Appellants v Respondent

3 The appellants submit that the appropriate orders should, amongst other things, be:

(a) Pursuant to s 148 of the VCAT Act, the Court directs that the proceeding be remitted to a differently constituted Tribunal for determination according to law without the hearing of further evidence; and

(b) The respondent pay the appellant's costs of the application for leave to appeal and the appeal, including reserved costs, such costs to be taxed on a standard basis in default of agreement.

4 The respondent submits that there should be an apportionment in relation to costs and that it is for the Court to determine the appropriate apportionment.

5 The respondent submits that the proceeding should be remitted to the same Tribunal member.

6 The respondent submits that the appellants have incurred unnecessary costs in the leave to appeal and appeal, in that the appellant's case was 'long winded', 'drawn out', and made unduly complex. The respondent submits that it should not be 'lumbered' with the costs of the inefficient manner in which the appellants managed the leave to appeal and appeal before this Court.

7 Further, the respondent submits that even though the appellants have been successful, the success is confined to a narrow point, that is the legal construction of 'offsite fabrication'. Accordingly, the respondent submits that when looked at in totality the appellants have only been successful on a very discrete point.

8 I do not accept that this was necessarily a simple matter. The case ran before the Tribunal for four days. There was substantial evidence before the Tribunal. The factual scenario of this case goes back to events commencing in 1994 and the Court was taken in considerable detail to the background and history of this case.

9 I do not consider it can be said that the appellants embarked upon a deliberate time wasting exercise. Even if the appeal could have been presented in a more efficient manner, I do not consider in this case, that it is a basis for denying the appellants their costs or a portion of their costs.

10 Ultimately, the appellants were successful. I agree with the respondent that the substance of the success is on a relatively narrow point, that is the concept of off-site fabrication and warehousing. However, I also found that the Tribunal erred in making the new permit decision without identifying the relevant changes in policy.

11 The appellants have been successful and as such, I consider that they are entitled to their costs of the leave to appeal application and the appeal itself.

12 The appellants submit that the Court should make a direction pursuant to s 148(8) of the VCAT Act, that the proceeding should be remitted to a different member of the VCAT other than the Tribunal member who made the order.

13 Kyrou J in, Vegco Pty Ltd v Gibbons & anor,[2] relevantly said:

1. For the Court to be persuaded to order a remittal to a differently constituted decision maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the unsuccessful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings of the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it will be impracticable for the primary decision-maker to re-determine the matter.(citations omitted)

14 The appellants submit that there are two features of the conduct and/or reasons which would render it unfair to the appellants to remit the proceeding to same decision maker, or give the appearance of unfairness to the appellants to do so, namely:

(a) the matters that gave rise to the Court's findings on appeal to allow Question of Law 7A and ground of appeal (xiii); and

(b) the issue of potential prejudice to the appellants in applying for a fresh permit as discussed at paragraph 159 of the Court's reasons.

15 Question of law 7A and ground of appeal (xiii) are as follows:

7A In all of the circumstances was the tribunal's decision so unreasonable that no reasonable tribunal could have come to it?

Ground of appeal (xiii): The Tribunal's decision that the offsite for application work was not a relevant consideration lacked an evident and intelligible justification, and was therefore so unreasonable that no reasonable tribunal could have come to it.

16 The appellants submit, having referred to the principles of apprehended bias in Ebner v Official Trustee in Bankruptcy[3] that in circumstances where a Tribunal decision has been found to be so unreasonable that no reasonable Tribunal could have come to it, a fair minded lay observer might reasonably apprehend that on remittal the same VCAT member may not bring an impartial mind to the resolution of the matters which the Tribunal is required to decide.

17 I consider the appellants' submissions that a finding of an error of law in relation to Question of Law 7A in grounds of appeal (xiii) may give rise to the possibility of apprehended bias is misconceived. The principal finding was that the Tribunal erred in that it did not take into consideration, in the exercise of the s 69 discretion, the offsite works carried out by the appellants. In my reasons, I considered that the Tribunal failed to recognise that the building works that do not occur on the subject land can be considered to represent substantial commencement. In relation to the Tribunal's reasons, there was no expressed view on the credit of witnesses or any adverse finding. There was nothing in the reasons to suggest that the conduct of the Tribunal member or in the Tribunal's reasons that objectively give rise to the possibility of actual or apprehended bias.

The Tribunal found that there was no bias to D'Agostino applying for a new permit. The Tribunal noted that the use of the land for a service station is of right and that a permit is only required for building and works; signage and road access. It is not clear if the requirement of a new permit will not cause any substantial injustice to D'Agostino. I am not satisfied that a new permit which will impose new conditions would not cause material detriment to D'Agostino.[4]

19 I do not consider that my findings at paragraph 159 supports the applicant's submission of possible apprehended bias. The issue for the Tribunal once remitted, is whether an extension of time should be granted factoring in amongst other things the offsite works and considering the relevant changes to planning policies that affected the D'Agostino land and permit.

20 Having determined that there is an error of law and that this Court should not make essentially factual evaluative judgments, the proceeding must be remitted to be decided again but only as to the discrete matters of:

• the offsite works carried out by D'Agostino;
• the nature of the building works and concept of warehousing; and
• the relevant change in policy and what, if any, impact this has on the decision to issue an extension to the permit.

21 I do not propose to remit the proceeding to a new Tribunal. I see no good reason to do that. As I have said, there is nothing to justify a reasonable apprehension that the Tribunal member might not impartially conduct the rehearing and that there are many practical reasons why it should do so. Allowing the Tribunal member who first determined it to rehear the matter, again in accordance with these reasons, will provide greater flexibility as to how that task would be carried out. It may well be possible for the Tribunal to determine on the basis of the evidence that was before it on the first hearing, although that will be a matter for the Tribunal.

22 The respondents made an application for an indemnity certificate in respect of costs under s 4(1) of the Appeals Costs Act 1998 (Vic). This was not opposed by the appellants. In the circumstances of this case and the issues before the Tribunal, I consider it appropriate that an indemnity certificate in respect of costs be granted to the respondent.

(1) Leave is given to the appellants pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act to appeal the orders of the Tribunal made on 15 May 2014 by Senior Member Janet Rickards.

(2) The appeal be allowed and the decision of the Tribunal set aside.

(3) The proceeding be remitted to the Tribunal for determination according to law.

(4) The respondent pay the appellants' costs of the application for leave to appeal and the appeal, including reserved costs, such costs to be taxed on a standard basis in default of agreement.

[1] D'Agostino v Greater Shepparton City Council [2015] VSC 332, [163].

[2] [2008] VSC 363 (17 September 2008), [33].

[3] [2000] HCA 63; [2000] 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[4] D'Agostino v Greater Shepparton City Council [2015] VSC 332, [159].