Victorian Civil and Administrative Tribunal|2013-09-13

This matter came before us on two occasions. On each occasion Mr Milvan Muto was seeking a stay pursuant to s149 of the Victorian Civil and Administrative Tribunal Act 1998 "the Act". On the second occasion he was also seeking leave, for a second time, for a re-hearing pursuant to s120 of the Act. Mr Muto also made reference, particularly at the second hearing, to other sections of the Act such as ss97, 98 and 102.
At the conclusion of the earlier hearing on 9 August 2013 we granted a stay in relation to the operation of orders made on 10 July 2013 by Senior Member Russell Byard and Member Ken McNamara. That stay was for 21 days, and in fact there was at that time an outstanding reserved judgment in relation to an application pursuant to s120 seeking a re-opening and review of the very same orders made by Senior Member Byard and Member McNamara on 10 July last.
Whilst we ordered a stay of 21 days on 9 August last, unfortunately written Reasons in respect of it could not be supplied before the matter came on again with the expiry of the stay on 30 August last. There were a number of reasons for this, including the fact that I was absent due to undergoing a medical procedure during that 21-day period. To a considerable extent, the granting of the earlier stay has been overtaken by events. The reserved judgment in question has since been handed down by Her Honour Judge Davis and Member Bensz and Mr Muto's application for a further stay or, again for reopening, has since been heard. However, we appreciate that the written Reasons for that earlier stay may be of some use to the parties and generally. They will be set out in summary form in these Reasons.

"(1) The Tribunal, on the application of a party or on its own initiative, may stay the operation of any order it makes pending the determination of any appeal that may be instituted under this Part.

(2) The Tribunal may attach any conditions it considers appropriate to a stay of an order under sub-section (1)".

The factual background, which has basically remained a constant as far as the applications before us are concerned, shall now be set out, also in summary form.

The relevant background facts could be briefly described as follows. Mr Muto was a Councillor of the City of Greater Shepparton. The Secretary had brought a proceeding pursuant to s81E of the Local Government Act 1989 in which gross misconduct by Mr Muto in his role of Councillor was alleged. Dobson and others were all Councillors of the City of Greater Shepparton at the relevant time, and they have brought a proceeding against Mr Muto pursuant to s81B of the Local Government Act alleging serious misconduct by Mr Muto in his position as Councillor. There is also a history of other proceedings taken by the Secretary against Mr Muto which resulted in findings of misconduct. This has been to the Court of Appeal, where Mr Muto was substantially unsuccessful, and concerning which he is seeking leave to take the matter to the High Court of Australia. That is a very brief and perhaps over-simplified account of the general background at the time that the proceedings commenced before Senior Member Byard and Member McNamara on 6 June last.
Senior Member Byard and Member McNamara made orders on 10 July. The effect of those orders was that, in essence, Mr Muto was disqualified for four years from 1 July 2013 and his office as a Councillor of the City of Greater Shepparton was declared to be vacated. That was in relation to the gross misconduct. In relation to the serious misconduct, Mr Muto was suspended from office as a Councillor for six months from 1 July 2013 and ordered to be ineligible to hold the office of Mayor or to chair a special committee of the Council for a period of four years from that date. The Tribunal distributed detailed written Reasons, these apparently being made available on the internet. Inter alia, these written Reasons disclose the following, which we accept. When the hearing commenced on 6 June 2013, Mr Muto, who on some previous occasions had legal representation, was representing himself. Apparently he made applications at the commencement of the hearing in which he renewed an application which he had made at a directions hearing. Inter alia, he had sought adjournments and, when unsuccessful, had sought a reconstitution of the Tribunal for the hearing of the principal proceedings on the basis of allegations of bias. The applications, on each occasion, were refused.
On 6 June 2013, Senior Member Byard and Member McNamara refused to disqualify themselves on the basis of actual or ostensible bias. The matter was referred to His Honour Judge Macnamara, the Acting President.
However, Mr Muto objected to His Honour hearing the matter, he previously having had some involvement. Ultimately, the referral in relation to the bias application was heard by Her Honour Judge Jenkins. The application for reconstitution was dismissed and an order for costs made against Mr Muto, essentially on the basis of vexatious conduct and prolonging proceedings. The matter was referred back to Senior Member Byard and Member McNamara.
Upon resumption before them, Mr Muto expressed his unhappiness as to what had occurred, and apparently gathered together his papers and other documents and departed, stating he was leaving to seek an injunction from the Supreme Court. Before his departure, he was informed that the hearing would proceed in his absence unless and until it was restrained.
Approximately halfway through the hearing the next morning, a barrister, Ms Cooper, appeared on behalf of Mr Muto, seeking an adjournment. Apparently she had no brief, but advised the Tribunal that she was instructed by Voitin Lawyers solely for the purposes of applying for the adjournment. The basis of this was said to be that Mr Muto was in hospital. According to the history of events as set out in the Reasons, the matter was then stood down so that Ms Cooper could obtain evidence in order to support that application. The Tribunal has recorded that, upon the resumption of the matter, the only evidence available was a medical certificate from a general practitioner in Shepparton, and it was clear that Mr Muto was not in hospital. In the circumstances, the members ruled that the case was to proceed. Ms Cooper then withdrew, and the matter proceeded with no further appearance by or on behalf of Mr Muto.
We have set out what occurred in some detail because of Mr Muto's stated intention of taking the matter to the Supreme Court on appeal. His application for a stay, being made pursuant to s149, involves the consideration of an appeal. As shall be discussed, various factors, including the prospects of success on appeal, require consideration.
In any event, evidence was taken from a number of witnesses and ultimately the Tribunal came to the conclusion that has been described.
Subsequently, Mr Muto applied to the Tribunal for a review or re-opening of the orders made by Senior Member Byard and Member McNamara. Section 120(1) reads as follows:

"A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made."

This application came on before Her Honour Judge Davis and Member Bensz on 26 July 2013. Mr Muto represented himself, Dr Freckleton appeared for the Secretary and Ms Ellyard for Dobson and others. At the conclusion of the application on 26 July 2013, Her Honour and Member Bensz reserved their decision. That reserved decision of 26 July 2013 had not been handed down when Mr Muto's stay application came on before us on 9 August 2013. Thus, as at that time, there existed a stay application in relation to the decision of Senior Member Byard and Member McNamara of 10 July 2013 and a reserved decision of Her Honour Judge Davis and Member Bensz relating to a review of that same decision.
The situation was further complicated by other factors. Firstly, as I understand it, as at 2 August 2013 Her Honour had gone on leave and was not within the jurisdiction. Secondly, it seems to us that the Secretary, or some other government entity, had acted somewhat hastily or prematurely. Despite the reserved decision in relation to the possible re-opening and review of the decision of the Tribunal of 10 July 2013, the Secretary, or some other government entity, had gone ahead and announced that, at 2.00pm on Monday 12 August, the orders of 10 July 2013 would, in essence, be put into effect. In essence, Mr Muto would be removed as a councillor, his position declared vacant and the votes in favour of him redistributed. We might add that it was conceded that, for the purposes of s148 of the Act, the appeal period effectively commenced on 16 July and thus the proposed actions on 12 August were also premature in that respect.
It was against this background that the hearing of 9 August took place.

There seemed to us to have been two important factors in existence as at 9 August 2013. One which concerned us, and which we emphasised during and at the conclusion of the hearing, was that a reserved decision was awaited in relation to the s120 application. If Mr Muto was successful in that application, the matters decided by Senior Member Byard and Member McNamara would have to be re-heard and re-determined. In those circumstances, the orders of 10 July 2013 would, in essence, be null and void. We emphasised that this weighed heavily upon our thinking. Not only did it seem to us that it would be a gross injustice to Mr Muto if he was removed from Council and his votes re-distributed before his application for a re-hearing had been determined, but also the possibility existed of that process being null and void, with subsequent confusion resulting, apart from interference with the conduct of the affairs of the council.
The meaning and application of s149(1) has been the subject of a number of decisions, not all of them in concord. What does seem to us to be clear is that, for a stay to be granted pending an appeal, a number of factors have to be considered. A successful litigant should not normally be deprived of the fruits of victory. Circumstances warranting a departure from this norm should be established. Also to be taken into account are the prospects of success of the application; whether the application would be rendered nugatory in the absence of leave; and the balance of convenience. It seems to us that a general consideration of the facts and factors surrounding the application is required.
At the hearing on 9 August last, we obtained oral evidence from Mr Muto as to what was in fact occurring in relation to any appeal. One reason for this, and it is relevant both to the hearing on 9 August 2013 and that on 30 August 2013, is that there appear to have been conflicting decisions concerning the words "pending the determination of any appeal that may be instituted" in s149(1). Whilst we were not particularly convinced by the evidence of Mr Muto, the thrust of it was that he had been in contact with the appropriate people in the Supreme Court of Victoria; that he had made it clear that he was self-represented; that he had been supplied with various forms that required completion; and that he had not completed and returned these forms because he was awaiting the decision of Her Honour Judge Davis and Member Bensz concerning a re-hearing. If that was granted, and he expressed confidence that it would be, he would not need to proceed at this time with any appeal to the Supreme Court and that would in turn eliminate the expenses involved. He stressed to us his impecuniosity.
As stated, there have been a number of conflicting decisions concerning the operation of s149(1). Perhaps the extreme position adopted has been that in Dona Homes (Vic) Pty Ltd v Toppi [2004] VCAT 1749, where it was stated that an order pursuant to s149 could only be made after the institution of any appeal. There have been a number of decisions where this approach has, in essence, been limited to its particular facts and where a broader approach has been adopted. I would refer to such decisions as MD [2005] VCAT 2597, Pelangi Engineering Pty Ltd v MCM Chemical Handling Pty Ltd [2005] VCAT 2154 and State of Victoria v Bradto Pty Ltd [2006] VCAT 100. Given the particular wording of s149(1) - pending the determination of any appeal that may be instituted under this Part (our underlining) - we are of the view that it is not essential that an appeal or application for leave to appeal be actually on foot in the particular case in order for a stay to be permissible. We would also refer to provisions in the Act such as s97 and s98, and the obligation upon the Tribunal to act in a manner that is fair and according to the substantial merits of the case. Whilst we may have had some reservations about just how enthusiastically Mr Muto was pursuing any appeal, we accepted that he had taken some steps in that regard. That, combined with his evidence on oath concerning his intention in relation to appealing, seemed to us to satisfy the requirements of s149(1) and enliven its operation.
However, we would repeat that the matter which weighed upon us heavily in our thinking related to the unfairness of not granting a stay, not only when an appeal was being contemplated but when there was, outstanding, a reserved judgment which went to the heart of the matter and in circumstances where virtually immediate and major consequences were to result from the premature implementation of the orders made on 10 July. Nothing would be lost by a brief delay so that the highly relevant reserved decision could be handed down. Potentially, much could be lost if the stay was not granted. Accordingly, we granted the stay for the very limited period, confident in the knowledge that Her Honour Judge Davis was about to return from leave and that she and Member Bensz would be handing down their decision. That confidence was fully justified and the decision was indeed handed down within the 21 day period of the stay.

Prior to the hearing of 30 August 2013, and on 15 August 2013, Her Honour Judge Davis and Member Bensz handed down their decision in relation to the application pursuant to s120, together with detailed Reasons. In short, Mr Muto's application in each of the proceedings against the Secretary and Dobson and others was dismissed, and he was ordered to pay costs. Her Honour and Member Bensz were satisfied that Mr Muto had indeed appeared at the first day of the hearing before Senior Member Byard and Member McNamara, and had been so present for almost the entire day. On the morning of the second day, he had been briefly represented by counsel. Accordingly, Her Honour and Member Bensz ultimately found that Mr Muto had not met the first requirement for an application under s120 of the Act, in that he had in fact appeared and, briefly, had been represented. It is to be remembered that Senior Member Byard and Member McNamara stated in their Reasons that Mr Muto, when things were not moving in a favourable direction for him, effectively scooped up his papers and departed, stating that he was going to the Supreme Court. It is also to be remembered that, according to the Reasons, Ms Cooper appeared on the following day with, ultimately, a medical certificate which was not seen to be supporting the proposition that Mr Muto was in hospital.

(i) The application pursuant to s120

Whilst the application pursuant to s149 consumed far more of the attention of the parties, Mr Muto also applied for leave to make another application pursuant to s120. Section 120(3) envisages this, but Rule 4.18 provides that no more than one application may be made under s120 in respect of the same matter without leave.
We say at the outset that we are not persuaded that such leave should be given. Mr Muto has indicated that he has no intention of appealing the decision of Her Honour Judge Davis and Member Bensz. That decision seems to us to have been based almost entirely upon the fact that Mr Muto had in fact appeared (and been represented) at the hearing before Senior Member Byard and Member McNamara and that therefore the operation of s120(1) was not enlivened. We would also point out that apparently Mr Muto had not disputed the chronology of events as to what occurred before Senior Member Byard and Member McNamara - see paragraph 32 of the decision of Her Honour and Member Bensz. Nothing seems to have changed since. It may be that more expansive medical certificates have since been obtained, but these would seem to be directed more to the proposition of "reasonable excuse" for non-attendance as set out in s120(4). However, Her Honour and Member Bensz did not arrive at the point of dealing with "reasonable excuse" - see paragraph 36. That is because they found that Mr Muto did in fact appear and, briefly, was represented.
If Her Honour and Member Bensz have made an error of law in adopting the approach which they did, then the appropriate remedy is to seek leave to appeal. However, Mr Muto has stated that this is not what he intends.
Mr Muto also argued that he had intended to rely upon s102 of the Act in the application before Her Honour and Member Bensz and had advised the Tribunal in advance of that intention. However, he forgot so to do when the hearing was actually conducted. We do not regard this as a valid ground for seeking leave for another review of the original decision. Section 102 deals with evidence and the opportunities that should be afforded to a party in relation to the giving of evidence and the conduct of a hearing. We fail to see how, had Mr Muto remembered to advance argument based upon s102 before Her Honour and Member Bensz, that would have assisted his position. He failed in his s120 application because Her Honour and Member Bensz determined that he had been present, had been represented and that the operation of s120 was not enlivened.
In all the circumstances, we are of the opinion that nothing that has been put before us persuades us that leave should be granted for a second application by Mr Muto pursuant to s120. Accordingly, such leave is refused, and the application for it is dismissed..

(ii) The application pursuant to s149

With the issue of the reserved judgment in relation to s120 having been removed, the stay application can proceed on what could be called the usual basis with consideration of relevant factors. However, the starting point is whether, in the circumstances now prevailing, the operation of s149 is enlivened. In other words, in the context of the situation as it now is, are we satisfied that there was, as at the time of hearing, any appeal that may be instituted within the meaning of s149. To complicate matters, and as shall be discussed, there have been some further developments since the conclusion of the hearing.
We can say now that, at the conclusion of the hearing, we were not so satisfied. As earlier discussed, on 9 August Mr Muto gave evidence, at our suggestion, as to what was happening in relation to any appeal from the decision of Senior Member Byard and Member McNamara. He specifically told us that he had obtained the relevant forms and would complete them forthwith. The impression given was that, in order to be within time (as it was then perceived to be), the necessary steps would be taken without him necessarily awaiting the handing down of the reserve decision relating to s120. Clearly this was a factor which we also considered when examining the fairness and justice of the situation.
However, as at the hearing of 30 August, there is no argument but that, in essence, nothing further had been done. The required forms had not been completed. Leave to appeal had not been sought.
Mr Muto had a somewhat unusual argument, not previously advanced on 9 August, in this regard. He claimed that he was still within time to seek leave to appeal. His argument seems to be that, whilst the written Reasons were sent by email to him and receipt acknowledged (this being no later than 16 July), he did not get them in paper form until 9 August. Further, he had been alerted as to a correction that was to be made and that had not been done.
We consider this argument to be without merit. We accept that the correction which was foreshadowed or made was one pursuant to s119 of the Act - effectively, pursuant to the "slip rule" which is embodied in that section. The error that had been made was one in relation to the appearances and, as we understand it, in relation to the correct order of appearances on behalf of the Secretary and Dobson and others. Even if the error had been in relation to the appearance by or on behalf of Mr Muto, the result would be the same. An error, or slip, which in no way affected the Orders or the Reasons, was corrected. That takes matters nowhere.
In any event, the relevant provisions contained in s148 are as follows:

"(2) An application for leave to appeal must be made -

(a) no later than 28 days after the day of the order of the Tribunal; and

(b) in accordance with the rules of the Supreme Court.

(4) If the Tribunal gives oral reasons for making an order and a party then requests it to give written reasons under section 117, the day on which the written reasons are given to the party is deemed to be the day of the order for the purposes of subsection (2)."

The day on which the relevant order of the Tribunal was made was 10 July 2013. Twenty-eight days from that date is 7 August.

In relation to s148(4), it is not suggested that the Tribunal gave oral Reasons for making the order that it did. There is no argument but that Senior Member Byard and Member McNamara reserved their decision, ultimately handing it down in written form on 10 July. There is no evidence, or suggestion, that there was a request for written Reasons. As stated, the written Reasons were sent out with the order. It does not seem to us that s148(4) is activated. Neither of the pre-requisites exist. It was not a situation of oral Reasons and there was no request for written Reasons. Accordingly, application of the wording of the Act would result in a conclusion that time for seeking leave to appeal expired on 7 August 2013.
However, as a matter of fairness, the Secretary and Dobson and others agreed that time could be treated as commencing to run from 16 July, which would appear to be the day, or the latest day, upon which Mr Muto would have received the Orders and Reasons. It was on that premise that we conducted the hearing on Friday 9 August, with time expiring on the following Tuesday, 13 August. As stated, Mr Muto gave evidence to the effect that he would attend to the required paperwork, he being aware of the imminent expiry of time.
The bottom line is this. We do not accept Mr Muto's explanation as to his belief that he was still within time, a belief which he propounded more than once. It is not a proposition that was even mentioned on 9 August. Despite the stay then granted, nothing had been done in relation to advancing any application for leave to appeal.
In this regard, we are also not persuaded that we should attach any great weight to the proposition that Mr Muto took no steps in relation to obtaining leave to appeal because he was awaiting the reserved decision of Her Honour Judge Davis and Member Bensz. Firstly, on 9 August he stated that he would take the required steps in relation to leave to appeal without further delay. Secondly, the order of Her Honour, to which the written Reasons were attached, is dated 15 August 2013. Nothing was done in the following 15 days to advance the application for leave to appeal. The only steps taken have been so taken after the hearing on 30 August.
In all the circumstances, we are not of the view that a further stay should be ordered. Given what has occurred, we are not persuaded that Mr Muto seriously pursued an application for leave to appeal within the prescribed time. He is well and truly out of time. He did not take the steps that he said he would. In any event, once the reserved decision was handed down, there was no good reason for any further delay. No application for leave to appeal was then instituted. All there was, as at 30 August last, was talk of appeal and, presumably, the obtaining of some forms in relation to leave, which forms had, at that stage, not been returned. .
We would add the following. An email was sent by Mr Muto to Judge Bowman's associate at 9.47 pm on Sunday 8th September last, in excess of a week after the conclusion of evidence and submissions, we having reserved our decision. It was to the effect that the appeal had been lodged. Also received was a copy email, and attachments, sent to the Registry of the Supreme Court of Victoria at 9.37 pm on the same night - Sunday 8th September. Even if one accepted the erroneous argument based upon receipt of the written Orders and Reasons on 9 August, this was yet again out of time. However, a subsequent email arrived from Mr Muto. The documents had not been accepted by the Supreme Court because of errors. Mr Muto stated that he would endeavour to have them finalised and re-submitted "by the end of the week". It should be noted, whilst we had reserved our decision, we made it clear that it would be handed down on Friday13 September. None of this effects our thinking.
The application is now considerably out of time. The prospects of it being successful seem to us to be slim indeed. We are not sure why Mr Muto leaves these things to the last minute and beyond. We cannot be certain whether it is lack of organisation, a stalling tactic, uncertainty as to what to do or for some other reason. The unsuccessful flurry of activity after the closing of the submissions and evidence, even if taken into account, does not cause us to alter our decision.
Nor does it effect the conclusion that we have reached that, even later on Wednesday 11 September a further email was received indicating that an application for leave to appeal has been lodged, this time not being rejected.
We might also say that, even without the difficulties which we have just discussed, and viewing the situation on its merits, we would not have granted a further stay in any event. Whilst we obviously cannot, in any way, sit in appeal upon the decision of Senior Member Byard and Member McNamara, were we viewing the situation on its merits, we would be obliged to consider the prospects of success of any appeal, bearing in mind that a relevant question of law would need to be identified - see Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 and Bradto, referred to above. In the present case, Mr Muto attempted to identify a number of questions of law. Some of these, frankly, have no merit whatsoever. For example, Mr Muto claimed that two applications were consolidated without his knowledge. We fail to follow this. Both applications were heard at the same time, and even how this could be said to have occurred without Mr Muto's knowledge is difficult to comprehend. He was present for at least the first day of the hearing before Senior Member Byard and Member McNamara. He claims that he was not given sufficient time to prepare for his application before Her Honour Judge Jenkins in relation to the disqualification of the members because of bias. The Reasons provided by the members would indicate that the case was stood down so as to enable Mr Muto to apply to the Acting President, His Honour Judge Macnamara. Subsequently the hearing resumed, Mr Muto alleging that the Acting President was also biased against him, and ultimately his application came on before Her Honour Judge Jenkins. Whether he was given adequate time to prepare his application seems to us to be very much a matter of fact. It is not one that we can determine. It is apparent that his case was stood down so as to enable him to make the application to His Honour Judge Macnamara. It would seem to be that the matter was then resumed, with Mr Muto stating that he declined to have His Honour Judge Macnamara deal with the matter. Mr Muto told us from the Bar table that, ultimately, he only had approximately another hour in which to prepare for the application before Her Honour Judge Jenkins. I might say that we are of the view that, given that the alleged bias was essentially on the basis of rulings or decisions that had previously been made, we would not have thought that hours of preparation were required. In any event, questions involving the time that was allowed seem to us to raise issues of fact which we cannot determine without evidence. This does not impress us as a question of law which would have reasonable prospects of success.
Mr Muto raised other issues concerning whether or not his legal costs should be subsidised pursuant to the provisions of the Local Government Act, and we gather that, for at least some period, they were. This seems to us to be an issue between Mr Muto, the Greater Shepparton City Council and its insurer. We do not see it as a question of law and particularly one which would enhance Mr Muto's prospects of obtaining leave to appeal.
Mr Muto also referred to the penalty which had been imposed on him by Senior Member Byard and Member McNamara, arguing that this was beyond the period of disqualification permitted by the provisions of the Local Government Act. In essence, his argument is that the term served by a councillor is usually four years and it is for that reason that a four-year disqualification period is the maximum. In his case, the period of disqualification commences part of the way through his term. The maximum penalty which should have been imposed, he argues, is the balance of his term. The interpretation of the penalty provisions in the Local Government Act may well be a question of law. However, in the absence of anything further being put before us in this regard, this does not strike us as a question of law which has any substantial prospect of success. The Tribunal considered the penalty provisions, and arrived at a figure of four years' disqualification as being appropriate. It is also to be remembered that Mr Muto is essentially arguing that the entire decision of the Tribunal is wrong in law. We appreciate that an argument can be advanced that a finding of gross or serious misconduct can be found; that this might involve questions of law; and that, if that submission not be accepted, there has still been an error of law in relation to the penalty imposed. However, we are not persuaded that the prospects of success in relation to this argument would be great. We can see the contrary argument that Senior Member Byard and Member McNamara imposed a penalty that was open to them in accordance with the legislation.
Mr Muto also advanced the argument that, in related proceedings, he had taken on appeal the decision of His Honour Justice Ross in the Secretary of the Department of Planning and Community Development v Muto [2011] VCAT 328. He had been unsuccessful in the Court of Appeal. We understand that leave to go to the High Court is now awaited. We do not see this as a matter that either raises questions of law or should cause us to either grant a further stay or not proceed to a decision. We tend to agree with the submission of Ms Ellyard that those matters do not impact upon this application. The present charges have been heard by and dealt with by Senior Member Byard and Member McNamara. It is their decision that forms the basis for the application pursuant to s149 of the Act. We do not see how the matters dealt with by Ross J, even if they also deal with behaviour as a councillor by Mr Muto, impact upon the present application for a stay. In any event, we do not consider that such matters raise a question of law which has meaningful prospects of success.
Mr Muto also raised as a prospective question of law the behaviour of the principal registrar of this Tribunal in relation to s71(3) of the Act. Alleged difficulties which Mr Muto may have had with the administration of this Tribunal do not seem to us to raise questions of law which would advance the prospects of obtaining leave to appeal.
We found some of the alleged questions of law raised by Mr Muto to be very difficult to understand. That is no criticism of him. He was probably doing his best to explain them. Nevertheless, some we found difficult to follow and, in addition to those set out above, there were none that seemed to us to point to a likelihood of his obtaining leave to appeal. In short, we consider that the prospects of his obtaining leave to appeal on an identified question of law to be slim indeed. As stated, we are not intending in any way to sit in appeal upon what has previously been determined. Nor can we do any more than attempt to assess the realistic prospects of success of the leave application when contemplating whether or not to grant a further stay. We are of the opinion that the prospects of Mr Muto being successful upon a leave application are slim, and this weighs against the granting of a further stay.
Another factor to be considered is whether the application would be rendered nugatory in the absence of leave being granted. This does not strike us as a situation where such matters as the passage of time or the happening of some other event would render such application nugatory. Whilst it was scarcely touched upon in the submissions made to us, we are not of the view that it is a consideration which militates in favour of a further stay being granted.
We then turn to the balance of convenience. This is another factor which, to us, seems to favour the Secretary and Dobson and others rather than Mr Muto. Certainly, if no further stay is ordered, there is the real prospect that the steps that were about to be commenced in relation to the disqualification of Mr Muto, the declaring of his position vacant and the redistribution of votes will go ahead. However, the alternative is that the City of Greater Shepparton continue on without a full quota of councillors. As we understand it, Mr Muto is not performing his role as a councillor for the time being because of orders made in other proceedings. In any event, and whether or not that be correct, the reasons advanced by Mr Muto in relation to the balance of convenience do not seem to us to be persuasive. It is to be remembered that, in the proceedings before Ross J, Mr Muto admitted that he had engaged in conduct which constituted misconduct within the meaning of the Local Government Act on some 13 occasions. Doubtless, the City of Greater Shepparton wants to get on with its business in as smooth and uninterrupted fashion as it can. Not that it is a telling argument either way, but the balance of convenience seems to us to favour the refusal of a further stay rather than the granting of same.

We are concerned that Mr Muto demonstrated no great urgency in pursuing an application for leave to appeal within the prescribed time, despite his stated intentions on 9 August 2013. Whilst he has apparently now lodged appeal documents - by our calculations, weeks after the prescribed time limits expired and almost a fortnight after evidence and submissions concluded in relation to his application - , he is well and truly out of time with his appeal and demonstrated no great zeal in lodging the appropriate documents in time. In any event his prospects of success on appeal seem to us to be slim. Having considered a number of factors, we are of the opinion that, on the merits, a further stay should not be granted. In summary, the application of Mr Muto for a further stay pursuant to s149 is dismissed.

Civil and Administrative Tribunal Act 1998

Muto v Secretary to the Department of Planning and Community Development (Review and Regulation) [2013] VCAT 1533 (13 September 2013)

Muto v Secretary to the Department of Planning and Community Development

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Muto v Secretary to the Department of Planning and Community Development (Review and Regulation) [2013] VCAT 1533 (13 September 2013)