1 I declare that the direction made by the Minister for Planning in her letter to the Principal Registrar dated 18 November 2004 and received on 26 November 2004 does not have legal effect pursuant to clause 58(2)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

2 I direct that the proceeding be listed for further hearing, as soon as practicable on or after 1 November 2005, with five days being set aside.

1 The applicant for review has applied for a declaration that a direction by the Minister for Planning ("the Minister") that the Principal Registrar refer the proceeding to the Governor in Council for determination is invalid. It is desirable to set the background to the application.

2 In 2003 the applicant applied to the Shire of Melton ("the council") for a permit to use land at Troups Road South, Mount Cottrell for the purpose of a broiler farm to accommodate 160,000 birds. The application for the permit was advertised and a large number of objections were received. The council failed to determine the application before 19 December 2003, at which time the applicant applied to the tribunal to review the council's failure to decide the matter.

3 On 17 February 2004 the parties to the proceeding were given notice that the hearing was to be held on 28 April 2004. The council then sought a preliminary legal hearing in relation to the application for review to consider whether the proposed broiler farm was prohibited. In order to resolve whether there should be a preliminary hearing the tribunal decided to hear from the parties on the practice day of the tribunal's Planning and Environment List. That practice day hearing was held before me on 12 March 2004 and lasted just under two hours. Detailed submissions were made by the parties; following which I refused to direct that there be a preliminary hearing on the question of whether or not the proposed broiler farm was prohibited. In giving my reasons for the decision I analysed the provisions of the Victorian Code for Broiler Farms, September 2001 and made holdings in respect of this code.

4 By letter dated 20 April 2004, received in facsimile form on 21 April 2004, the Minister directed the Principal Registrar to refer the application for review to the Governor in Council for determination ("the first call-in"). As a consequence the Principal Registrar notified the parties to the proceeding of the call-in and that he had referred the matter to the Governor in Council. Further, the hearing fixed for 28 April 2004 did not proceed. No formal step was taken by the tribunal to cancel this hearing. However at 2.24 pm on 28 April 2004 a clerk of the tribunal noted on a closed field of the tribunal's case management database that the hearing was "cancelled". The relevant field of the database permits three entries: "cancelled", "completed" and "successful". The field does not permit an entry such as "did not proceed" or "hearing stayed".

5 On 7 May 2004 I heard an application challenging the first call-in; and on 14 May 2004 I upheld the challenge and declared that the Minister's call-in did not have legal effect.[1]

6 As a result of my decision in relation to the first call-in, on 21 May 2004 a Senior Registrar of the tribunal fixed the hearing of the proceeding for 28 June 2004, with an expected duration of 5 days, and forwarded a notice of hearing to the parties informing them of this fact.

7 On 4 June 2004 I ordered that the Minister be joined as a party to the application for review. I made this order to make it clear that the Minister had the right to seek leave to appeal against the decision in relation to the first call-in.[2]

8 On 18 June 2004 the Court of Appeal gave leave to the Minister to appeal against the decision. The court also made the following order:

The proceeding in the Victorian Civil and Administrative Tribunal be stayed pending the hearing and determination of the appeal or until further order.

9 As a result of the order of the Court of Appeal, the hearing fixed for 28 June 2004 did not proceed. It does not appear that VCAT notified the parties of the Court of Appeal decision or that the hearing fixed for 28 June 2004 would not proceed. The only action that would appear to have been taken was that at 4.04 pm on 23 June 2004 a clerk of the tribunal made an entry in a field of the tribunal's Caseworks database that the hearing had been "cancelled".

10 On 31 August 2004 the Victorian Civil and Administrative Tribunal Act 1998 ("the Act" or "the VCAT Act") was amended by the substitution of a new clause 58 to Schedule 1 of the Act. It is apparent that this legislative change was a direct response to the decision in relation to the first call-in. Later in these reasons I will consider the new form of this clause.

11 By letter dated 18 November 2004, and received by the tribunal on 26 November 2004, the Minister made a second direction to the Principal Registrar that the proceeding be referred to the Governor in Council for determination ("the second call-in"). In her letter the Minister set out certain background matters and also referred to the substitution of a new clause 58 to Schedule 1 of the VCAT Act. The Minister then said:

I have therefore decided to make a new direction that you refer the review application to the Governor in Council for determination.

I make this direction because the proceeding raises major issues of policy and that the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

In support of the new direction, I draw your attention to three features of new clause 58.

First, it is unnecessary that I consider whether the Tribunal has commenced to hear the proceeding because former clause 58(1)(a) has not been re-enacted. Second, the hearing that took place on 12 March 2004 was either a "directions hearing, preliminary hearing or interlocutory hearing" and is therefore not a hearing to which the restriction in clause 58(3) applies. As a result, a day has not yet been fixed for the hearing of the proceeding. Third, a new direction under clause 58(2) may apply to the review application because it is a proceeding existing on 31 August 2004, as provided for in clause 58(6).

The Minister did not publish reasons for her decision to use the power of intervention, notwithstanding the terms of the practice note "Ministerial Powers of Intervention in Planning and Heritage Matters".[3]

12 On 1 December 2004 the Principal Registrar wrote to the Minister and said, inter alia:

For the purposes of clause 58(3) of Schedule 1, I have considered whether you had so directed me within the time limit set out in the clause (not later than seven days before the date fixed for the hearing of the proceeding). In my opinion you have done so and I am obliged to refer the VCAT application, subject to any future order and the issue discussed below.

On or about 9 June 2004 VCAT fixed a hearing in the VCAT application for 28 June 2004. The hearing did not proceed due to the Court of Appeal staying the proceeding on 18 June 2004. On 23 June VCAT cancelled the fixing of the hearing date and has not fixed a new date.

On 25 November 2004, the day I became aware of your direction, no hearing date was fixed. Therefore, in my opinion you had directed me not later than seven days before the date fixed for the hearing of the proceeding.

However, in my opinion, I am at this time unable to refer the VCAT application to the Governor General [sic] for determination as you have requested, due to Order 2 of the Court of Appeal orders of 18 June 2004 in the matter of Minister for Planning v Joe Buttigieg and Others No 3736 of 2004.

Order 2 says, "the proceeding in the Victorian Civil and Administrative Tribunal be stayed pending the hearing and determination of the appeal or until further order".

In my opinion, the effect of Order 2 is to prevent me taking any steps in the VCAT application including obeying your direction to me.

It is of course open to you to apply to the Court seeking a variation of the orders so that I may obey your direction.

A copy of that letter was forwarded to the parties to the proceeding.

13 On 5 April 2005 the Minister wholly discontinued the proceeding before the Court of Appeal, filing a notice of discontinuance in accordance with the Supreme Court Rules. The discontinuance had the effect that Order 2 of the Court of Appeal no longer had effect. As a consequence, the Minister requested the Principal Registrar to comply with the Minister's call-in letter dated 18 November 2004.

14 It became apparent to the tribunal that the applicant wished to challenge the validity of the second call-in. Accordingly on 27 April 2005 I directed that this question be listed for hearing. In order to preserve the applicant's rights, if any, I also directed the Principal Registrar not to refer the proceeding to the Governor in Council until the matter could be considered by the tribunal.[4]

15 On 20 May 2005 I heard oral submissions by the applicant and the Minister as to whether the second call-in had legal effect. On that day it seemed that the arguments which were advanced by the applicant had not really been anticipated by the Minister. As a result, I provided a further opportunity to make written submissions. This resulted in new matters being raised, which, in turn, required further written submissions in response. This explains, in part, the delay in this decision. I made an order on 20 May 2005 that the Principal Registrar must not refer the proceeding to the Governor in Council until the determination of the present application or until further order. The purpose of this "holding" order was simply to preserve rights until the present application was determined.

16 In my decision in relation to the first call-in I set out the history of call-in provisions in relation to planning appeals. In one sense, the terms of clause 58, as enacted in August 2004, represent part of the evolution of the clause. However there have been changes in language and it is thus necessary to consider the provision afresh and in detail.[5]

17 Clause 58 now provides:

(1) This clause applies to a proceeding for review of a decision under the Planning and Environment Act 1987 if the Minister administering the Planning and Environment Act 1987 considers that -

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

(b) the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

(2) The Minister administering the Planning and Environment Act 1987 may -

(a) by notice in writing to the principal registrar call in the proceeding; or

(i) to decline to hear or to continue to hear the proceeding and refer it to the Governor in Council for determination; or

(ii) to hear or to continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.

(3) A notice or invitation under sub-clause (2) is of no effect unless it is given -

(a) before the final determination of the proceeding; and

(b) no later than 7 days before the day fixed for the hearing of the proceeding.

(4) If the Minister calls in a proceeding under sub-clause (2)(a) -

(a) the Tribunal must not commence or continue to hear the proceeding; and

(b) the principal registrar must refer the proceeding to the Governor in Council for determination.

(5) In sub-clause (3) a reference to a hearing does not include a reference to a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing.

(6) This clause applies to a proceeding existing on or after the commencement of section 3 of the Victorian Civil and Administrative Tribunal (Amendment) Act 2004.

Sub-paragraph 3(a) may seem odd, as it will be a rare case where it will be relevant. However VCAT may make a determination "on the papers"[6]; and in such a case the sub-paragraph will be relevant.

18 As the Minister pointed out in her letter of 18 November 2004 it is clear that, by reason of clause 58(6), the substituted clause applies to the present proceeding. Further, as the Minister pointed out, the hearing that took place on 12 March 2004 is not relevant to the second call-in because it was either a "directions hearing, preliminary hearing or interlocutory hearing" and is therefore not a hearing to which the restriction in clause 58(3) applies. And, as pointed out in the Minister's letter, it is not relevant whether or not the tribunal "has commenced to hear the proceeding" because the former clause 58(1)(a) has not been re-enacted.

19 What is in issue, however, is whether the second call-in was made "no later than seven days before the day fixed for the hearing of the proceeding".

20 In simple terms, the applicant's submission was that the second call-in was made after either 28 April 2004 or 28 June 2004 and that each of these days was a day fixed for the hearing of the proceeding. In fact the applicant went further and also argued that the proceeding was fixed for hearing on 12 March 2004; but by reason of clause 58(5) I reject this part of the submission as that hearing was within the description of a preliminary hearing or an interlocutory hearing.

21 The applicant also submitted that it was not necessary for the hearing to actually take place for the prohibition contained in clause 58(3)(b) to operate.

22 The Minister submitted that, as a hearing did not proceed on either 28 April 2004 or 28 June 2004, neither of those days should be regarded as a day upon which the hearing was "fixed". Alternatively it was said that if a hearing had been fixed on those days the hearing was "unfixed". In this respect the Minister relied upon the decision of Nathan J in Pioneer Concrete (Vic) Pty Ltd v McCutcheon.[7]

23 I find that the tribunal listed the proceeding for hearing on 28 April 2004 and, again, on 28 June 2004. On each occasion the notice of hearing indicated that the hearing had an estimated duration of a number of days. Thus each of the proposed hearings were intended to be the full and final hearing of the matter.

24 The VCAT Act does not make provision for the fixing of proceedings for hearing. But it does require the principal registrar to give notice of the time and place for the hearing of a proceeding[8] and this notice must be in writing.[9] In my opinion, the day such notice is given amounts to the fixing of the hearing. It is important to observe that a hearing is fixed, not when it is held, but when arrangements are made for it to be held. Applying this logic, I find that the present proceeding was fixed for a final hearing when notices of hearing were forwarded to the parties. On 17 February 2004 the hearing was fixed for 28 April 2004; and on 21 May 2004 the hearing was fixed for 28 June 2004.

25 In my opinion, the fact that the hearing did not proceed on either 28 April 2004 or 28 June 2004 does not in itself mean that the hearing was not fixed on either of these dates. It is not necessary for a hearing to actually take place for the prohibition contained in clause 58(3)(b) to operate, because that prohibition can operate before such a hearing actually commences. The focus is on the day "fixed" for the hearing of the proceeding, not the hearing; and any call-in must occur no later than seven days before the day so fixed.

26 Further it is not to the point that the call-in occurred after the date fixed for the hearing. The limitation on the Minister's power does not cease after this date has passed; as otherwise it would permit the Minister to call-in a proceeding during a hearing or during a period, after the hearing, when the tribunal was preparing its decision and reasons. It would be quite incongruous if this was allowed.

27 How does this analysis fit with the purpose of the limitation on the call-in power?

28 In my opinion, it is easy enough to discern the purposes of the limitation on the Minister's power to call-in an application for review. The existence of the call-in power recognises that certain applications for review will have such significance to the State that it is appropriate that the decision be made at the highest level appropriate for an administrative decision - that is, by the Governor in Council. The limitation on that power recognises countervailing factors. First, it is important to maintain and protect the independence and authority of VCAT. This would be undermined if a proceeding was called in when a hearing was in progress or was imminent. Second, the limitation protects arrangements the parties may have made in relation to a hearing, such as engaging counsel or witnesses. (The protection seems inadequate, as counsel are usually engaged several weeks or months before the hearing; and expert witness statements must be filed two weeks before a VCAT hearing.[10]) It is also clear that the Parliament sought to make the law clear and certain.[11]

29 Having regard to the purpose of the limitation on the call-in power, it would be surprising if the postponement of the hearing of a proceeding for more than a week would re-enliven the power. Could the Minister, having failed to call-in a matter, seek a postponement of the hearing so that a matter could be called in? Or, to take a more likely scenario, could a party, who seeks a Ministerial call-in, engage in the delaying tactic of causing the postponement of the hearing so as to advance this strategy? In my opinion, an interpretation which would permit these strategies would be anathema to the purpose of the limitation on the call-in power. It cannot have been the intent of the Parliament. It is more likely that Parliament's intent was that there be a certain date before which any call-in would occur. After that date the parties, and the tribunal, would be free to proceed with the hearing in the knowledge that there would be no call-in, even if that hearing was postponed.

30 What of the contention that the hearings fixed for 28 April 2004 and for 28 June 2004 have become "unfixed"? In the case of statutory powers to make instruments, section 41A of the Interpretation of Legislation Act 1984 addresses this question and extends a power to make an instrument to a power to repeal, revoke, rescind, amend, alter or vary that instrument. Although this section does not apply to the fixing of a hearing as such, it would seem to apply to the issuing of notice of the time and place of a hearing pursuant to section 99 of the VCAT Act. Hence I would accept that it would be possible for a hearing to be fixed, then unfixed, such as when a notice of hearing is issued and subsequently amended, revoked or rescinded. In the case of a revocation, the hearing would become unfixed from the date of the revocation. In the case of a rescission, it is arguable that the hearing might be regarded as having never been fixed; but it is unnecessary to pursue this question as it is a side show to the present dispute.

31 In this context, I turn to consider the decision of Nathan J in Pioneer Concrete (Vic) Pty Ltd v McCutcheon.[12] This decision, which would appear to have been given ex tempore, was, of course, a decision in relation to a predecessor of the current clause 58 (and not just the immediate predecessor, but an earlier version again). The provision considered by Nathan J was section 40(3) of the Planning Appeals Act 1980 which read:

A direction to the Registrar or an invitation to the tribunal to refer an appeal without hearing to the Governor in Council ... has no force or effect unless the direction or invitation is given no later than seven clear days before the date fixed for commencement of hearing of the appeal.

Nathan J was required to consider the following facts. On 28 January 1992 the Registrar of the Administrative Appeals Tribunal of Victoria had given notice that the appeal would be heard on 13 March (a Friday) to 6 April 1992. On 4 February 1992 a subordinate of the Registrar wrote a further letter, enclosing an amended notice of hearing. This letter asked that the previous letter dated 28 January 1992 be disregarded and indicated that the correct date of hearing was 13 April 1992 ( a Monday) to 6 May 1992. The call-in occurred on 24 March 1992, which was more than seven days before the revised hearing date but a week after the hearing date that had been initially (and erroneously) indicated. In these circumstances Nathan J was satisfied that the date fixed for the commencement of the hearing, in the terms of the section, was that indicated in the second letter, namely 13 April 1992.

32 In explaining his decision Nathan J said:

In my view a tribunal in the nature of the Administrative Appeals Tribunal has inherent and in this case specific statutory power to organise its affairs with relation to hearing times. In this case the Registrar is invested with the power to fix a hearing time. It would defy logic and practicality to assume that a date once fixed for hearing, perhaps based on administrative error, perhaps based on what was then thought to be the convenience of the parties, the availability of counsel or any number of factors, becomes an immutable date, engraved in stone, from which there can be no departure so far as the concomitant administrative powers of the tribunal are concerned. In my view the letter of the Registrar of 4 February vacated absolutely the hearing date first fixed and set as a date 13 April.[13]

Nathan J also noted that the change of date had been made within a week of the first notification and that no party had sought to complain or question the change of date. I would also observe that it is unlikely that a three week hearing would be deliberately scheduled to commence on a Friday.

33 After commenting that the Administrative Appeals Tribunal of Victoria "must function as an autocephalous[14] body" Nathan J continued:

It was put to me by Mr Wright that if I permitted a date fixed for hearing to be subsequently altered by administrative fiat, it would enable a minister or at least the tribunal to pre-empt the operation of s 41(3) by merely extending or blowing out the time fixed for hearing thereby allowing the minister to intrude.

If a minister were to act in such a way or if the tribunal itself were to act in such a way, and the facts of doing so established, then indeed most courts in this country would enjoin the further hearing of any such process. There would be other remedies available to an abused plaintiff which I need not detail here.

The fact is that no such circumstance pertains here. I am satisfied that the terms of the Registrar's letter, vacated the notice as first set, and set as a matter of administrative convenience a second dated 13 April, which has given the Minister sufficient time to issue the calling of notices.[15] [sic]

34 In my opinion, the decision in the Pioneer Concrete case is readily explained. Under section 38 of the Planning Appeals Act 1980 the registrar of the tribunal was required to arrange a day, time and place for the hearing of an appeal and cause notice of that day, time and place to be given to each party to the proceeding. Upon the giving of notice on 28 January 1992 the commencement of the hearing was fixed. The notice contained a mistake, probably a clerical mistake. Hence the notice was amended to substitute the correct date. This resulted in a new date being fixed for the commencement of the hearing, in lieu of the previous date. The call-in of the proceeding occurred at least seven clear days before this new date fixed for the commencement of the hearing. Hence this case is an example of a hearing being fixed on a particular date, and then "unfixed" on that date when a new date was fixed.

35 It does not follow that the Pioneer Concrete case applies to the present circumstances. The re-fixing of a case for hearing will not always unfix a previous day fixed for the hearing. Take the case where the parties turn up for the hearing, but the hearing does not proceed because a member is ill. Or a case where a hearing is abandoned because there is a security concern. In these situations, the hearing will be refixed - that is, fixed again - but this will not involve the cancellation or amendment of the first fixture. There is no reason why a proceeding cannot be fixed for hearing on more than one occasion. Hence I reject the submission that the Pioneer Concrete case dictates the outcome in this case.

36 The hearing fixed for 28 April 2004 did not proceed because of the first call-in. As the first call-in had no legal effect, the hearing should have proceeded on that date. The fact that the hearing did not proceed on 28 April 2004 does not mean that the hearing was not fixed for that date. Nor does it mean that that date of hearing was unfixed. Certainly the parties were told that the proceeding had been called-in; but, importantly, the parties were not given any notice amending or revoking the notice that the hearing would be held on 28 April 2004. If that hearing was to be unfixed by the Principal Registrar, it would have required such a notice, as this is the legal mechanism by which he can fix or unfix hearings.

37 It may also be the case that a hearing can be unfixed if the proceeding is subject to a legally effective call-in; but this did not happen in this case.

38 I further find that the database entry made on 28 April 2004 did not unfix this hearing date. This was a response internal to the tribunal, effected for the tribunal's convenience. It did not engage the legal mechanism for fixing or unfixing a hearing. Moreover, as it occurred after the time fixed for the hearing had passed, it was too late to be regarded as unfixing the date of the hearing.

39 The hearing fixed for 28 June 2004 was (effectively) stayed by the Court of Appeal. A stay order is an order which has the effect of suspending the operation of another order or a proceeding or a hearing, generally pending the outcome of some other proceeding. A stay order does not cancel the earlier order or proceeding or hearing; if the stay order is vacated, the earlier order, proceeding or hearing is unsuspended and will then operate or may proceed. Hence the stay order did not in terms cancel or unfix the hearing date. Nonetheless, should this be implied? I am not prepared to make such an implication as it would create a worrying precedent. If a party could enliven the Minister's power to call-in an application for review by identifying an arguable case and obtaining a stay of the proceeding, this would deprive the planning system of certainty.

40 Nor did the database entry on 23 June 2004 unfix the hearing date. Importantly, the parties were not given any notice by VCAT amending or revoking the notice that a hearing would be held on 28 June 2004. My conclusion is not changed by the Principal Registrar's statement in his letter dated 1 December 2004 that VCAT cancelled the fixing of the June hearing date. If this statement means that the hearing date was unfixed, it is not correct. The making of an entry on the tribunal's computer database does not unfix a hearing. For a hearing, once fixed, to be unfixed, the parties must be given written notice in accordance with section 99 of the Act. This did not occur.

41 As neither date fixed for the hearing of the proceeding was unfixed, the second call-in occurred later than seven days before the day fixed for the hearing of the proceeding. The first hearing date is the relevant one: it established a cut-off date for a call-in at 21 April 2004.

42 In determining the issues raised in this proceeding, I am conscious of the principles articulate by Gaudron J in Enfield City Corporation v Development Assessment Commissio__n when she said:

Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the court should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.[16] [Footnote omitted.]

Hence the appropriate order is that I declare that the second call-in did not have legal effect.

[1] For detailed findings of fact and holdings in respect of this decision see Buttigieg v Melton Shire Council [2004] VCAT 868.

[2] [2004] VCAT 1048.

[3] I discussed the history of this practice note in East Melbourne Group Inc v Minister for Planning [2005] VSC 242 at [55].

[4] The order actually directed the Principal Registrar not to refer the proceeding to the "Governor General", but it was clearly intended to be a reference to the Governor in Council.

[5] Although the changes might be thought to have widened the scope for the Minister to call-in VCAT proceedings, the deletion of a Presidential discretion in relation to the 7 day limitation has worked in the opposite direction: compare the previous clause 58(3) with the current clause 58(3).

[6] Victorian Civil and Administrative Tribunal Act 1998, section 100(2).

[7] (1992) 77 LGRA 77.

[8] Section 99.

[9] Rule 4.12 of the Victorian Civil and Administrative Tribunal Rules 1998.

[10] See Practice Notes PNPE 1 - General Procedures clause 4.2 and PNVCAT 2 - Expert Evidence.

[11] See the Minister's second reading speech in the Legislative Council on 27 May 2004, Hansard, page 1201.

[12] (1992) 77 LGRA 77.

[13] (1992) 77 LGRA 77, at 78.

[14] "Not under the jurisdiction of another." In hierarchical Christian churches, especially Eastern Orthodox and Oriental Orthodox churches, autocephaly is the status of a hierarchical church whose head bishop does not report to any higher-ranking bishop.

[15] (1992) 77 LGRA 77, at 79.

[16] [2000] HCA 5; (2000) 199 CLR 135, at 157; also note the endorsement of this passage by Hayne J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, at [211].