Leon Park Pty Ltd v Mornington Peninsula SC [2022] VCAT 1373

1. The details set out in the Tribunal's order dated 10 November 2022 are confirmed.

The proceeding is listed for hearing on the date and for the time as detailed below.

The hearing will be at 55 King Street, Melbourne.

If there is any change to these details, the Tribunal will notify you.

15, 16 & 19 December 2022

10.00 am - 4.30 pm

The in person hearing will be conducted at 55 King Street, Melbourne. Details will be published in the law list late on the afternoon of the day prior to the hearing.

Providing submissions and associated material before the hearing

1. No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
2. All expert evidence must be filed and served in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

1. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

1. No later than 5 business days before the hearing, the applicant must provide an electronic copy of a Tribunal Book to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au

Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au

For Leon Park Pty Ltd on behalf of the Trustee of the Sillaw Family Trust

Effie Tangalakis, town planner, Ask Planning Services Pty Ltd

1. On 16 March 2020, a state of emergency was declared in Victoria by the State government restricting the movement of people, causing the cancellation of major events and provided directions for people to work from home. On 2 August 2020, the State government declared a state of disaster during which in addition to the above, curfews were also imposed.
2. Since that time and until 12 October 2022, when COVID19 pandemic related orders ended, Victorians have experienced varying degrees of restrictions. However, that is no longer the case.
3. From March 2020 until June 2020, all fixtures in the Planning and Environment Division (PED) of the Victorian Civil and Administrative Tribunal (VCAT) were vacated. On 1 June 2020, PED resumed hearing fixtures using a variety of means including by telephone and on different video conference platforms.
4. The delivery of justice using alternate means allowed PED and VCAT to conduct its business for 29 months including during the most stringent and difficult of restrictions.
5. However, in a post restriction environment, PED and VCAT must now consider how to optimise the efficient administration and delivery of justice. It is also noteworthy that most Victorians are now 'getting on' with their professional and person lives.
6. The 'conduct' of a proceeding and what is 'appropriate' is a matter for the Tribunal. Section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) states:

(1) If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication. > > (2) ...

7. In considering what is 'appropriate' for the conduct of a proceeding, VCAT may take into account specific circumstances that arise in that proceeding. Such circumstances may include access to justice, procedural fairness, and the principals of natural justice.
8. In this proceeding, the Tribunal initiating order dated 22 April 2022 provided:

1. This application is listed for a hearing as detailed below.

The hearing will be at 55 King Street, Melbourne.

If there is any change to these details, the Tribunal will notify you.

15, 16 & 19 December 2022

10.00 am - 4.30 pm

The details of the online platform will be provided to the parties before the hearing.

1. By email on 14 July the parties were advised by the Tribunal as follows:

1. By order dated 10 November 2022, the conduct of hearing was changed as follows:

The details set out in the Tribunal's initiating order are changed.

The proceeding is listed for hearing on the date and for the time as detailed below.

The in-person fixture(s) will be conducted at 55 King Street Melbourne. Details will be published in the law list late on the afternoon of the day prior to the hearing.

If there is any change to these details, the Tribunal will notify you.

15, 16 & 19 December 2022

10.00 am - 4.30 pm

1. This order provided five weeks' notice of the change in the conduct of the hearing.
2. On 15 November 2022, the representative of the Mornington Peninsula Shire Council (council) sought a practice day hearing requesting '...that the hearing be heard via an online platform as originally scheduled.'
3. Council's representative filed a written submission in support of her request for the conduct of the hearing to be online. An extract of the relevant sections of that submission follows:

1. At the practice day hearing, council's representative stated that she 'was not in town' and after being prompted by me, she advised that she needed to travel approximately two and half hours on the last day of the hearing (19 December 2022) to attend in person. I also asked when those arrangements were made and I was told 'mid September'.
2. Leon Park Pty Ltd (applicant), Frank Materia and Rob Romanin (respondents) do not object to council's request for the hearing to be held online.
3. Having considered the submissions from council's representative, I am not satisfied it is appropriate to conduct the hearing of this proceeding online. My reasons follow.
4. The reasons advanced are about convenience of the representative rather than access to justice, denial of procedural fairness or breach of natural justice.
5. In every communication from VCAT including in the order of 22 April 2022, the parties have been on notice that they will be notified of any change to these details, including a change of 'venue'. I was told that representation was accepted because the hearing was to be conducted online as the office was otherwise closed in the week commencing 19 December 2022. I asked council's representative whether that condition of engagement was communicated in writing to council, and I was told that such communication had not occurred.
6. From what I can discern from the written and oral submissions, it appears that council's representative has accepted an engagement for a three day hearing notwithstanding, that the last day of the hearing coincided with closure of the business for the holiday period.
7. I understand and accept that the conduct of VCAT's business primarily online has allowed parties and their representatives to appear from varying locations including whilst on leave or when businesses were closed. However, that convenience has changed and will continue to change rapidly in the post restriction environment.
8. I also accept that it may be more convenient for parties to appear online in perpetuity, but 'convenient justice' is vastly different from 'access to justice'. Convenience imports a notion of ease whereas 'access' deals with opportunity or means. Convenience permitted PED to deliver justice in the darkest of times of the pandemic environment. However, the time has come where the delivery of justice is to be optimised including by the return to an in person environment.
9. I also note that if VCAT is to proceed on the basis of convenience of a party, PED's daily business would grind to a halt as inevitably, what is convenient for one party may not always be convenient for another party or for VCAT. The written submissions set out above indicate that VCAT should have 'consulted' regarding the conversion of the conduct of the hearing. Again, if consultation was to occur with every party, in every matter about the conduct of a particular proceeding, little time would be left to deal with the substance of the proceedings by way of final hearing. Further, the suggestion to consult is tantamount to asking the parties what works for them in every case rather than what is in the overall interests of the administration of justice.
10. The written submissions rely upon the benefits and efficiencies of an online hearing outweighing an in person hearing for various reasons including travel time, petrol and parking costs. In the specific circumstances of this proceeding, I disagree because:
    1. the three parties are represented by law firms based in Melbourne's CBD and a planning firm based in metropolitan Melbourne; and
    2. the three parties will each rely upon witnesses where the giving of evidence and the ability to cross-examine the evidence is optimised in person.
11. Whilst the circumstances of council's representative are unfortunate, in reality, it was the decision to accept an engagement and arrange to be out of town during the hearing that causes the inconvenience and not VCAT's return to in person hearings.
12. This decision should not be taken to mean that circumstances will not arise where a proceeding is best conducted online to ensure access to justice. However, the circumstances relied upon in this proceeding do not sufficiently justify such an outcome.

Information for all parties is available at the Tribunal's website www.vcat.vic.gov.au

For information about what happens after you make your application, visit

www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

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