Appellants v Respondent

2 In around 2013, the second and third appellants (Ms Riaz and Mr Khan) acquired one of the lots on the subdivision and subsequently built a house where they currently live. Over time, Mr Khan became concerned about the absence of footpaths, the width of roads, the profile of the curbing, the length of road signs, and drainage. He claimed that the public works, including roads and drainage, in the subdivision did not comply with the standards and plans endorsed on the issued planning permit. The first appellant (Ms Zaric) also lives on the Meredian Estate.

3 The appellants claim that there are public safety issues pertaining to the subdivision and issues of public works compliance with standards and plans endorsed on the planning permit and/or the Greater Dandenong Planning Scheme, particularly concerning the absence of footpaths, width of roads, profile of curbing, length of road signs and drainage.

4 Mr Khan approached the Victorian Civil and Administrative Tribunal (VCAT) on six occasions, using various different provisions of planning legislation, in an attempt to address his complaints about the development. This proceeding concerns the sixth attempt.

5 On this occasion, Mr Khan, now joined by Ms Riaz and Ms Zaric (the appellants) sought declarations under s 149B of the Planning and Environment Act 1987 (Vic) (P & E Act) that previous orders made by VCAT determining the issues be dismissed or set aside, that a previous application they had issued be 'reinstated', and that enforcement orders under s 119(b) of the P & E Act be granted, to ensure compliance with the Act or the planning scheme, permit conditions or agreement pertaining to 'parts of the Meridian Estate'.

General application for declaration

(1) 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.

(2) On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal.

What can an enforcement order provide for?

An enforcement order made by the Tribunal -

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do any one or more of the following -

(i) to stop the use or development within a specified period; or

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

8 The respondent, the Council, applied for the application to be summarily dismissed on the grounds that it was frivolous, vexatious, misconceived or lacking in substance, and/or an abuse of process,[1] because the issues had previously been finally determined. Deputy President Dwyer, granting this application, summarily dismissed the appellants' application for a declaration under s 149B.

9 The appellants sought leave from this court to appeal VCAT's decision, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

10 The Council applied again to summarily dismiss the application for leave, this time under r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), which provides the court may dismiss an appeal if satisfied that 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, the appellant does not have an arguable case, or the appeal is frivolous, vexatious or otherwise an abuse of process. The Council also applied for summary judgment on the basis that the claim has no real prospect of success under s 62 of the Civil Procedure Act 2010 (Vic), and for judgment under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) on the basis that the claim is scandalous, frivolous or vexatious, or is an abuse of process.

11 A judicial registrar of this court granted that application on the basis that the application for leave to appeal had no prospects of success and was an abuse of process as the issues underpinning it had been finally determined. The appellants now appeal the judicial registrar's decision.

12 An appeal against a decision of a judicial registrar pursuant to r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is conducted by way of a hearing de novo. The matter is heard afresh and a decision given on the evidence presented at that hearing. The appeal is determined based on the evidence before the judge and not the evidence before the judicial registrar. The judge determines the appeal unfettered by the decision of the judicial registrar, giving such weight to that decision as appears proper.[2]

13 The application before this court is whether, on the motion of the Council, the appellant's application for leave to appeal VCAT's decision in respect of the sixth VCAT proceeding should be summarily dismissed.

14 There have been six proceedings before VCAT in respect of these issues, beginning in 2017. These were summarised in the judicial registrar's judgment and no issue was taken with that summary. For my purposes, I note that:

(a) First VCAT proceeding: In January 2017, Mr Khan sought the cancellation or amendment of the planning permit under ss 87 and 89 of the P & E Act. This was dismissed on the basis that he did not have standing and, in any event, the order could not be granted because the development had been completed.[3]

(b) Second VCAT proceeding: In March 2017, Mr Khan and Ms Riaz sought enforcement orders under s 114 of the P & E Act. This was struck out on the basis that s 114 did not provide for an enforcement order directed to the Council and was therefore misconceived.

(c) Third VCAT proceeding:

(i) On 6 June 2017, Mr Khan and Ms Riaz made application against the developers of the subdivision. The proceeding was rejected by the Principal Registrar of VCAT, which was affirmed by VCAT, on the basis that VCAT did not have jurisdiction to consider the subject matter, which was an enforcement order under s 114 of the P & E Act.

(ii) Champion J dismissed an appeal, holding that 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 (Vic) was conclusive evidence that the requirements of that Act had been met.[4]

(iii) The Court of Appeal refused Mr Khan's application for leave to appeal this decision on the grounds that the application could not succeed because even though VCAT did have jurisdiction to hear the matter, and should have determined it on the merits, Mr Khan would nevertheless not have succeeded on the merits.[5] This was because Mr Khan was claiming contravention of the planning scheme and subdivision permit but the relevant obligations imposed by the scheme and permit did not survive the registration of the plan of subdivision.[6]

(d) Fourth VCAT proceeding: In May 2019, the appellants sought declarations under s 149A of the P & E Act against the Council. The proceedings were rejected by the Principal Registrar, which decision was affirmed by VCAT, because the proceedings did not state the remedy sought and the appellants were unable to articulate the declarations they wanted VCAT to make.

(e) Fifth VCAT proceeding: In late 2019, the appellants again sought declarations under s 149A but the proceeding was dismissed on the basis that the issues raised had already been determined. The appellants could not bring proceedings seeking to have the subdivision reconsidered on the basis of a failure to comply with the planning scheme, which was considered part of the subdivision permit, because the permit was 'spent' when the subdivision was completed following the issuing of the statement of compliance.[7]

(f) Sixth VCAT proceeding: In January 2020, the appellants again applied to VCAT and it is the outcome of that application that is the subject of these proceedings.

15 The sixth application was made pursuant to s 149B of the P & E Act, and sought that VCAT 'make a declaration' about three previous proceedings, namely the fourth to sixth VCAT proceedings, and 'determine the decisions made by the Dandenong Council' under the P & E Act in terms of the planning scheme and planning permit. The relief sought is for the order made in respect of the fifth VCAT proceeding to be dismissed or set aside and for that corresponding application to be 'reinstated' or any other previous application the VCAT thinks appropriate, and to issue enforcement orders under s 119(b) of the P & E Act to ensure compliance with the Act, planning scheme, permit condition or agreement under s 173. The application states that there is no evidence that the 'Senior Member' of VCAT who granted the impugned order was―

qualified to satisfy s 75(3). There is no evidence SMR[8] qualifies to exercise the power under s 149A of the PE Act. There was an error in failing to consider s 52 VCAT Act, and the Tribunal has not determined the issue.

16 Dwyer DP held that the sixth VCAT proceeding did not seek any new relief. It sought enforcement orders which had in effect been refused in earlier proceedings. It was effectively an appeal against the fifth proceeding but was not expressed as such. No appeal from the order in the fifth proceeding was ever filed and no application for an extension of time for that appeal has been made. Dwyer DP found that the relief sought cannot be granted under s 149B. VCAT does not have the power to set aside its own orders and reinstate the underlying application. It was unnecessary to consider the substance of the fifth proceeding because the declarations sought were procedural and VCAT could not entertain that procedure.

17 Dwyer DP found, further, that the remainder of the relief sought would constitute an enforcement order against the Council under s 119(b), which provides that an enforcement order made by the VCAT may direct any person against whom it is made to do any one or more of certain actions set out in that section. The second VCAT proceeding sought the same relief but under s 114. That application failed because an order cannot be issued against the responsible authority (i.e. the Council). The Court of Appeal confirmed that finding.[9] Invoking s 119 cannot change that conclusion. Section 114(3) sets out the persons against whom an enforcement order can be made. Even if the correct respondents had been joined in that proceeding, the orders could not have been made for the reasons set out by the Court of Appeal in the third VCAT proceeding.

18 An application for leave to appeal VCAT's decision in the sixth VCAT proceeding, under s 148 of the VCAT Act, must identify a question of law. The appellants raised various 'questions of law' about the meaning and application of ss 75(5) and 52 of the VCAT Act, and ss 60, 68 and 149B of the P & E Act, as well as certain 'grounds of appeal', all of which were set out in the judicial registrar's reasons at [49] to [51].

19 In response, as I have noted, the Council filed an application for summary dismissal of the application for leave to appeal on the basis that the appeal has no prospects of success, and/or it is scandalous, frivolous, vexatious, or otherwise an abuse of process, as set out above.

20 Although I am not bound to take the judicial registrar's decision into account, I note that the judicial registrar was persuaded that the application for leave to appeal had no reasonable prospects of success under s 62 of the Civil Procedure Act and the appellants had no arguable case under r 4.08 of the Miscellaneous Proceedings Rules. His Honour found that the Court of Appeal has already ruled on these issues. The orders sought before VCAT were misconceived and could not be made under s 149B of the P & E Act. It was open to VCAT to conclude the sixth VCAT proceeding was an abuse of process or otherwise vexatious and it was correct in so concluding. No error of law was shown in that decision. The appeal to this court had no prospects of success.

21 The judicial registrar further held that, like the proceeding in VCAT, the application for leave may properly be characterised as an abuse of process or vexatious because these issues have been raised and conclusively determined before. The principle of finality of litigation is an important principle in the administration of justice.[10] The respondent has been put to the cost and inconvenience of responding to litigation on repeated occasions where the same issues are agitated.

22 The appellants also filed their application for leave to appeal to this court late. The judicial registrar refused their application for an extension of time to appeal on the basis that he was not satisfied the appeal had real prospects of success.

23 Although not necessary for my reasoning, I consider that the decision of the judicial registrar was correct. That said, the proper focus is on the decision of VCAT. The question before this court is whether it is not tenably arguable, or is fanciful to contend, that VCAT's decision was made in error.

24 Dwyer DP held that the sixth VCAT proceeding was misconceived, lacking in substance and/or was an abuse of process and summarily dismissed the proceeding pursuant to s 75 of the VCAT Act.[11] Dwyer DP ruled that:

(a) the appellants misunderstood the effect of s 149B of the VCAT Act. It does not empower VCAT to review or appeal its own previous decisions. This can only be achieved by an application for leave to appeal to the Supreme Court under s 148 of the VCAT Act. Section 149B also does not empower VCAT to investigate past actions of the Council in relation to the permit in circumstances where the permit is no longer operational and both VCAT and the Court of Appeal have determined that the permit has expired.[12] As a general rule, a planning permit for a subdivision will be spent once the plan is registered and new titles have been issued.[13] In addition, the proper process to seek to enforce the conditions of the permit or the planning scheme is through an enforcement order under s 114 of the P & E Act, which the statute provides cannot be brought against Council. The enforcement processes under the Act cannot be circumvented by invoking s 149B.[14]

(b) Mr Khan's complaint that Senior Member Rickards, whose order he seeks to 'set aside', was not an 'Australian lawyer' and therefore not competent to deal with his application under s 149A of the VCAT Act, arises from a misunderstanding of the definition of an Australian Lawyer. While Senior Member Rickards does not hold a practising certificate, that is not a requirement of an Australian Lawyer under the Legal Profession Uniform Application Act 2014 (Vic) which defines the term to mean a person admitted to the Australian legal profession in Victoria or any other jurisdiction. It does not require a practising certificate. Ms Rickards was admitted over 40 years ago.[15]

(c) It is an abuse of process for Mr Khan to continually attempt to relitigate this same subject matter on the basis of a misconceived notion that the permit and planning scheme persist past the registration of the subdivision.[16]

25 The crux of the application for summary dismissal is the principle that when an appeal would be futile, because it could not succeed, leave to appeal will be refused. The reasoning of Dwyer DP, in deciding to dismiss the appellant's application to reinstate a finally dismissed prior proceeding, cannot be impugned and may be adopted.

26 The appellants' case remains predicated on the permit not having been spent upon completion of the subdivision. However, the Court of Appeal has held that the conditions in the permit do not provide for any obligations to subsist after the statement of compliance has been issued. The provisions of the planning scheme did not survive, in the sense of imposing ongoing obligations, after the plan of subdivision was registered.

27 The appellants are attempting to raise new provisions of the P & E Act that were not raised in the previous VCAT proceedings and which they claim might result in a different outcome in these proceedings. However, even if the appellants were permitted to continue to agitate finalised issues by raising new legal arguments, which they are not, these new legal arguments are futile.

(a) Section 68 of the P & E Act provides that a permit for the development of land expires if various events occur, generally pertaining to the failure to use the permit or complete the development. The appellants contended this as an exhaustive list of occasions where a permit is spent. Because completion of the development and issuing of the statement of compliance is not on that list, the permit remains extant. This argument fails because s 68 does not purport to be an exhaustive list of instances where a permit will no longer be in force. A further instance of where a permit will no longer be operative is through the application of s 24 of the Subdivision Act 1998 (Vic), as identified by the Court of Appeal.

(b) Section 149B of the P & E Act provides that a person may apply to VCAT for a declaration concerning any matter which may be the subject of an application to VCAT under this Act or anything done by a responsible authority under this Act and, on such application, VCAT may make any declaration it thinks appropriate in the circumstances. The appellants maintained an entitlement to relief through this section, both to set aside the existing orders disposing of their previous proceedings, and to obtain a declaration requiring Council and/or the developers to comply with various aspects of the planning scheme and planning permit, even if their attempts to obtain an enforcement order under s 114 were unsuccessful. But s 149B cannot be used as an alternative mechanism for an enforcement order which is not declaratory relief. In any event, no such declaration could be made because it again relies on the premise that the planning scheme and permit are still extant, which they are not.

(c) Section 52(1) of the VCAT Act provides that the Supreme Court does not have jurisdiction to hear or determine any proceeding concerning the exercise of a power under a planning enactment, if VCAT has jurisdiction to review the matter and has not done so or has determined a review. However, s 52(2) provides that if the court is of the opinion there are special circumstances that justify the hearing of the proceeding, the court may direct that this provision does not apply. Section 52(3) provides that if the court determines a proceeding without making such a direction, the decision is not invalidated. The appellants contended, mistakenly, that this section precluded this court or the Court of Appeal from determining their case. The issues determined by the court in this and the previous proceedings were determined by the court exercising its appellate jurisdiction, which is not precluded by the section. In any event, the provision plainly allows the court to override this limitation on jurisdiction and any orders made by this court or the Court of Appeal are not invalidated even if section 52 applied.

28 The Council submitted that these proceedings are vexatious, in that they are obviously untenable or manifestly groundless,[17] and are an abuse of process because they are an attempt by Mr Khan to continue to litigate the same subject matter through a variety of different proceedings when the same fundamentally misconceived issue underpins all the litigation - namely an assertion that the permit is still operational and that certain provisions of the planning scheme still apply. The Council has been put to the cost and inconvenience in responding to litigation on repeated occasions when the issues have been conclusively determined. The proceeding should be dismissed with costs.

29 While self-represented parties should be afforded some reasonable allowances, Council contended that the following observation by the Court of Appeal was apposite:

[A] self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court's already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices and, subject to hearing argument on the point, we should have thought that it has well and truly come in this case.[18]

30 The appellants complained that the development in which they live, Meridian Estate, has various problems like inadequate drainage, lack of footpaths, narrow roads, inappropriate road signage, parking issues and road hazards. They claimed to have communicated with the Council about these problems and say that Council initially accepted the problems and made attempts to fix them, but later refuted the complaints.

31 The appellants acknowledged they have made a 'series of applications' to VCAT but contended that none of them 'reached the determination stage and were either rejected or struck out'. They accepted that the latest application (sixth VCAT proceeding) was made pursuant to s 149B of the P & E Act, which provision they had not used before.

32 The appellants submitted that s 149B does not have any 'statute of limitations as to whether a permit is valid or expired'. In other words, that VCAT still has jurisdiction to make a declaration about compliance with that permit regardless of whether it is spent or not. They conceded that s 149B of the P & E Act 'may not be appropriate to appeal the strike out decisions, but all attempts to reinstate previous struck off applications were refused by the Tribunal's Registrar'. Just because an enforcement procedure under ss 114/119 may be a possible avenue for a remedy in a case like this, does not mean that s 149B is the wrong procedure, because it is not ousted by the existence of alternative remedies.[19]

33 At the core of their argument on the merits was the appellants' submission that the permit conditions are not 'spent' and remain enforceable even after the registration of the plan of subdivision. They relied on the decision of VCAT in Bayside CC v Sullivan,[20] where Senior Member Russell Byard held:[21]

Statement of compliance does not nullify Condition 5.

It would have been better if the condition had insisted on the entering of an agreement prior to a statement of compliance and if Council officers had not been inveigled into granting a statement of compliance without a satisfactory agreement having been entered. This does not mean, as also argued by Mr Peake, that the Responsible Authority, and the public generally including Mrs Hall, have forgone their right for all time to have the condition complied with and the agreement entered. Refusal to grant a statement of compliance, and therefore the ability to proceed with the subdivision, is a very powerful compulsion on an applicant/owner to provide the agreement or do whatever else might be necessary to obtain the statement of compliance. The existence of that generally effective method of obtaining compliance with such a condition does not mean that compliance with the condition cannot be sought by any of the conventional means of enforcement that are normally open in relation to any condition. In this connection I have in mind the obtaining of an enforcement order, prosecution and, perhaps the obtaining of an injunction ... So it is with the opportunity to require execution of the agreement prior to issuing a Statement of Compliance and the opportunity to withhold such statement until the agreement is executed. Such withholding would be a good and effective strategy, but failure to adopt it does not invalidate the condition or forego other means of having it complied with.

As I have said, the owners, having been issued with the subdivision permit did not appeal against condition 5, or comply with it, but sought to evade it by persuading the Council to grant a certificate of compliance without having entered an agreement in accordance with condition 5.

...

Is Condition 5 'Spent'?

...

On registration the permission to subdivide might be said to have been acted on, achieved, even exhausted, but that does not mean that conditions seeking to control the future development of the land so subdivided are invalid; for example, conditions imposing building envelopes are valid enough. Likewise, if the s 173 agreement had been entered and registered on the title, it would continue to be effective notwithstanding that the plan of subdivision has been registered and the purpose of the permit has, in that sense, been achieved and fulfilled. I do not see that this is any different in the circumstances where the entering of the agreement is still outstanding. If and when the agreement is entered it may be possible and appropriate to enforce it by means of a prosecution, or a further enforcement order or an injunction. It is not necessary to determine upon that at this stage. It may or may not arise at some later time. On the basis of what has been put forward so far, I see no reason why an agreement entered in the future might not be registered on the title. However, that again is a matter that can be considered if it arises.

34 The appellants submitted that the Council's application for summary judgment should be dismissed because the sixth VCAT proceeding, and therefore the application for leave to appeal Dwyer DP's decision summarily dismissing that proceeding, have merit, for the following reasons:

(a) The Department of Planning was not included in these proceedings when they should have been;

(b) The merits of this claim were adjudicated by the Court of Appeal in the third VCAT proceeding, and not by VCAT (VCAT refused to hear the matter because they mistakenly found they did not have jurisdiction to do so), in circumstances where only VCAT has jurisdiction over planning matters under s 52 of the VCAT Act;

(c) Not all appellants were a party to each prior court hearing and therefore failure to hear the matter because Mr Khan is common to all the applications before VCAT violates the rights of the remaining appellants to a fair hearing under s 24 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). In addition, the fact that VCAT dismissed the proceedings without dealing with the merits of the issues raised means the Charter has been violated;

(d) All hearings were determined on questions of law and presumably therefore not on the merits of the planning questions at stake;

(e) Under s 60 of the P & E Act the Council must consider the relevant planning scheme;

(f) Under s 126 of the P & E Act it is an offence to contravene a scheme, permit or agreement when using or developing land. The appellants and residents of the estate are all forced to commit an offence by using the development in circumstances where it contravenes the requirements of the permit;

(g) A permit only expires in the circumstances set out in s 68 of the P & E Act, which circumstances do not arise in this case;

(h) Conditions in a permit should be given a sensible and reasonable interpretation to give effect to their purpose;[22]

(i) None of the VCAT members striking out the application were presidential members or Australian lawyers as required by the Act.

35 The appellants submitted further that Dwyer DP acted in error in dismissing the sixth VCAT proceeding pursuant to s 75 of the VCAT Act, in circumstances where the proceeding should have been determined by the planning laws and the P & E Act. I take this to mean that they believe that their case was not adequately heard by VCAT because it was disposed of on 'technical legal grounds' and the planning merits at the heart of their complaint remain untested by VCAT.

36 The appellants also contended that the Council's affidavits did not comply with s 27(1)(c)(ii) of the Oaths and Affirmations Act 2018 (Vic). Section 27 provides for the requirements of a valid jurat. Section 27(1)(c) provides that an authorised affidavit taker, before whom any affidavit is made, must legibly write, type or stamp below their signature, their name and address (whether personal or professional) and a statement of the capacity in which they have authority to take the affidavit. Pausing here, I note that the Council only relied on the affidavit of Marian Marshall, affirmed 9 September 2022. Under Ms Marshall's signature, appears the signature of the solicitor of record, as 'signature of witness' and then it states: 'A person authorised under s 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.'

37 Finally, Mr Khan contended that the allegation that the proceedings were vexatious was rebutted by reference to the Vexatious Proceedings Act 2014 (Vic). Section 6 of that Act, he submitted, provides that the Act applies to all civil proceedings in a Victorian Court or Tribunal and that it therefore applied to this case. Section 9 provides that when exercising a power under this Act, VCAT must be constituted by a member who is an Australian lawyer. Every member of VCAT who struck out the appellants' claims, he maintained, were not in fact Australian lawyers as they did not hold practising certificates, and therefore all of those decisions fall to be set aside. He equated this to a doctor purporting to practice medicine without a valid or current certificate or licence.

38 Both Dwyer DP and this court must follow the decision of the Court of Appeal in the third VCAT proceeding, which is determinative of the questions in the sixth VCAT proceeding. The Court of Appeal explained precisely why the relevant conditions in the permit and planning scheme in question did not survive the registration of the subdivision and selling of the lots:

(a) The Council was the responsible authority for the purpose of granting an application for a permit of subdivision, subject to conditions.[23]

(b) Subdivision of land must be done in accordance with the Subdivision Act 1988 (Vic).[24] A developer/owner of land prepares a plan of subdivision. The purpose of the plan is to provide the template for the division of the land into lots and the specification of the relevant boundaries. Council certifies the plan if it complies with statutory requirements and the planning scheme and any relevant permits; any person who constructs works must comply with the plan, planning scheme or permit. Once Council certifies that the plan meets the requirements of the planning scheme and any permit that relates to the boundaries of roads, lots, common property and reserves, and the form and content of the plan,[25] then public works may commence. Once works have been completed, Council issues a statement of compliance, which confirms the public works on the subdivision comply with relevant statutory obligations under the P & E Act. This includes roads, reserves, open spaces, services, sewerage, drainage, water supply, power, gas or telephone connections. Council will issue a statement of compliance if satisfied that all requirements under the P & E Act that relate to the public works have been met.[26]

(c) The Registrar may register the plan of subdivision[27] if it appears the plan has been certified by Council and there is a statement of compliance.[28] The legal effect of the registration of the plan is set out in s 24 of the Subdivision Act. Any easement, restriction, or other right is created, varied or removed as specified in the plan.[29] Land set aside as a road vests in the Council free of any encumbrance and becomes a public highway.[30]

39 In this case, Places Victoria (developer) and Melbourne Water Corporation (land owner) held the permit subject to various conditions that had to be complied with both before commencement of works and before the statement of compliance was issued. Once the plan of subdivision was registered, and Council became the deemed registered proprietor of the roads in the subdivision, the developer and previous owner ceased to have any interest in the land.[31]

40 Mr Khan's complaints pertained to the quality of the public works within the subdivision by reference to the standards said to have been set by the planning scheme, permit conditions and endorsed plans. The Court of Appeal considered each of the relevant conditions that might correspond to these complaints and concluded that whatever obligation was imposed by the permit, it was an obligation imposed on the owner to undertake roadworks to the satisfaction of the Council. The statement of compliance could only be issued once the Council was satisfied that all requirements under the P & E Act relating to public works had been met, and it did so on 7 December 2010.[32]

41 The terms of the permit conditions did not allow for revisiting the standard of work once the statement of compliance was issued.[33] The statutory scheme similarly does not permit the conditions of the permit to be enforced after the subdivision has been registered and the lots and roads vested in new owners and the Council, respectively, free of encumbrances.[34] This is consistent with the 'general rule' that a planning permit for a subdivision will be spent once the plan of subdivision has been registered and new titles issued.[35] When new titles are issued, the permit or planning scheme are no longer relevant and are of no continuing independent force or effect.[36]

42 This general rule might be inapplicable in the context of the operation of a particular permit or condition depending on its proper meaning,[37] but the Court of Appeal went through each of the relevant conditions in this case and held that they did not survive registration and that the planning scheme, which identified the standards which informed the content of the plan of subdivision, also did not survive registration.[38]

43 I am satisfied that VCAT's analysis in substance followed the decision of the Court of Appeal. I see no prospect of establishing error in that analysis and I am persuaded by Council's submissions that an appeal would be futile.

44 When this reasoning was put to Mr Khan during submissions, he did not address its merits. Rather, he pivoted to arguing that the Court of Appeal did not have jurisdiction to decide this issue, being a planning issue for which jurisdiction was reserved to VCAT, under s 52 of the VCAT Act. Council's submissions, which I accept, demonstrate why there is no merit whatsoever in this contention.

45 The appellants are aggrieved that no court will consider the merits and instead dismiss their concerns on procedural technicalities, but even if this court accepted the appellants' invitation to reconsider the merits of their claims about compliance with the permit conditions and planning scheme by all those involved in the Meridian Estate development, those conditions and the planning scheme do not impose any presently enforceable obligation on Council or the owner/developers.

46 The principle of finality precludes this court from making any determination on the merits. The High Court explained the principle of finality of litigation as follows:

A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances... The tenet ... finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.[39]

47 In essence, '[o]nce a controversy has been quelled, it is not to be relitigated.'[40] The purpose of this principle is to ensure litigants are not vexed in the same matter twice. The principle safeguards the integrity of the administration of justice by conserving the court's finite resources and minimising the potential for inconsistent judgments.[41]

48 Issue estoppel operates to preclude a party raising in a subsequent proceeding an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in a judgment. A judicial determination on an issue disposes of that issue once and for all, so that it cannot afterwards be raised between the same parties or their privies.[42]

49 Anshun estoppel is an extension of this principle. This precludes the assertion of a claim or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.[43]

50 Abuse of process may be invoked in areas where estoppels also apply and is inherently broader and more flexible than estoppel. There will be circumstances which do not fall strictly into either form or estoppel but which nevertheless entail reopening of controversies or parts of controversies that have been quelled. Abuse of process has flexibility to enable the court to reach the conclusion that justice and public policy dictate in the particular circumstances of the case.[44]

51 Mr Khan's attempts to join additional parties to make the application 'new' do not change the operation of these rules. At the very least, the second appellant, who resides with Mr Khan, is his 'privy' for the purposes of issue estoppel. More compelling is the determination in previous proceedings that the permit is spent for the purposes of Mr Khan's complaints. This is a form of judgment in rem that binds any and all parties who wish to litigate the status of the permit conditions and obligations imposed by the planning scheme for the subdivision of the Meredian Estate. A judgment in rem is a decision which declares, defines or otherwise determines the status of a person, or of a thing, to the world generally, and therefore is conclusive for, or against, everybody.[45]

52 The appellants' attempts to simply raise a new (and meritless) contention founded ultimately on the permit conditions and obligations imposed by the planning scheme for the subdivision of the Meredian Estate cannot be permitted. The core issue remains the same. If I assume for the sake of the argument that simply mentioning a new provision of an Act is a new cause of action, this is a circumstance where an Anshun estoppel precludes the further claim, because the contentions in the sixth VCAT proceeding are so relevant to the subject matter of the previous proceedings that it was unreasonable not to rely on those contentions in the earlier proceedings.

53 That said, it is unnecessary to determine either that the Court of Appeal's decision was a judgment in rem or that Anshun estoppel applies because this application is an abuse of process. It is a transparent attempt to circumvent the principle of finality of judgments by artificially adding another plaintiff and invoking another provision of the P & E Act.

54 In Collis v Bank of Queensland Ltd,[46] the plaintiffs, unrepresented litigants, sought judicial review in respect of a decision of the County Court of Victoria. The County Court had given Bank of Queensland summary judgment in default of defence against the plaintiffs and companies owned and controlled by them, and ordered that the Bank recover possession of properties they owned. One of the plaintiffs applied for leave to appeal that judgment. The Court of Appeal dismissed the application. The plaintiffs then sought to review the County Court judgment on new grounds. The Bank applied for summary judgment in respect of the review on the basis that it had no real prospect of success, alternatively, was an abuse of process.

I accept that it will be an abuse of process to commence proceedings for judicial review in respect of matters which have already been determined by the Court of Appeal where an appeal was brought. That abuse of process may be described in terms of unreasonably oppressive conduct; or in terms of the bar against judicial review where the proper course is an appeal to be brought. To my mind each of these species of abuse of process is apt to describe the present proceeding.

...

The ... issue was not raised in that form before the Court of Appeal. However, I consider that raising it in this proceeding is an abuse of process, as it is a matter which ought to have been raised before the Court of Appeal and is intrinsically and inextricably related to matters which were raised before that Court. This is so whether the abuse is characterised in the manner of an Anshun-estoppel or in respect of the bar against a judicial review proceeding where an appeal ought to lie, or some other principle which I have already addressed...[47]

56 This reasoning has analogous application here. I similarly find that whether considered as a form of issue estoppel or because it is an abuse of process, the appellants are precluded from bringing the sixth VCAT proceeding.

57 The principles applicable on summary judgment applications are well-established. In particular, the court will find that a proceeding constitutes an abuse of process where the use of the court's procedures is unjustifiably oppressive to one party; it would bring the administration of justice into disrepute; the claim is foredoomed to, or would inevitably fail; or the claim may be regarded as frivolous and vexatious.[48] Whether under r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), s 62 of the Civil Procedure Act 2010 (Vic), or r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the application for leave to appeal is an abuse of process and falls to be summarily dismissed.

58 The appellants must accept that their complaints about various features of the public areas in Meridian Estate cannot be resolved by making repeated applications to VCAT in hope of different outcome. The appellants raise the same arguments repeatedly without regard to the careful reasoning given by VCAT, the Court of Appeal and the judicial registrar. This court will not abide this vexatious approach. It is a waste of resources and contrary to the public's interest in the finality of litigation. While the appellants may have complaints about the public spaces in their local area and regardless of whether these complaints are legitimate, the legal mechanisms by which they attempt to address these complaints are not available to them.

59 I do not overlook the fact that the application for leave to appeal the sixth VCAT proceeding is out of time. I will not extend time, not because I do not accept the appellants' COVID-related explanation for the late application, or do not regard the short delay as excusable in the circumstances, but because the application is lacking any merit and has no prospects of success.[49] It would be futile to extend time.

60 While it is unnecessary to do so, to ease the appellants' minds in the hope that the appellants will have regard to my reasons despite their disregard for the reasoning of the Court of Appeal, I will add some further brief comment on their submissions.

(a) Section 149B of the P & E Act cannot be used for what is effectively an appeal or to revive a concluded proceeding. The appellants cannot overcome this procedural hurdle. The basis for any claim of wrongdoing against the Council would be the obligations flowing from the permit conditions or planning scheme. Those obligations were not the Council's obligations, but were imposed on the developer and owner and were discharged on registration of the subdivision.

(b) In contending that the permit conditions were not spent, the appellants cited, as noted earlier Bayside CC v Sullivan.[50] This decision is consistent with what the Court of Appeal explained when it dismissed the third VCAT proceeding. It cannot advance the appellants' arguments.

(c) The appellants' complaint that a relevant authority, namely the Department of Planning, is not joined to the proceeding, is a criticism of the appellants' own conduct as they instituted the sixth VCAT proceeding. When this was put to Mr Khan during the hearing, he said this court's Registry precluded the appellants' attempts to do so. A new party cannot be added to an appeal in this way, but assuming it could, the appellants could not demonstrate why the Department should be added, or how this would make any difference to the outcome of this proceeding.

(d) Section 24 of the Charter - the right to a fair hearing - is not engaged because there was already a fair hearing before VCAT and the Court of Appeal, as well as this court, on the relevant issues. The previous hearings were not only determined on technical legal issues without exploring the merits. The Court of Appeal considered and determined the merits of the appellants' claim.

(e) Section 60 of the P & E Act sets out the matters that a responsible authority must consider when determining an application for a permit. This includes the relevant planning scheme. This section cannot have any application in this case.

(f) Section 126 of the P & E Act makes it an offence for any person to use or develop land in contravention of, or fail to comply with, a planning scheme, or a permit. If the permit and its conditions were no longer capable of imposing obligations after the Council and the appellants (and other residents of Meridian) took title of the roads and subdivided land respectively, then their use of the land cannot be in contravention of the permit. Those are the only parties to this proceeding.

(g) The Council's submissions addressed s 68 of the P & E Act and I accept its analysis.

(h) Presidential members and Australian lawyers: The appellant is correct that only a 'presidential member' who is an 'Australian lawyer' may exercise power under s 75 of the VCAT Act to dismiss unjustified proceedings. The only relevant VCAT proceeding for which this question might arise is the sixth proceeding. Dwyer DP is a presidential member and an Australian lawyer. A presidential member is defined in the Act as 'the President, a Vice President or a Deputy President'. Dwyer DP is a Deputy President and therefore a presidential member. An Australian lawyer is defined in the Legal Profession Uniform Law (Vic); the Act distinguishes between an Australian lawyer and an Australian legal practitioner. An Australian lawyer is 'a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction'. Another category of lawyer is an 'Australian legal practitioner' who is required to hold a current Australian practising certificate.

(i) The appellant provided no evidence whatsoever for the contention that Dwyer DP is not an Australian lawyer. Mr Khan submitted from the bar table that (on a generous interpretation of what he said) he had made some calls to the Victorian Legal Services Board and they had advised that Dwyer DP did not hold a valid practising certificate. Accepting that to be true for present purposes, as has been explained to Mr Khan very clearly on prior occasions, not holding a practising certificate cannot establish that Dwyer DP is not an Australian lawyer. Section 75 of the VCAT Act does not require the decision maker to be an Australian legal practitioner for good reason. Judicial officers cannot hold practising certificates because they do not practice law, they adjudicate legal disputes as independent arbiters. This was explained to Mr Khan by Dwyer DP in VCAT, and by me during the hearing of this matter.

(j) Vexatious proceedings: Relatedly, power exercised under the Vexatious Proceedings Act 2014 (Vic) must be exercised by an Australian lawyer but not by someone who holds a practising certificate. This is of no moment because there has not been any exercise of powers under that Act in these proceedings. The appellants conflated the concept of vexatiousness in summary judgment applications under, for example, the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the concept of a vexatious proceeding or litigant under the Vexatious Proceedings Act. This Act concerns, among other things, orders restraining parties from bringing proceedings and is irrelevant in this case in understanding why the application for leave to appeal is vexatious.

(k) Section 27 of the Oaths and Affirmations Act: The affidavit identified the affidavit taker's address and capacity, albeit not straight after her signature, because she is the solicitor on the record and her details appear on the front of the affidavit. To the extent the affidavit does fail to comply with the strict requirements of s 27(1)(c), s 29 provides that 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 find that this omission does not materially affect the nature of the affidavit and must have been inadvertent, and that the defects alleged by the appellants are of no consequence. In any event, it is not necessary for the court to refer to the matters deposed to in the affidavit.

61 For these reasons I will order that the appeal from the judicial registrar is dismissed.

62 The respondent seeks costs of the appeal. The appellants submitted during the hearing that if Council were concerned about incurring legal costs, it should simply refrain from participating in the hearing as it would not need to take action if it had not 'done anything wrong.'

63 This misguided misconception of the litigation process, particularly where the appellants contend that Council did do wrong, is rejected. This submission also exposes the appellants' attitude to the administration of justice in abusing the court's processes and wastefully exposing the ratepayers of Dandenong to legal expense by refusing to accept final determinations of the courts and tribunals. Their disregard for the public resources that might also be available to litigants with legitimate grievances waiting for a first hearing is also unacceptable.

64 The appellants will pay the respondent's costs of the proceeding. The only reason I have not ordered the appellants to pay costs assessed on an indemnity basis is that Council did not seek it.

[1] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) s 75(1).

[2] Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VicRp 23; [1980] VR 187, 190; Bendigo and Adelaide Bank Ltd v Grahame [2020] VSC 86, [18]; Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 202-3 [11], [13].

[4] Khan v VCAT [2018] VSC 549.

[5] Khan v VACT [2018] VSCA 351.

[7] Khan v Greater Dandenong CC [2019] VCAT 1914, [15]-[16].

[8] Presumably a reference to Senior Member Rickards.

[9] Khan v VCAT [2018] VSCA 351, [108].

[10] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.

[11] Khan v Greater Dandenong CC [2020] VCAT 412, [1].

[17] Cabot v City of Keilor [1994] VicRp 14; [1994] 1 VR 220.

[18] Karam v Palmone Shoes Pty Ltd [2012] VSCA 97, [36].

[19] Argus Tallow Merchants Pty Ltd v Greater Dandenong CC [2015] VCAT 1915, [15].

[20] [2000] VCAT 672.

[22] Bayside CC v Sullivan [2000] VCAT 672, [53].

[23] Planning and Environment Act 1987 (Vic) ss 61-2.

[24] Subdivision Act 1988 (Vic) s 5.

[25] Ibid s 6.

[26] Ibid s 21.

[27] Ibid ss 5(3), 6(1)(a), 21-2.

[28] Ibid s 22(1)(a), (b).

[29] Ibid s 24(2)(d).

[30] Ibid s 24(2)(b),(c).

[31] Ibid s 24(2)(b), (2A).

[32] Khan v VCAT [2018] VSCA 351, [100]-[101].

[35] Manderson v Wright [2016] VSC 677, [25].

[36] Cope v Hobsons Bay City Council [2004] VCAT 2487, [44].

[37] Benedetti v Moonee Valley City Council [2005] VSC 434.

[38] Khan v VCAT [2018] VSCA 351, [128]-[129].

[39] D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 17 [34] (citations omitted).

[41] Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, 31.

[42] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 517-8.

[44] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42, [65], citing Tomlinson (n 42), 518-9 [25]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 265 [9], 266-7 [14]-[15].

[45] P.E. Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437, 442; Aavelaid v Dental Board of Victoria [1999] VSC 54, [124].

[46] [2021] VSC 724.

[48] See, eg, Brown v Corrections Victoria [2022] VSC 217, [26], [27], [29] and the authorities cited therein.

[49] Jackamarra v Krakouer (1998) 195 CLR 516, 521 [7].

[50] [2000] VCAT 672.