Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402

1. Under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the time for the commencement of proceedings Z287/2015, Z324/2015, Z325/2015 & Z326/2015 is extended to the date each application was made.
2. Under section 75(1)(a) of the VCAT Act, the applications in proceedings Z287/2015, Z324/2015, Z325/2015 & Z326/2015 are dismissed.
3. The respondent's application for costs under section 75(2) of the VCAT Act in each proceeding is dismissed.

1. Each of the applicants is a registered member of the Victorian State Emergency Service (VICSES). Each volunteered at the Bacchus Marsh VICSES unit (Unit).
2. The applicants have all made individual applications to the tribunal seeking review of what they say was a decision made by VICSES under the Victoria State Emergency Service Act 2005 (Vic) (VICSES Act) and the Victoria State Emergency Service Regulations 2006 (Vic) (regulations).
3. The applicants say that, by letter dated 12 January 2015, VICSES suspended each of them and they ask the tribunal to review the suspension decisions under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
4. VICSES says that it made no decisions which are reviewable by the tribunal and so it has applied for each application to be struck out under section 75 of the VCAT Act. VICSES has also applied for its costs in respect of each proceeding.
5. I have decided that there are no reviewable decisions before the tribunal and so the applications will all be dismissed.

1. The following comes primarily from the applications and witness statements made by the applicants. Mr McDougall, counsel for VICSES, told me that much of what the applicants say about what was said and done before and after 12 January 2015 is in hot dispute.
2. In around September 2014, the applicants fell into dispute with the leadership team of the Unit. Over the course of September and October 2014, there were a number of meetings and discussions about the manner in which the Unit was being led and managed.
3. On 10 October 2014, Mr Peter Keppel, Acting Regional Manager for the Mid West Region, wrote to each of the applicants about the commencement of an investigation into the Unit in the same terms. The letter sent to Mr R Chapman said as follows:

Re: Investigation into grievances raised by members of the Bacchus Marsh Unit

I am writing to inform you that there have been a number of grievances and concerns raised by both the Unit Leadership Team and a group of members that have not been able to be resolved after considerable intervention by the Regional manager and other staff.

These matters have been referred to Katrina Bahen, Director Human Resources (DHR) to review. The DHR has engaged an independent investigator to undertake a preliminary investigation into the various grievances and concerns raised by the leadership team and by members of the Unit. This preliminary investigation will determine if VICSES is able to provide a safe working environment for the members of Bacchus Marsh Unit or if further investigation is required to determine whether charges will be laid against individuals under Part 2-Discipline clause 6 of the Victoria State Emergency Service Regulations 2006.

The independent investigator will be D.W. Bowe and Associates and they will commence the preliminary investigation on Monday 13 October 2014. I will be in contact with you if the investigator requires a face to face meeting with you during this initial stage.

1. Mr R Chapman and Mr Bennett attended an interview with the investigator. Mr D and Mr P Chapman were unable to attend due to other commitments, however, they each submitted a statement.
2. On 12 January 2015, Mr Stephen Warren, Assistant Chief Officer and Regional Manager - Mid West Region, wrote to each of the Chapman men saying:

Re: Preliminary Investigation Safe Working Environment - Disciplinary Matters

This letter is to inform you of the outcome of the independent preliminary investigation undertaken in consideration of the various grievances and concerns raised by the leadership team and members of the Bacchus Marsh Unit.

The terms of reference for the investigation included consideration of safe working environment issues and an initial assessment of conduct that could potentially give rise to disciplinary action due to breaches of the organisation's policies.

The volume and nature of verbal and written complaints and counter-complaints is said to have impacted on the health and wellbeing of every member of the Unit.

While some of the incidents could be described as being relatively minor, they have become more significant, both from a health and wellbeing perspective, and a disciplinary perspective, in the context of exhibiting a pattern of behaviour which requires preventative action.

Other incidents such as driving a (sic) SES vehicle under EVS conditions after having consumed alcohol, or not following the directions of leaders, or falsifying SES incident records, or demonstrating a lack of integrity or honesty, could not be described as minor matters. These matters have serious disciplinary, health and safety and effective service delivery implications.

With the depth of ill will, distrust and disrespect that has developed over a period of approximately two years, it is unrealistic to believe the members of Bacchus Marsh Unit can return to a positive and safe working environment whilst you are still attending the Unit. The lack of genuine desire to resolve differences and work together in a positive and collaborative way arises from the openly expressed view of you and your sons that the leadership group is incompetent and should be dismissed, with you and/or others from your group taking over the leadership.

• VICSES does not intend to dismiss the current Unit Controller therefore David Lambrick, and the leaders appointed by Mr Lambrick will continue to lead the Unit.
• VICSES expects you to interact with the Unit leadership in a manner that is consistent with the organisation's values and policies, including demonstrating respect for the leadership structure, complying with lawful directions and positively representing the interest of the Unit with the service and the wider community.
• As a general principle, Unit, State and Regional leaders will not consider an issue or grievance raised by you or others unless and until specified steps have been taken, in good faith, to attempt to address and resolve the issue at the lowest possible level within the Unit.
• VICSES has taken the concerns you have raised about the Unit leadership seriously, and will continue to address a number of the matters directly with the Unit leadership, noting that for normal confidentiality reasons the organisation will not be discussing all the steps that need to be taken, with persons outside the leadership group.
• VICSES has taken the concerns raised by others about your conduct and others seriously, and may choose to ask you and them to respond to specific allegations.

Because of the serious nature of the allegations raised about your conduct, and the potentially serious health and safety risks, it is appropriate to advise that you are to return all the VICSES equipment to the Regional Office and cease attending the Bacchus Marsh Unit until such time as the organisation decides the risks to health and safety are eliminated or minimised in accordance with the organisation's WHS safe working environment responsibilities.

Failure to comply with this direction will require VICSES to begin taking steps to cancel your membership if it considers that is the most appropriate action to eliminate or minimise the risk to health and safety identified through the process (in accordance with the organisation's WHS safe working environment duties); and/or in response to substantiated breaches of the organisation's policies.

I will arrange a meeting with you and the Director Human Resources, Katrina Bahen and myself to discuss this matter and also to clarify what would be required for you to demonstrate behavioural change of sufficient magnitude and scope for you to be able to resume duties with the Bacchus Marsh Unit without jeopardising VICSES duty of care to provide a safe working environment for Unit members.

1. ACO Warren also sent a letter dated 12 January 2015 to Mr Bennett. In that letter, the content was largely the same except that the 'Findings' section said the following:

The volume and nature of verbal and written complaints and counter-complaints is said to have impacted on the health and wellbeing of every member of the Unit.

In particular your emails to both the Regional Manager and the Unit Controller demonstrate a lack of insight by you when you take such a directive tone in your manner and language in communicating with people in authority and not recognising that this would be seen as disrespectful, discourteous and inappropriate. Telling your manager what he or she must do, the outcomes he or she must achieve and imposing timeframes to do so is unlikely to encourage an effective working relationship with any manager, let alone a volunteer Unit Controller. This type of communication is perceived to be inconsistent with the VICSES Code of Conduct's expectations of respect for the leadership structure.

1. Mr Bennett's letter differed further in that, after the 'Outcomes' section, it said:

I will arrange a meeting with you, the Director Human Resources, Katrina Bahen and myself to inform you of a healthy issue resolution process that will be applied in future in this Unit to ensure VICSES' duty of care to provide a safe working environment for Unit members is achieved.

1. On 30 January 2014, a meeting was held between Mr R Chapman, ACO Warren, Ms Bahen and Unit Controller Lambrick.
2. Immediately prior to the meeting, ACO Warren collected Mr R Chapman's uniform, equipment and identification and placed those items together with Mr D and Mr P Chapman's items into his car. Mr R Chapman said he understood from that action that he was not only suspended but that his membership had been terminated.
3. The attendees accounts of what occurred at the meeting held that day differs. Mr R Chapman says, in summary, he was told that he and his sons were being suspended and they would only be allowed to re-join with the consent of the Unit controller and after he had made behavioural and character checks with other organisations they attended.
4. ACO Warren's version is contained in a letter dated 6 February 2015. It says relevantly:

Outcomes of the meeting held on the 30 January 2014 - Disciplinary Matters

This letter is to confirm with you the Victoria State Emergency Service (VICSES) determination in providing a safe working environment for the members of the Bacchus Marsh Unit.

As discussed, the methods used to raise concerns and the demands placed on the leadership team have proved destructive to other members' wellbeing and the function of the Unit. The Unit leaders are also volunteers with family responsibilities and employment outside of VICSES. The approach to issues should be a risk based approach and actioned by the membership team, not demands directed to the Unit leadership team.

We also discussed the depth of ill will, distrust and disrespect that has developed over a period of approximately two years. It is unrealistic to believe the group can return to a positive and safe working environment whilst you are still attending the Unit. You agreed that a cooling off period would be appropriate whilst the Regional office continued to support the Unit in addressing the issues raised.

An action plan will be developed, implemented and monitored by the Region over the next 12 months. Whilst the program of works is undertaken you will need to demonstrate there is a change in your behaviour in dealing with issues and individual members. This will be monitored by the Regional Manager and will include referee checks from counterparts in relevant emergency service agencies and community groups where you volunteer. Ensuring a safe working environment on your return to the Unit will also be dependent on your interactions with VICSES members outside of the Unit and at emergency incidents where you may be attending in another capacity.

I am encouraged by your responses in our meeting and I hope you can see your way clear to continue to support your community in a positive and proactive way as part of the VICSES team.

1. On 9 March 2015, Mr Bennett contacted ACO Warren to arrange to collect his personal belongings. When he attended the Unit he said he found his gear missing. He said his name on his 'turn out' hook had been removed and replaced with that of another member. I was told those hooks are usually allocated for life. Mr Bennett said that the next day he received a phone call from Mr Lambrick telling him he was not allowed to enter the Unit. When Mr Bennett asked where his belongings, including his uniform, were he says he was told they were in safe keeping and would not be returned until he was ready. Mr Bennett says that ACO Warren attended his home the next day and told him he was suspended as he would not accept the outcomes set out in the January 2015 letter. His belongings were returned to him at that time.
2. In the meantime, during mid January 2015, Mr D and Mr P Chapman's intranet access had been disabled.
3. In mid January 2015, Mr R Chapman's rank on the intranet changed from Unit Officer to Member Ordinary. As I understand it at some point in time thereafter, his status was changed to inactive. Mr R Chapman regarded the change in rank as a demotion. VICSES says that he was temporarily appointed to the role of Unit Officer only while another officer was on leave and so there was no demotion.
4. Mr R Chapman says he and his sons were told by other Unit members that, at a meeting of the Unit, the members were informed that each of the Chapman men and Mr Bennett had been suspended until further notice.
5. The witness statements filed with the tribunal show that from 12 January 2015 to early April 2015 there were numerous letters and emails exchanged between the applicants and representatives of the VICSES and a number of conversations were held.
6. As I understand it, in around late March to early April 2015, Mr R Chapman and Mr Bennett were told that they were not suspended and that they were 'clear'. Mr R Chapman says that, in a conversation on 26 March 2015, he asked ACO Warren which regulation was being relied on to suspend him. After some hesitation, ACO Warren was said to have referred to work health and safety laws and then confirmed that there was no suspension in place. On 1 April 2015, ACO Warren emailed Mr R Chapman saying that there was an agreement for him to stay away from the Unit for 12 months.
7. The other applicants made similar enquiries about these matters. On 13 April 2015, Ms Bahen emailed Mr Bennett referring to VICSES' duty of care under the 'OHS Act' to provide a safe working environment.
8. Mr R Chapman made his application to the tribunal on 13 April 2015. Mr D and P Chapman and Mr Bennett applied on 28 April 2015. The tribunal file shows that Mr R Chapman's 13 April 2015 application listed him, his sons and Mr Bennett as joint applicants. On 23 April 2015, the tribunal wrote to him explaining that each applicant had to make his own application. That is the explanation for the range of application dates.

Extension of time under section 126 of the VCAT Act

1. Regulation 21 says that the entitlement to seek review of certain decisions under the regulations must be exercised by an application being lodged within 30 days after the date the member receives written notice of the decision and the reasons for it. VICSES says that each of the applicant's applications were made out of time as, if the applicants are correct and the letters dated 12 January 2015 are reviewable by the tribunal, the applications were made too late.
2. As noted above, the application dates were 13 and 28 April 2015, some 90 and 106 days respectively after the date of the 12 January 2015 letters.
3. Section 126 of the VCAT Act allows the tribunal to extend time in specified circumstances. It says, relevantly:

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

1. VICSES says that no extension of time ought to be allowed because: no acceptable reason has been given for the delay; no reason has been given as to why an extension would be fair and reasonable; the applicants have expressed their dissatisfaction with the letters since late January and early February 2015 and yet did not commence proceedings soon after; and for jurisdictional reasons, the applications have little merit. VICSES says that all the applicants were asked to do in the 12 January 2015 letters was to meet with officers of VICSES before returning to the Unit. VICSES conceded that there would be no prejudice to it if an extension of time was granted.
2. The applicants say they understood that, once a decision had been made, they had to work through the chain of command to address what they regarded as an unfair and incorrect suspension. They said that they had all tried to clarify the basis for the suspension by asking under what policy or law it was imposed. They accepted a decision had been made but did not accept there was a final decision until the Chief Officer, Operations (COO) responded to their questions and complaints. It was only on 25 March 2015, that they were notified, via his letter dated 12 March 2015, that the COO would not act on their complaints or otherwise intervene. They made efforts after that to seek further explanations within VICSES. I understand the applicants say that, only once the impasse was reached in early April 2015, did they decide they ought to commence these proceedings.
3. In considering whether to extend the time for each application, I have had regard to the following matters:
   • The applicants' correspondence and other communications with VICSES about their concerns and their requests for information and clarification during the period January to early April 2015;
   • The fact that they are not legally represented;
   • Their first unsuccessful effort to make an application on 13 April 2015; and
   • The fact that VICSES has conceded it will not be prejudiced if an extension is allowed.
4. Taking those matters into account, I consider it appropriate to exercise my discretion to extend the time for the making of the applications. Accordingly, I will make an order under section 126 of the VCAT Act extending the time for the making of the application for review to the date each application was made. That will allow for a proper consideration of the question whether the tribunal has jurisdiction in this matter.

1. VICSES says that, if time is extended for the applications, they should be summarily dismissed under section 75 of the VCAT Act on the basis that each application is misconceived, lacking in substance and an abuse of process.
2. Section 75 of the VCAT Act gives the tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (section 75(1)(a)), or is otherwise an abuse of process (section 75(1)(b)).
3. There have been many cases about section 75 and the law about how to approach the section is clear.[1] The tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
4. If the tribunal is not satisfied that the proceeding should be summarily dismissed or struck out, the matter should go to a hearing so the applicant has the chance to have the application heard and so the evidence can be tested in the usual way. When the high bar set out above is not reached, and there is simply a dispute between the parties as to the application, the matter should go to hearing.
5. In considering an application under section 75, the tribunal must take the applicants' cases at their highest.

1. In short, the applicants say that the effect of the letters dated 12 January 2015 is that they were each suspended. They say that the subsequent actions of VICSES described in paragraphs 14 to 20 above, confirm that decision was made. They say that the suspension occurred under regulation 18 of the regulations and so they have a right under regulation 21 to have the suspension decision reviewed by the tribunal.
2. VICSES says that there was no suspension but that, even if there was, it was not a decision made under regulation 18 and so there is no right of review by the tribunal.
3. I will deal only briefly with the question of whether there was a suspension because the basis for my decision turns not on that question but on whether any such decision is reviewable under section 51 of the VCAT Act.
4. I will first, though, describe the relevant provisions of the VICSES Act and the regulations.

The Governor in Council may make regulations for or with respect to

(d) the discipline and good conduct of registered members and probationary members;

1. Regulation 18 is in issue in this case. Regulation 18 falls within Part 2 of the regulations. Part 2 sets out detailed disciplinary processes. In summary, Part 2 provides for the following:

1. If a person has reasonable grounds to believe that a member (whether registered or probationary) has undertaken one or more of a list of specified actions, he or she may make a complaint to the COO (regulation 6(2)); 2. The matters about which a complaint may be made include allegations that a member has contravened the VICSES Act or the regulations, committed an unlawful act, committed an act or behaved in a manner that is likely to harm the operation or reputation of VICSES, has been disruptive, uncooperative or incompetent and that arises from causes within the control of the member or the member has failed to comply with lawful commands or standing orders (regulation 6(1));

1. Complaints must be made in writing and must specify the facts or matters on which the complaint is based (regulation 6(3));

1. The member must be given written notice of any complaint made within 14 days of it have been made (regulation 8); 2. Within 14 days of receiving a complaint, the COO must decide whether or not to investigate taking into account including whether he or she considers the complaint to be misconceived or lacking in substance or frivolous or vexatious (regulation 9); 3. Subject to a power to extend time, the investigation must be completed within 28 days of the date on which it was commenced (regulation 11); 4. Within 14 days of completing the investigation, the COO must give notice in writing to the member either that the complaint has been dismissed or withdrawn or that a decision has been made to lay a charge. A hearing is required to be held to determine any charge (regulation 12); 5. If a charge is to be laid, notice of it must be given, setting out the full particulars of the charge and the time, date and place of the hearing of the charge (regulation 13); 6. If a complaint is made or a charge is laid, the COO may suspend the membership of the member at any time after receiving the complaint and before the charge is heard. A suspension may be imposed if the COO believes that, if the complaint or charge is substantiated, the continued membership of the member would be likely to harm the operation or reputation of VICSES (regulation 15); 7. Charges are required to be heard by the Victoria State Emergency Service Authority (Authority). Regulation 16 sets out the manner in which hearings may be conducted and provides for a right for the member to be legally represented and to call witnesses; and 8. A charge must be dismissed if, after conducting the hearing, the Authority is of the opinion that the charge cannot be substantiated or that the action or inaction on which the charge is based is not of sufficient seriousness to merit further action (regulation 17).
2. Regulation 18 sets out the penalties which may be imposed if a charge is substantiated and says:

(1) If, after conducting a hearing of a charge, the Authority is satisfied that the charge has been substantiated and does merit further action, it may do one or more of the following -

(a) reprimand the registered member or probationary member;

(b) reduce the rank or classification of the registered member or probationary member;

(c) suspend the membership of a registered member or probationary member -

(ii) if the membership is cancelled as provided for by paragraph (d) - for the period beginning on the date on which the registered member or probationary member is advised of the decision to cancel their membership and ending on the day on which the cancellation takes effect;

(d) cancel the membership of the registered member or probationary member.

(2) The Authority must give the registered member or probationary member notice, in writing, of any action taken under subregulation (1) and the reasons for the taking of that action within 21 days after the hearing.

(3) A registered member or probationary member whose membership is suspended as provided under subregulation (1)(c) must, on being given notice of the suspension under subregulation (2), comply with regulation 35 as if his or her membership has been cancelled.

1. Regulation 21(1) contains the right to have decisions of the Authority reviewed. It says:

A registered member or probationary member may apply to the VCAT for review of any decision made by the Authority under regulation 18 or 20.[2]

1. The applicants say that the actions of the VICSES against them amount to a de facto suspension under regulation 18(1)(c) and that the change in Mr R Chapman's rank falls within regulation 18(1)(b).

1. Leaving to one side the disciplinary processes set out in the regulations, it seems to me, applying the ordinary meaning of suspension, that it might be said that the applicants were suspended. That meaning includes action causing something to cease or bring to a stop or action causing a cessation, for a time, of the operation of a privilege or the like or the exercise of the enjoyment of a privilege.[3]
2. The applicants were told not to attend the Unit. Their uniforms and other necessary items had been removed. Their intranet access appears to have been removed or changed. While it is correct to say the 12 January 2015 letters required them to attend a meeting, for the Chapmans that letter and subsequent correspondence made it plain that they would not be expected to return to the Unit for 12 months to allow time for the processes and steps outlined in the letter to be completed. There was a requirement to demonstrate behavioural change to VICSES and apparently produce references or be subject to checks before returning. In my opinion, relying on the material described above and taking the applicants' cases at their highest, it is arguable that those circumstances are consistent with the ordinary meaning of suspension.
3. However, that opinion is not sufficient to found a right of review before this tribunal. It is necessary for the decision made to fall within the tribunal's review powers.

1. As a creature of statute, the tribunal only has the powers it is granted through the VCAT Act or under another enactment. Regulation 18 is an example of the legislature granting the tribunal review jurisdiction. When exercising its review jurisdiction, the tribunal has all the functions of the decision-maker and any other functions conferred on the tribunal by or under the enabling enactment, regulations or the rules.
2. VICSES made submissions as to the nature of those decisions which are reviewable under the VCAT Act. I accept those submissions.
3. The starting point is to identify a decision made under an enactment. Decisions of that kind meet two criteria: the decision must be expressly or impliedly required or authorised by the enactment and the decision must confer, alter or otherwise affect legal rights or obligations.[4]
4. The fact that a decision is made beyond power or in a manner that does not satisfy a jurisdictional condition for the exercise of the power does not affect the tribunal's jurisdiction. So, a decision made invalidly may nevertheless be reviewable. In Garde-Wilson v Legal Services Board,[5] Bell J considered whether the Legal Services Board's decision to refuse renewal of Ms Garde-Wilson's practising certificate was invalid because it was made after the time limit specified in the Legal Profession Act 2004 (Vic). His Honour decided that, having regard to the provisions of that Act and its purposes, the decision was valid despite having been made outside the required time frame. His Honour discussed the nature of review of decisions by the tribunal and confirmed that, even where there was a jurisdictional error on procedural or substantive grounds which may or does render a decision invalid, it is still reviewable by the tribunal.[6] There was no question in that case that a decision to refuse to renew a practising certificate is reviewable by the tribunal.
5. In Gray Bruni Constructions Pty Ltd and Mildura RCC v Victorian Workcover Authority,[7]a WorkSafe Victoria inspector issued a prohibition notice in respect of civil engineering works being undertaken by a subcontractor of the applicant company under a contract with the respondent council. The inspector gave the notice under section 112 of the Occupational Health and Safety Act 2004 (Vic). Under that Act, the person issued with the prohibition notice may seek internal review of the decision to issue the notice. The decision made on review by the Victorian Workcover Authority is reviewable by the tribunal under section 129. DP Macnamara found that the internal review was not properly undertaken and so that decision was potentially invalid. Despite that, the decision was reviewable by the tribunal.[8]
6. In Rein v Nurses Board of Victoria,[9] the Board asked the tribunal to make orders which would have had the effect of imposing conditions on any future application by Ms Rein for nursing registration. His Honour Judge Bowman said at paragraph 20:

In my opinion, when, pursuant to s.51(1) the Tribunal assumes all the functions of the decision-maker, it is assuming those functions "in exercising its review jurisdiction in respect of a decision". In other words, the operation of s.51(1) assumes the existence of a decision, and, in reviewing that decision, the Tribunal assumes all the powers of the decision-maker. This does not apply to decisions not yet made, and, however strong to the contrary the indications may be, decisions that may never be made.

1. The tribunal's power under section 51 is confined to reviewing the decision made by the relevant decision maker and not a different decision or application or a decision not yet made.[10] An example of the latter was in Roe v Victorian Managed Insurance Authority where the respondent insurer had not, at the time the matter came to the tribunal, made a decision on liability and so there was no decision the tribunal could review.

1. In order for there to be a reviewable decision under regulation 21, there must first have been a decision made under regulation 18. It is not enough that there was conduct which might constitute suspension in the general sense.
2. As noted earlier, I am required to take the applicants' cases at their highest. On that basis, if I were to reject VICSES' contention that the 12 January 2015 letters contained only a warning and not a suspension and made an assumption that there was an action which altered the legal rights of the applicants (criteria two as set out above), any reviewable suspension would have to be expressly or impliedly required or authorised by regulation 18 (criteria one set out above).
3. As is apparent from a reading of regulation 18, penalties may only be imposed by the Authority. The Authority is a body corporate.[11] It has a board of directors who are appointed by the Governor in Council. The Board has responsibility for the management of the affairs of the Authority.[12]
4. As noted earlier, the letters dated 12 January 2015 were signed by ACO Warren. He did not state he did so for or on behalf of the Authority, or the Board and nor did he purport to do so. An officer holding his position has no express power to suspend.
5. Part 2 of the regulations gives certain powers in the disciplinary process to the COO, including a suspension power under regulation 15. That is not the rank of ACO Warren.
6. Section 23 of the VICSES Act allows the Authority to delegate powers to the chairperson or a director of the Board or to any employee of the Authority. Such a delegation must be made in an instrument under the Authority's official seal. Section 31 is a similar provision allowing the COO to delegate his powers to an employee in an instrument. An instrument is a formal legal document and, in the case of an instrument under section 23, it must be executed by the affixing of the Authority's seal. There was no evidence, or even a suggestion, that the powers of the Authority under regulation 18 had been delegated to ACO Warren or that the powers of the COO under Part 2 of the regulations had been delegated to him.
7. I see no basis on which it could be argued that the VICSES Act or regulations imply an officer such as ACO Warren has the power to suspend where that power is given to the Authority following the completion by the COO of the steps set out in Part 2. These comments equally apply to any reduction in rank of the kind referred to in regulation 18(b).
8. As described above, the process leading to a suspension (or a reduction in rank) under regulation 18 is lengthy and formal. It requires:
   • A complaint to be made,
   • Notice of the complaint to be given in writing;
   • A decision to lay a charge;
   • Notice of the charge and the hearing arrangements to be given in writing;
   • A hearing to be held before the Authority; and
   • The Authority to decide that the charge has been substantiated.
9. It is only after these steps have been taken that a penalty under regulation 18 may be imposed.
10. The 10 October 2014 letter expressly states that the planned preliminary investigation would consider the question of whether there was a safe working environment for the members of the Unit. Alternatively, the investigation may determine that:

. . . further investigation is required to determine whether charges will be laid against individuals under Part 2-Discipline clause 6 of the Victoria State Emergency Service Regulations 2006..

1. The 12 January 2015 letter refers to the 'independent preliminary investigation' undertaken in respect of 'grievances and concerns' raised by the leadership and members of the Unit. The investigation was focussed on 'safe working environment issues' and was 'an initial assessment of conduct that could potentially give rise to disciplinary action due to breaches of the organisation's policies.'
2. I accept VICSES' submissions that the content of these documents make it plain that the steps being taken were preliminary to the processes set out in Part 2 of the regulations. Accordingly, I do not accept the contention that the actions of VICSES amounted to a de facto disciplinary process under the regulations or to the imposition of a penalty under regulation 18.
3. Even if I accept that ACO Warren and others used the term 'suspension' when speaking with the applicants and others, that does not of itself mean the actions taken fall within regulation 18. I am not persuaded that this is a case where VICSES made a decision under regulation 18 but in doing so erred in undertaking the required process.
4. It is clear that at the time the investigation commenced and the 12 January 2015 letter was written, ACO Warren and Ms Bahen had in mind concerns about providing a safe place in which the leadership and members could operate and only the possibility that charges or other disciplinary processes may be called for.
5. Despite the lack of clarity about the basis for the actions taken, I am satisfied on the documents produced by the applicants, that the investigation being undertaken and the identification of outcomes set out in the 12 January 2015 letter were preliminary to the processes described in Part 2 of the regulations. There is nothing to suggest that ACO Warren thought he had the delegated powers of the Authority under regulation 18 or the COO under Part 2 of the regulations.
6. These circumstances are different from those discussed in Garde-Wilson and Gray Bruni Constructions: this case is not concerned with a potentially invalid decision made under an express power. This case is more like the pre-decision situations considered in Rein and Roe.
7. I do not consider it is open to me to conclude that VICSES believed it was acting under its disciplinary power and did so in a manner which inadvertently or mistakenly dispensed with the processes set out in Part 2. Had it done so, the decision might be invalid but still reviewable. Given this conclusion, I cannot conclude there was an implied exercise of the powers contained in regulation 18.
8. While I accept the applicants wish to have the circumstances discussed above reviewed by this tribunal given it is likely to be speedier and less costly than possible alternatives, that is not a basis on which I can find power to do so.
9. Given there is no reviewable decision before the tribunal, each application will be dismissed as misconceived under section 75(1)(a) of the VCAT Act. It is not necessary for me to consider the other bases raised by VICSES in support of the summary dismissal application.

1. The tribunal has power to award costs against an applicant where an order dismissing an application is made. Section 75(2) of the VCAT Act says that, if the tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
2. VICSES seeks an order for costs on the basis that, at all relevant times, the applicants have known or ought to have known that no decision was made under regulation 18. VICSES also refers to the lateness of the applications. It says that the applicants have sought to raise the whole history of the dispute at and within the Unit at the tribunal through the review applications. VICSES says that the applicants know they have not been suspended and so are misusing this process such that costs ought to be awarded against them. Mr McDougall for VICSES told me that the matters raised before me were discussed with the applicants at the compulsory conference held on 25 May 2015. He did not say that the applicants were put on notice that a costs order would be sought if they continued with the proceeding then or later. In fact, it appeared to me that Mr McDougall was only instructed to seek costs at the conclusion of the hearing before me.
3. Mr R Chapman, speaking for the applicants, said that they have at all times made efforts to resolve the matter. They have brought the proceedings in good faith - not seeking a royal commission into all matters but rather to have their reputations corrected and to rejoin the Unit.
4. While section 75 of the VCAT Act does not set out a criteria for costs orders, the general costs provision in section 109 is of assistance. The uncontroversial usual approach to section 109 may be summarised as follows:
   • The presumption in section 109 is that costs lie where they fall;
   • The tribunal has a wide ranging discretionary power to award costs if the tribunal is satisfied that it is fair to do so;
   • The tribunal may have regard to the specific matters set out in section 109(3)(a) to (d) and, under (e), any other relevant matter; and
   • An order ought only be made where it is fair to do so.
5. I have taken these broad considerations into account when considering the application for costs under section 75(2).
6. I have decided not to exercise my discretion to make a costs order under section 75(2). While I have concluded that the applicants have no right of review to this tribunal because no decision was made under regulation 18, I do not accept that the proceedings have been brought frivolously or vexatiously. I accept the applicants' position that, prior to and since they received the 12 January 2015 letters, they have sought an explanation from VICSES about the power it relied on for its actions and have sought a means to resolve the underlying dispute.
7. While it might have been preferable for the applicants to seek legal advice before commencing and continuing with these proceedings, legal representation is not a prerequisite for commencing proceedings in this tribunal. There is nothing about the circumstances of these proceedings which leads me to conclude that, as a matter of fairness, I should do other than exercise my discretion under section 75(2) consistently with the presumption contained in section 109(1). Accordingly, VICSES's application for costs will be dismissed.

[1] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[2] Regulation 20 is not relevant to this case. It deals with disciplinary action without hearing where a member is found guilty of an offence punishable by imprisonment.

[3] See definition of 'suspend' in the Macquarie Dictionary, Sixth Edition.

[4] Griffith University v Tang [2005] HCA 7.

[5] [2007] VSC 225.

[7] [2006] VCAT 1969.

[9] [2004] VCAT 979.

[10] PT v Victims of Crime Assistance Tribunal [2008] VCAT 84; Roe v Victorian Managed Insurance Authority [2006] VCAT 104.

[12] Sections 9 and 10 of the VICSES Act.