Applicant v Respondent

Supreme Court of Victoria|2009-10-29|Before: KAYE J

ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Leave to appeal - Applicant unrepresented at Tribunal - Duties by Tribunal to unrepresented party - Whether Tribunal should have adjourned proceeding to enable applicant to obtain advice - Application for leave to appeal dismissed.

1 This matter came before me as an application for leave to appeal, pursuant to s 148(1) of the , from an order of the Victorian Civil and Administrative Tribunal ("the Tribunal") constituted by a Deputy President made on 10 February 2009. By that order, the Deputy President dismissed the applicant's application, under of the ("the Act") to cancel a planning permit issued by the respondent council.

2 The background facts to the application may be shortly stated. On 9 May 2008, an application was made on behalf of the respondent for a permit for the development of the property at 21 Main Street, Monbulk, as the Monbulk Community Hub and associated works. Essentially, the development involved the demolition of the existing building on the premises, and the construction of a building to consist of a community centre, maternal and child health service, senior citizens centre and kindergarten. On 28 May 2008, the respondent gave notice of the permit application to owners and occupiers of adjacent land, and placed notices on the subject land and in the local newspaper. In response, two objections to the proposal were received by the respondent. The applicant did not lodge an objection to it.

3 On 9 September 2008, at a meeting of the respondent, it was resolved to grant the application for the planning permit. Accordingly, on the same date, the respondent issued a Notice of Decision to Grant a Permit.

4 The applicant had attended the council meeting on 9 September. Subsequently, on 12 September, he obtained a copy of the minutes of that meeting. On 9 October 2008, the applicant met with the council's chief executive officer, and his ward councillor. At that meeting (according to the applicant), the chief executive officer advised the applicant that council had issued a planning permit for the community centre. Following that advice, the applicant on the same day lodged an application to the Tribunal to cancel the permit, pursuant to s 87 of the Act. On the following day, 10 October 2008, the respondent issued a planning permit in respect of the development.

5 In his application to the Tribunal, the applicant identified the grounds, specified in subparagraphs (a) to (d) of s 87(1) of the Act, as the grounds on which he relied for seeking an order for cancellation of the permit. Originally, the application was listed for hearing before the Tribunal on 30 January 2009. On that date, counsel appeared on behalf of the applicant, and sought an adjournment on his behalf on the grounds that he was unwell. The application was opposed by the respondent. After hearing argument, the Deputy President adjourned the proceeding to 6 February 2009. On that date, at the adjourned hearing, the applicant represented himself before the Tribunal. The applicant made a number of preliminary submissions, including an application for an adjournment. That submission was unsuccessful. Having heard submissions from the applicant and the respondent, the Deputy President, in an oral decision, dismissed the application. On 10 February 2009, he gave written reasons for that decision. On the same date, he made an order dismissing the application.

6 In this proceeding, the applicant seeks to appeal from the decision of the Tribunal of 10 February. In order to do so, he is required, first, to obtain leave to appeal under s 148(1) of the Act. Ordinarily, such applications are heard before an Associate Justice pursuant to rule 4.08 of Chapter 2 of the Supreme Court Rules. However, this case has been entered into the Valuation, Compensation and Planning List. The parties have accepted that, pursuant to rule 8.04 of Chapter 2 of the Rules, applications such as this may be heard before the judge in charge of the list, or by another judge if so requested.

7 The applicant, by his draft notice of appeal, has foreshadowed that he intends to rely on three grounds of appeal, if he is granted leave to appeal in this case. They are as follows:

(1) That in determining that there was no material mistake in relation to the grant of the permit for the purposes of s 87(1)(c) of the Act, the Tribunal erred in failing to take into account a relevant consideration, namely, that the respondent was not aware that the applicant had lodged an application under s 87 of the Act at the time that it issued the planning permit on 10 October 2008.

(2) The Tribunal denied the applicant natural justice in failing to adjourn the hearing to allow the applicant to obtain legal advice to consider the effect of the matters referred to in subparagraph (1) above, and in failing to give the applicant the opportunity to amend the s 87 application to an application under s 82B of the Act.

(3) The Tribunal denied the applicant his right to a fair hearing for the purposes of s 24 of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter").

8 At the commencement of the application before me, I raised with counsel the question whether, if I were to grant the applicant leave to appeal, I should proceed to hear and determine the appeal instanter. Counsel for each party agreed that that was both an appropriate and desirable course. Thus, the proceeding before me involves two applications, namely, first, an application for leave to appeal, and, secondly, if I were disposed to grant that application, the determination of the appeal itself.

9 Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that a party may appeal from a decision of the Tribunal on a question of law. In order to succeed on such an appeal, if the applicant were granted leave by me, the applicant must establish that the Tribunal has made an error of law in dismissing his application to it. In order to be granted leave to appeal, it is not necessary that the applicant establish that the Tribunal made the errors upon which he seeks to rely. It is sufficient that the applicant demonstrates that there is a real or significant argument, which may be advanced by him, that an error of law was made by the Tribunal in determining his application before it. Furthermore, the applicant would need to demonstrate that if the error was permitted to go uncorrected, he would suffer a substantial injustice. Although it is not essential that the applicant identify a question of law which is of general or public importance, that circumstance may weigh in favour of granting leave.[1]

10 Mr A Walker, who appeared on behalf of the applicant, concentrated his submissions on the second ground identified in the draft notice of appeal of the applicant. He accepted that s 24 of the Charter did not, in any material respect, enlargen the common law right of the applicant to a fair hearing before an impartial Tribunal. Thus, he did not press any substantive argument before me in respect of the third ground in the draft notice of appeal. Furthermore, he did not pursue ground 1 in the draft notice, as he was unable to identify any error by the Tribunal which was relevant to its decision.

11 In support of the second ground, namely, that the Tribunal failed to accord the applicant natural justice, Mr Walker commenced by noting that the applicant was a self-represented litigant at the hearing of 6 February, and that the respondent had been represented by experienced counsel who specialised in the town planning jurisdiction. As a consequence, he submitted, the applicant was in a position of substantial disadvantage in the proceeding. Mr Walker focussed his submissions on the circumstance that the applicant had lodged his application to the Tribunal on 9 October 2008, one day before the issue of the permit. He submitted that that circumstance should have been noted by the Deputy President, and should have caused the Deputy President to provide to the applicant the opportunity to adjourn the hearing, so as to allow him to obtain legal advice as to whether he ought to amend his application, then commenced under s 87 of the Act, to an application under s 82B of the Act. Mr Walker noted that the Deputy President was a member of the Tribunal who had legal training. That circumstance, he submitted, meant that the requirements of the rules of natural justice were more strict than if the Tribunal was not constituted by persons of legal background. Mr Walker submitted that, given the sequence in which the application to the Tribunal had preceded the issue of the permit, it behoved the Deputy President to outline to the applicant the structure of the Act, so as to acquaint the applicant with potential alternative rights, which he might have had, to make an application under s 82B for leave to review the decision of the respondent to grant a permit for the re-development project. Mr Walker submitted that the Tribunal had "constructive" knowledge of the fact that the applicant's application to it had preceded the issue of the permit, and thus, consistent with the rules of natural justice, it was required to give appropriate advice and assistance to the applicant, including advice as to his potential alternative rights.

12 Mr Walker further submitted that in consequence of the Tribunal failing to advise the applicant of his rights, the applicant lost the opportunity to adjourn the proceeding, and thus lost the opportunity to seek to amend his application before the Tribunal.

13 In response, Mr J Pizer, who appeared on behalf of the respondent, submitted that there had been no breach of the rules of natural justice by the Deputy President.

14 Mr Pizer commenced by outlining, in some detail, the structure of the Act relating to the issue of planning permits. In particular, he carefully identified the difference between the review procedure, contained in Division 2 of Part 4 of the Act (in which s 82B is found), and the procedure for cancellation and amendment of permits in s 87 of the Act, which is contained in Division 3. Having done so, he then made three responses to the submission of the applicant that the Deputy President had breached the rules of natural justice. First, he submitted that at all times the applicant was clearly aware that he had issued his application to the Tribunal one day before the permit had been issued. Thus, the applicant knew of all the relevant facts necessary for him to have obtained legal advice from his solicitor as to the appropriate course which he should pursue before the Tribunal. Mr Pizer pointed out that at least up to and including 30 January, the applicant had been represented by a solicitor and counsel in respect of his proceeding before the Tribunal. Further, he noted that the Tribunal was aware that the applicant had had representation on 30 January. Therefore, on the adjourned hearing, the Deputy President was entitled to assume that the applicant had received advice as to the appropriate course which he should take to vindicate his rights.

15 Secondly, Mr Pizer submitted that, in light of the manner in which submissions proceeded on 6 February, the Deputy President could not be expected to have appreciated that the applicant may not have been pursuing the procedure, which was most appropriate to the rights which he sought to enforce before the Tribunal. He submitted that it would be imposing an intolerable burden on the Tribunal, in a case such as this, to expect the Deputy President to have identified the type of issue now asserted on behalf of the applicant. Thirdly, Mr Pizer submitted that if the applicant had been given the opportunity to have an adjournment, in order to further consider the course which he was pursuing before the Tribunal, it would have made no difference. For, Mr Pizer submitted that any application for a review under s 82B of the proceeding would not have afforded the applicant any substantive rights, and, in particular, would not have entitled the applicant to any relief setting aside the permit, or amending it to contain any conditions sought by the applicant.

16 At the centre of the submissions made on behalf of the applicant is the question of the duty, which a court or tribunal might owe to an unrepresented litigant, in order to ensure that that litigant understands, and is thus able to vindicate, his or her rights. That duty is not a discrete obligation owed by a court or tribunal to a litigant. Rather, it is part of the obligation of the court, or tribunal, to ensure that each litigant before it is afforded a fair hearing.[2] That is, as Mr Walker correctly submitted, the duty of the court is one aspect of the requirement by a court or tribunal to adhere to the rules of natural justice.

17 It is not necessary for me to examine in detail the nature and extent of that duty. It has been considered in a substantial number of cases over the years.[3] Recently, the authorities have been considered in some detail by Bell J, of this Court, in Tomasevic v Travaglini[4]. In that case, his Honour identified the principles which are applicable to the case before me.

18 Essentially, the requirements of the duty imposed on the judge must vary according to the circumstances and exigencies of each case. On the one hand, it has been stated, in a number of authorities, that the court ought to ensure that the unrepresented litigant understands his or her rights, so that the litigant is not unfairly disadvantaged by being in ignorance of those rights. On the other hand, the authorities emphasise that the court should refrain from advising a litigant how or when the litigant should exercise those rights, and, in particular, the court should be astute to ensure that it does not become, nor be perceived to become, an advocate or counsel in the cause of the unrepresented litigant. As observed by Bell J in Tomasevic[5], those two competing propositions pose a dilemma for the judge hearing a case involving an unrepresented litigant. In such a case, it is the unenviable role of the court or tribunal to try to strike an appropriate balance between the two propositions.

19 It is not necessary for me to refer at length to the authorities from which those propositions are to be derived. A few short quotations will suffice. In Rajski v Scitec Corporation Pty Ltd[6] Samuels JA stated:

"... the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."[7]

"But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done. ... However, the right of the party so to advance his interest by litigation must be balanced against the right of the parties involved in his litigation not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude."[8]

21 The dilemma faced by a trial judge, or tribunal, in the case of an unrepresented litigant, was well described by the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission[9], where their Honours stated:

"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation. ... However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial. ... ."

22 In the same terms, in R v White[10] Chernov JA stated:

"While it is the duty of the judge to ensure that the accused is not subjected to a trial that is unfair, he or she must refrain from becoming an advocate for the unrepresented accused or otherwise duly interfere with the conduct of the trial. Thus, the judge must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without unduly advising him or her what course should be followed, or duly interfering in the Crown case as if the judge was the accused's counsel. In MacPherson[11] Brennan J explained the difference between the judge taking steps to ensure that the accused was aware of the legal situation on the one hand and advising the accused as to what course he or she should have adopt on the other by reference to 'the distinction between telling the players how to play and telling them the rules of the game'."

23 Finally, the foregoing propositions were succinctly summarised by Bell J in Tomasevic[12] in the following terms:

"[141] The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. ...

[142] The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant."

24 As I stated, the main submission made on behalf of the applicant was that the Deputy President ought to have afforded the applicant the opportunity to have his application adjourned, in order that he might receive advice whether he should amend his application so as to make an application for a review of the decision of the respondent to grant the permit, under s 82B of the Act.

25 In order to understand that submission, it is necessary to set out briefly the effect of some of the provisions of the Act. Section 47(1) provides for an application to be made to a responsible authority for a permit relating to the use or development of land affected by a planning scheme. Section 52 requires the responsible authority (in this case the respondent) to give relevant notices in relation to that application. Section 61(1) provides that the responsible authority may decide: to grant a permit; to grant a permit subject to conditions; or to refuse to grant such a permit. If there have been no objectors to the application for the grant of a permit, once the authority is decided in favour of that application, it is required (by s 63) to issue the permit forthwith to the applicant. On the other hand, where, as in this case, there have been objectors to the grant of a permit, the responsible authority is required to give the applicant and each objector notice, in the prescribed form, of its decision to grant a permit. Section 64(3) precludes the responsible authority from issuing the permit until the end of the period within which an objector may apply to the Tribunal to review the decision to grant the permit. The relevant regulations prescribe that period to be 21 days from the date of the decision to grant the permit.

26 Section 82 entitles an objector to apply to the Tribunal for review of a decision of a responsible authority to grant a permit. No such application was made in this case. However, s 82B(1) entitles any person "who is affected" to apply to the Tribunal "for leave to apply for review" of a decision to grant a permit. In such a case, s 82B(4) provides that the Tribunal "may grant the leave to apply for a review", if it considers that it would be just and fair in the circumstances to do so.

27 Pausing there, in this case, the applicant did not apply under s 82B for leave to apply to review the decision of the Tribunal. In fact, his application to the Tribunal was made under s 89 of the Act, which is found in Division 3. That provision provides that a person who has objected, or who would have been entitled to object, to the issue of a permit, may apply to the Tribunal to cancel or amend a permit. Section 87(1) empowers the Tribunal, on such an application, to cancel or amend a permit, if it considers that there has been (inter alia) -:

"(a) A material misstatement or concealment of fact in relation to the application for the permit; or

(b) Any substantial failure to comply with the conditions of the permit; or

(c) Any material mistake in relation to the grant of the permit; or

(d) Any material change of circumstances which has occurred since the grant of the permit."

28 In his application to the Tribunal dated 9 October 2008, the applicant specified the first four subparagraphs as the bases upon which he sought an order for cancellation or amendment of the permit issued by the council. It was that application which came before the Tribunal, first on 30 January, and then on the adjourned date of 6 February.

29 It is in that context that I turn to the central submission advanced on behalf of the applicant, namely, that the Deputy President of the Tribunal was required to, but did not, offer to the applicant an opportunity to adjourn his application on 6 February, so as to enable him to seek legal advice as to whether he should amend his application to an application under s 82B.

30 The starting point, for considering the submissions advanced on behalf of the applicant, is the hearing which took place before the Deputy President on 30 January. It is important to bear in mind that, on that occasion, the applicant had retained his own solicitor, and was represented before the Tribunal by counsel. It is clear, from the transcript of the later hearing on 6 February, that the applicant was well aware that he had commenced his application to the Tribunal on the day before the respondent issued the permit. In other words, the applicant was not in ignorance of the principal facts, which are now relied on in support of the submission now made on his behalf. At that time he had legal representation, and he had the opportunity to seek, and obtain, advice as to the appropriate application which he should be making to the Tribunal.

31 In this respect, it is relevant to note that the application before the Tribunal on 30 January was heard by the same Deputy President who ultimately heard and determined it on 6 February. Thus, the Deputy President knew, on 6 February, that the applicant had previously had legal representation. In those circumstances, the Deputy President was entitled to assume that the applicant had received appropriate advice as to the nature and type of application which he should be making to the Tribunal. In this respect, it is relevant that on 30 January counsel had advanced, on behalf of the applicant, an application for discovery. In other words, counsel had not represented the applicant solely in order to argue for an adjournment of the application; rather, he had also been briefed to make a substantive application in the proceeding.

32 Furthermore, at the hearing on 30 January there was, evidently, some focus on the nature of the application which was ultimately to be advanced on behalf of the applicant. In paragraph 7 of his ruling on 30 January, the Deputy President noted that the applicant had failed to respond to a request by the respondent for further particulars on the grounds of his application under s 87 of the Act. The Deputy President also observed that, so far as the material lodged to date would suggest, he appeared to be relying on the ground in s 87(1)(c) of the Act, alleging a material mistake in relation to the grant of the permit. The Deputy President stated that it was not clear what the "material mistake" was, and (in his ruling) commented that the applicant "will need to substantiate that ground of the prompt (sic) final hearing".

33 In paragraph 8 of his ruling on 30 January, the Deputy President noted that much of the material filed to date suggested that the applicant saw the proceeding as being a general review of the decision of the council. He then stated:

"It is not however an objector's review under section 82 of the Planning and Environment Act 1987 and does not fall within the review jurisdiction of the Tribunal. It is an application under section 87 to cancel the permit, which will be heard and determined in the original jurisdictions of the Tribunal. Mr Russell and his instructing solicitor will need to carefully prepare for the hearing on that basis, and meet the preconditions for the application under that provision."

34 Thus, on 30 January, the Deputy President had made it clear to the applicant, and to his legal advisors, that the application advanced on behalf of the applicant was made under s 87, and not s 82 of the Act. Notwithstanding the clear statement to that effect by the Deputy President, no application was made on behalf of the applicant, in the meantime, to amend the application which was before the Tribunal.

35 I have read the transcript of the hearing before the Deputy President on 6 February. In the course of the oral submissions by the applicant, the Deputy President, on a number of occasions, drew to the applicant's attention the need for him to address arguments specifically to the relevant subparagraphs of s 87(1), upon which he was relying. Indeed, at the commencement of the applicant's submissions, the Deputy President required the applicant to identify the particular subparagraph of that section on which he was relying. In response the applicant stated "Well I specify 87(c)(1)". On a number of occasions during the applicant's oral submissions, the Deputy President took care to direct the applicant to the need for him to identify, and make out, a "material mistake" under s 87(1)(c). Despite those admonitions, the applicant repeatedly failed to directly address that question, and tended to digress. Nevertheless, in his reasons, the Deputy President was able to identify two principal grounds advanced by the applicant, in his submissions, under s 87. First, the applicant had contended that the public had not been told of the full effect of the amended planning proposal, and of changes which had been made to the earlier proposal for the development of the site. Secondly, the applicant had argued that there was a material mistake in relation to the grant of the permit, constituted by the failure of the respondent to adequately consult. In his reasons for decision, the Tribunal member dealt with each of those two propositions advanced by the applicant.

36 Thus, notwithstanding that the applicant had some difficulty in addressing the requirement that he address the particular basis upon which he sought relief under s 87, ultimately two bases did emerge, which were appropriately considered by the Deputy President. In that respect, the Deputy President was entitled to assume that the applicant was not labouring under a misconception as to his rights, but, rather, that he was, ultimately, addressing his rights under s 87 of the Act.

37 On the other hand, there is nothing in the transcript before the Deputy President which should, in my view, have alerted him to the fact that the applicant should have been offered an opportunity to adjourn his application in order to seek further legal advice. I asked Mr Walker to identify any part in the transcript, in which the applicant had been focussing on issues relating to the merits of the original application for the planning permit, in such a manner which should have alerted the Deputy President that the applicant ought to have been seeking to make an application under s 82B. Mr Walker properly conceded that there is no passage in the transcript to that effect.

38 Rather, Mr Walker focused substantially, if not entirely, on the proposition that the Deputy President should have been alerted to the need to ensure that the applicant obtained appropriate legal advice, because the applicant had issued his application to the Tribunal one day before the issue of the planning permit. He submitted that those facts should have alerted the Tribunal to the requirement, in the interests of justice, that the applicant should be afforded the opportunity to have proper advice, as to whether he should amend his application to one made under s 82B of the Act.

39 There are a number of answers to that proposition. First, although the transcript does contain references by the applicant, in his submissions, to the fact that the permit was issued one day after he made his application to the Tribunal, those references are by no means direct. There is nothing about the context, in which those passages occur in the transcript, which should have, there and then, alerted the Deputy President to a need for the applicant to seek further advice as to the nature of his application. Secondly, in any event, the fact that the applicant made his application on the day before the issue of the permit did not affect the validity of the application under s 87 of the Act. The Tribunal was entitled to assume (as it did) that the application was a continuing one, and that it had been made by the applicant in anticipation of the issue of the permit. The fact that the application under s 87 had been made one day premature was not a circumstance which should have alerted the Deputy President that the applicant might have been making his application on a misconceived basis. That conclusion is reinforced by what had happened during the hearing on 30 January. As I have noted, on that occasion the applicant had been represented by counsel, and the Deputy President had made plain, in his ruling, that the application before him was not under s 82 of the Act, but rather was under s 87 of the Act. Further, as I have also stated, there was nothing about the submissions made by the applicant on 6 February which indicated that he was then proceeding on a misconception as to the nature of his application.

40 In my view, the combination of the matters, to which I have just referred, satisfy me that the applicant was not denied his rights under the principles of natural justice in the proceeding before the Tribunal on 6 February. Further, with due deference to the well prepared and cogent submissions advanced by Mr Walker, I do not consider, ultimately, that a submission to that effect is sufficiently arguable to justify the grant of leave to appeal under s 148. As appears from the foregoing, if I had been disposed to grant the applicant leave, I would have been well satisfied that there was no breach of the principles of natural justice by the Deputy President, and thus the appeal would have failed.

41 The third ground, specified in the draft notice of appeal, alleges a breach by the Tribunal of s 24 of the Charter. However, as I have already stated, Mr Walker did not contend that that provision materially added to the applicant's submissions based on the common law right of a litigant to a fair hearing pursuant to the principles of natural justice. The highest at which he expressed his submissions was that s 24 of the Charter should incline a court to give full measure to the common law right contained in the principles of natural justice. He did refer me to a dictum of the Court of Appeal of the Australian Capital Territory in R v Griffin[13], in which the court considered that the difference between the right contained in the ACT Human Rights Act 2004, and the common law right, "may be one of emphasis". Their Honours stated:

"It does, ... mean that there is now a positive right to a fair trial rather than the right not to be tried unfairly as the common law provides."

42 The principles of the common law have always required that a litigant be afforded a right of a fair hearing.[14] While the common law right may be more accurately expressed as a right not to be tried unfairly[15], in practical terms that right has the same force, and the same incidents, as if it were expressed as a right to a fair trial.[16] In those circumstances, and in the absence of any other authority, I do not consider that s 24(1) of the Charter adds materially to the right of the applicant to a fair hearing before the Tribunal, for the purposes of the matters agitated in the application before me. Accordingly, for the reasons which I have already advanced, I reject the submission that the Tribunal failed to comply with s 24 of the Charter; nor, in my view, is it fairly arguable that there was any such failure on behalf of the Tribunal.

43 Finally, Mr Pizer also made a further submission, namely, that if the Deputy President had given the applicant the opportunity to obtain further legal advice concerning the constitution of his application to the Tribunal, it would not have made any difference. Mr Pizer submitted that if the applicant had reconstituted his application before the Tribunal as an application for leave to review the decision of the respondent to issue the permit, the Tribunal would not have had any power, under s 85, to make an order affecting the permit after it had been issued. He submitted that the power to direct that a permit must, or must not, contain a specified condition, contained in s 85(1)(e), may only be exercised by a tribunal upon an application for review by an applicant for a permit under s 80(1) of the Act.

44 On the other hand, Mr Walker submitted that s 85(1)(e) is unqualified in its terms, and that it is expressed in terms which would enable a Tribunal, in an appropriate application for a review under s 82B, to make an order in respect of a condition contained, or not contained, in a permit, after the issue of the permit.

45 In light of the conclusions at which I have already arrived, it is not necessary for me to determine this point. Counsel did not refer me to any authority concerning the correct construction of the provisions of Division 2 of the Act in question. Nor have I been able to find any authority in point. As it is not necessary for me to determine the point, it is preferable that I refrain from expressing any view on it.

46 For the reasons which I have stated above, it is my conclusion that the applicant does not have a real or significant basis for contending that the Tribunal denied him natural justice or denied him his rights under s 24 of the Charter. Accordingly, the application by the applicant for leave to appeal from the decision of the Tribunal of 6 February 2009 should be dismissed. As I have also indicated, if leave had been granted to the applicant, I would have concluded, for the reasons set out above, that the appeal by him should also be dismissed. I shall hear counsel on the question of costs.

47 Before departing from this matter, it is appropriate that I reiterate comments which I made at the conclusion of submissions before me. In this matter, I was assisted by very able, and well prepared, submissions by counsel on behalf of both the applicant and the respondent. I understand that counsel who appeared for the applicant, Mr Andrew Walker, and his instructing solicitors DLA Philips Fox, have each acted for the applicant on a pro bono basis. In doing so, and in representing the applicant in this case, counsel and the solicitors have each acted in accordance with the highest traditions of the legal profession. They have provided invaluable assistance to the applicant and to this Court in the determination of this matter.

[1] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335 to 336 [10]-[12] (Phillips JA); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55 to 57 [28]-[31] (Warren CJ).

[2] MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 524 (Gibbs CJ, Wilson J); 534 (Mason J), 546 (Brennan J).

[3] See, for example, MacPherson v R (above); Rajski v Scitec Corporation Pty Ltd (Unreported, New South Wales Court of Appeal, 16 June 1986) BC8601930; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445 and following; R v Gidley [1984] 3 NSWLR 168, 182 to 183 (Hunt J).

[4] [2007] VSC 337; 17 VR 100.

[6] (Unreported, New South Wales Court of Appeal, 16 June 1986); BC8601930.

[12] Footnote (above) [141], [142].

[14] MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 524 (Gibbs CJ, Wilson J), 546 to 547 (Brennan J); Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 299 (Mason CJ, McHugh J), 325 (Brennan J), 326 (Deane J), 353 (Toohey J), 362 to 364 (Gaudron J); Jago v District Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23, 33 (Mason CJ), 71 (Toohey J), 75, 77 (Gaudron J); Barton v R [1980] HCA 48; (1980) 147 CLR 75, 96 (Gibbs ACJ, Mason J); R v Dupas (No 3) [2009] VSCA 202, [194] (Ashley JA), [212] (Weinberg JA).

[15] Jago v District Court of New South Wales (above), 56 (Deane J); Dietrich v R (above), 299-300 (Mason CJ, McHugh J).

[16] Cf Dietrich v R (above), 332 (Deane J).

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Human Rights and Responsibilities Act 2006

At a glance

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