The Tribunal's order made 10 May 2001 is corrected pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 by deleting Paragraph 42 of the reasons for decision.

For the Applicant: Mr Doyle of Doyles Construction Lawyers

For the Respondents: Mr Appudurai of Counsel, instructed by Macpherson and Kelley

1. Niebieski Zamek Pty Ltd made applications to the respondent Southern Rural Water for a permit to take and use ground water pursuant to Section 51 of the Water Act 1989 and construct a bore pursuant to Section 67 of the Water Act 1989. Those applications were unsuccessful and as a result the applicant Niebieski Zamek Pty Ltd filed applications for review in this Tribunal pursuant to Sections 64 and 83 of the Water Act.

2. The matter came on for hearing eventually on the 17th and 18th of April 2001. This hearing was delayed to enable:

(a) the Department of Natural Resources and Environment to be joined as a party; and

3. An application made by the respondent Southern Rural Water and supported by the Department, deferred the consideration of this matter pending Ministerial action to declare a Ground Water Management Area in the relevant aquifer from which Niebieski Zamek Pty Ltd sought to take and use the water was unsuccessful.

4. On the 1st of May 2001 we published our reasons affirming the decision of the respondent. The application to take and use water was for an annual allocation of 2,700ML. In the early part of our determination we considered at some length the difficult and conflicting evidence from hydrologists and other experts. We concluded that what might be described as the "precautionary" principle favoured the affirmation of the respondent's determination that no further allocations of ground water should be made from the relevant aquifer. We continued and made reference to correspondence which was in place before us as to the making of previous allocations and the refusal of a number of previous allocations. We quoted correspondence from one land owner or occupier in the area, a Ms Elizabeth Jordan in which she complained at what she alleged is an excessive allocation to the Campbell family. This had been the last allocation approved by Southern Rural Water. Ms Jordan complained about the inequity of making a large allocation to a single family where some initial applicants for allocation from the aquifer had been entitlements as small as 30ML per annum. We then observed at paragraph 42:

"Mr Doyle said nothing to suggest that his client was interested in any allocation other than the one applied for."

5. Our second reason for affirming the decision made by Southern Rural Water was a belief that the issues of equity raised by Ms Jordan in her letter and quoted at paragraph 40 of our reasons, also pointed away from acceding to Niebieski Zamek Pty Ltd's application.

6. Mr Doyle who represents Niebieski Zamek and represented it at the hearing earlier held before us, has brought the matter back on. He submits that paragraph 42 which we have just quoted misrepresents the case which he put at the hearing. He submits that the reasons for our determination should be corrected pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 and once this was done, we should regard our determination as being in effect incomplete or interlocutory, in substance as one that deals with a part but not the entirety of the case. He submits that we should make the correction under Section 119 and then proceed to hear a further case which he proposes to put with a view to seeking an allocation for his client of water with an annual volume of 250 - 800ML. He concedes that there is a preliminary issue to be determined as to whether in the circumstances we have jurisdiction to take the action which he suggests and whether assuming we accept that the reasons for our determination should be corrected pursuant to Section 119, that in itself, opens the way for our consideration of the issue of an allocation from 250 to 800ML per annum.

7. Mr Doyle conceded that there was no obvious exception to the rule that a Court or Tribunal once it functus officio is not entitled to re-open the substance of what it has already determined, apart from the contentions which he made based upon Section 119 and the contention that our determination would, once corrected, be revealed as an incomplete one.

8. We turn first therefore to the question whether there is jurisdiction for us to correct our reasoning pursuant to Section 119. It is unnecessary for us to go to the precise terms of Section 119. It is common ground that the section covers and achieves the same ground and purpose as Order 36.07 of the Rules of Civil Procedure. That provision is popularly known as the slip rule. As to the meaning and operation of the slip rule and of Section 119 Mr Doyle referred us to a determination of Mrs Komesaroff in the matter of P. Stahle v Camerlea Property Pty Ltd [2000] VCAT 1883. At paragraph 23 of her determination Mrs Komesaroff, speaking of Section 119 of the Victorian Civil and Administrative Tribunal Act said:

"As a general rule, once an order has issued, in a form which correctly expresses the intention with which it was made, the court or tribunal that made the order has no jurisdiction to review, vary or set it aside. It can only be varied or set aside on appeal. This rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing. On the other hand, the need for finality in litigation is balanced with a recognition that mistakes are made from time to time by judges and the parties or their advisers which can and should be corrected without resort to appeal so that justice may be done. See Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539 per Gibbs, J; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 @ 235-6."

9. It is unlikely that an issue in precisely these terms would arise in Court. The formal order made by a Court in disposing of a proceeding is referred to as a "judgment". The slip rule, Order 36.07 of the Rules of Civil Procedure to which we have already made reference, is regarded as applying to those formal orders and not to a Court's reasons for its determination. These are perhaps somewhat confusingly or misleadingly also referred to as "judgments". Courts have regarded themselves as possessed of a general power of revision of reasons as long as the ultimate substance is not affected. For instance, a judge in providing in written form a judgment, that is reasons, which is already delivered in open court and which has been recorded, is not bound slavishly to follow the transcript. He is entitled to modify it so that it represents not only what he said but what he intended to say. Likewise, courts are entitled even after having published their decisions in writing to revise them for the purposes of publication in authorised law reports. It is common for courts simply to publish corrected versions of judgments to remove solecisms or errors without changing the substance or the conclusion. All these steps are taken without any specific authority by statute or rule.

10. In this Tribunal we are regarded as possessing the same powers as a court to revise an oral set of reasons before they are reduced to writing and become written reasons. Indeed, Section 117 of the Victorian Civil and Administrative Tribunal Act deals with oral reasons and written reasons not as mere different versions of the same thing but rather as different subject matters. There are no authorised reports of the Tribunal and therefore the occasion for revision of reasons for publication of an authorised set of law reports after they have already been published in writing for the purposes of provision to the parties and perhaps publication in unauthorised series does not arise. Section 117(6) of the Victorian Civil and Administrative Tribunal Act however provides that the Tribunal's reasons, whether oral or in writing are to be regarded as forming part of its order. Accordingly, there seems to be no difficulty in a general sense in correcting an error if it is demonstrated as being such in the reasons for decision given by the Tribunal.

11. Mr Appudurai who appears on behalf of the respondent and opposes the grant of any of the relief sought by Mr Doyle referred us to a passage appearing at paragraph 36.07.65 of Williams Civil Procedure - Victoria, Service 141 where the learned editor states:

"The slip rule in terms permits to be corrected an error in a judgment or order arising from an accidental slip or omission. An error in a judgment or order which is the product of a deliberate decision is not within the rule. See Storey & Keers Pty Ltd v Johnston (1987) 9 NSWLR 446 at 449; Elyard Corp Pty Ltd v D D B Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210 (Fed C of A).

"If there was an error, it was not accidental: it was the result of a deliberate finding; and the judge intended the judgment to be in the form in which it now stands. In one sense, it is true that all mistakes of a judge are `accidental'; but that is not the sense in which the word is used in the rule. If it were, no one could feel any confidence in acting on the normal, written judgment of the court. If the judge has made a mistake in his decision, the remedy is appeal; and if no appeal be brought, or if the appeal be dismissed, the litigants are bound by the decision, even though wrong"

Ivanhoe Gold Corp Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642 at 669-70, per Higgins J. Se also Re Inchcape; Craigmyle v Inchcape [1942] CH 394 at 397; [1942] 2 All ER 157 at 159; R v Cripps; Ex parte Muldoon [1984] QB 686 at 695; [1984] 2 All ER 706 at 710."

12. Mr Appudurai submits that our intention in the present matter was quite clear and in those circumstances mistaken or not it would be wrong to resort to Section 119 either for the limited purpose of correction of the reasons or for an ultimately wider purpose such as Mr Doyle now seeks to use it for.

13. What then is the evidence for the alleged error which should be corrected? Mr Doyle says that he has a clear recollection of stating in his closing remarks that his clients were interested in any allocation less than 2,700ML per annum which the Tribunal might be persuaded would be an appropriate one. He said he made a similar statement in opening his case.

14. Mr Appudurai who appears for the respondents said that he has a recollection of what he describes as a "throw-away line" to that effect in Mr Doyles' closing remarks but no recollection of his having said that in his opening remarks. Our notes do not disclose that such a statement was made in opening though one Member's notes show it as having been made in closing.

15. Having heard Mr Doyle and Mr Appudurai review their recollections of what occurred at the hearing, we concede at least for the purposes at least with respect to the Presiding Deputy President, that there is a vague recollection revived of a statement to the effect that Mr Doyle says he made in his closing remarks. No recollection at all as to the same thing having been said in opening his case.

16. Since it appears that Mr Doyle did indicate at least once that his client was interested in an allocation other than the one applied for, we believe that paragraph 42 of our reasons for decision is a mistake. Since that mistake was the result not of a deliberate finding on our part but rather was the result of an inaccurate and inadequate recollection of what transpired at the hearing (one which could not be verified by reference to a tape or transcript of the proceedings which does not exist), we believe that paragraph 42 can be regarded as an accidental error in our reasons for determination and therefore in accordance with Section 117(6) of the Victorian Civil and Administrative Tribunal Act in our order. We believe that this is therefore an appropriate occasion to make an order under Section 119 of the Victorian Civil and Administrative Tribunal Act, we propose correcting our reasons by deleting paragraph 42.

17. Having done that, more difficult questions arise as to whether this opens the way for the review and re-opening of the matter which Mr Doyle seeks to have. By way of background it should be said that the responsible Minister has taken action for the establishment of a Ground Water Management Area which affects the relevant aquifer. For the purposes of this hearing we have not considered in any detail the exact affect which the Ministerial action would have upon any new application which Niebieski Zamek might now make.

18. Mr Appudurai on behalf of the respondents however concedes that the present situation is materially less advantageous to such an application than was the situation when the application which resulted in the present proceedings was made. It follows from this that it would not be a realistic response to the present situation to say to Niebieski Zamek Pty Ltd, "well try again and make another application". That can be done but its prospects of success are less favourable now than if the application for the lesser allocation could be considered as part of this proceeding. Of course, to identify a particular set of circumstances which is more favourable or less favourable to an applicant and to form the basis for an argument that some abstract concept of equity or fairness should allow an applicant to pursue matters in a particular way is not to establish a proper legal basis for that to be done. The legal basis must be demonstrated to exist before one can consider taking any steps along the lines which Mr Doyle urges us to adopt.

19. The first point that we note in that regard is that as Mr Doyle concedes, the application which we considered and which was considered at first instance by the respondent Southern Rural Water, was not an application for an allocation of 2,700ML per annum or such lesser volume as Southern Rural Water or this Tribunal on review might allocate. It was an application simply for an allocation of 2,700ML. In that regard we refer to a consideration of what this Tribunal in its planning jurisdiction can consider relative to what might have been considered at first instance by a Tribunal consisting of the present Presiding Deputy President in the matter of Li Ming Wai v Boroondara City Council (2000) 7 VPR 76. These words are quoted not because they have any particular eloquence but simply because they conveniently summarise the matter to which we now wish to draw attention. At paragraph 35 at the bottom of page 83 of the report, the Tribunal said:

"This Tribunal is successor to the Victorian Administrative Appeals Tribunal. That Tribunal was modelled on the Commonwealth Administrative Appeals Tribunal. The Commonwealth Tribunal has no jurisdiction to review any matter which has not been the subject of a primary determination by the respondent agency and has no jurisdiction to determine any matter other than the question determined by the agency at first instance. Re Brian Lawlor Automotives Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167, 175; Re Tradigrain Pty Ltd and Export Development Grants Board (No. 1) (1984) 6 ALD 442; Hospital Benefit Fund of Western Australia Inc. v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1, 11; Flick, Federal Administrative Law paragraph [1416/1] (Release 58). The planning review jurisdiction existed before the establishment of the State Administrative Appeals Tribunal under a number of names, most recently as the Planning Appeals Board. The strict rule that only the same controversy could be considered on review which had been the subject of a primary determination never applied in the planning jurisdiction. Section 53 of the Planning Appeals Act 1980 permitted the Planning Appeals Board and after its abolition, the Planning Division of the Administrative Appeals Tribunal to amend a permit application thereby permitting the Board and then the Tribunal on review, to consider a proposal materially different from the one which was the subject of the initial determination. The position in this Tribunal has not, so far as I am aware, been the subject of authoritative exposition and analysis. Section 127 of the Victorian Civil and Administrative Tribunal Act 1998 provides a power to amend "any document in a proceeding" in most general terms authorising the Tribunal to make such amendment either on application by a party or on its own motion. In addition in the planning jurisdiction Clause 64 of Schedule 1 authorises the Tribunal to amend permit applications etc in terms generally similar to Section 55 of the Planning Appeals Act. Sub-clause (4) of Clause 64 specifically states that the power is "in addition to, and does not limit the effect of Section 127". It remains to be determined whether the existence of Section 127 which is applicable to all parts of the Tribunal, including not only its Civil Division exercising original jurisdiction but also its Administrative Division exercising review jurisdiction changes the nature of the review jurisdiction. One possible conclusion is that the strict nature of the review jurisdiction as derived from the Commonwealth Tribunal has been abolished and that all review jurisdiction is to be placed on the same level as planning reviews viz. that there is power to consider something other than what has been considered at first instance. If this interpretation is correct it leaves unanswered the question why Clause 64 has been included in the First Schedule. Unless Section 127 is subject to some sort of implied limitations relative to the nature of the review jurisdiction (in so far as it applies in the Administrative Division and review jurisdiction) Clause 64 would have been unnecessary. Perhaps Clause 64 was included simply as a matter of abundant caution. These are all interesting questions for another day."

20. Perhaps the day to answer them, at least to the extent that this division of the Tribunal can do so authoritatively has arrived. In our view the correct interpretation is that the nature of the review jurisdiction in the Tribunal remains constrained in the same way as the Commonwealth Tribunal's jurisdiction is constrained, that is, to the consideration only of the controversy which it considered at first instance.

21. Clause 64 of Schedule 1 represents a particular exception to that with respect to matters arising under planning enactments. Schedule 1 defines matters under these provisions of the Water Act as being matters under a planning enactment. Accordingly, it would have been possible for Mr Doyle to have sought an amendment to his application or rather to his client's application so that it was an application not just for 2,700ML by way of allocation per annum but also for such lesser allocations as the Tribunal might determine. In the more typical matter arising under a planning enactment where a proponent developer has sought a permit to erect for instance 12 residential units on a development site, it is not uncommon for an application to be made by the proponent, if he is not confident of a success on the 12 units, to amend his plans so that they extend to perhaps nine or 10 units. No such application in any formal sense was made by Mr Doyle in any part of the proceeding. In those circumstances the principle that the Tribunal can only review what was before the primary decision maker, would in our view apply and absent any amendment to the application (and no amendment was sought or has been made) the Tribunal would simply have lacked jurisdiction to consider any allocation of less than 2,700ML. Mr Doyle said that the fungible nature of a water allocation is a fundamentally different subject matter than an application for a permit to erect 12 or nine or 10 residential units and that the analogy which we have just mentioned is inappropriate.

22. Even if that were true we would doubt the propriety of our having considered the suggestion made by Mr Doyle in his closing that an allocation might be made to the applicant in an amount materially less than 2,700ML. The usual manner for making submissions in this jurisdiction, lacking as it does any transcript or recording devices, is by way of written submissions which are read to the Tribunal or perhaps in certain circumstances read before the hearing. The remarks relied upon by Mr Doyle are not to be found in his written submission. They were made, we think it is not unfair to say, perfunctorily either just at the end of the applicant's submission or just at the beginning and just at the end if the recollection of Mr Doyle is the more accurate one. They were not so significant as to attract our attention to make us notice them. Nothing in the lengthy hearing clearly canvassed issues along the lines that the allocation might be anything other than 2,700ML.

23. Mr Appudurai submitted that had we picked up on the remarks made by Mr Doyle and acted upon them, to make an allocation for a license for an amount of let us say 800ML per annum his clients would have been deprived of natural justice because in the circumstances they have not had the opportunity of giving any argument as to such a case. This would be a particularly pointed submission if Mr Appudurai's recollection is accurate and the contention made by Mr Doyle was only at the end of his case. We accept Mr Appudurai's submission in that regard and so even if we believe that the nature of the review jurisdiction did not disentitle us from considering something materially different from what was considered by the respondent at first instance, in the absence of an amendment to the application under Clause 64 of Schedule 1, nevertheless, we would have regarded ourselves as breaching the rules of natural justice had we opened up and considered and determined an issue along those lines having regard to the manner in which the proceeding was conducted.

24. Finally, we should add that whilst we did draw particular attention to the size of the allocation which was sought by the applicant Niebieski Zamek in paragraph 42 and the nearby paragraphs of our reasons, those paragraphs were if you will, final thoughts made to us. They were not the primary basis for the decision. The primary basis for the decision was that we were not persuaded that in the circumstances the aquifer had not already been either fully committed or over fully committed. Accordingly, if we could go back to writing our determination and if we could persuade ourselves both that we had jurisdiction to consider a smaller allocation and further, that to consider it would not deprive the clients represented by Mr Appudurai of natural justice, our determination would have been no different. Obviously it remains a possibility that Mr Doyle, if permitted, could be able to deploy and adduce further arguments which might persuade us to a different view on this subject, nevertheless, it was in our view incumbent upon Mr Doyle to adduce his entire case at the hearing and it would be contrary to principle as it were to give him a second opportunity to argue a case which he has already closed.

25. Accordingly, whilst we are willing to take the action that was described under Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 we decline to entertain the application to go further and reopen the substantive merits of our determination.

26. The legal questions in this matter were determined by the Presiding Deputy President.