1. The respondent owns the land situated at 781-805 Dandenong Road Malvern East - on the corner of Tooronga Road (the subject land). The respondent leases part of that land from the applicant. This is known as Tenancy 4, 787 Dandenong Road Malvern East. There the respondent conducts a chiropractic practice, 'Body In Balance Chiropractic'. The respondent has a five year lease which expires on 2 June 2015. It has indicated that it wishes to exercise an option to renew the lease for another five years. However the respondent says the applicant wants it to vacate the premises, so it can re-develop the whole of the subject land. Two other tenants have moved out. The applicant has a planning permit for a substantial mixed use development of the site, including an 18 storey tower.[1]
2. During the course of correspondence between the parties, one of the matters apparently raised by the applicant was that the respondent may be in breach of its obligations under the Planning Scheme concerning the provision of car parking spaces, and hence in breach of its obligations as tenant under its lease.
3. The respondent's response to this, amongst other things, was to apply for a planning permit on 15 December 2014, to waive or reduce its obligations to provide a certain number of car parking spaces under the Planning Scheme. Mr Richards completed the application form on behalf of the respondent, and lodged it with the Responsible Authority. The applicant was notified of this application on 15 December, and again on 19 December 2014. A permit allowing a reduction in the number of car parking spaces required to be provided was issued by the Responsible Authority on 31 December 2014 (Planning Permit No. 1129/14).
4. The application for planning permit of 15 December 2014 appears to show Mr Richards' signature opposite the declaration:

I/We the Applicant declare that I/We have notified the owner about this application and that all information given is true and correct.

1. The applicant points to circumstances which suggest that Mr Richards did not in fact notify the applicant until after the application had been lodged with the Council, such that the declaration is false.
2. The receipt slip issued by Council for payment of the planning permit application fee is addressed to 'Peter Richards' and is recorded as having been printed at 10.55 am on 15 December 2014.
3. The applicant further points to the letter sent by Mr Richards to the applicant's solicitor (headed 'without prejudice') at 12.24 pm on 15 December 2014. It is accepted this is the first notification given to the applicant. This relevantly states that the respondent 'has applied' for a planning permit to waive the car parking requirements under the planning scheme.
4. That is, the applicant suggests that Mr Richards did not notify it of the planning permit application until one hour and twenty-nine minutes after it had in fact been made.
5. Section 48(2) of the P&E Act makes it an offence for

'[a] person [to] obtain or attempt to obtain a permit by wilfully making or causing to be made any false representation or declaration either orally or in writing.

1. The applicant lodged its application to cancel the planning permit on 29 January 2015. This specifies six grounds, under the headings of 'Material mis-statement of fact in relation to the permit application', 'Material mistake in relation to the grant of the planning permit', and 'Incorrect permit trigger applied for'. It is set down for hearing on 23 July 2015.
2. The applicant says the precise mechanics of the application process carried out by Mr Richards on behalf of the respondent are central to its application. It says that at the hearing of that application, its primary argument will be that the planning permit is invalid, because a mandatory procedural requirement has not been complied with, namely, notification of the owner prior to the application being made. This contention is not one of the six grounds referred to in the applicant's Statement of Facts lodged with its s 87 application. Indeed, it is of a different nature. I understand it was foreshadowed for the first time at this hearing. I will make an order requiring the applicant to file and serve any application for a declaration which it seeks. Nevertheless, I have dealt with the present application to disqualify Mr Richards on the basis that this claim will be made by the applicant at the same time as its s 87 case.
3. Alternatively, if that argument is not successful, the applicant says the alleged late notification is relevant to the exercise of discretion under s 87, whether or not to cancel the permit, together with the other five matters referred to in the Statement of Facts.
4. In either case, the applicant says the evidence of Mr Richards on the question of precisely what steps he took in applying for the planning permit on 15 December 2014 will be central to the issues for determination in that application. It contends:

1. Mr Richards, by virtue of his direct conduct in preparing and lodging the permit application with the Council, and in subsequently notifying the Applicant of the permit application after it had been lodged: 1. has a "personal stake" in the proceeding, involving (at the very least) his "personal or reputational interest"; and 2. is likely to be a material witness to the proceeding in respect of a contentious issue; 2. For as long as Mr Richards continues to act for the Respondent, the Tribunal will not accordingly receive the assistance of a solicitor who is observably independent; and

1. A fair-minded reasonably informed member of the public would reasonably conclude that the proper administration of justice requires Mr Richards to be restrained from continuing to act on the Respondent's behalf.

THE TRIBUNAL'S POWER TO MAKE A DISQUALIFYING ORDER

1. The application here is expressed as being made under the Tribunal's power to give directions (s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act)) and/or to make declarations (s.124).
2. The Tribunal has on a number of occasions considered applications for legal representatives to be disqualified. I was not shown any authorities which suggested this power does not exist. In Spiker Properties Pty Ltd v DW Shave Nominees[3] Vice-President Judge Sandra Davis stated that the principles to be considered by the Tribunal are those enunciated by Brooking J in Spincode Pty Ltd v Look Software Pty Ltd and Ors[4] and subsequently adopted by numerous judges in the Trial Division of the Supreme Court of Victoria, as follows:
   1. The court will restrain a legal practitioner from continuing to act for a party to litigation if:

there is a danger of misuse of confidential information of a former client; or

where a solicitor breaches the independent equitable obligation of loyalty which forbids the solicitor from acting against a former client in the same or a closely related matter; or

a reasonably informed member of the public would conclude that the solicitors should be prevented from acting.

1. Here, it is the third of these grounds which is sought to be invoked. This is not one of those cases where it is said the solicitor holds confidential information, or has previously acted for the opposing party. Those two grounds are more precisely defined than the third. Mr Lowry said he was not aware of any case where the third ground had been relied upon by the Tribunal. But he did not explicitly contend that the Tribunal lacked power to apply it.
2. For the purpose of this application, I am prepared to assume that the Tribunal does have this power as a necessary adjunct to its powers to determine matters fairly, and to regulate its own proceedings. (ss 97 and 98 of the VCAT Act).

1. This third ground enunciated in Spincode was elaborated on by Bell J in Zarah Garde-Wilson v Corrs Chambers Westgarth[5] as follows:
   1. The third ground relates to ensuring the due administration of justice and the protection of the integrity of the judicial process.[6] This jurisdiction extends to restraining a lawyer from acting for a party in litigation before a court in order to ensure that justice is not only done but manifestly and undoubtedly seen to be done.[7] I think it logically extends to restraining a lawyer from acting in proceedings in a tribunal.
   2. The test is objective and whether a fair-minded reasonably informed member of the public would reasonably conclude that the proper administration of justice required the lawyer to be restrained from acting.[8]
   3. Proper weight must be given to the fundamental principle that, in the public interest, a party to litigation in a court and, I would add, proceedings in an administrative tribunal, should not be deprived of the lawyer of their choice without good cause.[9]
   4. One aspect of this principle is that, quite apart from clients, the courts and, again I would add, tribunals, are entitled to receive the assistance of solicitors and counsel who are observably independent.[10]
2. The decision of Kallinicos and Anor v Hunt and Others[11] contains an extensive review of the applicable authorities. In addition to the matters referred to by Bell J above, it stated:
   • The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
   • The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant the leave.
3. The authorities indicate it is appropriate to consider whether the practitioner would be a witness in the case, whether their evidence is likely to be controversial, and whether there will be an attack on the conduct of that practitioner in the course of giving evidence.

1. In Mitchell v Burrell[12] Brereton J said:

I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. ... the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake many not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.

1. The applicant says that the question whether the application for planning permit was lodged before the applicant (as owner) was notified will be at issue in the hearing. It points to the statement in the respondent's Second Amended Defence to the s 87 application that the respondent 'does not admit' that notification was not given before the lodgement of the permit application. It also refers to correspondence from Mr Richards which appears to suggest that the application was not necessarily lodged when payment was made at 10.55 am on 15 December 2014. The applicant says that Mr Richards is the key witness in relation to its central contentions that the planning permit is invalid, or alternatively, should be cancelled.
2. The applicant suggests Mr Richards has a 'personal stake' in the cancellation application, over and above the normal desire a lawyer has for his client to succeed. The applicant says this involves a 'reputational interest', in that it appears he has made a false declaration. It might also involve a financial interest, in that there is potential for his client to sue him for negligence if it is unsuccessful as a result of his conduct.
3. The respondent submitted that the applicant's case relied on unverified assertions and was based on 'speculative opportunism', with no evidence being led to support it. It says that it will be up to the applicant to prove what occurred in the course of the lodgement of the application for the planning permit, for the purpose of pursing its cancellation application. The respondent did say, however, that:

If the applicant proves that 'payment' for a planning permit application necessarily means that a party is taken to have 'lodged' it simultaneously, the respondent will accept the Tribunal's finding. It does not intend to elicit any evidence to oppose such an assertion.

1. The respondent's case was that Mr Richards' evidence would not be required. It says it does not intend to call him as a witness.
2. The respondent referred to the following statement by Heenan J in Holborow v Rudder[13] in recognising that this exceptional jurisdiction should be exercised with caution:

When an application is made to restrain a legal practitioner from acting in a cause for reasons other than the risk of disclosure or misuse of information ... it is of importance to identify precisely what obligation to the former client or to the court may be breached or imperilled by the practitioner acting in the cause ... This approach is important because, otherwise, there may imperceptibly develop an expectation that the freedom of a client to engage a legal practitioner of his or her own preference ... is open to adventitious challenge as a means of harassing an opponent in a cause (emphasis added).

1. At the commencement of the hearing, the respondent provided the new information that it had been determined that Mr Richards would not be appearing as advocate at the 23 July hearing. Counsel would be briefed.

1. I now turn to the application of the principles to the present circumstances. Mr Richards may be a witness in the s 87 proceeding. I assume the applicant will call some evidence from the Responsible Authority as to its procedures in relation to lodgement of applications for planning permits and the timing of this relative to payment of the fee. I assume this would include both evidence of a general nature, and any relevant evidence the Responsible Authority is able to provide about this specific case.
2. It may not then transpire that there are matters in issue between the parties about which Mr Richards' evidence would be relevant. As stated, the respondent said it would not call Mr Richards to give evidence. The applicant said it had not decided whether it would seek to call him itself. It is always a matter for serious consideration where a solicitor acting for one of the parties might be called to give evidence in hearing.[14]
3. Also, Mr Richards can be said to have a 'personal stake' in the cancellation application to the extent the evidence sheds light on whether or not he made a false declaration. This obviously goes to his reputation. It would also go to the question as to whether or not he could be considered to have committed an offence.

1. But is the applicable test satisfied? Would a fair minded reasonably informed member of the public reasonably conclude that the proper administration of justice requires that Mr Richards be restrained from acting?
2. To answer this, I need to look at whether there is a potential conflict between Mr Richards' personal interests and those of his client, and also, between Mr Richards' personal interests and those of the Tribunal in receiving assistance from solicitors and counsel who are observably independent.
3. It is necessary to articulate with some precision how that conflict would arise. In the cases dealing with the 'proper administration of justice' ground, the courts have sought to identify and describe such conflicts.
4. In Gamgeni Pty Ltd v Luppino Pty Ltd and Anor[15], for example, the solicitors would have been conscious that in negotiating to achieve a settlement of the proceedings on behalf of their clients, to the extent there was a compromise which involved their clients giving ground, those solicitors would potentially be liable for the loss suffered by their client. This was because they had been responsible for drawing up the contract which was the subject of the litigation. This gave rise to a clear conflict and they were restrained from acting.
5. In Mitchell v Burrell[16] there might have been a discrepancy between the solicitors' evidence as to whether legal advice had been given to the client about a gift she made, and the client's evidence on that question. Brereton J identified the conflict the solicitor would potentially face in instructing counsel as to whose version counsel should submit to the court should be accepted. So the solicitor was disqualified in that case.
6. In the present case, however, it is difficult to describe exactly how a conflict would arise which would disadvantage the respondent (and the Tribunal).
7. It is said Mr Richards has a personal interest in avoiding a finding that he made a false declaration, while his client has an interest in the planning permit not being cancelled. However, in the context of this s application, these two interests appear to be aligned, rather than being in conflict.
8. The applicant did not precisely articulate a scenario where a conflict could arise. The applicant's strongest point was that the respondent was showing signs of adjusting the conduct of its case in order to seek to avoid Mr Richards becoming a witness. If it was assumed that different solicitors had taken over the matter, might the approach taken be different? Might the new solicitors, unconstrained by any desire to protect Mr Richards, approach the matter in a way which was more advantageous to the respondent? I am conscious that I should not try to second guess internal tactical decisions the respondent might make in the conduct of its case. Rather, I need to consider whether Mr Richards remaining as solicitor would be seen to be inconsistent with the proper administration of justice.
9. Here, the scope for uncertainty on the evidence is fairly narrowly confined. The facts of the electronic receipt being issued at 10.55 am, and the first notification to the applicant's then solicitor that the application had been made being sent at 12.14 pm on 15 December 2014, are not in dispute. To a large extent, the facts appear to speak for themselves. It is not apparent there will be a contested issue about what occurred in the course of applying for the permit.
10. If other solicitors took over the matter, would that potentially leave the client in a better position in terms of advancing its interests, and in determining, for example, whether to call Mr Richards? On the facts as they appear, I cannot see that it would. It may be that no evidence is required to be given by Mr Richards. But if it is, and he is required to go to the details of the process of applying for the planning permit, and he is concerned that evidence may incriminate him, he is able to claim the protection afforded by s 105 of the VCAT Act. This applies regardless of whether he is the instructing solicitor or not. And his duty of frankness to the Tribunal as a practitioner applies regardless of whether he is acting or not.
11. In large part, the application relies on the general spectre of a solicitor possibly having to give evidence about an apparent breach of s 48 of the P&E Act, which could possibly be an offence. At first blush, one can understand how the suggestion could be put that this is not consistent with the proper administration of justice. However, it is important to recognise that there is of course a quite separate process to be gone through, comprising a number of steps, required to be taken by persons not involved in this planning dispute, before any offence might be found by a court to have been committed. It would obviously be presuming far too much to assume that outcome.
12. Further, and more significantly, in practical terms, the die is already cast as far as Mr Richards' personal position is concerned. The situation is analogous to that of the solicitors, Corrs Chambers Westgarth, in the Zarah Garde-Wilson case, in relation to the potential criminal liability of their employee solicitor. In that case, the Office of Public Prosecutions provided documents to the Corrs solicitor, who in turn provided them to counsel. This was for the purposes of a VCAT hearing about whether Ms Garde-Wilson's application for a practising certificate should be granted. These documents were the subject of a prohibition on publication, which had been ordered by an Australian Crime Commission Examiner. They contained evidence given by Ms Garde-Wilson which had been obtained under coercion. The relevant bodies were considering whether the Corrs solicitor should be criminally prosecuted for breach of the prohibition on publication. Ms Garde-Wilson sought that Corrs be disqualified from acting for the Legal Services Board in the VCAT proceeding.
13. Bell J said:[17]

That places Corrs in the position that the solicitor who has the carriage of the matter may be charged with a criminal offence. The appearance of this concerns me, but in the end I do not think it is relevant.

My reason is that the offence, if it was committed at all, was committed because of the past actions of the person or persons who are subject to potential criminal liability. From a strictly legal point of view, nothing that Corrs can do in its own interests in the proceeding can affect the criminal liability of any person potentially liable, including the solicitor.

Corrs were disqualified from acting, but on other grounds.

1. Mr Richards is in a similar position. What occurred in the past cannot be altered by any evidence given in this hearing.
2. In my view, in relation to Mr Richards, despite first impressions, a fair-minded reasonably informed member of the public would not reasonably conclude that the proper administration of justice requires him to be restrained from acting as solicitor in this case.
3. Intervention on the 'proper administration of justice' ground is exceptional.[18] This ground is broad, and generally associated with the Supreme Court's inherent jurisdiction to regulate practitioners who appear before it. The Tribunal should exercise it with caution. In an appropriate case, the Tribunal could prevent a party from retaining its solicitor of choice, even against its own wishes. But before doing so, it should be satisfied there is a genuine and serious conflict.
4. The Tribunal should also take into account the effect a disqualification would have on the client. Here, the respondent is a small chiropractic practice. Mr Richards has been intimately involved in a hard-fought, multi-faceted and complex dispute between the respondent and its landlord, since commencement. There is a separate dispute in the Retail Tenancies List of this Tribunal concerning an application to evict the respondent, which is listed for hearing on 10 August. For the respondent to change solicitors in this s 87 application now would cause it expense and strategic disadvantage.
5. Also, the decision to brief counsel rather than have Mr Richards conduct the case himself, while not a panacea,[19] is a relevant factor in the respondent's favour. This is a response to the possibility of Mr Richards being called as a witness while acting as advocate, which is obviously undesirable. Also, the involvement of independent counsel will enhance the ability of the respondents' legal team properly and objectively to consider their duty to serve the best interests of their client, and their paramount duty to assist the Tribunal.
6. For the above reasons, the application to disqualify Mr Richards from acting as solicitor for the respondent in this proceeding is refused.
7. Finally, I note it is a matter for a practitioner and his or her client whether there is a potential conflict, or a strategic disadvantage, in a practitioner continuing to act, as events occur which relate to the practitioner in some personal sense. It might be that it is determined as between the practitioner and client that he or she should cease to act in circumstances falling short of those where a court or tribunal would intervene.

[1] Bensons Property Group Pty Ltd v Stonnington CC [2014] VCAT 83.

[2] Of course, VCAT has no role at all to play in relation to the prosecution of any offence which might be alleged to have been committed. It is here concerned only with matters which fall within its planning jurisdiction.

[3] (Real Property) [2006] VCAT 2301.

[4] [2001] VSCA 287.

[5] 2007 VSC 235 at [40] - [43].

[6] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452.

[9] Ibid; see also R v Khazaal [2006] NSWSC 1353, [90].

[10] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 citing Kooky Garments Ltd v Charlton [1994] I NZLR 587, 590.

[11] [2005] NSWSC 1181at 582-3 per Brereton J.

[12] [2008] NSWSC 772. at [20].

[13] [2002] WASC 265

[14] See the Law Institute of Victoria's Professional Conduct and Practice Rules 2005 at [13.4].

[15] [2012] VSC 168.

[16] [2008] NSWSC 772.

[18] Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152 per Whelan J; Kallinicos at [76].