Mr John Cicero and Mr James Lofting, solicitors, of Best Hooper

1. On 30 April 2009, following an earlier decision of the Tribunal, the responsible authority issued a planning permit to the respondent to construct a dwelling at 8 Dunraven Avenue, Toorak. The applicant owns adjacent land and was an objector in that earlier proceeding.
2. Pursuant to the permit, works were required to commence by 30 April 2011. On 5 May 2011, following a request by the respondent, the responsible authority decided to extend the permit, with works to commence by 30 April 2013.
3. The applicant has made application under s 149B of the Planning and Environment Act 1987, and seeks two declarations, effectively:
   • that the responsible authority's decision to extend time under the planning permit is invalid and contrary to law; and
   • that the permit is invalid because it ignores the contents of paragraphs 11 and 28 of the Tribunal's reasons in the earlier proceeding.
4. The responsible authority and respondent seek summary dismissal of the applicant's s 149B proceeding. This decision deals with this issue.

1. Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

75 Summary dismissal of unjustified proceedings

(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

1. The responsible authority contended that the proceeding was frivolous, vexatious or misconceived. The respondent contended that the proceeding was misconceived or lacking in substance.
2. No material was provided to directly support the first two of the responsible authority's contentions (i.e. whether frivolous or vexatious) and the responsible authority did not seek to pursue any allegation of vexatious conduct when pressed to do so. The respondent made it clear it did not seek to pursue either of these grounds. There is no material before me to support a finding that the applicant's proceeding is frivolous or vexatious, and I make no such finding. I have therefore proceeded to consider the application for summary dismissal solely on the basis of whether the applicant's s 149B proceeding is 'misconceived' or 'lacking in substance'.
3. It is clear from the case law and prior Tribunal decisions that the Tribunal should exercise great caution in summarily dismissing a proceeding, and depriving an applicant of a full hearing. One need look no further than the many case references in Pizer[1] to the effect that:
   • the power to strike out or summarily dismiss an application should not be exercised unless it is clear that there is no real question to be tried;
   • the proceeding must be obviously hopeless, obviously unsustainable or untenable in fact or law, can on no reasonable view justify relief, or be bound to fail;
   • the party seeking summary dismissal must induce in the Tribunal's mind a state of satisfaction that the proceeding is hopeless and bound to fail, and that it is very clear that this is so.
4. The bar is set very high. The Tribunal should not summarily dismiss a proceeding that is merely weak or that has limited prospects of success. Despite this high bar, the power of summary dismissal under s 75 clearly exists, albeit to be used sparingly and with caution. It is in the interests of the justice system and effective case management, and consistent with the objectives of the Victorian Civil and Administrative Tribunal Act 1998, that clearly unjustified proceedings are summarily terminated.
5. The applicant briefly noted two Tribunal decisions, referenced in Pizer, on what might be meant by 'misconceived' or 'lacking in substance'. In the first of these[2], it was stated that the word 'misconceived', in the context of s 75, meant 'obviously untenable or groundless' or 'that the applicant had brought an incorrect type of application'. This is consistent with the broader principles of summary dismissal outlined above - the misconceived nature of the application much be such that it is bound to fail.
6. In the second decision[3], the Tribunal had relied upon comments by Sir Ronald Wilson in a Human Rights Commission decision on what was meant by the expression 'lacking in substance' under the Racial Discrimination Act 1975 (C'wealth). He had indicated that it may in some cases it may be inappropriate to relate the criterion of 'lack of substance' to an applicant's prospects of success, and that it may be sufficient to simply ask whether there is anything of substance that required an answer from the respondent. Sir Ronald concluded that it was unwise to postulate any rules to guide the exercise of the power of summary dismissal, which must be governed by the words of the statute itself in the context of the particular circumstances of the case.
7. Here, in the circumstances of this case, I think it sufficient to consider whether the applicant's proceeding lacks substance to the extent that, on any reasonable view, there is no real question to be tried and the proceeding is bound to fail. This is again consistent with the broader principles of summary dismissal outlined above.

1. Despite recognising the high bar they faced, both the responsible authority and respondent presented to me what was, in effect, a short-form response to the issues raised by the applicant in the s 149B proceeding. This was presumably intended to demonstrate that that applicant's proceeding was bound to fail.
2. However, although the Tribunal may consider essential elements of the material that would be available at a full hearing in order to satisfy itself that the proceeding is indeed hopeless and bound to fail, an application for summary dismissal is not a substitute for a full hearing. It is not a mini-hearing of the merits. Indeed, although s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 refers to the 'opinion' of the Tribunal on the question as to whether a proceeding is misconceived or lacking in substance, it should be noted, by reference to ss 75(5), that these are questions of law.
3. Whilst the responsible authority and respondent exposed weaknesses in the applicant's case, perhaps even to the point of satisfying a prima facie case that the applicant's proceeding would 'likely' fail, this is not the relevant test for summary dismissal. In my opinion, the responsible authority and respondent failed to deliver a knockout blow in demonstrating to my clear satisfaction that the proceeding is obviously hopeless, obviously unsustainable or untenable in fact or law, or be bound to fail.
4. Although I make no comment on the ultimate merits of the applicant's proceeding, the matters where there is a sufficient issue to be tried, or which at least warrants a full hearing, include the following:
   • the applicant seeks to challenge the threshold validity of the respondent's application for extension of its planning permit, contending that no reason for the extension, or at least no valid or sufficient reason, was given. In one of the seminal cases on permit extensions, Kantor v Murrindindi Shire Council[4], the Supreme Court had indicated that an applicant should be treated "as being obliged to advance some reason or material in support of the grant of an extension. An extension should not be granted simply because a request to extend has been made." There is perhaps a legitimate debate to be had as to the status of this comment, and its application to the circumstances of this proceeding;
   • the applicant seeks to challenge the validity of the responsible authority's decision to extend the permit. Although the applicant faces a very high bar in establishing the administrative law grounds for such a challenge, there is perhaps a legitimate debate to be had on those grounds, and on the question whether s 149B can afford relief to the applicant where the applicant has no third-party rights to otherwise review the permit extension;
   • the applicant wishes to call evidence on contested questions of fact that are at least arguably relevant to the outcome of the proceeding - particularly in relation to the 'reason' for the application for extension of permit referred to above. Indeed, the respondent now concedes that one of the reasons given (the existence of a building permit) was incorrect;
   • the applicant seeks to challenge the validity of the planning permit, based on an alleged inconsistency between the permit conditions and the Tribunal's reasons for granting the permit. The responsible authority and respondent concede there is at least an anomaly between paragraphs 11 and 28 of the Tribunal's reasons in the earlier proceeding, and the absence of a permit condition reflecting those reasons. There is perhaps a debate to be had as to whether s 149B affords possible relief in such circumstances, or whether the applicant ought to have pursued other options.
5. In forming an opinion that this matter should proceed to a hearing, this in no way establishes a 'de facto validation of the substance'[5] of the applicant's section 149B proceeding.
6. I have made procedural directions for a hearing, along the lines discussed at the conclusion of the practice day hearing. The applicant has indicated it also intends to subpoena additional evidence. That is a matter for the applicant. However, if any subpoena is contested, the applicant will need to satisfy the Tribunal of the determinative relevance of the evidence to the issues raised in the proceeding.

[1] Annotated VCAT Act (3rd ed) at [3173] - [3175]. The applicant referred to several of these case references.

[2] Ballarto Pastoral P/L v Department of Primary Industries [2006] VCAT 478, referenced in Pizer in [3174.1] at p 234.

[3] Liu v University of Melbourne [2002] VCAT 896, referenced in Pizer at [3174.1] at p 235.

[4] (1997) 18 AATR 285 at 313 per Ashley J.

[5] Following Issacs v Sosnowski t/as QA Industrial Chemicals (unreported decision of VCAT, 9 December 1998), referenced in Pizer at [3173.1] at p 228