instructed by Ms Eliza Minney, solicitor, of Best Hooper Lawyers.

instructed by Mr Matthew Elefanty, solicitor, of BSP Lawyers.

1. The history of proceedings between the permit applicant, Mondib Group Pty Ltd (Mondib), and Coral Rise Pty Ltd (Coral Rise) is protracted, complex and hard fought.
2. At the Practice Day Hearing on 28 April 2022, the Tribunal made orders that P135/2022 and P970/2020 be listed for hearing together on 31 October and 2 and 4 November 2022, and that a Preliminary Hearing occur on 9 August 2022.
3. Moonee Valley City Council (the Council) is the Responsible Authority. The Council was represented at the Preliminary Hearing, but they did not take an active part, save to make some comments about the Council's (yet unresolved) position for the upcoming remitted merits hearing in P970/2020 (the remitted proceeding).[1]
4. In P135/2022, Mondib sought an order pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) for the summary dismissal of the s 149B[2] application brought by Coral Rise.
5. In relation to the s 149B application, Mondib sought orders summarily dismissing the proceeding on the basis that the proceeding:

(i) is frivolous, vexatious, misconceived or lacking in substance; and/or

(ii) is an abuse of process; and/or

(iii) has been brought vexatiously or frivolously or primarily to secure a direct or indirect commercial advantage for itself; and/or

(iv) Coral Rise has no standing to commence the s 149B proceeding.

1. In P970/2020, Mondib sought to strike out Coral Rise's statement of grounds. Mondib sought the strike out orders in this remitted proceeding on the basis that the statement of grounds are:

(i) frivolous, vexatious, misconceived or lacking in substance; and/or

(ii) an abuse of process; and/or

(iii) has been brought vexatiously or frivolously or primarily to secure a direct or indirect commercial advantage for itself.

1. Pursuant to sections 80(1), 97 and 98(3) of the VCAT Act, Coral Rise seeks a stay or adjournment of the remitted proceeding P970/2020 until the determination of both the declaration proceeding and the Supreme Court proceeding No S ECI 2021 03675 (the latter being an appeal it has brought in the Supreme Court against the decision of the Tribunal in an earlier application made by Mondib pursuant to s 87A of the Planning and Environment Act 1987 (Vic) (P&E Act).[3]
2. Coral Rise sought the stay or adjournment of the remitted proceeding and the s 149B application on the basis that it would be 'more desirable' for the sequence of decisions which would determine the base permission to be settled before the other proceedings were heard.[4] However, several options as to sequencing of the extant proceedings were proffered[5], as was the submission that it was not essential for the stay or adjournment to be granted.
3. This Preliminary Hearing was held to determine applications for strike out, summary dismissal and stay, which need to be determined before the substantive proceedings commence.

1. Some detail of the litigation background bears repeating as it forms part of the basis of Mondib's strike out application and is relevant to Coral Rise's stay application. The history was set out in detail by Counsel for Mondib at the hearing.
2. Mondib seeks to develop the subject land which is situated at 687 Mt Alexander Road and 4 Homer Street, Moonee Ponds. Coral Rise owns the land upon which a residential hotel operates at 41 Homer Street Moonee Ponds. Both sites are within the Moonee Ponds Activity Centre.
3. The subject site has the benefit of a planning permit, No MV/949/2014 (permit) issued on 21 July 2016. The permit allowed for construction of a multi-story building with a ground floor retail component, some residential dwellings, a reduction in the car parking requirements and works within a Road Zone.
4. On 16 November 2016, the Council granted an extension of time for commencement of the permit to 21 July 2020 and completion until 21 July 2022 (the first extension).
5. On 6 March 2020, the Council granted another extension request extending the time for commencement to 21 July 2022 and completion until 21 July 2024 (the second extension).
6. Separately, on 3 May 2019, Mondib applied to the Council pursuant to s 72 of the P&E Act seeking to amend the terms of the permit, including:
   1. amending the preamble to facilitate the proposed change in use from mixed-use (containing retail and residential) to residential hotel and office;
   2. amending the conditions to delete conditions made redundant by the change in use;
   3. removing the conditions which had been complied with; and
   4. amending the plans contemplated by the permit.
7. On 12 June 2020, the Council issued a Notice of Refusal to grant the amended permit. Relevantly, one of the grounds of refusal related to the proposal being a "transformation" of the permit. Mondib appealed this decision to the Tribunal (P970/2020).
8. Coral Rise filed a statement of grounds in P970/2020 arguing the ambit of the change sought by the amendment application would result in a transformation of the proposed use and development, and this was beyond the scope of what could be considered under s 72 of the P&E Act. Additionally, Coral Rise argued that changes to the planning policy for the site meant that the amended application should be refused on the basis of breaching mandatory height controls.
9. P970/2020 was heard in September 2020 whereby the Tribunal struck out the application on the basis that the amendment sought to the permit amounted to an impermissible 'transformation'.
10. Mondib successfully appealed this decision to the Supreme Court. His Honour Justice Niall found that the ambit of s 72 did not preclude the Tribunal from exercising its jurisdiction and remitted the matter to the Tribunal for hearing in respect of the merits of the application.[6]
11. Mondib lodged a second amendment application on 23 December 2020 pursuant to s 87A of the P&E Act, seeking to amend the permit by varying the built form and changing the contemplated uses (VCAT P14/2021). This s 87A amendment was substantially in the same form as the May 2019 s 72 amendment. This proceeding was heard by the Tribunal and a decision to grant an amendment to the permit was made on 8 September 2021.[7] This decision has been appealed to the Supreme Court by Coral Rise and has been listed for hearing on 17 November 2022.[8] In this proceeding the issue of 'accrued rights' and the manner and extent to which it would allow the permit to be amended, were litigated.
12. On 10 February 2022, Coral Rise filed an application pursuant to s 149B(1)(a) of the P&E Act seeking declarations that both the first and second extensions of time were invalid (P135/2022)[9].
13. Since the initial grant of the permit in 2016 there have been two significant planning scheme amendments which have affected the subject land.
14. On 12 October 2017, Amendment C183MOON introduced mandatory height controls which were lower than the height of the built form approved under the permit issued in 2016.
15. On 28 January 2022, Amendment C207MOON deleted the mandatory heights controls and replaced them with mandatory floor area ratios (FAR) controls. The provisions which now affect this part of the planning scheme have a clause which provides:

A permit cannot be granted or amended to vary this requirement, unless the permit or the permit amendment does not increase the extent of non-compliance.[10]

1. In seeking to advance its contention that Coral Rise's grounds in the remitted proceeding should be struck out pursuant to s 75(1) of the VCAT Act, Mondib argued that Coral Rise's grounds had been advanced to secure or maintain a direct or indirect commercial advantage. It was said this could be inferred from:
   1. Coral Rise's persistent re-litigation of already determined issues;
   2. that Coral Rise did not raise proper planning grounds; and
   3. that it did not suffer any amenity or other impacts from the proposed development.
2. These matters were also relied upon to demonstrate that the grounds were vexatious or an abuse of process.
3. Mondib argued that there was sufficient material before the Tribunal for the Tribunal to infer that the motivation or primary purpose of Coral Rise in participating in the proceedings currently before the Tribunal was a sufficiently inappropriate motivation, that being one motivated primarily by a commercial advantage.
4. Mondib argued that Coral Rise was motivated by maintaining a commercial advantage as the owner of an enterprise which would be in direct competition with the hotel development which was the use now proposed for the subject site.[11]
5. Mondib submitted that grounds based on private economic considerations or a commercial advantage or avoidance of competition were illegitimate planning grounds and that the "principles applicable to the prohibition on claims which are advanced to secure a direct or indirect commercial advantage were well established."[12]
6. Mondib referred to s 150(4) of the P&E Act which it argued provided support for the view that reading the power of the Tribunal in s 75 of the VCAT Act together with this provision of the P&E Act ought to lead the Tribunal to place greater scrutiny on a commercial competitor in determining whether their participation was properly based on planning grounds. This provision of the P&E Act was consistent with the well acknowledged planning law principle[13] that private economic considerations were not a proper or legitimate planning law reason for participation by Coral Rise in the proceedings at the Tribunal.
7. Mondib conceded that the mere fact that Coral Rise may be characterised as a commercial competitor that may benefit from impeding the proposed development was not sufficient in itself to justify the conclusion that it filed its statement of grounds in order to secure a direct or indirect commercial advantage. It was argued that it would almost be impossible to conclusively prove an improper motive, i.e. one which was motivated by a commercial advantage. However, it was open and legitimate for the Tribunal to form a conclusion as to the motivation of an objector by inferences from the surrounding facts and circumstances.
8. Mondib argued that an attempt to secure a direct or indirect commercial advantage can be evidenced by the fact that Coral Rise is systematically relitigating issues that have been determined in other VCAT proceedings, that the grounds do not raise any proper planning considerations, and Coral Rise does not suffer any amenity impact. Finally, it was said that Coral Rise was determined to appeal any outcome.
9. Mondib relied upon the course of conduct taken by Coral Rise in litigating the various proceedings and the alleged delays that occasioned. The proceedings they identified included the 'transformation' argument before the Tribunal and before the Supreme Court, subsequently issuing the s 149B application after the determination of the Supreme Court appeal and continuing to pursuing the remitted proceeding. They also relied on the time taken over this course (since 2016) and the alleged lack of merit of the grounds and proceedings taken by Coral Rise, in particular the basis of the s 149B application.
10. In criticising the grounds lodged by Coral Rise in P970/2020 as not raising any proper planning ground, Mondib filed a statement of planning evidence which sought to objectively prove there was no substance to Coral Rise's participation, that there was no proper planning basis to the grounds, that their motivation was vexatious and were founded on a commercial advantage.

1. In respect of the s 149B application, Mondib made similar submissions as to commercial competition, re-litigation and delay as above.
2. In addition, submissions were made challenging the standing of Coral Rise to bring the s 149B application based on s 149B(1)(b).

1. In response to Coral Rise's application for a stay or adjournment of the VCAT proceedings pending the determination of the Coral Rise Supreme Court appeal, Mondib argued that there was insufficient merit or need for any delay and the VCAT proceedings (if not summarily dealt with in this preliminary hearing) should proceed as scheduled.[14]

1. In response to the delay and the vexatious course of conduct alleged by Mondib, Coral Rise argued that any delay between the initial grant of the permit in 2016 and the present was caused by the decisions of Mondib to seek extensions of the permit and to substantially amend the permit.
2. The legal question which was ultimately determined in Mondib's favour in the Supreme Court in respect of the 'transformation' argument, was a legitimate legal argument and the decision of the Supreme Court was one which overturned a long-standing principle in respect of the extent to which a permit may be amended.
3. Coral Rise emphasised that the decision to make a s 87A application was one initiated by Mondib. In effect, Mondib was 'hedging its bets' as a method of achieving an amendment to the 2016 permit. Coral Rise accepted that s 87A of the P&E Act was an option open to Mondib, but to prove that route was its choice and the processes which enabled third party participation were open to Coral Rise.
4. Additionally, Coral Rise argued that it was the actions of Mondib seeking to preserve a development envelope beyond what would be allowable under the current planning provisions that was the cause of delay and of multiple challenges. In effect, it was argued that Mondib was the architect of its own litigation course, and that delay was part and parcel of this litigation course. There was no cause to complain that Coral Rise has delayed the finality of outcome in this litigation by taking steps that were not open to it or causing any unmeritorious adjournments or procedural non-compliances.
5. Coral Rise countered the Mondib argument about delay in bringing the s 149B application by arguing that the facts which founded the s 149B application were not facts that were available or known to it prior to the Supreme Court decision or the information received via a FOI application against the Responsible Authority. Consequently, there was no delay in bringing the application as it could not have been brought until those facts were known to Coral Rise.
6. In respect of the strength of any planning argument that might be litigated in the remitted proceeding, Coral Rise argued that orderly and proper planning was a legitimate planning ground. Coral Rise indicated that further particulars of this ground could be provided.
7. Coral Rise was entitled to participate on the merits as it was an original objector to the permit and had lodged a statement of grounds. It had a prima facie entitlement to participate from the outset.
8. Coral Rise argued that just because they have some interest in the development not proceeding, this did not mean that they had no legitimate planning law grounds. Having a commercial interest in a competing business is not synonymous with an abuse of process or vexatiousness.
9. Although it is common for an objector to vex a permit applicant (or for the permit applicant to feel vexed by an objector), it does not follow that the objector is 'vexatious' in the sense required by s 75.
10. Coral Rise emphasised that there is a high bar which needs to be cleared before the Tribunal should strike out a proceeding or grounds. The application must be considered in the context of the enabling legislation. Coral Rise submitted that commercial advantage has a limited role to play in the P&E Act, and that Mondib's reliance on s 150(4) was misconceived as it relates to costs and compensation and was not of itself a ground to oppose a party's participation.

1. In respect of its application for a stay, Coral Rise argued that neither the parties nor the Tribunal can sensibly address the merits of the proposed permit amendment, the subject of P970/2020, until the fundamental assumptions on which the enquiry must proceed are settled. That would not be the case until the Supreme Court has made its decision in the s 87A appeal and the issues before the Tribunal in the declaration proceeding had been decided. Following the P14/2021 decision (the subject of the appeal), the Tribunal has purported to amend the permit pursuant to s 87A and the Council has purported to endorse a new set of plans. A successful appeal will have the result of invalidating those subsequent acts and in determining which version of the permit is valid, making it a waste of time and resources of the parties and the Tribunal.
2. It was submitted that the stay will not add considerably to delay as the Supreme Court proceeding is scheduled for 17 and 18 November 2022. A minimal delay is better than wasting the Tribunal's time to the result that hearing of the proceeding may be redundant.

1. The criteria to strike out or summarily dismiss a proceeding can be found in s 75(1) of the VCAT Act which provides:

_(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion - _

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. Whilst the Tribunal may make such an order at any time, to summarily dismiss an application or strike out grounds is a serious matter and not one which should be taken lightly. There must be a clear conclusion that the application or the grounds in question have no basis, are misconceived or are untenable at law. Caution should always be exercised before summarily terminating a proceeding. For the application to succeed, the proceeding (or the grounds under attack) must be obviously hopeless, clearly unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.[15]
2. A proceeding cannot be struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims made.
3. The onus is on the party who seeks an order under s 75 of the VCAT Act to satisfy the Tribunal that the application is made out.

1. To grant a stay or adjournment of the hearing pending the outcome of the Supreme Court proceeding, the Tribunal needs to consider whether it is necessary in the interest of justice, whether it is the best use of the Tribunal's and the parties' resources, and whether proceeding as scheduled may lead to the consequence of inconsistent decisions.
2. It is not a matter solely of whether it may be more convenient to the parties. The Tribunal may, under s 80 of the VCAT Act, give directions at any time during the proceeding to do whatever is necessary for the expeditious and fair hearing and determination of a proceeding. Section 98 requires the Tribunal to conduct each proceeding with as little formality and technicality and determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment, and a proper consideration of the matters before it, permit. The Tribunal can regulate its own procedure.

1. Whilst being motivated by a direct or indirect commercial advantage can fall into the category of vexatious or abuse of process behaviour in s 75(1) of the VCAT Act, there is no prohibition on a commercial competitor taking an active role in the planning process.
2. In respect of the relevance of s 150 of the P&E Act to the manner in which the Tribunal ought to consider whether proceedings have been brought frivolously or vexatiously, I agree with the submissions made by Coral Rise that s 150 is a separate power which enables the Tribunal to make a consequential compensation order, including by way of costs, where another party has suffered loss as a result of those illegitimate proceedings. It operatively does no more than that.
3. As the categories of behavior which may amount to vexatious or frivolous, or an abuse of power which may enliven s 75 of the VCAT Act are not closed, there is no doubt that there can be circumstances where a party's behaviour is purely directed by a commercial advantage, and they are unable to establish any proper planning law basis for participation in a proceeding brought pursuant to the P&E Act. However, I am not convinced that this is the case in the present proceedings.
4. I do not consider the existence of s 150 of the P&E Act to be a provision which automatically elevates the fact of being a commercial competitor to that of vexatiousness or an abuse of process. Section 150 is a provision which empowers the Tribunal to award costs and compensation if there is a finding by the Tribunal that proceedings have been brought vexatiously or frivolously or primarily to secure a direct or indirect commercial advantage for the person who brought the proceedings, and the other person has suffered loss and damage as a result of the proceedings. This provision is a consequential one triggered after the Tribunal has made the necessary adverse finding. It also requires loss and damage to be demonstrated.
5. I am not satisfied that there is sufficient demonstration to take the role played by Coral Rise out of the realm of legitimate planning participant into the realm of commercial competitor illegitimately motivated.
6. Planning law is about public interest and often that is a localised interest. Being a commercial competitor does not equate with being an illegitimate objector or participant in planning proceedings.
7. I am not satisfied that there is an absence of any legitimate planning ground upon which to found Coral Rise's participation in P970/2020, being the remitted merits decision. Coral Rise raises a general ground of orderly and proper planning which of itself may be lacking in specificity, but it is a valid and often argued planning ground.
8. In respect of the motivation or purpose being an illegitimate one (i.e. being one which is primarily motivated by commercial advantage), I am not satisfied on the material before the Tribunal that I must draw the inference that Coral Rise is purely motivated or even primarily motivated by commercial advantage, such that there is an absence of any planning grounds which would merit adjudication by the Tribunal.
9. Given that the planning scheme has been significantly altered since 2016 and that, on its face, there is a question of strategic and statutory compliance which would require planning analysis, I cannot conclude that there is no legitimate planning argument and that the only reasonable inference I can draw is one of commercial interference and gain.
10. There has been aggressive promotion of Mondib's development opportunity. Sometimes such aggression is met with resistance. There needs to be more than a 'whiff' of a commercial obstruction about the conduct. It needs to be more than circumstantial matters which ought to convince the Tribunal to come to this conclusion. I am not convinced that is the case here.
11. There is little doubt that a land owner in a location close to the subject site and which is subject to the same planning scheme has a legitimate interest in orderly and proper planning of a locality. That said, however, I am of the view that further particulars of the 'orderly and proper planning' ground ought to be provided so that the planning issues are clear for the parties and the Tribunal. I will direct that these particulars be provided within 14 days.

No vexatious delay or course of conduct in the litigation

1. In respect of the complaints of delay and course of conduct I am not persuaded that these are meritorious. As Coral Rise set out in its submissions in some detail, the actions of Mondib in seeking to pursue extensions of time and in seeking to modify the permit on multiple occasions were decisions which it alone instigated. That is not to suggest there is any prohibition on making an application for an extension of time, or to amend a permit as both opportunities are open to a permit holder. What then follows is a process regulated by the provisions of the P&E Act to assess those applications. If there are objections by third parties or a refusal by the Responsible Authority there are review rights which flow, not only to an applicant but to a third party.
2. I am also not persuaded that the questions raised by Coral Rise amount to re-litigation of proceedings already dealt with. The issue of 'transformation' is not raised again. The issue of the merits of the decision to amend is one which is still to be determined and is the subject matter of the remitted proceeding.

1. In respect of s 149B(1)(a), whether the persons who sought the extensions did so lawfully (i.e. were an owner or occupier as required by the permit or the P&E Act) is a live question of law. That the omission or irregularity may be able to be cured by virtue of Schedule 1 to the VCAT Act is a matter for further consideration. It is not automatic that such procedural forgiveness will be forthcoming. In such circumstances, I cannot conclude that the high bar which is required for summary dismissal is attained.

1. Coral Rise seeks a stay of the remitted proceeding P970/2020 until the determination of both P135/2022 and the Supreme Court proceeding in S ECI 2021 03675.[16]
2. I am not satisfied that there is any good procedural or meritorious reason to adjourn or stay the hearing of the remittal from the Supreme Court. Nor am I satisfied that the s 149B application ought not proceed as proposed. Coral Rise, whilst persisting with the application to delay the upcoming VCAT hearings until the outcome of the Supreme Court proceedings, did not press the absolute utility of this course.
3. The Tribunal was advised that Mondib had commenced development on the subject site. The extension of the permit and the amendments to the original permit are a result of actions taken by the permit applicant. They are subject to the requirements and processes set out in the P&E Act, procedurally and substantively. Whilst the VCAT and Supreme Court proceedings are on foot there is no certainty as to the final form of the development. This may well be a risk for Mondib as they have commenced work on the site. However, it is a risk they have chosen to take.
4. The Tribunal is required to conduct each proceeding with as little formality and technicality, to determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.
5. I am not persuaded that an adjournment or stay is in the best interest of fairness and justice to both parties, or necessary in all the circumstances.

1. A stay or adjournment of the VCAT proceedings is not warranted in all of the circumstances of this case. There is sufficient flexibility open to the Tribunal to hear the proceedings together, or sequentially, when the matters are listed for hearing in October and November. The Tribunal concludes that Mondib's applications made pursuant to s 75 of the VCAT Act are refused.
2. Coral Rise will be directed to provide further particulars of the 'orderly and proper planning ground it raised as Ground 2 and to delete Ground 1 which it indicated was no longer pursued.
3. The s 149B application will proceed together with the remitted proceeding. Any changes to plans which are sought to be relied upon by Mondib shall be dealt with in accordance with the usual processes and practice directions.

[1] Mondib indicated further amended plans would be sought to be substituted before the October/November 2022 hearing of P970/2020.

[2] Planning and Environment Act 1987 (Vic), s 149B.

[3] See Mondib Group Pty Ltd v Moonee Valley City Council [2021] VCAT 1027.

[4] Prime Minister John Piss the Family Court and Legal Aid v State of Victoria [1999] VCAT 611, [15]-[16].

[5] Coral Rise, 'Submissions - Temporary Stay/adjournment of the hearing of application P970/2020', 28 July 2022, [68]-[95].

[6] Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722 delivered on 5 November 2021.

[7] Mondib Group Pty Ltd v Moonee Valley City Council [2021] VCAT 1027.

[9] It was argued the first extension was invalid because it was sought by a party who was not entitled to make the application. The second extension was argued to be invalid based on the invalidity of the first extension but also because the Council was said to have failed to have taken into account changes to the Mooney Valley planning scheme.

[10] 'Amendment C207MOON to the Mooney Valley Planning Scheme', 28 January 2022, Subclause 4.4.

[11] Noting that this use does not require planning permission under the zone requirements.

[12] Mondib, 'Submissions in support of summary dismissal', 28 July 2022, [32].

[13] Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

[14] Mondib, 'Reply Submissions Opposing A Stay Of The Proceedings', dated 4 August 2022.

[15] Jason Pizer and Emrys Nekvapil, Pizer's Annotated VCAT Act (Thompson Reuters, 6th ed, 2015), 304-322.

[16] Coral Rise's appeal against the Tribunal's decision in Mondib's s 87A application - VCAT P14/2021.