1. Pursuant to section 71(5)(a) Victorian Civil & Administrative Tribunal Act 1998, I confirm the rejection of the application made by Dr Myers.
2. Pursuant to section 124 Victorian Civil & Administrative Tribunal Act 1998, I declare that the permit issued by the responsible authority on 24 November 2009 is a valid permit.

1. The matter is adjourned for administrative mention on 12 February 2010. By that date, the applicant must advise the Tribunal and the other parties in writing:
   • whether the matter is withdrawn or is proceeding to a hearing,
   • if that party is ready for a hearing,
   • that party's estimate of the duration of the hearing, and
   • whether a further directions hearing or mention is requested.

Mr Adrian Finanzio of counsel, instructed by Planning and Property Partners

1. The background to this practice day hearing is set out in my order dated 21 December 2009. So far as relevant the information is repeated here.
2. This practice day hearing was to consider a referral under section 71(2) of the Victorian Civil & Administrative Tribunal Act 1998 to review the registrar's rejection of an application for review. The application has been given the file number of P3256/2009 for ease of reference. However, at this stage, the application for review has not been accepted by the Tribunal. It was rejected under section 71 of the Victorian Civil & Administrative Tribunal Act 1998 because the time for lodging applications for review by an objector under section 82 of the Planning and Environment Act 1987 in respect of permit application No GE/PP-21826/2009 closed on 18 November 2009. The application was stamped as being received by the Tribunal on 19 November 2009. Pursuant to clause 65 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the Tribunal must not extend time for commencing a proceeding under a planning enactment if a permit has been issued on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit. A permit was issued on 24 November 2009.
3. The application was only received in the Administrative Division of the Tribunal Registry on 26 November 2009. It had previously been sent to a different division of the Tribunal Registry because the actual application form used was not a Tribunal form and did not refer to the Planning and Environment List. It was a Domestic Building Complaint form from Building Advice and Conciliation Victoria (a joint service from Consumer Affairs Victoria and the Building Commission). It took several days for the appropriate jurisdiction to be identified, and the application to be sent to the Planning and Environment List within the Administrative Division.
4. The day upon which it was received by the Administrative Division Registry, the Tribunal checked with the council and learnt that a permit had been issued. The application was rejected on the same day.
5. By letter dated 3 December 2009, Dr Myers requested a review of the rejection under section 71(2) of the Act. He disputed that his application for review was not received in time. He said that he personally delivered the application to the Tribunal on the closing date, which was 18 November 2009. He said in his letter:

... I personally handed the application into VCAT and saw the envelope was stamped at between 1645 and 1650 on 18 November 2009.

1. A practice day hearing was held on 18 December 2009 to consider the referral under section 71(2) of the Act. In the interests of natural justice, it was adjourned to 15 January 2010 to give the permit applicant, Mr Nick Caple, an opportunity to be heard.
2. At the hearing on 18 March 2009 and in my order dated 21 December 2009, I identified a further issue that needed to be considered at the adjourned hearing, which was whether the application in question was in fact a valid application under the Victorian Civil & Administrative Tribunal Act 1998.

1. At the commencement of the hearing, pursuant to section 60(1)(b) of the Victorian Civil & Administrative Tribunal Act 1998, I joined the permit applicant as a party to the proceeding. Even though the application for review has not yet been accepted by the Tribunal, in my view a hearing to consider a referral under section 71(2) of the Act would constitute a proceeding within the meaning of the Act and I find that Mr Caple's interests would be affected by the proceeding. If there is a valid application for review and it was lodged within time, it means that the permit issued on 24 November 2009 was issued unlawfully and the permit is invalid. This would be prejudicial to Mr Caple's interests and cause him financial loss. It is therefore appropriate that he be joined as a party.
2. At the conclusion of the practice day hearing on 18 December 2009, Dr Myers lodged a further application with the Tribunal under section 89 of the Planning and Environment Act 1987 to amend the permit (Application P3256/2009). The permit holder, Mr Caple, is a party to this proceeding by reason of section 90(1)(b) of the Planning and Environment Act 1987.

1. There are two issues I must determine in considering this referral under section 71(2) of the Victorian Civil & Administrative Tribunal Act 1998:
   1. Was the "application" a valid application under the Act and Rule 5.05 of the Victorian Civil & Administrative Tribunal Rules 2008?
   2. If so, was the application lodged within time?
2. At the hearing, Dr Myers gave evidence on oath and was cross examined. Mr Caple gave evidence by way of statutory declaration, which he affirmed by affirmation. He was not asked any questions about his evidence.

1. Section 67 of the Victorian Civil & Administrative Tribunal Act 1998 sets out how to make an application to the Tribunal. An application must be in the form, and contain particulars required by the rules. It must be accompanied by any documents or further information required by the rules and must be lodged in the manner specified in the rules.
2. There is no prescribed form for an application to the Planning and Environment List. The Tribunal has prepared standard forms, which it encourages people to use when making an application to the Planning and Environment List. When properly completed, they contain all the information required by the rules. These forms are available for downloading from the Tribunal's website or a copy will be sent to a person upon request. The Tribunal would not reject an application simply because it was not on the Tribunal's preferred form. Nevertheless, there is certain prescribed information that must be included in an application to the Planning and Environment List. Rule 5.05 of the Victorian Civil & Administrative Tribunal Rules 2008 provides as follows:

5.05 Applications to the planning and environment list

(1) An application to the planning and environment list -

(b) must contain the following details with respect to the applicant and the respondent -

(c) must identify the Act, including the section, or other legislative provision under which it is brought; and

(d) must contain a brief description of the issue or matter in dispute; and

(e) must state the remedy being sought from the Tribunal.

(2) Rule 4.03 does not apply to an application referred to in subrule (1)[1].

1. As I have earlier indicated, Dr Myers submitted his "application" on a form headed Domestic Building Complaint provided by Building Advice and Conciliation Victoria. The application is in writing and it contains the full name and address of the applicant, Dr Myers. It contains no information about the respondent, Mr Caple as permit applicant, or the council as responsible authority. It does not identify the Act or the section under which the application is brought. Dr Myers intended to lodge an application for review under section 82 of the Planning and Environment Act 1987 against the decision of the responsible authority to grant a permit. This information is not included anywhere in the application or the accompanying material. Information about the legislative provision under which the application is brought must be implied.
2. Accompanying the "application" was a six page letter dated 15 November 2009 addressed to "VCAT Planning". It was headed "Objection to Planning Permit GE/PP-21826/2009". It commences:

I am writing in response to the permission to grant a planning permit as above on the following grounds:

1. It is a rambling, closely typed, six page letter opposing the development and full of imprecation against the greed and selfishness of developers and other aspects of society. A copy of the council's notice of decision to grant a permit was included, along with copies of a number of other items of correspondence to Dr Myers from the council and the Royal Botanic Gardens Melbourne.
2. I consider it would be possible to discern after perusal of all the accompanying documentation that the "application" has something to do with planning. An experienced person regularly dealing with applications in the Planning and Environment List could reasonably imply that there was an intention to make an application to review the council's decision to grant a planning permit. However, they would have to make that deduction for themselves based on an analysis of 14 pages of information accompanying the "application". The application form itself would not lead to this conclusion.
3. Rule 5.05 also requires that an application must state the remedy being sought from the Tribunal. The application form itself does not state this but at the end of his six page letter, Dr Myer states:

"Obviously this development needs to be thoroughly revised and in its present form disallowed."

1. I consider it would be possible for an experienced person to interpret this as a statement that the remedy being sought is to refuse to grant the permit, but the application does not specifically state the remedy being sought. Again, it must be implied.
2. As a result, I find that the application does not comply with Rule 5.05 because it does not contain:
   • The full name and address of the respondents being the permit applicant and the responsible authority.
   • It does not identify the Act and section under which the application is brought.
   • It does not contain a brief description of the issue or matter in dispute. (I do not consider that the six page letter fulfils this criterion.)
   • It does not state the remedy being sought from the Tribunal.
3. I find that as the application did not comply with Rule 5.05, it is therefore not an application that complies with section 67 of the Victorian Civil & Administrative Tribunal Act 1998. It is therefore not a valid application to the Tribunal.

1. Even though the application does not comply with the Act and the Rules, the Tribunal has a discretion under clause 62 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to disregard any failure to comply with these enactments. The clause provides as follows:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

1. I may only determine to disregard Dr Myers' failure to provide the information required by Rule 5.05 if I consider it is in the interests of justice to do so.
2. In Vero Insurance Limited v Witherow[2], Hollingworth J said:

[15] ... notwithstanding that VCAT is not a court of pleading, the function of the application is to communicate and define the issues between the parties. ...

1. In my view, the application fails to do this - it has not communicated or defined the issues between the parties. It has failed to even define the parties. The fact that it was sent to the wrong division of the Registry and took a week to find its way to the Administrative Division is evidence of this failure to communicate. Therefore, this is not simply a technical failure to comply with the Rules, but a failure that went to the heart of the application and the ability of the Tribunal to understand and process it in a timely way. The consequence of the failure to comply with the Rules (and hence the Act) is that the council was advised by the Tribunal on 20 November 2009 that no application for review under section 82 of the Planning and Environment Act 1987 had been received. This meant that the council was then able to issue a permit[3], which it did on 24 November 2009.
2. Mr Caple gave evidence that he spent approximately $20,000.00 on architects' and consultants' fees to obtain approval of the permit. Since the issue of the permit, he has expended or committed to expending further sums totalling over $79,000.00 in legal, architectural, landscape architecture, engineering and surveying fees, and costs for demolition, landscaping, fencing and marketing. Further, if this application for review proceeds, additional costs will be incurred due to delay in terms of interest, and legal and other costs associated with a hearing.
3. I do not consider it would be in the interests of justice to disregard Dr Myers' failure to comply with the Act in terms of making an application that supplied the information required by Rule 5.05 for the following reasons.
4. The form used by Dr Myers has nothing to do with VCAT. The heading refers to a totally different organisation. The name of the form "Domestic Building Complaint", has nothing to do with planning; the information requested on the form is totally irrelevant to a planning permit application; the information on the form about how to lodge the complaint and copies of any documents makes no reference to VCAT but directs them to be sent to a totally different organisation.
5. Dr Myers admitted that when he completed the form and signed it he thought it was the wrong form. Nevertheless, he went ahead and (if he is to be believed) lodged it with VCAT on the very last day possible at the eleventh hour. He has obviously gone to some trouble since receiving the council's notice of decision to grant a permit to prepare information in support of an application for review in terms of obtaining information from the Royal Botanic Gardens Melbourne about a tree on the subject land and writing a six page letter, which is dated 15 November 2009, three days earlier. Yet he failed to take the trouble to ensure that he lodged a proper application for review. Dr Myers is obviously a well educated, professional man who regularly delivers papers at international conferences. He is not the sort of person who may be excused from submitting an inadequate application because he found difficulty or was not capable of understanding or completing the appropriate form. He says he asked his secretary to obtain the form for him but admits that when he completed it he thought it was the wrong form. I do not consider that this provides any justification for failing to comply with the Act and the Rules.
6. If I disregard the failure, the permit applicant will suffer prejudice and significant financial loss[4]. He will lose the certainty associated with the permit which has been issued.
7. VCAT is not a Tribunal that insists on technicality and legal form[5]. Such an approach is exemplified by clause 62 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998. Nevertheless, this does not mean that 'anything goes'. The requirements of Rule 5.05 are basic minima for the purpose of enabling the Tribunal to properly process applications and to communicate and define the issues between the parties. They are not onerous requirements. But where, as here, someone fails to comply with them and through their error causes another person prejudice, then I do not consider it is in the interests of justice to disregard their failure to comply by exercising my discretion under clause 62 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998.
8. Accordingly, having reviewed the Principal Registrar's rejection of the application, I confirm the rejection because the application does not comply with the Victorian Civil and Administrative Tribunal Act 1998 and the rules. Although the application was initially rejected because it was out of time and a permit had already been issued the fact that the application is not a valid application is an equally fundamental reason for rejecting it.

1. Because of my finding that this was not a valid application in the first place, it is not now necessary to make any findings about whether the application was lodged within time. Nevertheless, it is appropriate to make a few observations on this issue given the initial reason for rejecting the application was that it was out of time and a permit had already been granted.
2. The application is stamped as having been received by the Tribunal on 19 November 2009. However, Dr Myers says that he dropped it off personally at the ground floor counter at 55 King Street, Melbourne at approximately 3.50pm on 18 November 2009. He says that he saw the sealed envelope, which contained the application, stamped by a Tribunal staff member. Dr Myers submitted that because of the late hour it was likely that the envelope was not opened until the following day when the application was stamped 19 November 2009 and the envelope bearing the stamp of 18 November 2009 was discarded. There is no evidence about this. It was put forward by Dr Myers as a likely explanation.
3. In Dr Myers' letter to the Tribunal dated 3 December 2009, he stated that he saw the envelope stamped at between 1645 and 1650 on 18 November 2009. This cannot be true because the Tribunal office closes at 16.30. Dr Myers now says this was a mistake. He meant to say 1550.
4. There is therefore conflicting evidence about when the application was received by the Tribunal. A clear finding of fact is made more difficult by elements of implausibility in Dr Myers' evidence. Dr Myers was due to catch an international flight to Singapore and Barcelona at 5.00pm on 18 November 2009. According to his boarding pass and passport, Dr Myers caught his flight and left the country on 18 November 2009. Yet despite airline advice that international passengers should arrive at the airport two hours before their flight, he says he did not leave home in Balaclava until 3.30pm. He then had time to drive to 55 King Street, park his car, personally hand in the application over the counter and see it stamped, drive himself to the airport, park his car, obtain his boarding pass, get through security and immigration, and board an aircraft which left at 5.00pm. Even with carry-on luggage, the timing is tight to say the least. It seems strange that a man who was only due to be absent from the country for six days[6] in order to deliver a paper at a conference should not even leave home until half an hour after the recommended time for arrival at the airport and that he should then have interposed this detour to VCAT on the way. It seems strange because the risk of missing his flight in these circumstances appears high.
5. Dr Myers did not help to establish himself as a credible witness by the evasive and discursive answers he gave in cross-examination. On the other hand, despite the implausibility of aspects of his evidence, it is a serious matter to reject the evidence of a witness given on oath.
6. Therefore, in circumstances where it is not now necessary for me to make a finding as to whether or not the application was lodged within time, due to my earlier findings, I will not do so.
7. Likewise, it is not necessary to consider now the other submissions made by Mr Finanzio about the calculation of the closing date for applications for review under section 82 of the Planning and Environment Act 1987.

1. Accordingly, having reviewed the Principal Registrar's rejection of the application, I confirm the rejection because the application does not comply with the Victorian Civil and Administrative Tribunal Act 1998 and the rules.

[1] Rule 4.03 prescribes a form of application for other applications to the Tribunal.

[2] [2004] VSC 272; (2004) 21 VAR 413

[3] Section 64(3)(a) of the Planning and Environment Act 1987

[4] I do not consent the $20,000expanded in fees to obtain the permit but only the money spent or committed subsequent to its issue.

[5] For example, see section 98 Victorian Civil & Administrative Tribunal Act 1998.

[6] According to his travel itinerary, Dr Myers left Melbourne at 5 pm on Wednesday 18 November. He arrived in Barcelona on 19 November. He departed Barcelona at 10.00 am on Monday 23 November and arrived in Melbourne on Tuesday 24 November at 20.20.