[2005] VCAT 1522

1 Upon the responsible authority giving not less than two days written notice to the respondent to be sent by facsimile transmission to 5243 0488, the respondents, being the occupiers of the land at 711-729 Portarlington Road, Leopold, which is land relevant to the proceeding, are ordered to give the following persons who are to give evidence in the proceeding reasonable access to the land, namely:

I further order that the occupiers of the land must allow up to two backhoes and their operators, under the control of Mr Edwards, Ms Grewer and/or Mr Wines ("the engineering witnesses"), to accompany the engineering witnesses so as to permit the engineering witnesses to have reasonable access to the land by way of digging test pits or other like excavations for the purpose of enabling the engineering witnesses to give evidence to the tribunal.

2 The hearing of this proceeding, previously fixed for 5 September 2005, is refixed for hearing on 3 October 2005, with three days being set aside.

(given orally at the hearing and subsequently revised)

1 The City of Greater Geelong ("the council"), which is the responsible authority for the enforcement of the Greater Geelong Planning Scheme, has applied for an enforcement order against D J More and another in relation to earthworks adjacent to Corio Bay, which the council says were constructed unlawfully. The hearing has been set for 5 September 2005. Certain witnesses are unavailable on that day. The council, supported by the Department of Sustainability and Environment, now wants that case rescheduled for 3 October 2005. The respondents to the application have not appeared today. In the circumstances I propose to make a direction rescheduling the hearing.

2 The council has also made application for an order or orders which would allow certain persons to enter the respondents' land to carry out investigations, including excavations, so as to then be in a position to better give evidence about the matters arising in the proceeding, including the appropriate remedial works which should be required if an enforcement order is made. This application is supported by an affidavit of Heather Wallace sworn on 14 July 2005 and exhibits to that affidavit.

3 I am satisfied, on the basis of the material in that affidavit, that an order should be made, as this is likely to result in the tribunal being better informed about the nature of the works that have been undertaken and, more particularly, what remedial works might be desirable in the event that an enforcement order is made.

4 The tribunal has the power to make such an order pursuant to section 129(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998. There may be powers in other legislation: see, for example, section 133(c) of the Planning and Environment Act 1987; but that does not seem to be a matter for the tribunal. Mr Nelson, who appeared on behalf of the council, suggested that the tribunal may have power under section 80 of the VCAT Act. This was accepted by Deputy President Gibson in Barraton Pty Ltd v City of Kingston [2004] VCAT 1571, a decision which was cited by Hansen J in Herald & Weekly Times V VCAT [2005] VSC 188 in support of the proposition that section 80 confers a wide power on the tribunal. However, in the present circumstances, it is sufficient for me to proceed under section 129 of the VCAT Act.

5 Section 129 of the VCAT Act provides that the tribunal has the power to order an occupier of land relevant to the proceeding to give a person who is to give evidence in the proceeding reasonable access to the land. In a case such as this I would regard the term "reasonable access" as including the construction of bores or test pits in order to ascertain the condition of the sub-surface of land as well as the surface of land. This being so the question arises as to whether a person who is to give evidence, such as an engineer, could be accompanied by a person such as a backhoe operator and, for that matter, a backhoe, when having access to the land. In my opinion, for a potential witness to have reasonable access to land might, in some circumstances, include bring onto the land servants or agents, with or without a machine, so that the potential witness can obtain information upon which they can formulate their evidence. I think this is such a case. Hence I propose to order that the engineers and environmental scientists, who are to give evidence and who are to be permitted reasonable access to the land, may be accompanied by backhoe operators and a backhoe in order that that access be reasonable for the purposes of the case.

6 There is one other matter I need address. On 3 June 2005, Mr More appeared before me and made a very brief submission to the effect that the tribunal did not have jurisdiction in the matter. On that occasion he handed to me a document which stated that he did not consent to the matter being heard in the tribunal as he required that the matter be heard in a federal jurisdiction in accordance with Chapter 3 of the Commonwealth Constitution. On that occasion I decided that that issue should be dealt with at the hearing of the matter on 4 September 2005. However as I am now asked to make orders that are not merely procedural orders, I should deal with the jurisdictional objection. If his jurisdictional objection is valid, then it would provide a basis for not making the orders the council now seeks.

7 I must confess that on 3 June 2005 I did not fully understand the nature of Mr More's submission. It became clearer to me when I read The Age newspaper on the following day, when the newspaper articulated his concern more clearly: namely that he was demanding trial by jury. Such a submission would appear to be based upon section 80 of the Constitution of the Commonwealth of Australia, which provides:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

For the reasons I gave in Buttigieg v Melton Shire Council [2004] VCAT 868, it is necessary for the tribunal to determine whether or not it has jurisdiction, even in circumstances where the alleged reason why the tribunal lacks jurisdiction involves matters of Commonwealth constitutional law.

8 It is important to observe that the present proceeding is brought pursuant to section 114 of the Planning and Environment Act, which is a Victorian law. Further the proceeding is civil proceeding for an enforcement order. It is not a proceeding of a criminal character seeking punishment for an offence against the Planning and Environment Act. Put shortly, the proceeding does not involve "the trial on indictment of any offence" or such a trial "against any law of the Commonwealth". It follows that section 80 of the Constitution of the Commonwealth of Australia is not applicable and the tribunal does have jurisdiction to deal with the matter.

9 Mr Nelson informed me that Mr Terry Demeo, an officer of the council, has recently received a document concerning the subject proceeding in which a claim is made for the sum of $33,000 by way of penalty, with a further claim of $33,000 per day by way of penalty, bringing the final demand to $990,000. The preamble to the 22 page document (with six pages of appendices) states:

Whereas Terry Demeo of the Greater Geelong City Council made application to the Victorian Civil and Administrative Tribunal (VCAT) to have Dennis More summarily adjudged in respect of alleged breaches of law in relation to his property, and Mr Morris, on the third of June 2005 arbirarily [sic] determined to continue with the matter by setting down a date for a hearing, in direct violation of notification of non-consent to the jurisdiction of VCAT made by Dennis More, and in direct contempt of his obligations at law to be bound by the Commonwealth of Australia Constitution Act 1900 and Australian Constitution, and International Covenant on Civil and Political Rights which is Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 and declared Australian Law by the Dictionary to the Criminal Code Act 1995 the said Terry Demeo, having full knowledge that Dennis More had not consented to the jurisdiction of VCAT, has been adjudged by formulae set out in the Crimes Act 1949 to pay to Her Majesty ELIZABETH THE SECOND the sum of $33,000 by way of penalty.

The document also includes a section headed "Notice of Unconstitutional Conduct". This section argues that the proceeding before the tribunal is unconstitutional for an array of reasons. Early in the document it is stated:

You should take your own counsel on the contents of this document. You may be entitled to claim contribution from your current advisors. The person should be competent in both Ecclesiastical Law and the Law.

You should also seek advice from an ecclesiastical source as to the effect of the imposition by the Parliaments of Australia of compulsory secularism, similar to communism, as an alternative to Christianity, and whether the ecclesiastical persons agree that this is prohibited by Section 116 of the Constitution.

A further indication of the flavour of the document is given by another quotation (paragraph 58):

The Gospels are enacted into Statute, from the Magna Carta 1297, through the Habeas Corpus Act 1640 (16 CAR 1 c 10) (IMP), and (1623-4) James 1 C3 (Statute of Monopolies) ss1 and 6 and any law may be called into question, and must be strictly proved, before a jury, by virtue of the Gospels.

10 Notwithstanding the extensive work that must have taken place in the preparation of this document, I am not persuaded that the tribunal lacks jurisdiction. The document refers to the decision of the High Court in Kable v Director of Public Prosecutions of New South Wales [1996] HCA 24; (1996) 189 CLR 51. However there is nothing in that case, or the Constitution, or the Magna Carta or any other law or any document, which would deprive the tribunal of jurisdiction in the present proceeding. Hence I make the orders I have indicated.