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[2023] VSC 353
General information, not legal advice.
Supreme Court of Victoria
2023-06-26
Gorton J
Original judgment source is linked above.
APPEAL - Application for appeal and leave to appeal from VCAT - Nature of VCAT's jurisdiction in merits review - VCAT's power to allow an amendment of documents before it - Whether and when VCAT may consider on review an application different to the application made to the original decision-maker - Identifying the limits by considering the substance of what is being sought - VCAT erred by assuming jurisdiction as primary decision-maker rather than as a body reviewing a decision - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 127, 148 - Mineral Resources (Sustainable Development) Act 1990 (Vic) - Shi v Migration Agents Registration Authority ; - ; - ; - - - ;
APPEAL - Application for appeal and leave to appeal from VCAT - Whether the applicant argued its appeal ground in this Court before VCAT - Questions of jurisdiction should be decided on their merits and not by reference only to arguments that were put by the parties.
1 Hanson Construction Materials Pty Ltd ('Hanson'), the first respondent, sought review by the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal') of a decision of the Secretary, Department of Environment, Energy and Climate Action[1] ('the Department Head') to refuse to endorse a variation to a work plan by which Hanson was to rehabilitate a quarry. The review was by way of merits review, and VCAT had the power to endorse the variation. Hanson, however, then sought to place a different variation to the work plan before VCAT and to ask VCAT to endorse that variation instead. The Department Head contended that VCAT had no power to decide whether that variation should be endorsed because that variation had not been the subject of a prior decision by the Department Head. VCAT determined that it did have power to consider that variation. The issue in this case is whether VCAT erred in reaching that conclusion.
2 Hanson owns a quarry in Harkaway. It was able to exploit the quarry pursuant to an 'extractive industry work authority' granted to it under the Mineral Resources (Sustainable Development) Act 1990 ('the MRSD Act'). The quarry is no longer being used. Hanson was required to rehabilitate the land in accordance with a rehabilitation plan that formed part of a work plan that was approved in 1991. Hanson applied under the MRSD Act for endorsement[2] of a proposed variation dated 12 February 2021 to the rehabilitation plan ('the first work plan variation'). On 7 July 2021, a delegate of the Department Head refused to endorse the first work plan variation and gave a statement of reasons for that decision. The delegate said that the first work plan variation would introduce hazards and represented 'an unacceptable level of risk to members of the public post closure', did not provide for 'adequate rehabilitation of the current unrehabilitated and partially rehabilitated areas', and did not comply with the applicable regulations. On 20 July 2021, the Department Head wrote to Hanson setting out matters it required to be addressed if the first work plan variation was to be endorsed. Instead of dealing further with the Department, on 22 July 2021, Hanson applied to VCAT for a review of the Department Head's decision to refuse to endorse the first work plan variation, as it was entitled to do. The form by which the VCAT proceeding was commenced identified the 'decision' as the refusal on 7 July 2021 by the delegate of the Department Head to endorse the first work plan variation and the first work plan variation was attached to that form.
3 Then, on 16 January 2022, Hanson prepared a different proposed variation to the rehabilitation plan ('the second work plan variation'). Hanson sought to have that document, rather than the first work plan variation, considered by VCAT in its merits review. It contended that s 127 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') gave VCAT the power to amend the document and that s 51 of the VCAT Act gave VCAT 'the power to accept and consider' the amended application.
4 The second work plan variation was not presented as an 'amendment' to the first work plan variation, in that it was a stand-alone document complete in itself. It would be more accurate to describe it as a substituted work plan variation. Quite appropriately, I have not been invited to engage in an analysis of the extent of the differences between the two documents. The Tribunal said that many of the changes could be 'characterised as clarifications and corrections' aimed at addressing the Department Head's reasons for refusing to endorse the first work plan variation, but that there were also 'some features that may be characterised as changes of substance'.[3]
5 VCAT set down for preliminary determination the following question:
Does the Tribunal have the power to amend, under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), [the first work plan variation] that was given to the Department Head, Department of Jobs, Precincts and Regions for statutory endorsement under section 77TC of the Mineral Resources (Sustainable Development) Act 1990 (Vic)?
6 Section 127(1) of the VCAT Act provides as follows:
127 Power to amend documents
(1) At any time, the Tribunal may order that any document in a proceeding be amended.
7 VCAT answered that question in the affirmative. It then made an order that:
[The first work plan variation] is amended under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). For the whole of the work plan variation, substitute the [second work plan variation].
8 The Department applied under s 148 of the VCAT Act for leave to appeal against the order constituting the answer to the question and the order amending the work plan variation. As often happens, the application for leave, and any appeal if leave were granted, were argued together. The Department Head did not oppose the grant of leave.
9 The question that arises in this proceeding is whether, when the Tribunal is conducting a merits review of the Department Head's decision to refuse to endorse the first work plan variation, the Tribunal is able to decide instead whether or not to endorse the second work plan variation.
C. The source and extent of VCAT's review jurisdiction
10 VCAT is a creature of statute. It only has the jurisdiction and powers that the VCAT Act and any enabling enactment gives it.[4] Part 3 of the VCAT Act is headed 'The Tribunal - jurisdiction and functions'. Division 3 of that part deals with 'Review jurisdiction'. Subdivision 2 of that division, consisting of ss 48 to 52, is headed 'Jurisdiction of the Tribunal'. Section 48(a) provides as follows:
48 How is review jurisdiction invoked?
The review jurisdiction of the Tribunal is invoked -
(a) by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or
...
11 Section 67 of the VCAT Act, in a division headed 'Preliminary procedure', contains formal requirements for the making of an application. An 'enabling enactment' is defined as 'an enactment by or under which jurisdiction is conferred on the Tribunal'.[5] Here, the enabling enactment is the MRSD Act. Section 77TI(3)(a) of the MRSD Act provides as follows:
77TI Review by Tribunal
...
(3) A licensee, the holder of an extractive industry work authority or a person proposing to apply for an extractive industry work authority may apply to the Tribunal for review of -
(a) a decision of the Department Head under section 77TD to refuse to statutorily endorse a work plan or variation to an approved work plan; or
...
12 Hanson's application, then, invoked the Tribunal's jurisdiction to 'review' the 'decision' to refuse to statutorily endorse[6] the first work plan variation. As the definition of 'enabling enactment' shows, the jurisdiction was 'conferred' by the MRSD Act.
13 Returning to sub-div 2 of div 3 of pt 3 of the VCAT Act, s 51 provides as follows:[7]
51 Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2) In determining a proceeding for review of a decision the Tribunal may, by order -
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
14 The review is described as a 'merits' review because, unlike when this Court is exercising its review or supervisory jurisdiction,[8] the Tribunal is not limited to determining whether the decision was lawfully made but instead is required to determine 'whether the decision is the correct or preferable decision.'[9] The language in s 51 of the VCAT Act largely reflects the language in s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which created the Federal Administrative Appeals Tribunal ('the AAT').[10] The creation in 1975 of the AAT with its power to review on their merits decisions made by executive government or administrative bodies represented a significant, indeed a 'radical', development in administrative law and practice.[11]
C.2 The issue is not decided by the text of s 127
15 Much of the argument before VCAT and before me focused on s 127 of the VCAT Act, which is set out in para 6 above. Probably, the Department Head is right that the power to amend a document in a proceeding is only a power to amend the documents created for the purpose of bringing and prosecuting the proceeding, rather than documents that are the subject of the proceeding or documents that were created prior to and exist for reasons disconnected with the proceeding. Certainly, for example, there would not be power under s 127 to amend a document such as a domestic building contract just because it is the subject of a proceeding. That is how the power to amend has been applied in courts.
16 In my view, however, the question in issue in this proceeding is not answered by reference to s 127 of the VCAT Act. Section 127 is located in Part 4 of the VCAT Act which is headed 'general procedure'. There is no reason to think that s 127 of the VCAT Act was intended to be a source of, or to expand, the Tribunal's jurisdiction on a review hearing. Setting the extent of the Tribunal's jurisdiction by reference to the power to amend a document would be the tail wagging the dog. If the Tribunal had jurisdiction to consider whether to endorse the second work plan variation, then it had the power to permit such amendments to the documents before it as were required to raise and to determine that issue. That would include, for example, an amendment to the documents identifying the relief that Hanson was seeking. If the Tribunal did not have the jurisdiction to consider whether to endorse the second work plan variation, then the fact that it might have the power to permit amendments that put that issue before it does not mean that it thereby accrued that jurisdiction.[12]
C.3 The scope of the jurisdiction conferred by the MRSD Act
17 Instead, the question should be approached having regard to the fact that the MRSD Act is the source of VCAT's jurisdiction and the VCAT Act sets out the Tribunal's functions and powers when it is exercising that jurisdiction. VCAT has jurisdiction to review the decision in respect of which its jurisdiction is invoked. In reviewing that decision, it looks at the merits and forms its own views. If it agrees with the decision under review, it has the power affirm it. If it thinks the decision under review should be varied, it has the power to vary it. If it thinks the decision under review should be set aside, it has the power to set it aside. It then has the power to make another decision in substitution for the decision under review, or to remit the matter to the original decision-maker. But VCAT has no jurisdiction to do more than to review the decision in respect of which its review jurisdiction was invoked and its powers may not be exercised other than for that purpose. Equally, the Tribunal does not have jurisdiction to 'review' a decision that has not been made.
18 These conclusions are compelled by the statutory language and context. More particularly:
(a) As the introductory text to each section demonstrates, the broad functions and powers set out in ss 51(1)(a) to (c) and 51(2)(a) to (d) of the VCAT Act, set out in para 13 above, are not at large but are conditioned on the Tribunal being engaged in 'exercising its review jurisdiction in respect of a decision' and in 'determining a proceeding for review of a decision' respectively;
(b) The sequential nature of the options given in ss 51(2)(a) to (d) - the fact that the first two options are to affirm or to vary the decision under review and that a different decision may only be made if the decision under review is first set aside - confirms the central role that the 'decision under review' is intended to play in the review proceeding;
(c) The power given to the Tribunal by s 51(2)(c) to 'make another decision in substitution' for the decision under review might be thought to give VCAT power to make any decision it wishes. But it is still conditioned on the VCAT being engaged in a review of the 'decision under review';
(d) The obligation imposed on the original decision-maker by the VCAT Act assumes that VCAT is considering the decision that the original decision-maker has made. Section 49(1) of the VCAT Act requires the original decision-maker to lodge with the Tribunal a copy of any statement of reasons and 'every other document in the decision-maker's possession that the decision-maker considers is relevant to the review of the decision'. The purpose of this provision is to assist VCAT 'to understand how the decision under review was made and the reasons for its making';[13]
(e) The word 'review' itself assumes a prior event, here a decision, that is to be examined for correctness. It is, literally, a second look at something; and, importantly
(f) To permit the Tribunal to go beyond the power of reviewing decisions that have been made by others would be to remove from the statutory balance the idea that it is the governmental or administrative body that is called upon in the first place to make a decision and the role of the Tribunal to review the decision once made.
19 In respect to this last point, it is worth looking in more detail at the decisional and management structure contained within the MRSD Act as it relates to quarries.[14] The MRSD Act precludes a person from carrying on an extractive industry on any land without a work authority.[15] Before applying for a work authority, the person must lodge a work plan with the Department Head that, among other things, identifies risks to the environment, the public, the land or other infrastructure and specifies what is proposed to eliminate or minimise those risks and includes a rehabilitation plan.[16] The plan must also include a plan for 'consulting with the community' throughout the period of the work authority.[17] The Department Head can approve the work plan with or without conditions, require changes to the work plan (including to the rehabilitation plan) or refuse to approve the work plan.[18] The Department Head is also entitled to impose a variation on an approved work plan, although the Department Head is required first to give the holder an 'opportunity to comment' on the proposed variation.[19] When a holder of a work authority applies for approval of a variation of a work plan, the application must contain 'the prescribed information'.[20] The Department Head may, again, approve the work plan variation with or without conditions, require changes to the work plan variation (including to the rehabilitation plan), or refuse to approve the work plan variation.[21] The Department Head is precluded from approving a work plan variation unless he or she has 'consulted the municipal council in whose municipal district the land is situated.'[22]
20 If a work plan has been approved, a 'rehabilitation bond' has been entered into, and any necessary planning permission or other required consents have been obtained, the Minister may grant an authority to carry out the extractive industry.[23] The Minister, too, may impose conditions to which the authority is to be subject relating to matters including the rehabilitation of the land, the elimination and minimisation of risks to the environment, members of the public or to land, property and infrastructure, protection of groundwater, the payment of royalties or fees and the preparation of regular reports to the Minister.[24] The Minister may later vary the work authority or its conditions[25] or cancel it if identified criteria are met.[26] The Minister is able to appoint an 'advisory panel' made of persons with appropriate knowledge, skills or experience to provide the Minister with advice and recommendations on 'any matter relating to exploration, mining, extractive industries or the administration of' the MRSD Act.[27] The advisory panel may receive submissions from interested persons and hold public hearings.[28]
21 There is then a process that applies when a proposed work plan or work plan variation requires planning approval. In those circumstances, as noted above, the Department Head must first endorse (rather than approve) the proposed work plan or work plan variation. On receipt of the proposed work plan or work plan variation, the Department Head may ask for changes, endorse or refuse to endorse, or give a copy to each person or body specified in the planning scheme as a referral authority.[29] The Department Head must give a copy of the proposed work plan or work plan variation to 'every referral authority that the Department Head considers, having regard to the kind of work proposed under the work plan or variation, should be given the work plan or variation' and satisfy him or herself that it complies with the regulations.[30] The referral authorities must tell the Department Head whether they object to the endorsement of the proposed work plan or work plan variation or to what conditions it should be subject or, if they object, the grounds for which they object to the statutory endorsement.[31] If the Department Head asks for changes to be made to the work plan or proposed work plan variation, the applicant must make those changes.[32] The Department Head is not permitted to endorse a work plan if to do so would be inconsistent with anything that a referral authority tells the Department Head.[33] The Department Head can, again, impose conditions on the statutory endorsement.[34]
22 The process of evaluating work plans and work plan variations for quarries and other like industries is, clearly, complex, and the application process itself is sophisticated. It will ordinarily require the application of expertise across a variety of disciplines and the making of value judgments in weighing different considerations. There is, as a matter of public policy, good reason for which the legislature has placed the responsibility for the making of that evaluation in the first place on the Department Head (or the Minister). It is one thing for a body such as VCAT to review a decision that has first been made by the Department Head, and quite another thing for VCAT to make the first decision. The latter would mean that the Department Head, instead of processing the application for the variation within the Department following the ordinary processes, including external consultation, and making and giving reasons for his or her decision, would be required to gather and to present evidence to VCAT upon which he or she seeks to rely and then to present submissions as to why a certain decision should or should not be made. If the legislature had intended to place the responsibility for original decision-making on VCAT rather than on the Department Head, it could have said so in clear terms. The fact that parliament gave VCAT the ultimate say does not mean that it also gave it the right to make the primary decision.
23 Also, and although I am not suggesting that this was the case here, if VCAT were not limited to reviewing decisions made, it would be open to persons to put together a short or shoddy application to the Department Head that was quickly refused, then present a properly-thought out application to VCAT and have the 'real' questions determined there. This might be thought by the person making the application as an 'efficient' method of getting quickly to the ultimate arbiter of the matter. This would, however, clearly frustrate the intention evident from the legislation that the matter be fully and properly examined first by the Department.
24 Finally, it is significant that cl 64 to sch 1 of the VCAT Act 'varies' the provisions of the VCAT Act in a proceeding for review of a decision of a responsible authority under the Planning and Environment Act 1987 in respect of an application for a permit or the failure of a responsible authority to grant a permit. Clause 64 gives the Tribunal power to 'make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding'. In this way, cl 64 gives the Tribunal a specific power to amend the application that was made to the original decision-maker. As McNamara DP observed in Li Ming Wai v Boroondara City Council,[35] the 'strict rule that only the same controversy could be considered on review which had been the subject of a primary determination never applied in the planning jurisdiction'. The consequence of this is that, in a proceeding under the Planning and Environment Act 1987, the Tribunal may decide an application for a permit, works approval or licence that is substantively different from the application that was considered by the original decision-maker. If VCAT had the power to consider applications that were never made to the original decision-maker, then cl 64 of sch 1 would be otiose. The more likely conclusion is that VCAT's jurisdiction is limited to reviewing the decision made by the original decision-maker, and that an exception has been made for planning matters.
25 The outcome of this case must turn on the particular statutory provisions under consideration. Nevertheless, it is instructive to review some of the decisions that have been made relating to other similar legislation where some fundamental propositions are referred to.
26 VCAT and other similar tribunals have been described on many occasions, albeit in different circumstances, as bodies whose roles are to review decisions first made by others and whose jurisdiction is limited by the enabling legislation. As examples:
(a) In Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW),[36] the Collector of Customs revoked Brian Lawlor Automotive Pty Ltd's ('Brian Lawlor') warehouse licence on the grounds that Brian Lawlor was not 'a fit and proper person to hold a customs warehouse licence'. The licence was necessary for Brian Lawlor to warehouse dutiable goods. Brian Lawlor applied to have the decision reviewed by the AAT. The AAT concluded that the Collector of Customs had no legal power to revoke a licence other than for non-payment of a licence fee and that the AAT should substitute the decision that 'no action be taken purporting to revoke that licence'. The case established that the AAT is able to review a decision even if the decision is made without power, set it aside, and substitute for it a decision that no action be taken. In the course of his explanation of the role of the AAT, Brennan J emphasised that the AAT is 'not a primary administrator'.[37]
(b) In Re Mitsubishi Motors Australia Ltd v Department of Transport,[38] Mitsubishi sought to prevent the Department of Transport from providing access to certain documents under the Freedom of Information Act 1982 (Cth). The Department decided that the documents were not exempt documents under certain provisions of that Act and proposed to provide access to them. The Freedom of Information Act 1982 (Cth) conferred on the AAT the power to review a decision that a document is not an exempt document under one of the provisions considered by the Department. Mitsubishi applied to have the Department's decision reviewed by the AAT. The Freedom of Information Act 1982 (Cth) also granted the AAT a power 'to review any decision that has been made ... in respect of the request and to decide any matter in relation to the request that ... could have been or could be decided by an agency or Minister ...'. Mitsubishi contended that this gave AAT the jurisdiction to decide also whether the documents were exempt under other provisions of the Freedom of Information Act 1982 (Cth). The Court resolved the question by construing the section that conferred the jurisdiction to review the decision and concluded that the AAT was not able to decide whether the documents were exempt under the other provisions of the Freedom of Information Act 1982 (Cth). In reaching that conclusion, the Court stated that the provisions giving the AAT broad powers on review did not confer 'an additional, ambulatory head of jurisdiction' but 'should be seen as giving to the Tribunal the power to deal with all questions within its jurisdiction' and that they should 'be read down, if necessary' on the basis that 'a stream cannot rise higher than its source'.[39]
(c) In Secretary, Department of Social Security v Hodgson,[40] the Secretary decided to recover social security payments made to Mr Hodgson as a result of fraud. After an appeal to the Social Security Appeals Tribunal, Mr Hodgson sought review of the decision from the AAT and contended that the amount he was obliged to repay should be reduced or waived. The AAT agreed and substituted a decision whereby a substantial part of the debt owed was waived. The AAT determined that it had jurisdiction to do this because it characterised the decision under review as including a decision not to waive any part of the amount owing. The Secretary appealed and contended that the AAT did not have jurisdiction to waive part of the debt. The Court would have dismissed the appeal on the grounds that it would not interfere with the finding of the AAT that the Secretary had in fact considered and rejected the possibility of waiver.[41] But it also stated that the AAT would have had jurisdiction to consider whether to waive part of the amount owing even if the decision-maker had not considered whether to waive part of the amount owing. The Court accepted the 'truism' that the jurisdiction of the AAT depends on there being a decision made that it is authorised to review.[42] It then considered the connection between the decision to recover moneys owed and the decision not to waive recovery of moneys owed. In this case, it considered that the power of waiver was not 'so separate and remote from the decision to recover' as to deny the AAT jurisdiction to decide also to waive recovery.[43] In reaching this conclusion, the Court stated that when the AAT's 'jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do.'[44] The AAT could consider the issue of waiver because the decision-maker could have considered it and would have been required to do so if asked to make a decision.[45]
(d) In Shi v Migration Agents Registration Authority,[46] a regulatory body cancelled Mr Shi's registration as a migration agent on character grounds. Mr Shi applied to the AAT for a review of that decision. The AAT concluded that Mr Shi should not have his registration cancelled. It cautioned Mr Shi and imposed some conditions on his practice for the lifting of that caution. The power to impose conditions was a power given to the original decision-maker that was introduced after the decision had been made by it but before the matter was considered by the AAT. The Court confirmed that the Tribunal was right to form its own view as at the time of the hearing before it and on the basis of the material put before it and that it was entitled to impose the conditions it did. But it did not treat the AAT as being entirely at large. Rather, Kirby J described its task as being to decide whether the decision under review was 'the correct or preferable one on the material before the Tribunal'.[47] Hayne and Heydon JJ said the Tribunal's role was 'to do over again' what the original decision-maker had done.[48] Kiefel J said that the Tribunal 'must address the same question as the original decision-maker was required to address'[49] and that 'the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.'[50] Kirby J also emphasised the need to consider the legislation under which the decision was made.[51]
(e) In Kozanoglu v Pharmacy Board of Australia,[52] Mr Kozanoglu, who was a pharmacist, had imported a large amount of a drug used to make ecstasy. A committee of the pharmacy board exercised its power to take 'immediate action' to impose various conditions on Mr Kozanoglu's practice including that he not attend the premises of the pharmacy. The enabling enactment provided that Mr Kozanoglu 'may appeal against the decision' to VCAT. Mr Kozanoglu exercised this right. VCAT admitted evidence that was not before the original decision-maker and relied on it to vary the conditions. The pharmacy board appealed and contended that VCAT was wrong to admit the additional evidence. It was accepted that VCAT's power to admit evidence depended on the terms of the enabling enactment and the nature of the appeal that they gave.[53] The Court determined that VCAT was entitled to receive any evidence 'that bore upon the decision that was actually taken by' the decision-maker 'at the time the decision was taken.'[54]
(f) In Dawson v Greyhound Racing Victoria,[55] the Greyhound Racing Victoria Appeals and Disciplinary Board found Mr Dawson guilty of an offence. Certain particulars were provided at that time. The trainer applied to VCAT for a review of the Board's decision. The enabling Act provided that a person whose interests are affected by a decision made by the Board 'may apply to VCAT for a review of that decision'.[56] VCAT had the functions and powers set out in para 13 above. VCAT substantively amended (or permitted a substantive amendment to) the charge and found Mr Dawson guilty on that basis. Mr Dawson appealed. The Court concluded that VCAT had 'considered a fresh charge that had not been the subject of any earlier determina[57]on'.57 The Court concluded that VCAT's jurisdiction was 'not whether there has been some breach of the disciplinary rules at large but whether the breach or breaches alleged or found by the original decision-maker are establi[58]ed'.58 The amendment was found to have been impermissible.
27 Similar issues have also previously been considered by VCAT:
(a) In Li Ming Wai v Boroondara City Council,[59] Ms Li applied, retrospectively, for a permit to construct a second dwelling on her property. The application was refused by the council and Ms Li applied to the Tribunal for a review of that decision. She asked the Tribunal to approve a permit that would permit a subdivision. She had not applied to the council for a permit for a subdivision. The Tribunal refused to consider that application. It stated that it had 'no jurisdiction to deal with a completely different matter which Council has not considered'.[60]
(b) In Niebieski Zamek Pty Ltd v Southern Rural Water,[61] an issue arose as to whether the Tribunal on review could consider whether to grant an application for a water allocation of 250-800ML per annum when the application made to the original decision-maker was for an allocation of 2,700ML per annum. The Tribunal ruled it could not do so because 'the correct interpretation is that the nature of the review jurisdiction in the Tribunal remains constrained ... to the consideration only of the controversy which [was] considered at first instance.'[62]
(c) In TC Rice Pty Ltd v Cardinia Shire Council,[63] a council refused to grant planning permission for a hotel that was to contain 80 electronic gaming machines. The developer applied to VCAT to have that decision reviewed. During the VCAT proceedings, the developer sought to amend the permit application by adding conditions that the gaming room operate on identified restricted hours. VCAT refused the requested amendment. In the course of so doing, it stated that, in the absence of a contrary statutory provision, VCAT may only review matters that are the subject of a decision by the original decision-maker,[64] and that s 127 of the VCAT Act, as a 'procedural power', could not be used to confer jurisdiction on the Tribunal that it otherwise did not have.[65] VCAT ruled it did not have power to consider the amended permit application.
(d) In ID-FLK Gisborne Pty Ltd v Macedon Ranges Shire Council,[66] a planning overlay meant that a developer could not develop land until a development plan had been prepared 'to the satisfaction of the [council].' The developer forwarded a development plan to the council and the council failed to respond within a reasonable time. There was no formal process under the Planning and Environment Act 1987 by which a developer was to obtain confirmation that the council was so satisfied and cl 64 of sch 1, considered in para 24 above, did not apply. A section of the Planning and Environment Act 1987 allowed the developer to apply to VCAT for the review of 'a decision of a specified body' if a planning scheme specifies a condition that the matter must be done to the satisfaction of the specified body. The developer commenced a proceeding in VCAT. The developer then sought to file an amended development plan. VCAT allowed it to do so. VCAT permitted the amendment, and in order to distinguish _TC Rice Pty Ltd v Cardinia S[67]re Council_67 it relied on the fact that there was no formal statutory application or consideration process conditioning the council's consent to the development plan.
28 The reasoning in ID-FLK Gisborne Pty Ltd v Macedon Ranges Shire Council[68] is generally supportive of Hanson's position. It is, of course, distinguishable because in this case there was a sophisticated statutory process for the Department Head to follow in assessing an application. That said, I prefer the analysis in the reasoning in TC Rice Pty Ltd v Cardinia Shire Council.[69]
29 It is also useful to consider Ku-ring-gai Council v Bunnings Properties Pty Ltd.[70] In that case, the council rejected a development application from Bunnings that would have allowed Bunnings to demolish an existing building, to erect a new building in its place, and to use the new building as a hardware store. Bunnings appealed to the Land and Environment Court of New South Wales where it was heard by a Commissioner. The appeal was not described as a 'review' but as 'an appeal in the nature of a rehearing.' The Commissioner, in a series of decisions, opined that the proposed development would not be acceptable, allowed Bunnings to provide a new design that addressed the deficiencies he had identified, and then granted consent (subject to conditions).
30 The council appealed to Court of Appeal of the Supreme Court of New South Wales. Much of the case turned on whether the Commissioner was exercising judicial or administrative power. Preston CJ,[71] with whose ultimate conclusions Beazley P agreed, concluded that 'for the purpose of hearing and disposing of the appeal' the Commissioner had the functions and discretions that the council had, and that those included agreeing to the amendment of the development application. Preston CJ concluded that the Commissioner was entitled to permit the amendment and to consent to the amended application.
31 Although the principal arguments put, and rejected, asserted that the Commissioner was exercising judicial not administrative power, Preston CJ did express some views generally about what he described as the 'amber light approach', that is, an approach where the Land and Environment Court indicates that it finds a proposal unacceptable but also indicates what changes could be made to make it acceptable, allows an amendment, and then approves the application. In the context of that discussion, his Honour stated that:
[202] However, the Court has no power to consider ... development that is not the subject of the development application or to determine ..., by granting or refusing consent, a development application that is not the subject of the appeal. A purported exercise of the power ... to grant development consent would not be valid unless it constitutes "a consent to the application" that was made to the consent authority...
[203] The power ... to determine a development application by the grant of consent must be exercised in relation to the development for which consent is sought in the development application.
[205] This is not to say that the Court, in its determination of the development application actually made, cannot require modification of the development the subject of that development application in order to render the development acceptable. The Court has power ... to grant consent subject to conditions...
32 It is not clear to me whether these 'suggested constraints' on the 'amber light approach' were adopted by him, or were a summary of the council's position. On balance, however, I consider that they were adopted him as he made it clear that he did not want to be seen to be endorsing or encouraging the 'amber light approach',[72] albeit that he did refer to the risk that focusing on questions such as 'whether the amendments are "minor and identifiable" or do not "significantly alter" the development diverts attention from the statutory functions'.[73]
33 Basten J dissented. He, too, expressed concerns with the 'amber light' approach. He noted that the Court had 'no jurisdiction to consider a development application other than the one to which the Council refused consent'[74] and that to permit a change in a proposed development in the course of an appeal might 'undermine the purpose of the earlier public exhibition of the application and would deprive interested persons of the opportunity to respond to the proposal' and 'thwart or undermine the ... provisions which provide for community involvement'.[75] He ultimately concluded that 'material changes cannot be made to a development application the subject of an appeal.'[76]
34 Preston CJ has since expressed the view that the Land and Environment Court does not have the power to amend a request or an application to modify a development consent or approval.[77]
35 There are a number of reasons for which the result reached by the majority in Ku-ring-gai Council v Bunnings may not apply here. First, it was a planning case, and, as noted above, there is a history in planning cases that amendments are able to be made to planning applications even on review. Second, the Commissioner was not 'reviewing a decision' but was hearing 'an appeal in the nature of a rehearing'. Third, there were specific provisions in the Environmental Planning and Assessment Act 1979 (NSW) that permitted the Land and Environment Court hearing an appeal to approve an application whether or not various 'approval bodies' had provided their approval.[78] The council, on the other hand, could not approve an application without having obtained those approvals. In this way, the Environmental Planning and Assessment Act 1979 (NSW) gave the Commissioner broader powers to provide consent than were given to the original decision-maker, and these decisions turn on a close examination of the relevant legislation. Fourth, the New South Wales Court of Appeal relied, among other things, on the fact that the Land and Environment Court was not just an administrative body but was a 'judicial adjudicative body' exercising administrative power in an adversarial setting.[79] Fifth, the Commissioner had considered and expressed views on the appropriateness of the original application before the question of an amendment arose. Accordingly, I do not consider that the outcome of that case should control the outcome in the case before me.
36 In summary, the case law, in my view, is consistent with the notion that VCAT or a body like it may have jurisdiction to review a decision made by others and not have jurisdiction to act instead as a primary decision-maker.
C.5 Conclusion on when VCAT can consider an amended application
37 For the above reasons, VCAT only has jurisdiction to review on its merits the decision that was actually made by the Department Head. That, however, invites attention to what was 'the decision'.
38 Here the 'decision' was the decision made by the Department Head on 7 July 2021 under s 77TD(1)(b) of the MRSD Act to refuse to endorse the variation to an approved work plan. Even in that context, however, the 'decision' may be expressed at different levels of abstraction. It could be said, for example, that the 'decision' was the refusal to endorse a variation in the precise terms of the first work plan variation. On that basis, VCAT's jurisdiction would be limited to reviewing the decision made on that document, and it would not have jurisdiction instead simply to decide whether another variation should be allowed. This could lead to difficulty in the event that minor changes were made to the document sought to be considered by VCAT. Or, it could be said that the 'decision' was a decision to refuse to endorse a variation to an approved work plan. On that basis, VCAT would have jurisdiction to review any proposed variation to the approved work plan. Approaching it at that level of abstraction, however, would evade the principle underlying the limit to VCAT's jurisdiction that it is to operate as a place of review rather than as a original decision-maker.
39 I see no option but to express the limits of VCAT's jurisdiction in somewhat uncertain terms that address the substance, rather than the form, of what is being asked of it: VCAT here had no jurisdiction to decide whether to statutorily endorse a particular work plan variation if the work plan variation it was asked to endorse was sufficiently different to the work plan variation that the Department Head had been asked to endorse such that it may fairly be said that VCAT was not reviewing the decision of the Department Head but was instead being asked to act as an original decision-maker.
40 Put another way, there may be changes between the document before the Department Head and the document before VCAT of such a dimension that they do not lead to a conclusion that VCAT, in considering the amended document, is, as a matter of practical reality, doing anything other than reviewing the original decision.
41 Whether that is so, in the first instance, is a decision for VCAT to make.
42 This approach is not unfamiliar. In Frugtniet v Australian Securities and Investments Commission, Kiefel CJ, Keane and Nettle JJ said that:
The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.[80]
43 An analogous issue was discussed by Brooking J in Addicoat v Fox (No 2).[81] In that case, a developer lodged an application for a 'land use' permit. The developer later lodged further plans, and after hearing objections, the council granted a permit for both use and development of the land. An issue arose as to whether the council was permitted to do so. Brooking J said:
In my opinion, a power to grant a permit subject to conditions authorizes the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit.[82]
44 His Honour later expressed the same idea by distinguishing between 'modification' of an application, which is permissible, and 'transformation' of an application, which is not.[83]
45 In my view a similar approach should be taken by the Tribunal in a case like this. The Tribunal is empowered to consider whether to endorse the plan put before it if, in substance, the plan is fairly described as a modified version of the plan put before the original decision-maker, but is not empowered to consider whether to endorse the plan put before it if, in substance, it is a new plan. In the latter circumstances, the Tribunal is not reviewing a decision by an original decision-maker, but is making a decision as if it were the original decision-maker.
46 Hanson submitted that this approach would cause inconvenience. It pointed out that there may be delays between the time of the original decision and the time at which the matter comes before VCAT, and that events may occur during that time that require an amendment to the proposed document. It described work permits as 'living documents' that had regularly to be amended. It also pointed out that, ultimately, VCAT had the last word on these matters, and so submitted that there was no good policy reason for which VCAT ought to be precluded from deciding the second work plan variation. I accept there will be occasions when the construction I have favoured will cause inconvenience. But the inconvenience arises from Hanson having to continue to deal with the Department Head, rather than with the Tribunal. There is no reason why Hanson could not continue to deal with the Department Head with a view to getting an amended document statutorily endorsed, rather than seeking to obtain that endorsement from the Tribunal. If the amendments are significant such that the amended document is a substantively different plan, then public policy would be furthered by having the Department Head decide on the amended document first in accordance with its statutory processes. As noted above, to do otherwise - to permit Hanson to present a substituted plan to the Tribunal and reduce the Department Head to a party arguing before the Tribunal - would be to subvert the statutory process whereby the Tribunal reviews decisions already made.
47 Hanson also submitted that to approach the matter in this way would be contrary to the established principle that VCAT, when reviewing a decision, must have regard to 'substantive and even transformative' changes in the facts and the law and the 'best information that is available to them at the time they conduct their review.' I accept, of course, that VCAT does have to make its decision based on the facts and law as they exist at the time of its decision. But that does not mean, as I see it, that VCAT is permitted thereby to review a different decision. Rather, VCAT is to review the decision under review in light of the facts and law as they exist at the time of its review.
48 Finally, I note that Hanson did not really dispute that there had to be some limits to its ability to have VCAT assess a work plan variation that differed from the work plan variation considered by the Department Head. Hanson accepted, for example, that an amendment could not be made so that the application related to a different bit of land. In this case, the proposed rehabilitation plan put before the Department Head provided for turning the hole left by the quarry into a lake. Hanson also accepted that it probably could not put before VCAT a proposed rehabilitation plan that provided instead for filling the hole with rock because that 'could arguably be said not to fall within the scope of the power of amendment'. These concessions, which in my view were properly made, demonstrate, however, that the issue cannot be black and white. Some form of assessment has to be made as to whether VCAT truly is reviewing a decision already made, or is instead being asked to act as a primary decision-maker. As noted above, I consider that assessment is to be made by reference to the role that is being asked of VCAT, rather than by reference to what is or what is not an 'amendment'.[84]
49 Finally, Hanson submitted that if a distinction of that type was to be made, that would go to the exercise of a discretion by VCAT, rather than to the existence of jurisdiction. That is, it submitted that if there were an amendment of sufficient significance that VCAT felt it was being asked to act as a primary decision-maker, VCAT could, in the exercise of its discretion, refuse to permit the amendment. I disagree. For the reasons set out above, in my view the issue goes instead to VCAT's jurisdiction.
50 When considering whether it had jurisdiction to determine whether or not to endorse the second work plan variation, VCAT did not approach the question by asking whether the effect of the substitution was that it was being asked to act as a primary decision-maker rather than as a body reviewing a decision made by another. Accordingly, in my view VCAT erred in law in its approach to this question.
51 It cannot be said that VCAT would have reached the same conclusion as to its jurisdiction had it asked the correct test, because it concluded that 'the substance of the amendment application is to substitute all the documents comprising the [work plan variation] as given to the Department',[85] and that there were 'some features that may be characterised as changes of substance'.[86] Accordingly, in my view, and subject to the matters set out immediately below, there should be leave to appeal and the appeal allowed and the matter remitted to VCAT.
E. Should the appeal nonetheless be dismissed because of the way the matter was argued?
52 Hanson submitted that VCAT had determined the issues in the way that they were argued, and accordingly the appeal should not be allowed.
53 There is something in this. The focus before VCAT was very much on the scope of the power given by s 127 of the VCAT Act. That said, the Department Head did submit that even if there were a power to amend, VCAT would still have no jurisdiction because VCAT 'could not, in practical terms, stand in the shoes of the decision maker'. The Department Head also submitted that the VCAT Act 'does not confer on the Tribunal each and every power of a decision maker, but only those that are relevant to the decision under review'. In this way, the Department Head did not limit itself to arguments based on s 127 of the VCAT Act. Further, its submissions in relation to s 127 were that the section must be construed differently in the context of VCAT's review and original jurisdictions. The Department Head acknowledged that the scope of s 127 had been considered many times, but never in the context of a review under the MRSD Act. Accordingly, its submissions on the scope of the power in s 127 were intertwined with its submission as to VCAT's review jurisdiction. But more fundamentally, even if it had failed to raise the jurisdiction issue, that would not, in the circumstance of this case, mean that the appeal should not be allowed. Parties may often be bound by the way they ran their case at first instance.[87] But that principle, grounded as it is in the notion that the administration of justice should not be brought into disrepute, is not applicable where questions of jurisdiction are concerned. Questions of jurisdiction should be decided on their merits and not by reference only to arguments that are put by the parties.[88]
54 Hanson also submitted that to decide the case on that basis would impermissibly go outside the grounds of appeal. There is, again, something in this, because the questions of law raised in the notice of appeal dealt only with the power to amend in s 127 of the VCAT Act. However, the Department in its written submissions introduced the notion that the limits of VCAT's jurisdiction were found other than by reference to the power of amendment in s 127 of the VCAT Act and relied on this as a reason narrowly to interpret s 127 of the VCAT Act. The Department submitted in writing:
55 It later, under the heading 'exposition', stated:
56 Accordingly, I consider that the question upon which I have decided this case was squarely raised.
57 I will grant leave to appeal, allow the appeal, set aside the order of VCAT made on 8 March 2022, and remit the matter to VCAT for further determination in accordance with these reasons.
58 I will hear the parties on the precise form of order and on the question of costs.
[1] The decision was made by a delegate of the Department Head of the Department of Jobs, Precincts and Regions. The Department of Jobs, Precincts and Regions was dissolved as part of a government restructure on 31 December 2022 and on 19 December 2022 its responsibilities were transferred to the Department of Energy, Environment and Climate Action. The parties agreed that these changes do not affect the issues that arise in this appeal. An order has today been made amending the name of the applicant from the Department of Jobs, Precincts and Regions to the Secretary, Department of Energy, Environment and Climate Action. When I refer to the Department, I am referring to what was formerly the Department of Jobs, Precincts and Regions, and what is now, for the purposes of the MRSD Act, the Department of Energy, Environment and Climate Change.
[2] Because a planning permit would also be required, the process was first for the Department Head to 'endorse' the variation, then for the Council to determine whether to give a planning permit. If a planning permit were given, the Department Head could then 'approve' the variation.
[3] [2022] VCAT 251, [77].
[4] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, 564 [19] (Warren CJ), 607 [284] (Weinberg JA).
[6] The statute has split the infinitive, so I have too.
[7] The other sections in subdivision 2 do not relevantly add to VCAT's powers. Section 49 requires the decision-maker to lodge certain material with the Tribunal, s 50 deals with the effect of the original decision pending review, and s 52 deals with planning matters and may be put to one side.
[8] That is, judicial review brought under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
[9] Frugtniet v Australian Securities and investments Commission [2019] HCA 16; (2019) 266 CLR 250, 256-257 [14] (Kiefel CJ, Keane and Nettle JJ).
[10] Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
[11] It represented 'a bold departure from the pre-existing law': Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 297 [32] (Kirby J). It was 'a new and substantially unprecedented regime': Frugtniet v Australian Securities and investments Commission [2019] HCA 16; (2019) 266 CLR 250, 256-257 [14] (Kiefel CJ, Keane and Nettle JJ).
[12] Cf Smith v Director of Housing [2005] VSC 46; (2005) 22 VAR 323, where the power to amend was not able to cure defects in a notice to vacate in a proceeding brought to obtain a possession order.
[13] Accident Commission v Bausch [1998] 4 VR 249, 260 (Tadgell JA, with whom Batt JA and Buchanan JA agreed). This case was concerned with s 36(1) of the Administrative Appeals Tribunal Act 1984 (Vic), which is in the essentially the same terms as s 49(1) of the VCAT Act.
[14] The MRSD Act seems to distinguish between an 'extractive industry', which is defined to be the extraction of stone from land, and 'mining', which is defined to be the extraction of minerals from land.
[17] Ibid s 77G(3)(e).
[22] Ibid s 77HB(2).
[30] Ibid s 77TE(1A).
[32] Ibid s 77TD(1A).
[33] Ibid s 77TD(2).
[34] Ibid s 77TD(3).
[39] Ibid [17] (Bowen CJ, Beaumont and Wilcox JJ).
[47] Ibid 298 [35] (Kirby J), emphasis removed from original quote in Re Control Investments Pty Ltd & Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88, 91-92 (Davies J).
[48] Ibid 315 [100] (Hayne and Heydon JJ).
[53] See, eg, 674 [106], 676 [119].
[55] [2017] VSC 123 (T Forrest J).
[56] Racing Act 1958 (Vic) s 83OH.
[57] Dawson v Greyhound Racing Victoria [2017] VSC 123, [24].
[71] Of the Land and Environment Court.
[77] AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112; (2021) 105 NSWLR 152, 196 [227], 200 [244], 202 [258].
[80] [2019] HCA 16; (2019) 266 CLR 250, 257-258 [15].
[84] In this context, it is worth observing, as Niall JA did in Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 at [53] and [69]-[70], that any change that leaves even a remnant of the earlier version could be described as an 'amendment'. That case turned on the scope of a specific power to apply to a primary decision-maker for an amendment of an existing permit, rather than on whether VCAT is able to consider a document fundamentally different to the document before the primary decision-maker.
[85] Hanson Construction Materials Pty Ltd v Department of Jobs, Precincts and Regions [2022] VCAT 251, [10].
[87] See, eg, Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7.
[88] The importance of a body satisfying itself that is has jurisdiction, rather than relying on the point being raised by parties, was recognised in, among other cases, Federated Engine Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398, 415 (Griffith CJ) and Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187, [128] (McLeish, Niall and Walker JJA).
[89] A minor typographical error has been corrected.
Secretary, Department of Environment, Energy and Climate Action
Hanson Construction Materials Pty Ltd [2023] VSC 353
(2008) 235 CLR 286
(2019) 266 CLR 250
(2019) 236 LGERA 35
(2011) 33 VR 559
(1992) 37 FCR 32
(2012) 36 VR 656
(2021) 105 NSWLR 152
(1986) 162 CLR 1
(1911) 12 CLR 398
(2022) 407 ALR 187