision in Muto, VCAT is still doing no more than considering the appropriateness and efficacy of the settlement as a matter of justice. VCAT is still considering whether to exercise a power under s 93 to give effect to a settlement, rather than itself determining the merits of the underlying decision under review or the proposed settlement.

27. If the settlement is within the broad range of acceptable outcomes on the material before it, VCAT should not lightly interfere, and it is not under any obligation to investigate or consider all elements of the matter in detail. This is the case notwithstanding that the settlement may not reflect the preferred decision of the member making the consent order had he or she separately decided the matter following a full hearing. As I have said, VCAT can commonly assume that the consenting decision-maker has (or should reasonably have) taken such matters into account in reaching the settlement.

28. It follows nonetheless that, in some cases, VCAT may exercise a discretion not to make a consent order to give effect to a settlement. VCAT is not a rubber stamp for any or all consent orders placed before it to finally resolve a proceeding.

21 In my view, the position set out by Deputy President Dwyer in VCAT does, together with the reasoning of Ginnane J in the Big Apple case, provide an accurate and comprehensive analysis of the nature and extent of the power conferred on VCAT by s 93 and the manner in which the legislature would have expected it to be exercised. In particular, I note the statement of Deputy President Dwyer that, '... VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review ...'.[42]

22 The Deputy President continues at that point in his reasons to state that VCAT still has an important role to play in providing a 'check and balance', but in many cases at a relatively cursory level. In my view, if this were not the position, it would become necessary for the Tribunal, and courts in similar circumstances, to assume some kind of inquisitorial function with respect to the content and basis of an agreed settlement arrangement which the parties were putting to it. Quite apart from the extent to which this would be a departure from the general approach to civil litigation before courts and the Tribunal, it would invite more costs and delays and, in many cases, would likely involve a mini trial (or perhaps more) at odds with the nature of the Tribunal as an expert and expeditious dispute resolution forum. Clearly, where it is obvious that all necessary parties are not before or the Tribunal sees some patent defect, absurdity or manifest injustice in what is being proposed, then it would be expected that these matters would be raised with the parties. That is, however, not the position in the present proceeding, where both parties were before the Tribunal and represented. It is now said that there is some defect in the internal management of one corporate party, a defect which was not raised before the Tribunal and could not be said to be patent or obvious at the relevant time. Consequently, it is, in my view, fallacious to say that there can be a mistake of law for the purposes of s 148 of the VCAT Act where VCAT is exercising power under s 93, if it later proves to be the case that there are facts and circumstances vitiating or potentially vitiating the party consent for the purposes of s 93(1). Moreover, having regard to the nature and ambit of the statutory power under s 93, it does not follow that it can be said that there is, in this matter, at the time the consent orders were made, lack of jurisdiction arising from any claimed defect in the appointment of the Board of the Sporting Club.[43]

23 It was suggested by the appellant that, had it not been able to pursue the s 148 appeal proceedings, it would have been denied some procedural advantages, in terms of discovery, subpoenas and the like. I reject this proposition, which is, in my view, based on the false assumption that no other procedure was available to the appellant to challenge the making and operation of the consent orders. In my view, it is quite clear that separate proceedings by way of a fresh action to challenge this settlement and the application of those orders could have been taken. Indeed, this is not a novel proposition and is one which has generally been accepted from the mid-19th Century at least.[44]

24 For the preceding reasons, I am of the opinion that the Tribunal has made no error of law in the exercise of its powers under s 93 of the VCAT Act for the purposes of making the consent orders. Consequently, leave to appeal is refused.

25 Before concluding, I should briefly note that even were I to have been of the opinion that leave should be granted, the issues raised in the questions of law set out in paragraph 1A of the Second Further Amended Notice of Appeal would have the effect of requiring the Court to undertake its own evidence gathering and determination of questions of law in a manner which would be to usurp the functions of VCAT and to be beyond the limits of the jurisdiction conferred on the Court by s 148 of the VCAT Act, as the authorities to which reference has been made indicate. Moreover there is not, in my view, any public interest in granting leave in these circumstances. Rather, even if leave were granted only with respect to the asserted error of law now relied upon, the contrary would be the case as it would, as indicated, be at odds with the role of VCAT under the VCAT Act.

26 The parties are to bring orders to give effect to these reasons.

27 I reserve the question of costs and will hear the parties on this issue.

[1] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55-6 [28].

[2] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 at 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[3] (2011) 83 ATR 832 at 833-4 [3].

[4] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd (2010) 2010 ATC 20-232 at 11,839 [10];

[2010] VSC 608; 81 ATR 682 at 687 [10] per Davies J.

[5] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[6] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J.

[7] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21]; [2010] HCA 24; 84 ALJR 528 at 536 [21]; [2010] HCA 24; 267 ALR 231 at 240 [21] per French CJ, Gummow and Bell JJ.

[8] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335 [10]; [1999] VSCA 117; 15 VAR 360 at 366 [10].

[9] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-336 [11]; [1999] VSCA 117; 15 VAR 360 at 366 [11] per Phillips JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20] and 77 [65] per Hollingworth J.

[10] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[11] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[12] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 893 [VCAT.148.160].

[13] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT, with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 893-7 [VCAT.148.160].

[14] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has "no real prospect of success".

[15] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]-[14].

[16] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[17] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[18] (Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[19] (1971) 38 LGRA 6 at 18.

[20] (1980) 44 LGRA 65 at 67-8.

[21] (1985) 62 LGRA 346 at 349-50.

[22] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].

[23] And see Rysze International Pty Ltd v Yong [2021] VSC 786.

[24] See Rysze International Pty Ltd v Yong [2021] VSC 786.

[25] [2015] VSCA 350; (2015) 48 VR 715.

[26] [2015] VSCA 350; (2015) 48 VR 715 at 720, [9]- [11]; and see Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at 6, [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771 at 782, [41] and 805, [162], [165](CA); and Maund v Racing Victoria Ltd [2016] VSCA 132 at [67].

[27] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[28] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-93; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[29] [2020] VSC 393.

[30] See transcript of VCAT proceedings (5 December 2017 and 18 December 2017).

[31] [2020] VSC 393.

[32] The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393, [17].

[33] Cf Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) [2018] HCA 12; (2018) 264 CLR 165.

[34] [2016] VCAT 1249.

[35] Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 445 [VCAT.93.40].

[36] AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [16].

[37] AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [15]-[27].

[38] [2013] VSCA 85.

[39] See, for example, Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 per French CJ, Kiefel, Bell, Gageler and Keane JJ, following in part Newcrest Mining Ltd v Thornton [2012] HCA 60 per French CJ. It should be noted that both were civil proceedings. The decision in Atwells relied on a civil procedure rule in NSW, directly concerning consent orders, which is somewhat analogous to s 93 of the VCAT Act.

[40] Rozen v Macedon Ranges SC [2010] VSC 583, [176] per Osborn J, and the cases there cited, and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Bowen CJ and Deane J.

[42] AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [25].

[43] cf Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

[44] Seton's Judgments and Orders (7th ed), London, 1912), pp 124-127; and see McVey v St Vincent's Hospital (Melbourne) Ltd [2005] VSCA 233; and also Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; (2018) 264 CLR 165.