Batagol & McGill v Monk & City of Port Phillip [2000] VSC 48

Supreme Court of Victoria|2000-03-02|Before: Balmford, J.

For the reasons given, I find that in all the circumstances of this case, notably the delay of twelve months since the making of the original order and the actions of the applicants during that period in reliance on the permit which was authorised by that order, there was a lack of procedural fairness in the making of the correction without notice being given to the applicants of the Council's letter which initiated the making of the correction, and without affording them the opportunity to be heard in regard to the Tribunal's intention to make the correction. Accordingly, there will be an order in the nature of certiorari that the order of the Tribunal made on 16 February 1999, expressed as a correction to a decision of the AAT made on 28 January 1998, be quashed. Counsel may wish to make submissions as to costs.

Supreme Court (General Civil Procedure) Rules 1996

Victorian Civil and Administrative Tribunal Rules 1988

General Medical Council v Spackman [1943] AC 627

L. Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1983) 151 CLR 590

The relevant rules are Rules 4.06 and 4.17 of the Victorian Civil and Administrative Tribunal Rules 1988, which require the making of an application in writing and service on the other party within seven days after lodging. Although the making of the order arose from the letter from the Council referred to in paragraph 11 above, that letter did not constitute an "application of a party in accordance with the rules" in terms of section 119(2)(b), and thus the correction must be regarded as having been made "on the Tribunal's own initiative" in terms of section 119(2)(a). Accordingly the rules have no application to this matter and there is no formal requirement for a written application or for service. Authorities cited to the contrary, such as Ninnis v Miller [1905] VicLawRp 99; [1905] VLR 669 and Hatton v Harris [1892] AC 547, were decided under different legislation.

Mr Tweedie submitted that the inclusion of an extract from the Council's letter in the Tribunal's reasons for making the correction (see paragraph 11 above) showed that the Tribunal was aware of the events since the making of the original order, including the expenditure by the appellants on the construction of the sundeck on Number 14 Charles Street. He referred to the judgment of Barwick CJ in Kentucky Fried Chicken v Gantidis [1979] HCA 20; 140 CLR 675 at 679-680 as authority for the proposition that failure to mention a relevant matter in reasons for a decision did not necessarily mean that that matter had not been taken into account. Accordingly, he submitted, it could be assumed that the Tribunal had taken those events into account in reaching its decision, and therefore that the provision of a hearing would not have made any difference to the result.

This question profoundly affected the course of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40. The argument favoured by the lower courts, and in Lord Evershed's dissenting speech, was that natural justice need not be enforced in the absence of a miscarriage of justice or some probable effect on the result. The House of Lords rejected this reasoning decisively. . . .

At a glance

Court

Decision date

Before

Source

Judgment (1 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)