Attorney-General for the State of Victoria v The Warehouse Group

2. This is an application, by summons filed on 1 May 2002 on behalf of the Attorney-General of Victoria, for an extension of time within which to seek leave to appeal and, if granted, an appeal from orders made in the Trial Division on 12 April 2002 following application for leave to appeal from a determination of the Victorian Civil and Administrative Tribunal ("the Tribunal"). In accordance with notification given by the Court some time ago, we have heard argument not only on the summons, but also, in case leave is granted, on the merits of the appeal.

5. The application stems from a proceeding commenced in the Tribunal by the second respondent, Bevendale Pty Ltd ("Bevendale"). As the owner of a shopping centre known as "Epping Plaza", Bevendale applied to the Tribunal for an enforcement order under s.114 of the Planning and Environment Act 1987 to prevent the land opposite being used otherwise than as "restricted retail premises". There were three respondents to that application: the Warehouse Group (Australia) Pty Ltd, ("Warehouse"), which was the occupier of these premises in question, ISPT Pty Ltd, which was the owner of the premises and the Whittlesea City Council, which was the responsible planning authority. Those three are now respectively the first, fourth and third respondents to the summons filed by the Attorney-General.

8. Bevendale commenced its proceeding before the Tribunal by filing an application on 15 August 2001. The application came on for hearing before a member of the Tribunal, Mrs Tonia Komesaroff, on 26, 27 and 28 November and her determination was handed down on 5 December 2001, in effect granting the application made by Bevendale.

11. By originating motion filed in the Trial Division on 14 December 2001, Warehouse applied under s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (the "Tribunal Act") for leave to appeal to the Trial Division of the Supreme Court. Such an appeal is permitted only on a question of law. The application for leave to appeal was heard by a judge on 22 February 2002 and leave was granted.

14. Warehouse then filed a notice of appeal dated 1 March 2002. A number of questions of law were identified in that notice, including this:

"Was the Tribunal properly constituted by a member who has sound knowledge of and experience in planning and environmental practice in Victoria in accordance with clause 52(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act?".

18. In the grounds of appeal, ground 16 read as follows:

"The Tribunal had no power to hear and determine the proceeding as it was not constituted by a member who has sound knowledge of, and experience in, planning or environmental practice in Victoria."

22. By summons filed on 25 March 2002, the Attorney-General sought leave to intervene in the appeal to the Trial Division, but in relation only to ground 16. That summons was made returnable before the trial judge and upon the hearing of the appeal, the Attorney's application for leave being unopposed, leave was granted. By consent, ground 16 was then dealt with as a preliminary question.

25. In relation to ground 16, there were a number of issues canvassed in the Trial Division. It is now said by those appearing before us that the only aspect presently relevant is the proper interpretation of the scope and operation of clause 52 of Schedule 1 to the Tribunal Act. That clause reads as follows:

"(1) The Tribunal is to be constituted for the purposes of the proceedings under a planning enactment by -

(a) one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria; or

(b) if it is constituted by two members, at least one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria; or

(c) if it is constituted by three, four or five members, at least two members who have sound knowledge of, and experience in, planning or environmental practice in Victoria.

(2) Section 64(2) does not apply to a proceeding under a planning enactment."

33. Section 64(2) is the sub-section which provides (inter alia) that if the Tribunal is constituted for a proceeding by one member only, that member must be a legal practitioner.

36. It is common ground that, in this instance, the Tribunal was "constituted for the purposes of a proceeding under a planning enactment" and the critical question under clause 52 is whether the member who constituted the tribunal was properly described as having "sound knowledge of, and experience in, planning or environmental practice in Victoria." Exhibit B which was put in evidence before the Trial Division, established that Mrs Komesaroff was a legal practitioner with extensive qualifications and experience in the law relating to planning in Victoria, as a practising barrister, a member of panels appointed to advise on amendments to planning schemes under s.153 of the Planning and Environment Act 1987 and also as a member of the Tribunal sitting in the planning list. (The planning list is established under Rule 2.06 of the rules made by the Rules Committee established under s.150 of the Tribunal Act).

39. After hearing argument, the judge took a few days for consideration and on 12 April 2002 delivered judgment. The judgment is careful and comprehensive, dealing with all of the issues canvassed on the appeal to the Trial Division. In relation to clause 52, the decision was that the Tribunal had not been properly constituted in that Mrs Komesaroff was not, within the meaning of clause 52 of Schedule 1, a person "who has sound knowledge of, and experience in, planning and environmental practice in Victoria".

42. In so holding the judge adopted in substance the submissions of counsel for Warehouse, that clause 52 required "sound knowledge of, and experience in the practice of planning as a profession, involving the performance of planning functions", and that a lawyer whose practice centred on planning, but who did not perform planning functions could not be said to have such experience.

"The natural meaning of the expression planning practice in clause 52 was practice as a planner, whether as a member of a private firm or as an employee of such a firm or of a public body such as a municipal council, involving the application of town planning skills to the repeated performance of town planning functions."

Whether or not this was to overstate the position does not presently matter: what matters is that the judge accepted the submission, which was repeated to us, that the only persons who could have "sound knowledge of and experience in planning ... practice in Victoria" were those who were by profession town planners, not lawyers who had not performed planning functions. Only those who were town planners by profession or occupation could qualify under clause 52(1)(a), in the judge's opinion.

48. On 12 April 2002 the following orders were made in the Trial Division. The appeal was allowed, the decision of the Tribunal was set aside and the matter (that is the application by Bevendale) was "remitted to the Tribunal for hearing and determination in accordance with the law by a member or members [of the Tribunal] other than Mrs Komesaroff." It is from those orders that the Attorney-General would now appeal, contending that the construction placed by the judge on clause 52 was erroneous.

51. So far as the appeal is concerned, the Attorney-General must first obtain an extension of time within which to seek leave to appeal and then, if the extension is granted, leave to appeal by virtue of s.17A(3A)(a) of the Supreme Court Act. It is unnecessary now to consider why leave was not sought in timely fashion: all four respondents (save the Council) to the Attorney's summons of 1 May 2002 are represented before us and none of them opposes the application, either for the extension of time or for leave to appeal. Accordingly, and notwithstanding that Parliament is already moving, so we are told, to alter the statute in respect of all other cases save this one, we think that the extension of time and the necessary leave should both be granted and that this Court should proceed to the determination of the appeal on the undertaking by the Attorney, through his counsel that the proposed notice of appeal (a copy of which is Exhibit JS 3 to the affidavit of Jonathan Smithers sworn on 1 May 2002) will be promptly filed. The Court can proceed on the Appeal Book and Supplementary Appeal Book already made up in anticipation of this Court's embarking upon the hearing of the appeal.

54. The only grounds taken in the notice of appeal to which we have just referred are two: namely that the trial judge erred in holding that clause 52(1) required the member constituting the Tribunal to have sound knowledge of and experience in the practice of planning as a profession, involving the performance of planning functions; and that the trial judge should have held that the requirements of clause 52(1) of the Act were satisfied where the member constituting the Tribunal has a sound knowledge of and experience in the practice of planning in Victoria, howsoever acquired - in this case, as a barrister practising in the planning area for many years.

57. These grounds both refer to "the practice of planning" as if in clause 52(1) the word "planning" is an adjective and not a noun. Mr Morris who appeared for the first respondent, demonstrated that historically the legislation in this area has referred to "town and country planning" where the word "planning" has been used as a noun; and it may be, then, that it is used as a noun also in clause 52(1)(a) and the word "practice" belongs only in the phrase "environmental practice". Certainly the introduction of the reference to environment might explain, in itself, the need to introduce also the word "practice". But counsel all assumed that clause 52(1) makes reference to "planning ... practice" and as that is how the matter has been argued, both here and below, and as the assumption favours Mr Morris' client, we are prepared to proceed upon the assumption, and without deciding, that clause 52(1)(a) does refer to both planning practice and environmental practice.

60. Nevertheless, after hearing argument on behalf of the appellant in support of these grounds and argument on behalf of the first respondent in support of the decision below, we are satisfied that the appellant has the rights of it. In our opinion, the judge's interpretation of clause 52(1) was unduly restrictive and we say that for more than one reason. First, if Parliament had intended the meaning adopted by the trial judge, it could so easily have expressed itself to make that meaning plain: it did not. Secondly, one consequence of adopting the meaning advocated by counsel for Warehouse must be that any planning officer of a local council, with knowledge of and experience in the area (presumably no matter how short) would be qualified to sit in the planning list while a barrister having practised in the area for, say, 30 years, could not - an unlikely intention to impute to Parliament. Thirdly, although the stipulated qualification is a compendium which requires both "sound knowledge of" and "experience in" (inter alia) planning practice, the meaning adopted by the judge suggests that the sound knowledge of planning practice is only to be acquired through practice as a professional planner, a meaning which appears to us to significantly and unnecessarily restrict the qualification. Finally, it seems to us that what is required is exhaustively spelt out in the words themselves, namely "who has sound knowledge of, and experience in, planning or environmental practice in Victoria", and that there is no justification for adding into that description some qualification such as "as a profession" or "professional planner" or "as a profession involving or professional planner involved in, the performance of planning functions." Those words do not appear in clause 52(1)(a), nor are they there by necessary implication, in our view. The legislation stops short of insisting that the qualification be confined to knowledge and experience that is gained through practice as a professional planner as the respondent contends.

63. Just as lawyers who are knowledgeable in particular fields of law, such as local government law, valuation law, probate law, criminal law et cetera, also have experience in the practice which exists in relation to those fields, so lawyers who have regularly practised in and are knowledgeable of the law relating to planning can have, in our view, sound knowledge of and experience in planning practice. The thrust of Mr Morris' argument on behalf of the first respondent was, as we understood it, that a barrister, for example, with a "planning practice" gains knowledge of and experience in the law of planning and even knowledge of planning practice but does not gain "experience in planning practice". For that proposition he relies upon the historical qualifications of those appointed to planning tribunals and the juxtaposition of those requiring legal qualification and those experienced in "planning" or "town planning" and "country planning". Now that clause 52(1) has inserted for the first time, so the argument ran, the requirement of "experience in planning practice", it demonstrates an intention on the part of the legislature to further restrict the qualification to those who have gained that experience as an expert planner. Only by so construing the clause, Mr Morris submits, can certainty be attributed to the meaning of the qualification in clause 52.

66. However, in our view, that proposition cannot be universally applied. The real question is whether a person like Mrs Komesaroff who has had extensive experience in the area of planning can be said to possess by reason of that activity sound knowledge of and experience in planning practice for the purposes of clause 52. It seems to us that where such a person has had over many, many years personal and constant involvement with planners and planning practices for the purposes of discharging his or her function, it can properly be said that such a person has gained sound knowledge of and experience in planning practice for the purpose of clause 52(1). The extent and intensity of the involvement of such a practitioner with planning practice itself translates into the knowledge of and experience in such practice for relevant purposes. It is not necessary in those circumstances we think that the practitioner should have performed planning functions as a professional planner before it can be said that he or she is relevantly qualified.

69. For these reasons we think that there was error below and, in the ordinary course, that must mean that the appeal is allowed, the orders below set aside and in lieu thereof the preliminary question of ground 16 resolved against Warehouse as the appellant in the Trial Division. In our opinion the Tribunal was properly constituted on the occasion in question. But there is another problem raised by this proceeding which, although the parties have not canvassed it before us, ought to be mentioned.

72. It was argued below that the Trial Division had no jurisdiction to entertain this appeal for a number of reasons. First, it was said, that the "decision" under appeal was not so that of Mrs Komesaroff, constituting the Tribunal, but that of the President in assigning her to the planning list. Secondly, it was said that whether Mrs Komesaroff answered the description in clause 52 was a question of fact, not a question of law. Thirdly, it was said that the objection to her qualifications, if a question of law, should have been raised before the Tribunal and not on appeal for the first time. Fourthly, it was said that the Tribunal should have been joined as a party. All of these submissions were rejected by the trial judge and, with respect, rightly so. If there was an appeal on foot, it was not against the decision of the President who assigned Mrs Komesaroff to the planning list; it was from the determination of the Tribunal. Again, if there was an appeal on foot, it was over the interpretation of clause 52, and not the fact of Mrs Komesaroff's qualifications, which were as described in Exhibit B and were not challenged. Thirdly, although an objection may have been taken below to the constitution of the Tribunal before the application was heard and determined, it was not fatal that the point was raised only afterwards. And finally, joinder of the Tribunal was not a step required on an appeal under s.148 of the Tribunal Act.

75. 22 But having said that, there is yet a fundamental objection to the exercise of jurisdiction by the Trial Division in relation to ground 16 in the notice of appeal, which stems from the commencement of an appeal under s.148. In ground 16 Warehouse was challenging the very constitution of the Tribunal which made the orders from which it was otherwise wishing to appeal. Such a challenge is to jurisdiction, as indeed the Trial Judge, in upholding the challenge, recognised in the penultimate paragraph of the reasons for judgment, that is paragraph 41. Such a challenge should have been mounted by way of judicial review and not appeal: See, for example, GJ Coles & Co v. Retail Trade Industrial Tribunal[1] in which a tribunal was wrongly constituted and prerogative relief was sought and granted. Nor, in our view, was anything to the contrary said in Roy Morgan Research Centre Pty Ltd v. Commissioner of State Revenue (Vic)[2] to which Mr Morris referred. Our dealing with the question of the constitution of the Tribunal should therefore not be taken as any endorsement of the procedure adopted by Warehouse on this occasion.

78. In another case, the conclusion that a proceeding by way of judicial review was appropriate but not an appeal might mean that leave to appeal should never have been granted in the first place and that, once granted, the appeal should have been dismissed as incompetent. In this instance, however, there were many other grounds of appeal: only ground 16 was affected by the considerations of procedure to which we have referred, and ground 16 was determined as a preliminary question. Given the way in which the matter was heard and determined below, it is appropriate, we think, for this Court to allow the appeal, to set aside the orders made below and upon the understanding that argument has been addressed upon the remaining grounds, to remit the matter back to the Trial Division for hearing and determination according to law in the light of our reasons for judgment.

81. The formal orders which we make, therefore, are as follows:

(a) The time for seeking leave to appeal is extended until this day.

(b) Leave is granted to the Attorney-General for the State of Victoria to appeal from the orders made in the Trial Division on 12 April 2002.

2. On the undertaking of the Attorney-General by his counsel to file forthwith the notice of appeal a copy of which is Exhibit JS 3 to the affidavit of Jonathan Smithers sworn on 1 May 2002, the appeal is to be taken as instituted upon such notice and heard instanter.

3. The appeal from the orders made in the Trial Division on 12 April 2002 is allowed.

4. The said orders are set aside and the matter (being the appeal by the Warehouse Group (Australia) Pty Ltd to the Trial Division from the Victorian Civil and Administrative Appeals Tribunal) remitted to the Trial Division for determination according to law in the light of the reasons for judgment given this day by the Court of Appeal.

[1] (1987) 7 N.S.W.L.R. 503.

[2] (2001) HCA 49 at paragraph 15