(given orally at the hearing and subsequently revised)

1 The Minister for Planning (the Minister) has applied to the tribunal to become, or be recognised as, a party in this proceeding. Details of the proceeding and its conduct before the tribunal are set out in my decision of 14 May 2004. In that decision I declared that the direction made by the Minister in a letter to the principal registrar dated 20 April 2004 did not have legal effect pursuant to clause 58(2)(a) of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 as the tribunal had commenced to hear the proceeding before the letter was received.

2 By letter dated 1 June 2004 the Minister explained the reasons why she wished to be a party to the proceeding. She indicated that she intended to appeal from the decision of the tribunal made on 14 May 2004. She noted that section 148 of the Victorian Civil and Administrative Tribunal Act provides that an application to appeal to the Supreme Court of Victoria, by leave, is given to a party to a proceeding. Further the Minister indicated that, quite apart from any appeal, she wished to participate in the further conduct of the proceeding before the tribunal.

3 The application made by the Minister is primarily made pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act. This section empowers the tribunal to order that a person be joined as a party to a proceeding in certain circumstances. It is, as has previously been observed, a wide power.

4 The Minister also seeks to intervene in the proceeding before the tribunal in the exercise of her power pursuant to clause 57 of schedule 1 of the Victorian Civil and Administrative Tribunal Act. That clause provides as follows:

57 (1) The relevant Minister may intervene at any time in a proceeding under a planning enactment if he or she considers that -

(a) the proceeding raises a major issue of policy; and

(b) in the case of a review brought under the Planning and Environment Act 1987, the determination of the review may have a substantial effect on the future planning of the area in which the land the subject of the review is situated.

(2) For the avoidance of doubt, the relevant Minister may intervene in a proceeding under a planning enactment after the Tribunal has heard the proceeding but before it has delivered its final determination in the proceeding.

(3) Section 73 does not apply to a proceeding under a planning enactment.

"relevant minister" means the Minister administering the planning enactment under which the proceeding is brought.

5 The Minister has indicated, in the letter dated 1 June 2004 and through her counsel, that she considers that the proceeding raises a major issue of policy and that the determination of the review may have a substantial effect on the future planning of the area in which the land, the subject of the review, is situated.

6 The application was brought on before the tribunal in circumstances of some urgency, as the time within which an application for leave to appeal might be lodged to the Supreme Court of Victoria against the decision of the tribunal dated 14 May 2004 is limited. In the circumstances I directed that the objectors in the proceeding need not be notified of the application, although, as matters have transpired, two groups of objectors have appeared and have been heard. One group, represented by Mr Custance, supported the Minister's application. Another group, represented by Mr Edwards, opposed the application and generally supported the submissions made by Mr Proctor, who appeared on behalf of the applicant for review.

7 Mr Proctor presented a detailed submission. In it he contended that the Minister had had an opportunity to be joined as a party and had expressly refrained from taking up that opportunity. So much is clear, however I am not persuaded that a person who refuses to take up an opportunity to become a party to a proceeding is, as a consequence, automatically disqualified from making such an application at a future time. Certainly there will be circumstances where a party, having had an opportunity and not taking it, will be prevented from subsequently seeking to take up that opportunity. But I am not satisfied that that principle applies in the present circumstances. Essentially the Minister took the view prior to my decision on 14 May 2004 that the call-in of 21 April 2004 was legally effective. In those circumstances it is understandable that the Minister, at that stage, did not wish to be a party. Those circumstances were changed by my decision. The effect of my decision is that the call-in was not legally effective. That being so the Minister has a real interest in being a party, not only to contest the correctness of the decision, but also to participate in the proceeding before the tribunal.

8 It is desirable to first deal with the nature of clause 57 of schedule 1 of the Victorian Civil and Administrative Tribunal Act. This power, although procedurally different than that contained within section 73 of the Act, is directed at the same purpose. It is a power that enables the holder of a statutory office to intervene in a proceeding before the tribunal. It is not a matter of discretion for the tribunal. There are no rules or practices, to my knowledge, which govern the method of intervention. Certainly the Minister must consider that the matters specified in paragraphs (a) and (b) of clause 57(1) exist but, assuming this is the case, it would seem that the method of intervention might be by writing a letter to the principal registrar of the tribunal or, simply, by turning up either in person or represented by counsel at a tribunal hearing. If the Minister does intervene by either method, the Minister, as an intervener, is thence to be regarded as a party. Further, as the Minister as an intervener is then to be regarded as a party, she has all the privileges and responsibilities of a party. As explained in Corporate Affairs Commission v Bradley; Commonwealth of Australia[1], the intervener can then appeal, tender evidence and participate fully in all aspects of the argument. Indeed, by reason of the language used in clause 57 the Minister may intervene in a proceeding even if the hearing has been completed and the matter is simply awaiting decision. Of course in such a case it would usually be necessary for the hearing to be reconvened, not only to consider the submissions to be made upon intervention, but also to ensure that other parties have an opportunity to respond. Although the Minister has the power to intervene in a proceeding at any time right up to the death knock, the tribunal would hope that the Minister would exercise this power as early as practicable in a proceeding so as to promote not only fair procedures, but also good administration.

9 I find that in this case the Minister has intervened. I find that the Minister does consider that the matters specified in paragraphs (a) and (b) of clause 57(1) of schedule 1 of the Victorian Civil and Administrative Tribunal Act exist. This is not the occasion to deal with a challenge to the Minister having formed such a view on those matters. If such a challenge is to be brought, it would be preferable for it to be brought directly rather than in this application. Having made these findings it is desirable that I make a declaration, so as to remove doubts as to the Minister's status in the matter.

10 I have been asked by Mr Dreyfus QC, who appeared with Dr Emerton for the Minister, to also consider the matter under section 60 of the Victorian Civil and Administrative Tribunal Act, notwithstanding that the Minister may be a party by reason of her intervention. One of the criteria set out in section 60 is whether or not the person's interests are affected by the proceeding. There can be no doubt that the Minister's interests are affected by the proceeding, in particular the order made in the proceeding on 14 May 2004. That order goes directly to the Minister's powers or, more accurately, the exercise of the Minister's powers in the proceeding.

11 There are two other reasons why it is desirable to join the Minister. First, one reason why the Minister seeks to be joined is to challenge the decision I made on 14 May 2004 in the Court of Appeal. It is important that decisions made by tribunals and courts be open to appeal (even if leave must be obtained) and legal challenge. There are a number of attributes of decisions made by tribunals and courts that set them apart from decisions made by the executive branch of government and which give judicial decisions their moral authority. For example, courts and tribunals conduct their proceedings using an open process which is available for observation by the public. Courts and tribunals use a fair process: parties who may be affected by a decision are given a right to be heard and are heard. Courts and tribunals are independently constituted. No member of the tribunal, or for that matter, no judge, is beholden to any other person when they make a decision in a proceeding. Courts and tribunals give reasons for their decisions. And, finally, the decisions of courts and tribunals are subject to appeal. All these things clothe decisions of courts and tribunals with moral authority which, in turn, promotes community confidence in the rule of law and the administration of justice. If a decision made by a tribunal contains a legal error it is right, not only that it be subject to an appeal process, but also that the appeal might succeed so as to prevent the continuance of that error.

12 The second factor which is relevant is that the making of an order under section 60 is likely to promote clarity as to the status of the Minister in the proceeding; and thus facilitate the expeditious consideration of the substance of the matter and avoid procedural obfuscation and uncertainty. In his excellent paper Challenging Decisions of the Victorian Civil and Administrative Tribunal,[2] Jason Pizer outlined the various methods by which a VCAT decision may be challenged. Some of those methods might not be applicable when the tribunal is constituted by a judge of the Supreme Court of Victoria. But it is clear that the method described in section 148 of the Victorian Civil and Administrative Tribunal Act does enable a party to a proceeding to appeal to the Court of Appeal against a decision of the tribunal so constituted, by leave, and it will generally be the most expeditious and appropriate method of challenging a VCAT decision.

13 One of the issues which might be raised by the Minister, if she does seek to appeal against my decision of 14 May 2004, may concern the jurisdiction of the tribunal to deal with the Minister's call-in. If such a ground is raised the most convenient method of dealing with it would be pursuant to an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act. In this respect, however, I must note the comment made by the Court of Appeal, albeit obiter dictum, in Attorney General v The Warehouse Group Australia Pty Ltd[3] to the effect that a jurisdictional challenge should be mounted by way of judicial review, not appeal. In his paper Mr Pizer described this obiter dictum as "curious". Mr Pizer lists six separate criticisms of the obiter dictum. It is unnecessary and undesirable for me to enter into this debate in determining this application, except to say that section 148 will usually provide the most convenient method of challenging a VCAT decision, including as to jurisdiction, as it enables the legal correctness of that decision to be considered by the Supreme Court[4]. Hence I conclude that it is desirable that I make the order sought by the Minister that she be joined as a party pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act.

14 In his submissions Mr Proctor raised the question of costs, in particular the costs that might be imposed upon his client in the event that the Minister seeks and/or obtains leave to appeal to the Court of Appeal. He challenged Mr Dreyfus to give an undertaking that the Minister would pay such costs. Mr Dreyfus did not respond to the challenge. I think this is a matter not for me, but for the Court of Appeal. It is common, particularly in taxation matters that are taken to the High Court of Australia, for leave to be given for a government, or an agency of the government, on the condition that the government or agency of the government pay the costs of both sides of the proceeding. In circumstances where, on the one side, there is the State or an instrument of the State and, on the other side, a typical member of the community, there is obvious merit in this practice. This is especially so when the issues involved go beyond the immediate issues that the individual party might have anticipated when proceedings were commenced. But, as I have indicated, this surely is a matter for the Court of Appeal to consider if it decides that leave should be granted, rather than a matter to be considered on the present application.

[2] A paper delivered at Judicial College of Victoria's twilight seminar on 28 August 2003.

[3] [2002] VSCA 76; (2002) 19 VAR 111, at 117.

[4] See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 at 79-80.