The BLA wrote to the applicant's solicitors on 12 January 2010. The letter essentially requested more information about the question of planning permission and stated that the BLA would need to be convinced that No. 62 was capable of being operated as a brothel given the requirements of the PC Act and other laws. The letter raised some other matters. It inquired about the Campbellfield property. It also noted that in exercising its powers in 2001 the Tribunal had ordered that the condition that the applicant conduct business only out of No. 58 "would operate for the duration of the Applicant's licence". The letter therefore invited submissions as to how the licence could be varied so as to permit a temporary brothel at No. 62.

There was further correspondence before the applicant's solicitors wrote again to the BLA on 19 February 2010. In that letter they stated that time was of the essence. Noting that more than three months had passed since they applied for variation of the licence, they "respectfully request[ed]" the BLA to make a decision by 18 March. They then wrote this:

"Should a decision not be made by 18 March 2010 we will consider the application has been refused by the Authority pursuant to Section 4 of the Victorian Civil and Administrative Tribunal Act 1998 and we are instructed to seek a review of the decision by the Victorian Civil and Administrative Tribunal pursuant to Section 56 of the Prostitution Control Act 1994".

1. The BLA wrote to the applicant's solicitors on 16 March 2010. Its position was that it did not consider that it had refused to make a decision. It said that it awaited the outcome of a review by the (Planning and Environment List of the) Tribunal of planning decisions by the Council. It considered this to be "critical information" and "a relevant consideration" in its decision-making process. The letter also pointed out that the PC Act did not provide for a statutory timeframe in which it had to make its decision. The BLA advised that it would continue to process the application in the meantime. It repeated the request for information about the Campbellfield property and the invitation for submissions regarding the Tribunal's 2001 order. It concluded by noting that further correspondence was being prepared in relation to "other facets" of the request to vary the licence.

2. On 25 March 2010 an application for review was lodged on behalf of the applicant. The decision to be reviewed was said to be the decision of the BLA to "suspend or refuse to make a decision to amend" the licence. In an accompanying letter the applicant's solicitors stated that she sought a review of the BLA's decision "to refuse, suspend or refuse to make a decision on an application to amend the licence". At another part of that letter the solicitors said that the position of the BLA "amounts to a refusal, suspension or refusal to make a decision on the application". The applicant's solicitors requested that the application for variation of the licence be determined by the Tribunal and that the hearing of that application be listed at the same time as the hearing of the planning applications, in August.

3. The BLA wrote again to the applicant's solicitors on 25 May 2010 repeating its previous request for information and requesting some further information.

1. Before turning to the submissions made on behalf of the parties, I set out the main relevant statutory provisions. The first is section 40 of the PC Act:

(1) The Authority may at any time vary or revoke a condition or restriction set out in a licence or impose a new condition or restriction.

(1A) The conditions and restrictions to which a licence is subject must be set out in the licence.

(1) A person whose interests are affected by a decision of the Authority under section ... 40 ... may apply to the Tribunal for review of that 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

(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;

(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;

(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 ..."

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

• (a) has all the functions of the decision-maker; and

• (b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

• (c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

• (a) affirm the decision under review; or

• (b) vary the decision under review; or

• (c) set aside the decision under review and make another decision in substitution for it; or

• (d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal ..."

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

1. Prior to the preliminary hearing before me on 4 June the parties provided written submissions. Counsel made submissions orally at the hearing. By that time the issues had more or less narrowed to the ones that I have set out in paragraph 1 of these reasons. It was no longer contended on behalf of the applicant that the BLA had refused to amend the licence, that it had refused to make a decision, or that it should be deemed to have done that.

2. On behalf of the BLA, Mr. Pizer referred to the statutory provisions and submitted in essence that at the time the applicant made her application to the Tribunal there was no reviewable decision. He cited Wizardry Kennels v Semtech Animal Breeding Services (Civil Claims) [2006] VCAT 2368 where Judge Bowman said:

"The Tribunal is a creature of statute and, whilst it has broad powers, its jurisdiction is limited to that conferred by the VCAT Act and by the enabling enactments ... VCAT may be a decision-making body not bound by the rules of evidence, and with a statutory obligation to conduct proceedings with as little formality and technicality as a proper consideration of matters permits. However, its essential jurisdiction must be established, and, however tempting it might be to determine what might appear to be a simple factual matter in a prompt, economical and hopefully fair way, that cannot be done if the jurisdiction so to do does not exist." (at paragraph 11)

The first task, Mr. Pizer said, was to characterise any decision that the BLA had made as at the date of the application for review. The second task was then to consider whether that "decision" fell within section 4(1) of the VCAT Act.

Mr. Pizer submitted that the applicant was wrong to suggest that the BLA had suspended its decision-making process for, by its letter dated 16 March, it expressly said that it would continue to process the application. Even if the Tribunal found in favour of the applicant on this point, a more appropriate characterisation would be that the BLA was deferring its decision pending the determination of the "existing use rights" application.

He said that paragraph (a) of section 4(1) of the VCAT Act had to be read in the context of paragraphs (b) and (c). Properly construed, section 4(1)(a) related to making a decision, order, determination or assessment, or suspending a decision, order, determination or assessment, and so on. The Tribunal had no power to review a decision to defer the making of a decision. Similar to the word "revoke", the word "suspend" attached only to a pre-existing decision, order, determination or assessment. The section had no application to a suspension of the decision-making process.

What the applicant contended for would involve a re-writing of the provision, Mr. Pizer submitted. Further, there were sound policy reasons for construing the section in the way that the BLA contended it should be: Parliament would not have intended there to be a fragmentation of the decision-making process. He gave some examples. One was that the TAC might say that it would make a decision about an injured person's compensation once it had received reports from medical specialists. Another was that the BLA itself might put off a decision about an estate agent's licence until after a person's criminal trial: see section 21(6) of the Estate Agents Act 1980 which enables the BLA to "postpone its consideration of an application for a licence until such time as it considers appropriate".

Parliament could not have intended to put at risk the efficiency of administrative decision-making processes, Mr. Pizer submitted. Instead, Parliament intended that there be reviews of decisions of a final nature - that is, decisions made once the decision-making process had come to an end. In this context he cited a decision of the Tribunal in Re Kerrigan and TAC (2001) 18 VAR 231 at 236 in which Senior Member R. Davis remarked that the TAC was "entitled to conduct a proper decision-making process and not have the same fragmented". The Senior Member went on to quote Mason CJ in Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 where he said:

"To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process...The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. The answer is that a reviewable 'decision' is one for which the provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an immediate decision, might accurately be described as a decision under an enactment".

Mr. Pizer submitted that there was a fundamental point involved. If the Tribunal saw itself as having jurisdiction to review what he termed "interlocutory" decisions then there was a risk that the Tribunal might become the first instance decision-maker and so usurp the function of the primary decision-maker.

Mr. Morris approached the two tasks identified by Mr. Pizer in reverse order and so began by focussing on the meaning of the words "suspends" and "decision". According to the Macquarie Dictionary 3rd edition, definitions of "suspend" included to hold or keep undetermined; to refrain from forming or concluding definitely, as in to suspend one's judgment; to defer or postpone, a sentence on a convicted person; to cause to cease for a time from operation or effect, as a law, rule, privilege or the like. He submitted that if, for instance, one had a certificate that gave certain rights and one was suspending that certificate, one would use the last of these meanings. On the other hand, if there were not an existing certificate but a certificate that was to be made in future one could use the first two of these meanings.

Mr. Morris then said that the meaning of the word "decision" was not confined in section 4(1)(a). According to the same dictionary, definitions of "decision" included "the act of deciding" as well as determination, judgment, the making up of one's mind, and resolution. He submitted that section 4(1)(a) encompassed decisions made but also decisions to be made. He cited Freeman v Medical Practitioners Board of Victoria [2000] VSC 547 where Balmford J discussed the distinction between the words "determination" and "decision", saying that every determination is a decision but every decision is not a determination: see especially paragraphs 24 and 36. He submitted that under section 4(1)(a) "decision" embraces the act of deciding and so "suspend" embraces deferring or putting on hold the act of deciding. This was what the BLA has done. It had not made some "interlocutory" decision. Rather, the BLA had put on hold the act of making a final decision.

Mr. Morris further submitted that section 51 of the VCAT Act - which gives the Tribunal broad powers - was the answer to what the BLA contended. So, with regard to Mr. Pizer's "TAC example", Mr. Morris said that the Tribunal could itself defer its decision pending the receipt of the medical reports. Among the other possibilities would be that the Tribunal could set it aside and remit the matter for reconsideration. The Tribunal had flexible powers that would permit matters to be dealt with in a practical and sensible way, he said. He then gave an example of an authority that informed an applicant that it was deferring a decision simply because it had not yet made up mind. He submitted that if the BLA's argument were upheld there would in that case be no right to review because there was no pre-existing decision and (under the PC Act) no time limit. Although he agreed with the observation that relief in the nature of mandamus might be available, he submitted in effect that a person should not have to apply to the Supreme Court but should be able to apply to the Tribunal.

In general support of his submissions, Mr. Morris referred to a decision of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 and pointed out that in Terminate Tulla v EPA [2007] VCAT 2332 DP Gibson referred to that case. Hillpalm concerned the powers of the New South Wales Land and Environment Court which is "both a superior court of record and a court of limited jurisdiction" having functions "to uphold the public interest in planning law, to protect the public interest beyond the interests of the parties and also to protect the environment": see judgment of Kirby J at paragraphs 83-84. At paragraph 9 of Terminate Tulla appears this statement:

"It is important, as the High Court has recently observed [in Hillpalm], that powers given to specialist courts and tribunals be interpreted amply to give effect to the legislative policy that the specialist court or tribunal address legitimate issues of concern ..." (Emphasis added).

1. Mr. Morris submitted that the principle in Hillpalm should apply in this case where it was open to interpret section 4 in more than one way.

2. It was conceded by Mr. Morris that, even though there was no express power under the PC Act for it to do so, the BLA was able to seek further information as it had done. Nevertheless, he submitted that it was too simplistic to say that Parliament intended that the Tribunal not become involved when matters were still under consideration by the primary decision-maker. The ordinary and natural meaning of words resulted in the Tribunal having jurisdiction even though a final decision had not yet been made. While it might then be argued that there was a public interest against a person making an application to the Tribunal prematurely, there would be a greater evil of the person had no relief.

3. Mr. Morris submitted that there was little difference between a deferral and a suspension but what happened here amounted to a suspension because the final decision was being put off until after the Tribunal was to hear the applications in the Planning and Environment List.

4. In reply, Mr. Pizer submitted that section 4 had a consistent structure that involved separate identified actions: for instance, one made a decision that was made for the first time, or one suspended a decision that had already been made. He said that there might be a refusal, for instance, if a decision-maker said that it would not make a decision until some time far into the future on grounds that had no bearing on the decision it was to make. However, that was not what occurred here. He submitted that mandamus may be the remedy in appropriate circumstances.

1. It was not maintained on the applicant's behalf that the BLA had in fact or in effect refused to make a decision. I do not see how the ultimatum given by her solicitors could have produced that result. Instead the applicant's case centred on the submission that the decision, that is the decision-making process, had been suspended.
2. My reading of the correspondence, especially the BLA's letters dated 16 March and 28 May, is that the BLA has actually not suspended or deferred its decision. The BLA has indicated that it sees the outcome of the planning applications as "a relevant consideration" in its decision-making process. The applicant may seek to argue the point about that, but the letter also indicates that the BLA would continue to process her application in the meantime, repeating its request that she take the steps she can to advance that process. The position is not that all the required information has been provided to the BLA but that, notwithstanding that, the BLA has said that it will not make a decision until after planning applications have been determined. The position is that, although it "awaits" the outcome of the planning applications, the BLA continues to process the licence variation application, including by seeking certain information.

3. However, even if it would be correct to say that the BLA has suspended the decision-making process, I consider that the interpretation contended for by Mr. Pizer is the correct one. This means that the BLA has not made a reviewable decision.

4. As Judge Bowman stated in Wizardry Kennels, the Tribunal is a creature of statute. In this case its jurisdiction is limited to that conferred by the VCAT Act and by the PC Act.

5. Section 35(a) of the Interpretation of Legislation Act 1984 provides that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

6. The relevant second reading speech makes clear that the "key proposal" leading to the enactment of the VCAT Act was "to amalgamate a number of Tribunals". Those tribunals included the AAT (Administrative Appeals Tribunal). (Hansard, Legislative Assembly, 9 April 1998, at p. 974). The Administrative Appeals Tribunal was itself created by the Administrative Appeals Tribunal Act 1984. The Second Reading speech relating to the 1984 legislation referred to the package of reforms made by the Commonwealth in the 1970s - the so-called "new administrative law" - and went on to note that the similarities between the Victorian AAT and the Commonwealth AAT would be marked. (Hansard, Legislative Assembly, 20 September 1984, at p. 663. In relation to the Commonwealth AAT see the general discussion in the judgment of Kirby J in Shi v Migration Agents Registration Authority [2008] HCA 31 commencing at paragraph 33). Further concerning the Victorian AAT the Minister stated that the "tribunal will be an independent body with powers to review a wide range of administrative decisions on their merits" (at p. 663). Later, in relation to public statutory authorities and others, the Minister said this:

"The external accountability of these decision makers largely depends upon whether there is any right for the citizen to have an adverse decision reviewed upon its merits." (at p. 664).

At p. 664 the Minister went on to discuss the distinction between review on the merits and judicial review, noting that with merits review a body looks at all facets of the decision and substitutes its own view of the "correct" decision, whereas judicial review is conducted by the Supreme Court and involves examining the decision-making process to determine whether the legalities of decision-making have been complied with.

Section 4 of Administrative Appeals Tribunal Act 1984 set out the objects of that Act. They included "to establish an independent tribunal to review administrative decisions upon their merits ...". On the other hand, section 1 of the VCAT Act states the purpose of the Act to be to establish the Tribunal. Given that the central aim of the VCAT Act was to amalgamate a number of Boards and Tribunals - some having review jurisdiction and others having original jurisdiction - it is not surprising that the words of section 4 of the 1984 Act were not carried forward into the VCAT Act. There can be no doubt, however, that so far as the Tribunal's review jurisdiction is concerned the general purpose of the 1984 Act continues to be one of the purposes of the VCAT Act.

In summary, when the Tribunal now exercises its review jurisdiction it does so under legislation that is modelled on the previous legislation, the Administrative Appeals Tribunal Act 1984 which Act in turn was modelled on Commonwealth legislation, the Administrative Appeals Tribunal Act 1975. Section 4 of the VCAT Act is not the same as but is clearly derived from section 3(3) of the previous Victorian Act and section 3 of the Commonwealth Act.

What I think emerges from the discussion so far is that one of the purposes of the VCAT Act is to continue to provide a mechanism for merits review of decisions that are made under enabling enactments. That reinforces the view that "decision" in the present context means a decision of a final nature, for one cannot really consider the merits of a decision until the decision is made. Of course it is possible to speak of the "merits" of deferring a decision or of suspending the decision-making process, but ordinarily one would speak of the merits of the final decision. When a final decision has been made there is something of substance to review. The Tribunal should then have available to it not only all the material that was available to the primary decision-maker but also any further material that may since have become available. In my view it is - generally - only review of that kind that the Tribunal was designed to have. I say generally because obviously the Tribunal can sometimes exercise its powers where there has been no decision, because there has been or has been deemed to be a refusal to make the decision.

I mention also that although there is no definition of "decision" in the VCAT Act as such (in contrast, for instance, to the Administrative Law Act 1978 where I think the definition suggests finality) there is a definition of "decision-maker". A "decision-maker" means a person who makes, or is deemed to have made, a decision under an enabling enactment. When read with section 42(1) this seems to me to contemplate a decision that is final or operative and determinative.

More generally I would say that one has to be careful to keep in mind the distinction between merits review and judicial review. In some cases, reading section 4 of the VCAT Act together with the provisions of a particular enabling enactment will mean that the Tribunal will exercise its powers because a decision-maker is deemed to have refused to make the decision. The ultimate result will be a decision on the merits. In the absence of a provision specifying the period in which the decision must be made, however, if the decision-maker fails to make a decision any remedy may have to be found by way of judicial review.

One should also be careful to keep in mind the different senses in which the term "jurisdiction" can be used. It is one thing to say that the power given to a specialist tribunal should be interpreted amply where it has threshold jurisdiction to deal with the matter. It is another thing to suggest that provisions giving power to a tribunal should be interpreted in such a way that a tribunal deals with something that it was not intended to deal with. One must not read the powers that Parliament has given the Tribunal in section 51 of the VCAT Act so as to expand beyond what Parliament intends the range of matters in relation to which the Tribunal can exercise those powers.

If the words "suspend" and "decision" are read in context, then I do not agree that they have the meaning that Mr. Morris submitted that they have. In any event the principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 must also be borne in mind. There McHugh, Gummow, Kirby and Hayne JJ said at page 384:

"... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning".

1. Finally, as noted, Mr. Pizer cited Australian Broadcasting Tribunal v. Bond. That case, decided before VCAT was established, involved consideration of the word "decision" in the context of judicial review under the Commonwealth Administrative Decisions (Judicial Review) Act 1977. Mr. Morris submitted in effect that the present case was not one in which there was an application to review a decision of an interlocutory nature. Rather it was an application to review the suspending of the act of making the final decision. What Mason CJ said in Bond would still hold, in my view. For the Tribunal to review what the BLA has done to this point would 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, as Mr. Pizer expressed it.

2. For these reasons the application is dismissed.