At the end of the letter the BLA drew the solicitors' attention to section 32 of the Act, saying that it enabled an application to be made to the Tribunal for review of the BLA's decision. There was then a reference to section 46 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). (This generally requires decision-makers to give a written statement of reasons but also provides by sub-section (7) that a written statement of reasons by the BLA complies with that if it sets out the statutory ground on which the decision is based. The letter identified the statutory ground as section 21(6) of the Estate Agents Act).

The application for review gave reasons for the application, pointing to the delay there had been and describing the delay as unwarranted and unfair.

The VGSO (Victorian Government Solicitor's Office), on behalf of the BLA, wrote to the Tribunal on 7 May 2010, soon after the application for review was lodged. Despite what the BLA's letter to Ms. Muscat's solicitors had said about a right of review, the VGSO's letter foreshadowed a submission that the Tribunal did not have jurisdiction. The letter indicated that a copy was sent to Ms. Muscat's solicitors.

There was a Directions Hearing on 7 June 2010. Counsel for the applicant was anxious to have the question of jurisdiction determined that day. Ms. Hebiton, solicitor for the BLA, made some general submissions but indicated that the BLA was not ready to proceed with a hearing and determination of the issue of jurisdiction. She further submitted that as this proceeding raised issues similar to those in a matter reserved by me the previous week - Murdoch v BLA [2010] VCAT 942 - the question should not be determined then and there. I directed that there be a hearing on 21 June by which time the decision in Murdoch would be finalised and made available to the parties to the present proceeding. I also gave a direction for the parties to exchange an outline of submissions prior to the hearing. At the hearing on 21 June I considered the written submissions and oral submissions that were also made by counsel. (In Murdoch the applicant for variation of a prostitution service provider's licence argued that the BLA had suspended its decision-making process and that that was a reviewable decision within the meaning of the VCAT Act).

1. Before turning to the submissions, I set out the main relevant statutory provisions.

Section 21 of the Estate Agents Act provides:

(1) The Authority must consider every application for an estate agent's licence.

(2) In considering an application for a licence, the Authority may -

• (a) conduct any inquiries it thinks fit;

• (b) require an applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

• (c) seek and use advice and information on the application from any other person or body or source it thinks fit.

(3) The Authority may engage or appoint any person to assist it in considering an application.

(3A) The Authority may refuse to grant a licence to a person if the person

does not provide the further information required within a reasonable

(3B) The Authority is not required to conduct a hearing to determine whether to grant a licence or refuse to issue a licence.

(4) Where the Authority -

• (a) is satisfied that the applicant is eligible to be the holder of a licence;

• (b) if the applicant is an individual, is satisfied that he or she is of good character and has received no information that he or she is not a fit and proper person to hold a licence;

the Authority shall grant the applicant a licence ...

(4A) A licence granted under subsection (4) shall be subject to such conditions and limitations as the Authority sees fit to impose.

(4B) If the Authority is not satisfied of any thing referred to in subsection (4) in relation to an applicant, it must refuse to issue a licence to the applicant and must give the applicant written notice of the refusal within 14 days of the refusal ...

(6) The Authority may postpone its consideration of an application for a licence until such time as it considers appropriate ..."

Section 32 provides:

(1) A person whose interests are affected by a decision of the Authority under this Act may apply to the Tribunal for review of the decision.

(2) An application for review must be made within 28 days after the later of -

• (a) the day on which the decision is made; or

• (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given."

(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision maker".

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person -

• (a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

• (b) gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;

• (c) issues, suspends, revokes or refuses to issue a licence, authority or other instrument;

• (d) imposes a condition or restriction;

• (e) amends or varies any of the things referred to in paragraph (a), (b), (c) or (d);

• (f) makes a declaration, demand, direction or requirement;

• (g) retains or refuses to deliver up an article;

• (h) does or refuses to do any other act or thing.

(2) For the purposes of this Act or an enabling enactment -

• (a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

• (b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker;

• (c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

• (d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision ..."

The Estate Agents Act is an "enabling Act" for the purposes of the VCAT Act: see the definition in section 3 of the VCAT Act.

1. Mr. Horan noted that when an application for an estate agent's licence is made the BLA must give details of the application to Consumer Affairs Victoria ("CAV") and the Chief Commissioner of Police who must make inquiries and report: sections 17 and 20 of the Act. In considering the application the BLA may itself conduct any inquiries it thinks fit: section 21(1),(2)(a). He referred also to section 21(6) and section 32 that I have set out.

2. Then, referring to section 4 of the VCAT Act, Mr. Horan identified the question in this case to be whether by its letter dated 26 March 2010 the BLA made a decision, refused to make a decision, or refused to issue a licence. He submitted that because the Estate Agents Act does not specify the period in which the BLA must make a decision on a licence application, there was no deemed decision to refuse the application within the meaning of section 4(2)(d) of the VCAT Act. He referred to a decision of the Tribunal in Grundy v Transport Accident Commission (unreported, VCAT, DP Davis, 16 October 2003) in which the view was expressed that section 4(2)(d) covers the field so that, in the absence of a provision in an enabling enactment specifying the period within which the decision had to be made, a failure to make a decision could not be deemed to be a refusal. He submitted that even assuming that there could be a "'constructive' refusal" to make a decision, that was not present in this case. He referred to Zagami v Transport Accident Commission [2000] VCAT 2065 and to Commisso v Transport Accident Commission [2001] VCAT 417 and submitted that the circumstances that were described in those cases as giving rise to that possibility were not present in this case. Rather, the BLA was in the process of attempting to gather relevant information to enable it to make a decision on the licence application. It could not grant the licence unless satisfied that the applicant was eligible and a corporation would not be eligible if a director would be ineligible - for instance on the basis of a conviction that involved fraud or dishonesty. The Act expressly contemplated the BLA seeking information from CAV and the Chief Commissioner. It was therefore "necessary and appropriate" for the BLA to await the outcome of the police investigation. The matters in respect of which Ms. Muscat was being investigated and could be charged involved serious offences which were directly related to the conduct of an estate agency business, and which therefore concerned the integrity of the licensing regime under the Estate Agents Act.

3. Citing Murdoch, Mr. Horan submitted that the BLA had merely postponed consideration of the application. This amounted to a suspension of the decision-making process. Notwithstanding what the BLA itself said about a right to apply for review, the postponement was not a reviewable decision. What the BLA first said about that should not be regarded as conclusive. The postponement was not a final or operative decision on the merits but was part of the decision-making process. While it might be amenable to judicial review it was not itself amenable to merits review by the Tribunal. Then, citing Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 Mr. Horan submitted that to subject the postponement to merits review would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process. Alternatively, if it were treated as a reviewable decision, the Tribunal's jurisdiction would be confined to the review of that decision and the Tribunal should not consider and determine the licence application itself.

Mr. Pitt submitted that the BLA had indeed made a decision because it had decided not to grant the applicant an estate agents licence. Parliament could in section 32 have excluded from the class of reviewable decisions a decision under section 21(6) to postpone consideration of an application, but Parliament did not do that. The applicant's interests were affected as were Ms. Muscat's. She was being kept from earning a living as an estate agent for "an indeterminate period of time" and this was "manifestly unfair".

The postponement was an exercise by the BLA of its function under section 21(6). It was a decision made under an enactment made in the exercise or purported exercise of a function conferred or imposed by or under that enactment. The interpretation for which the applicant contended would promote the purpose or object underlying the Estate Agents Act, he further submitted.

Mr. Pitt referred specifically to a Guide accompanying the BLA's standard application form for a "Company Application". According to the Guide, in addition to a company's own eligibility requirements, a company had also to apply for permission to hold a licence if, among other things, one of its directors had "been found guilty of, or convicted of an offence involving fraud, dishonesty, drug trafficking or violence ... but is still eligible to be a director ... despite the conviction or finding of guilt ...". It was not suggested in this case that there was any conviction or finding of guilt. Even if charges were laid Ms. Muscat would be entitled to the presumption of innocence and the mere fact of the charges would not be sufficient grounds to refuse to grant the licence. Any apprehension the BLA may have about granting a licence could be addressed by imposing conditions or seeking undertakings designed to protect the public interest. Referring to section 31C of the Estate Agents Act (which enables the BLA to permit a person with a criminal record to hold a licence or be employed as an agent's representative), Mr. Pitt submitted that the BLA could grant a licence even if a director had been convicted or found guilty of a relevant offence, but said that the applicant and Ms. Muscat "[fell] well short of" that.

The Tribunal had jurisdiction to order that the BLA's decision be set aside, Mr. Pitt submitted. This would promote an outcome that would be fair because the BLA would be required to make a decision to grant or refuse a licence and give certainty to the applicant's position. Instead the BLA had relied on "an over-technical reading" of the legislation to put the applicant "in limbo". Developing the point in oral submissions, Mr. Pitt mentioned various matters that could and should be taken into account by the BLA, or by the Tribunal, in deciding whether it was appropriate to postpone consideration of the licence application.

Mr. Pitt sought to distinguish the Tribunal's decision in Murdoch. The most important points included that in Murdoch there was no provision in the enabling Act, the Prostitution Control Act 1994 ("the PC Act"), pursuant to which the BLA "made a decision to postpone its decision", in contrast to section 21(6) of the Estate Agents Act. He said, further, that the provision in the PC Act giving a right of review referred to specific sections under which decisions were made whereas section 32 of the Estate Agents Act did not. He also said that in Murdoch the BLA wrote to the applicant to say that it did not consider that a decision had been made whereas in the present case the BLA set out its decision and the section under which it had been made.

Mr. Pitt submitted that the view expressed in Murdoch - that the VCAT Act contemplates the review only of decisions of a final nature - did not apply in this case because the legislative framework clearly provided a for review of a decision by the BLA under section 21(6).

1. Mr. Horan made submissions in reply. In particular he said that there was nothing to stop the BLA reconsidering the postponement itself without an order of the Tribunal. If - as had really been submitted by Mr. Pitt - the BLA had determined to postpone consideration of the application without having before it all the necessary information to make that determination, the BLA could be pressed about that if more information were provided. The BLA had not made a final decision that rendered it functus officio and subject to merits review. If the applicant was not prepared to pursue the matter with the BLA the applicant could seek judicial review, but the applicant was not entitled to have merits review of the process.

1. On 21 June I reserved my decision but, as the applicant sought costs, I heard submissions about that. I will return to the question of costs after setting out my decision about jurisdiction and my reasons.

There was no controversy that if there is any decision that the Tribunal can review it is the one dated 26 March 2010 although that more or less affirmed the one dated 19 November 2009, so the application for review was made in time.

As Macnamara DP said in Thiele v. The Appeal Committee, the Tribunal "only has the jurisdiction which Parliament has bestowed upon it, it cannot acquire further jurisdiction by agreement of parties, much less by estoppel" (unreported, Administrative Appeals Tribunal of Victoria, 31 July 2010, cited at paragraph [2154] of Pizer's Annotated VCAT Act, 3rd edition, JNL Nominees Pty. Ltd., Melbourne, 2007). It is obvious, I think, that the Tribunal would not have jurisdiction merely because the BLA advised the applicant's solicitors that an application for review could be made. See also Wizardry Kennels v Semtech Animal Breeding Services (Civil Claims) [2006] VCAT 2368 at paragraph 11.

I need not discuss at length the decisions in Zagami, Commisso, or Grundy. In oral submissions Mr. Horan said that it would be possible to reconcile Zagami and Commisso on the one hand with Grundy on the other hand by approaching delay as giving rise to an inference of refusal as opposed to deemed refusal. Whatever the position, I consider that the circumstances of this case could not produce the result that the BLA would be found, inferred or deemed to have refused to make a decision. I agree with what DP Davis said in Grundy v Transport Accident Commission and note that there is no period specified in the relevant provisions of the Estate Agents Act within which a decision about the licence application must be made. (See also Shah v Transport Accident Commission [2007] VCAT 1724). A failure to make a decision within a reasonable time - if there were that failure, which in my view has not been shown - would therefore not be reviewable by the Tribunal. In any event, Mr. Pitt argued that those cases did not apply because there had been a decision under section 21(6) and because section 32 did not exclude decisions under section 21(6) from review. Parliament could easily have done that if Parliament had intended that, he said.

From this point the question is best approached by considering whether Murdoch is distinguishable. This is because, in summary, my conclusion in that case was that "decision" in the context of section 4 of the VCAT Act means a decision of a final nature as opposed to the deferral of a decision or the suspension of the decision-making process. I considered that to review something that fell short of a decision of a final nature would indeed lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process. It would also involve the Tribunal usurping the function of the primary decision-maker.

It is true that, in contrast to the legislation considered in Murdoch, the Estate Agents Act expressly provides that the BLA may postpone consideration of an application. I do not think that this has the significance that Mr. Pitt contended for, however. It may be something that, on the face of it, is caught by section 32 but the question is still whether it is a "decision" within the meaning of section 4 of the VCAT Act. It appears to me that Parliament's intention is the same - that only a decision that is final or operative and determinative be subjected to merits review by the Tribunal.

Similarly, I do not think that it is significant that section 32 does not specify the sections under which an application for review may be made. In the case of some Acts of Parliament the specification of one section may lead to the conclusion that another is not included. Even if, on the face of it, there is an express right of review under a section (as there was in Murdoch) still one must consider whether, given the terms of section 4 of the VCAT Act, there is a reviewable decision.

It is true also that in this case the BLA regarded itself as having made a reviewable decision and informed Mr. Muscat's solicitors about that. Given the principle in Thiele - that the Tribunal cannot acquire jurisdiction by agreement or estoppel - that situation does not help the applicant.

In summary, I do not agree with the submission that the legislative framework provides for review of a decision by the BLA under section 21(6). In a manner of speaking, the BLA made a decision to postpone consideration of the licence application, but that was not a reviewable decision. What the BLA did was to postpone the consideration that necessarily precedes the making of the final, reviewable, decision.

Accordingly, the application for review must be dismissed.

1. I now turn to the application for costs. The material parts of section 109 of the VCAT Act provide:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

• (a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

  • (i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

  • (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

  • (iii) asking for an adjournment as a result of (i) or (ii);

  • (iv) causing an adjournment;

  • (v) attempting to deceive another party or the Tribunal;

  • (vi) vexatiously conducting the proceeding;

• (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

• (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

• (d) the nature and complexity of the proceeding;

• (e) any other matter the Tribunal considers relevant ..."

1. Mr. Pitt submitted that in this case there should be an exception to the general rule that each party bear their own costs whereas Mr. Horan submitted that the general rule should apply.

2. Mr. Pitt pointed to the conflict between the BLA's letter of 26 March and the subsequent letter by the VGSO. He said in effect that the applicant had applied to the Tribunal on the basis of what the BLA said in its letter. The applicant was ready to proceed at the Directions Hearing on 7 June but the matter was adjourned for the BLA's "convenience". Although the jurisdictional issue was "reasonably complex", if anyone should know whether there was jurisdiction it was the BLA, he submitted, and the BLA should bear the consequences flowing from the mistake in its letter (if there were one - that is, if the Tribunal did not have jurisdiction). Notwithstanding the principle in Thiele's case costs orders were directed at the behaviour and actions of the parties, including whether or not one party caused another party to incur costs unnecessarily.

3. Mr Horan submitted that the issue of jurisdiction was a threshold issue that the applicant had to consider before deciding whether to make the application, and that the Tribunal had to determine if the application was made. It was not accurate to say that the BLA caused the applicant to act as it did. He submitted that the application was not made solely because of the relevant parts of the BLA's letter. The applicant had sought review of something that was capable of being addressed instead by a further approach to the BLA. Although Mr. Horan said that "at the highest" the BLA might be required to pay for the application fee, he further submitted that the applicant had chosen to pursue the matter after the jurisdictional issue was raised and still after the decision in Murdoch was handed down. He submitted, finally, that there was no conduct on the part of the BLA that attracted the provisions of section 109(3) of the VCAT Act.

The ordinary position is that each party is to bear their own costs. I have discretion to make a costs order in the applicant's favour only if satisfied that it is fair to do so having regard to the matters set out in section 109(3) of the VCAT Act.

It would be easy to suggest that the applicant was put in its position by what the BLA stated in its letter which proves to be mistaken. The applicant had the benefit of independent legal advice. However clear the jurisdictional issue ought to have been at the time the application was made, the applicant had other options even then. One was to await final consideration by the BLA of its licence application. Another was to approach the BLA with further information or submissions and request it to complete its decision-making process. The applicant was not bound to make the application but elected to do so.

Soon after the application was lodged the BLA's final stance in relation to jurisdiction was made clear. It is not correct to say that the Directions Hearing on 7 June was adjourned for the convenience of the BLA. The Directions Hearing was scheduled for the routine purpose of determining what interlocutory steps might be required before any hearing of the application for review. In this case that included considering what was necessary for the expeditious and fair hearing and determination of the preliminary issue of jurisdiction. The fact that the decision in Murdoch was soon to be published was but one reason why jurisdiction could not be determined at the Directions Hearing.

The applicant elected to pursue the matter to its conclusion and has ultimately been unsuccessful.

There is no conduct by the BLA or any other matter that leads me to consider that, in fairness, I should award costs to the applicant.

1. For the above reasons I dismiss the application for review and make no order as to costs.

2. I mention finally that during the time I was considering the parties' submissions the VGSO wrote to the Tribunal, on 28 June, to advise that the police investigation was complete and that charges had been laid against Ms. Muscat. It appeared that a copy of the letter was sent to Ms. Muscat's solicitors but the Tribunal did not receive any further correspondence from them. The information contained in the letter does not affect the analysis that has led to my decision.