Applicant v Respondents

1. Section 3 of the ALA provides:

Tribunal decisions may be reviewed

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

1. Section 4(1) and (2) of the ALA provide:

(1) An application for review shall be made ex parte not later than thirty days after the giving of notification of the decision or the reasons therefor (whichever is later) supported by evidence on affidavit showing a prima facie case for relief under section 7.

(2) The Court, notwithstanding that a prima facie case for relief is disclosed, may refuse any such application if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant.

1. In Keller v Bayside City Council,[2] Batt J considered earlier cases about the nature of the time limit imposed by s 4(1) of the ALA. Batt J noted that in Quality Packaging Service Pty Ltd v City of Brunswick,[3] Beach J had held that ss 3, 4 and 5 of the ALA were mandatory. The applicant before Batt J sought to challenge the correctness of Quality Packaging relying on the decision of Eames J in Whiskisoda Pty Ltd v Liquor Licensing Commission,[4] in which Eames J, in obiter, expressed reservation about Beach J's characterisation of the time limit in s 4(1) of the ALA as mandatory. Batt J said:

...It may be that the Act does not relevantly change the substantive law and is almost entirely of a procedural nature. Nevertheless, for the reasons expressed by Beach J. in his two judgments which I have mentioned and by King J. in his two judgments which I have mentioned and for the reasons which I add below, I respectfully agree with the view that ss. 3 and 4(1) are mandatory and disagree with the tentative view to the contrary expressed by Eames J in Whiskisoda. In any event, although none of the decisions is strictly binding on me, the current of authority is so strong that, if it is to be stemmed, that must, I consider, be done by the Court of Appeal. That is all the more so when the decisions relate to a question of practice or procedure, as I consider is the case here, even though I am of the view that the provisions of s. 4(1) go to the jurisdiction of the court.[5]

The cases show that it is appropriate in determining whether a provision is mandatory or directory to consider the consequences of each interpretation. Whilst the consequences of a mandatory or imperative interpretation here is, admittedly, drastic, tribunals and persons having the benefit of a favourable decision of a tribunal may be said to be entitled to know promptly where they stand. The terms of s. 5(2) of the ALA show, in my view, that the Act treats the procedure it creates as expeditious. Beach J. and King J. have given additional reasons supporting the appropriateness of the consequence of a mandatory interpretation, and I adopt those reasons as well. If a directory interpretation were adopted, the questions would arise immediately: how much later than 30 days can a litigant be and still engage the jurisdiction of the court? Is the determination of that a matter of discretion? Great uncertainty about the validity of proceedings would, in my view, arise from a directory interpretation.[6]

1. The Court of Appeal had the opportunity to consider the point in Kuek v Victoria Legal Aid.[7] In that case Tadgell JA, with the agreement of Winneke P and Ormiston JA, affirmed the earlier decision of Batt J in Keller v Bayside that the time limits imposed by s 4(1) are mandatory and cannot be waived.[8] Tadgell JA stated that he would regard s 4 as rendering an application for review incompetent after the expiration of the 30 day time limit.[9] Both Tadgell and Ormiston JJA preferred not to treat the time limit in s 4(1) as going to 'jurisdiction', considering that to do so was apt to confuse given the ALA was largely concerned with procedures designed to make the existing powers of the Supreme Court to review decisions of administrative tribunals more efficient.[10]
2. In Papas v The University of Melbourne,[11] Derham AsJ considered the authorities and Court rules relevant to an application for an order for review under the ALA. Derham AsJ noted:

(a) There is no provision in the ALA for the Court to extend time, and time cannot be extended under any other provision;[12]

(b) Rule 1.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (2015 Rules) confirms that a proceeding for an order for review under the ALA shall not be commenced by writ or originating motion, and, unless the Court otherwise orders, the Court's rules apply;[13]

(c) Rule 46.02 of the 2015 Rules provides:[14]

(1) An application made on notice to any person shall be by summons, unless the Court otherwise orders.

(2) An application by summons is made when the summons is filed in accordance with Rule 46.04.

(3) An application not by summons is made when it comes on for hearing.

(d) The effect of r 46.02(3) is that an ex parte application for an order for review under the ALA is made (as defined by the Act) when it comes on for hearing.[15]

1. I interpose here to note that there is no substantive difference in the terms of the corresponding rules in the Supreme Court (General Civil Procedure) Rules 2025 (Vic), which are the current operative Rules of the Court.

1. On 18 August 2025 the VCAT registry emailed Mr Guss and the VLSC attaching the Tribunal's decision in Victorian Legal Services Commission v Guss (Legal Practice) [2025] VCAT 714.
2. On 25 August 2025 the VCAT registry again emailed Mr Guss and the VLSC attaching a corrected decision in the same proceeding. Mr Daniel Grant Le Huray, senior lawyer and investigator at VLSC, deposed that the correction to the decision was to the date in the order made so that it referred to an administrative mention to be held in August 2025, rather than, as had been stated in the original decision, August 2015.
3. Mr Guss deposed that he made enquiries of the Supreme Court registry and was informed that he was required to file his affidavit sworn 17 September 2025 to commence his application under the ALA. Mr Guss said he was further advised by the registry that his affidavit would have to be accepted for filing through the Court's RedCrest electronic filing system, sealed and assigned a proceeding number before he could file a Judicial Review and Appeals List Hearing Date Information form, which was required before a hearing date could be allocated for his application to be heard.
4. Mr Guss said that on 1 October 2025 he was informed that his affidavit had been accepted for filing and so he filed his a Judicial Review and Appeals List Hearing Date Information form the same day. The registry then informed Mr Guss that his application would be listed for hearing on 7 October 2025.

(a) an application for an order for review is made when it is 'commenced', meaning initiated;

(b) Rule 46.02(3) does not apply to applications for an order for review under the ALA because that rule is concerned with summonses;

(c) there is nothing in the Court's Rules that requires an application for an order for review to be made by affidavit;

(d) members of the public and legal practitioners are entitled to rely on advice from the Court's registry in making an application;

(e) Mr Guss could not apply for a hearing date until his affidavit was accepted for filing which took a number of days;

(f) Litigants must follow the Court's procedures;

(g) Rule 2 gives the Court the power to dispense with the requirement in s 4 of the ALA that the application be made within 30 days;

(h) The ALA does not restrict the Court's inherent jurisdiction, which includes the power to modify r 46.02(3);

(i) Papas is incorrect when it says that an application for an order for review under the ALA is made when it comes on for hearing.

1. I reject Mr Guss' submissions for the following reasons.
2. Rule 1.12 is headed, Order to review. It confirms that, unless the Court otherwise orders, subject to r 1.12(2), the Rules of the Court apply to an order for review under the ALA. Rule 1.12(2) provides that a proceeding for an order for review under the ALA shall not be commenced by writ or originating motion.
3. Order 46 of the Rules deals with applications. Order 46 applies to an interlocutory or other application in a proceeding other than an interlocutory or other application in a proceeding in the Court of Appeal. Clearly, Order 46 applies to an application in a proceeding under the ALA for an order for review. Rule 46.02 is headed, Application by summons. Rule 46.02(1) provides that an application made on notice to any person shall be by summons, unless the Court orders otherwise. I interpose here to note that s 4(1) of the ALA requires the application for an order for review to be made ex parte, ie. without notice.
4. The combined effect of r 1.12 and r 46.02, in light of the wording of s 4(1) of the ALA, is that an application for an order for review is not to be commenced by writ, originating motion and is not made by summons. Section 4(1) of the ALA however, requires such an application to be supported by evidence on affidavit showing a prima facie case for relief. In my view, it is clear that an application for an order for review is initiated in the Supreme Court by the filing of the affidavit in support of the application. It is not to the point that the requirement for an applicant to file affidavit evidence in support of the application arises from the terms of the ALA rather than the Court's Rules.
5. Section 4(1) of the ALA requires an application for an order for review to be made not later than thirty days after the giving of notification of the decision or the reasons therefor (whichever is later). The language of s 4(1) does not refer to the commencement or initiation of a proceeding within the 30 day time limit but rather the making of the application.
6. The clear and unambiguous wording of r 46.02(3) sets out when an application, not by summons, is made, being when that application comes on for hearing. In my view Derham AsJ was plainly correct when he found, in Papas, that an application for an order for review under the ALA is made when it comes on for hearing.
7. While the details of Mr Guss' communications with the Registry were not given by evidence on oath and were somewhat general in nature, I accept, for the purposes of determining whether Mr Guss' application is out of time, that he was told that he was required to file his affidavit and would not be given a hearing date until his affidavit has been accepted for filing and he had filled in the relevant administrative form. I also accept, for the same purpose, that Mr Guss was incorrectly told by the registry staff that his application would be within time if his affidavit was accepted for filing within the 30 day time frame, notwithstanding that his application would not be heard until after the 30 days had elapsed.
8. The question therefore arises whether, in circumstances where Mr Guss followed the procedure the Court's registry instructed him to take and relied upon the incorrect information provided to him, the Court has the power to extend the 30 day time limit.
9. As discussed above, the ALA does not provide for the extension of the time limit.
10. Rule 2.04(1) provides that the Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises. As noted above the 30 day time frame to make an application for an order for review arises under s 4(1) of the ALA and not the Court's Rules. Rule 2.04(1) does not empower the Court to dispense with compliance with a time frame imposed by statute. In my view r 2.04(1) does not empower the Court to extend the time for Mr Guss to make his application for an order for review.
11. Mr Guss submitted that the Court's inherent jurisdiction included the power to extend time in his circumstances.
12. Courts have noted that it is the responsibility of legal practitioners conducting litigation in any court to be familiar with the relevant time limits and generally criticised solicitors who seek advice from the registry without independently verifying its correctness.[16] While Mr Guss is representing himself in this proceeding, he is a solicitor with many years of experience. It was his responsibility to read and comply with the provisions of the ALA and the Court's Rules.
13. I note in passing that the Court has issued Practice Note SC CL 9: Judicial Review and Appeals List. Part 4 of the Practice Note indicates that judicial review applications made pursuant to the ALA should be initiated in the Court's Judicial Review and Appeals List. Section 5 of the Practice Note deals with the procedure for entry into the List. Paragraph 5.2 notes that applications for review under the ALA do not involve a written originating process in the usual sense. Rather, they are commenced by oral application to an Associate Judge. Footnote 3 in the Practice Note states:

Following Papas v The University of Melbourne [2023] VSC 167,... applications [for an order for review under the ALA] must be heard, and not merely initiated, within the relevant timeframe set out in s4 of the ALA. Parties should have regard to the requirement for the hearing of the application to at least commence within 30 days of the relevant decision when initiating an application for review.

1. Where the Court retains a discretion to grant an extension of time, shortcomings in a court's administrative processes or incorrect registry advice to court users may be relevant factors in determining whether it is appropriate to exercise the discretion. However, shortcomings in a court's processes or incorrect registry advice do not excuse a party's non-compliance with a statutory requirement where a time limit is mandatory, even where the outcome may be unfair.[17]
2. The rule governing the interaction of the Court's inherent jurisdiction and statutory provisions is that:

...a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision.[18]

1. Whether in a particular case an order granting an extension of time in the Court's inherent jurisdiction will contravene a relevant statute or rule depends on the specific statutory framework in question.[19] The Court cannot resort to its inherent jurisdiction to override the statutory scheme. In Doyle v Commonwealth,[20] considering whether a court could rely on its inherent power to proceed ex parte, the unanimous High Court said:

...a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled.

1. As noted above, the time frame in s 4(1) has been considered by the Court of Appeal and found to be mandatory. Compliance with the timeframe is a condition on the power of the Court to make an order for review under the ALA. If the Court were to grant an extension of time in its inherent jurisdiction to Mr Guss, it would be acting in disregard for statutory limitations in s 4(1) of the ALA. The Court's inherent jurisdiction is not available in these circumstances.
2. It is for that reason that the Court's inherent jurisdiction is not available to modify r 46.02(3) if the result of that modification would be to contravene s 4(1) of the ALA.
3. As Mr Guss' application has been made out of time, it must be dismissed.

[1] Legal Profession Uniform Law Application Act 2014 (Vic) sch 1.

[2] [1996] VicRp 23; [1996] 1 VR 356 (Batt J).

[3] [1990] VicRp 73; [1990] VR 829 (Beach J).

[4] Whiskisoda Pty Ltd v Liquor Licensing Commission (Supreme Court of Victoria, Eames J, 8 June 1994).

[7] [1999] VSCA 44; [1999] 2 VR 331 (Winneke P, Tadgell and Ormiston JJA).

[11] [2023] VSC 167.

[12] Ibid [5] quoting Kuek (n 7) [13] (Tadgell JA).

[16] See for example, DPP v KMD [2015] VSCA 255, [26] (Maxwell P, Weinberg and Beach JJA) and Dobson v Australian Postal Corporation [2013] FCA 320, [26] (Logan J).

[17] See for example, Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288, (Mossop AsJ) and Cmunt v New South Wales Commissioner of Police [2019] NSWCCA 177, [13]-[14] (Simpson AJA with Walton J agreeing at [19] and Adamson J agreeing at [20]).

[18] Landsal Pty Ltd (in liq) v REI Building Society, now The Co-operative Building Society of South Australia [1993] FCA 121; (1993) 41 FCR 421, 427.

[19] Re Coldham; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation [1986] HCA 87; (1985) 159 CLR 522.

[20] (1985) 156 CLR 510, 518 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).