Instructed by Sebastian Withers, lawyer of Norton Rose Fulbright

Instructed by Phili Stefanovski and Liam Halverson, lawyers of Minter Ellison

1. On 20 October 2025, the Applicant:
   1. requested that the Tribunal make a direction pursuant to section 108(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), giving notice to the parties that the Tribunal seeks reconstitution of the Tribunal for the purposes of the proceeding. The request was to add a legal member to the Tribunal as currently constituted; and
   2. alternatively, if the Tribunal was not minded to give notice under s 108(1)(b) of the VCAT Act, seeks reconstitution of the Tribunal for the purposes of the proceeding, to add a legal member to the Tribunal as presently comprised, pursuant to section 108(1)(a) of the VCAT Act.
2. The Decision Maker indicated that it did not oppose:
   1. the Tribunal giving notice under s 108(1)(b) of the VCAT Act; or
   2. the Applicant's alternative application for reconstitution under s 108(1)(a) of the VCAT Act.
3. A Joint Submission of the Parties Regarding Reconstitution of the Tribunal dated 22 October 2025 was provided to the Tribunal by the parties.
4. On 24 October 2025, the Tribunal presently comprised of Members Bennett and McIntosh gave notice to the parties that they seek reconstitution of the Tribunal for the purposes of the proceeding. The reconstitution is to add a legal member to the Tribunal as presently comprised.
5. I have considered that the Tribunal's Order of 24 October 2025 which includes a detailed summary of what transpired leading up to and at the hearing which commenced on 13 October 2025.
6. The Tribunal's reasons for giving notice under s 108(1)(b) of the VCAT Act are summarised in paragraph [56] of its reasons as follows:

• we accept the submissions made by the parties in the Joint Submissions Regarding Reconstitution and agree that the appropriate course is to reconstitute the hearing;
• it is clear to the Tribunal that there may be questions of mixed fact and law that need to be properly formulated, and that need to be determined;
• the EPA has formulated questions of mixed fact and law that they say need to be determined;
• the Applicant does not yet consider that the questions are necessarily appropriately formulated and seeks for them to be formulated before, and determined by, a legal member;
• the Applicant does not agree to the currently constituted Tribunal deciding the questions of mixed fact and law under clause 66(1)(a) of Schedule 1 of the VCAT Act;
• the questions identified by the EPA are not questions readily capable of referral under clause 66(1)(b) of Schedule 1 of the VCAT Act because the issues raised may influence much of the evidence and factual analysis. In this case, deciding the issues in isolation, or as preliminary issues, may risk the need to revisit similar issues later in the proceeding leading to ambiguity and inefficiency;
• in an attempt to avoid having to resolve the potential questions of law in this proceeding, the parties have endeavoured to navigate the differences in terminology used by each party in this proceeding, however that has not proven to be an efficient process. Given the multiple preliminary issues that have arisen in this proceeding so far, and the high likelihood of ongoing legal or procedural disputes, it would be more efficient for the Tribunal to include a legal member so that any potential questions can to be determined without needing to consider whether they are questions of law and whether there is any disagreement from the parties as to whether the currently constituted Tribunal can decide the question of law under clause 66(1)(a) of Schedule 1 of the VCAT Act; and
• the EPA does not oppose the Applicant's request for the Tribunal to give notice of reconstitution.

1. The matter was listed for an Administrative Mention on 29 October 2025 to provide the parties with the opportunity to:
   1. make any further submissions to the Presidential member comprised to consider whether the Tribunal should be reconstituted under section 108(2)(a) of the VCAT Act; and
   2. make any further submissions to the Presidential member with respect to section 108(3) of the VCAT Act and whether this is a matter before the Presidential member.
2. On 29 October 2025, the Applicant provided a submission in accordance with Order 2 of the Tribunal's Orders dated 24 October 2025 stating:

a) The Applicant does not wish to make any further submissions to the presidential member regarding the decision whether the Tribunal should be reconstituted under s 108(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic.) (VCAT Act). The Applicant is content to rely upon the joint submission regarding reconstitution filed by the parties on 22 October 2025, and the Tribunal's Orders, which set out a clear and compelling basis for reconstitution. > > b) In relation to s 108(3) of the VCAT Act, the Applicant submits that this sub-section is a permissive provision, use of which will be a matter for the reconstituted Tribunal to determine, after hearing submissions from the parties. It is not a provision that the presidential member considering the request for reconstitution needs to make any determination in relation to.

Although this is a matter for the future reconstituted Tribunal, it is convenient for the Applicant to note that on further consideration it agrees with the reflections of the Tribunal in the Orders at paragraphs [66]-[69].[1]

1. On 29 October 2025, the Decision Maker advised the Tribunal in response to Order 2 of the Tribunal's Orders dated 24 October 2025, it does not wish to make any further submissions to the Presidential member.
2. Under section 108(2)(a) of the VCAT Act, I may decide that the Tribunal should be reconstituted after allowing the parties to make submissions.
3. Having considered all the submissions from the parties about whether the Tribunal should be reconstituted and the Tribunal's Order of 24 October 2025, I consider that the Tribunal should be reconstituted to include a legal member because:
   1. it has emerged during the course of the hearing that there are questions of mixed fact and law that need to be formally articulated and then determined by a legal member;
   2. I have given significant weight to the notice given by the Tribunal as presently comprised under section 108(1)(b) of the VCAT Act, who has explained in its reasons how it explored with the parties whether there are alternatives to a reconstitution and concluded the alternatives posed are not viable;
   3. the Applicant does not agree to the Tribunal as presently comprised to deciding the questions of mixed fact and law under clause 66(1)(a) of Schedule 1 of the VCAT Act;
   4. the parties agree that referral under clause 66(1)(b) of Schedule 1 of the VCAT Act is not convenient or appropriate given the nature of the issues in dispute in this proceeding;
   5. it will be efficient to include a legal member constituted to conduct the hearing given the issues which have emerged during the hearing to date and the high likelihood of ongoing legal or procedural matters arising; and
   6. it is in the interests of justice to do so.
4. Further, I consider that the reconstitution of the Tribunal is appropriate even if the newly constituted Tribunal considers that there is no utility in the legal member listening to the recording of the hearing conducted to date, and that it may be more efficient to restart the hearing before the reconstituted Tribunal. This will be a matter for consideration at a future practice day hearing before the reconstituted Tribunal.
5. I will now refer the matter to VCAT's President to reconstitute the Tribunal under section 108(2)(b) of the VCAT Act.
6. I anticipate that future orders will then follow scheduling a practice day hearing, including about the future conduct of the proceeding.

[1] In its reasons of 24 October 2025, the Tribunal as presently comprised indicated at paragraphs [66] - [69] that listening to the recording of the hearing to date may not be of assistance to the new Tribunal member of the reconstituted Tribunal and that it may be more efficient to restart the hearing before the reconstituted Tribunal.