GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1

671 Chapel Street & Part 1 Forrest Hill SOUTH YARRA VIC 3141

Box v Stonnington CC [2023] VCAT 715

1. The Tribunal declares that no federal matter has been genuinely raised in these proceedings, and therefore the Tribunal retains jurisdiction.

1. Pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), having been satisfied that it is desirable to do so, Dr Reuben Kirkham is hereby joined as an interested party to proceeding P38/2023.

1. The Tribunal confirms the compulsory conference previously listed in P101/2023 for 26 July 2023 has been vacated.
2. The Principal Registrar is directed to progress these matters in accordance with the usual Tribunal procedure.
3. The Orders of the Tribunal dated 26 May 2023 are otherwise confirmed.

For GFM Investment Group Pty Limited in its capacity as trustee of the GFM BTS Trust Subtrust No.1

Robert Forrester of counsel, instructed by Rigby Cooke Lawyers

For Yi Qiao Huang, Kerry Buckley, Mark Wilson, Sau Wai Siu, Laura De Martino, Hamish Park, Salim Bahloul

1. The Tribunal has before it the following two applications for review:
   • Application P38/2023 brought under section 82 of the Planning and Environment Act 1987 (Vic) (P&E Act) by Dianna Box and others seeking review of the decision of the Stonnington City Council (council) to issue a Notice of Decision to Grant Planning Permit (NOD) in planning application no. 0321/22; and
   • Application P101/2023 brought by GFM Investment Group Pty Ltd (permit applicant) under section 80 of the P&E Act seeking review of several conditions included within the NOD.
2. The conditions under review include, but are not limited to:
   • changes with respect to updated daylight modelling, landscaping and façade strategy;
   • an agreement pursuant to section 173 of the P&E Act for:
     • a monetary contribution to council for the Chapel Street Transformation Project (or similar);
     • maintenance of access to the community facility;
     • the costs of construction of the community facility to be borne by the permit applicant; and
   • council's exclusive responsibility for the management of the community facility.
3. Dr Reuben Kirkham is a party in application P101/2023 but is not a party in P38/2023.
4. The purpose of this practice day hearing, as set out in the Orders of Deputy President Bisucci dated 26 May 2023, was to consider:
   • the application by Dr Kirkham to be joined as a party to P38/2023; and
   • whether the applications raise a Federal Law issue.
5. The 26 May orders followed a previous practice day hearing on 8 May 2023 before Deputy President Bisucci, and correspondence received by the Tribunal from Dr Kirkham on 9 May 2023, which raised several other issues.[1]
6. This practice day hearing is to consider whether any federal law issue is raised[2] and in addition, to deal with the question of Dr Kirkham's joinder at this point tin the proceedings.
7. The joinder application is the second brought by Dr Kirkham. A previous and similar application was heard by Senior Member Code on 10 March 2023 and orders were made on 20 March 2023 both declaring that Dr Kirkham was not a party to the proceeding and refusing the joinder application pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

1. Submissions were received in advance of the practice day hearing from Dr Kirkham, the council, and the permit applicant.
2. I record that the tone of some parts of Dr Kirkham's written submissions[3] and those delivered orally before the Tribunal were delivered with less than the civility and relevance than the Tribunal expects. Despite the Tribunal's attempts to bring the issues raised back to those which are relevant to the matters the Tribunal can determine in these proceedings, Dr Kirkham's submissions continued to be less than of assistance. This conduct does not allow the Tribunal to deal with matters efficiently and expeditiously as is the expectation of matters before this Tribunal.

1. Dr Kirkham contended that two federal law matters were raised or could be raised in the proceeding, such that VCAT would be void of jurisdiction.
2. The threshold requirements for the loss of VCAT's jurisdiction due to the existence of a federal issue in a proceeding were clearly set down by the Court of Appeal in Thurin v Krongold Constructions (Aust) Pty Ltd (Krongold).[4] The core requirements are that a federal matter must be "genuinely raised" and "not incapable on its face of legal argument" in the particular legal controversy before the Tribunal.[5] The matters raised by Dr Kirkham fall far short of these requirements.

1. This aspect of Dr Kirkham's submissions appears to be based primarily on an argument that an application for costs in the proceedings against him would involve determining matters of Federal subject matter namely the Disability Discrimination Act 1992 (Cth) (DDA).
2. This argument is without foundation and highly speculative as there is no costs application before the Tribunal. This fact was confirmed at the hearing.
3. As such it does not raise a question of federal jurisdiction because it is not genuinely raised in the controversy which is to be determined by the Tribunal in either of the reviews. The reviews are planning merits reviews. The DDA is not raised, and cannot be raised, in any of the relevant matters in these applications for review. Even if a claim under the DDA were formally made by Dr Kirkham, it would not be capable of legal argument in the context of a planning review; it would be an entirely separate and distinct proceeding.
4. Section 84B of the P&E Act sets out the range of matters which are the classes of relevant considerations for the Tribunal in determining the merits of applications for review such as before this Tribunal.
5. Costs applications are governed by section 109 of the VCAT Act.
6. The matters raised by Dr Kirkham are speculative, theoretical or hypothetical at best. The argument does not meet the threshold of what is a federal matter such that VCAT's jurisdiction is affected. As such, there is no impediment to the Tribunal determining the two proceedings which are before it.

Foreign Relations (state and territory Arrangements) Act

1. The second argument raised seeking to identify a federal matter was an argument based the on the proposal being in contravention of the Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) and an argument that VCAT would be acting illegally if it allowed such an arrangement to be facilitated.
2. Any contractual or other arrangements between Melbourne High School and the permit applicant (and any of its associated entities that may be internationally based) are irrelevant to the determination of the section 80 and section 82 applications. The identity of the permit applicant or arrangements it enters into are not relevant matters for the Tribunal nor is it open to the Tribunal to consider them.
3. Whether there is or is not a community benefit arising from the development application is a matter which is a live issue before the Tribunal in its merits assessment.
4. As long as an applicant has standing under the P&E Act to bring the application for review, that is all the Tribunal needs to be concerned about.
5. The only matters which the Tribunal can legitimately take into account are those which are set out in section 84B of the P&E Act. The alleged arrangements between Melbourne High School and the permit applicant do not fall within any of the categories set out in section 84B. Again, the matters raised by Dr Kirkham are not capable of legal argument in the context of a planning review. Moreover, the Tribunal would fall into error if it were to consider extraneous matters such as those urged upon it by Dr Kirkham.
6. A request was made that the matter be referred to the Magistrates Court. It is possible to strike out a matter and transfer it to a more appropriate jurisdiction where a judicial member of the Tribunal is satisfied that there is a more appropriate jurisdiction, including where the Tribunal has no jurisdiction. I am not satisfied that there is any basis at all for these applications for review to be properly referred to the Magistrate Court or any other jurisdiction.
7. I would refuse to exercise my power under section 77 of the VCAT act. To do so would be both misconceived and improper. There is no question of federal jurisdiction genuinely raised by these submissions.

1. Each of the parties indicated there was no objection to the joinder of Dr Kirkham.
2. It is clear that the Tribunal has no jurisdiction to internally review an order or decision made by another member. Dissatisfaction with an order previously made would need to be the subject of any appeal rights in another place.
3. However, a fresh application based on additional circumstances which allowed a decision to be distinguished from earlier circumstances would be possible. There is another question as to whether it would be desirable in the context of fair and efficient justice.
4. Ms Box made cogent submission on this issue and as there was no objection by the other parties, I determined that Dr Kirkham had sufficient interest in the matter and that as he was already a party and participating in the associated matter P101/2023 it is appropriate to permit his joinder. I have considered the application to be a fresh application (rather than a review of the decision of SM Code and the reasons for the decision he made) and I will order Dr Kirkham's joinder pursuant to s 60 of the VCAT Act.

1. In the interests of clarity, I confirm the Compulsory Conference scheduled for or 26 July 20123 is vacated. The orders which otherwise have previously been made will continue to have effect.
2. Some general advice was given to the objectors to seek some expert planning advise in the preparation of their case for the merits hearing, in particular on the matters which are relevant to community benefit.

[1] See Box v Stonnington CC [2023] VCAT 598, [6].

[2] Due to the possible need for orders under s 77 of the VCAT Act.

[3] Part B of Dr Kirkham's written submissions dated 19 June 2023 exemplified this concern expressed by the Tribunal.

[4] [2022] VSCA 226.