20, 25, 30 & 55 Peter Thomson Drive FINGAL VIC 3939

Owners Corporation No. 1 PS438599 v Mornington Peninsula SC [2026] VCAT 83

1. Pursuant to s 108(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), after allowing the parties to make submissions, I have decided that the Tribunal should not be reconstituted for the purposes of the proceeding.

1. The costs of and incidental to the application for the reconstitution of the Tribunal are reserved.
2. Any application for the costs of and incidental to the application for the reconstitution of the Tribunal must be given to VCAT and all other parties by 4:00pm on 20 March 2026. The application must be made using VCAT's online form.
3. The application for the costs of and incidental to the application for the reconstitution of the Tribunal must include supporting submissions. The supporting submissions must explain the following:
   1. The basis upon which costs are sought.
   2. The amount and details of the costs claimed, including any itemised bills with invoices where relevant.
   3. The basis on which the costs are calculated.
   4. The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
   5. A copy of any document relied upon in the costs application or supporting submissions.

If you make an application for costs in this proceeding, you may be required to pay an application fee. For more information, see the VCAT website.

Response from other parties to application for costs

1. By 4:00pm on 9 April 2026, any party who wishes to oppose or otherwise respond to the application for costs must give to VCAT and all other parties:
   1. Submissions which explain their position in respect of the costs application, including any basis on which they oppose the application; and
   2. A copy of any documents relied on in their submissions.

1. Unless varied by further order of VCAT, the hearing of any application for costs will be conducted 'on the papers' at 10:00am on 1 May 2026 before Deputy President Bisucci. No attendance is required. If you are the applicant for costs you may be required to pay a daily hearing fee before the hearing commences.
2. If a party objects to the application for costs being determined 'on the papers', they must advise VCAT and the parties of this by 4:00pm on 20 April 2026 and provide reasons for their objection.

1. The proceedings are referred to a practice day hearing at 9:00am on a day to be fixed by the Tribunal constituted in this proceeding.

1. The respondent in this proceeding Peninsula International Group Pty Ltd ('respondent') has made an application under s 108(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') for the reconstitution of the Tribunal for the purposes of the proceeding.
2. The reconstitution of a proceeding is required to be considered by a presidential member of the Tribunal, after allowing the parties to make submissions. Section 108 of the VCAT Act states:

(1) At any time before the conclusion of the hearing of a proceeding - > > > (a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or > > > > (b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding. > > (2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b) - > > > (a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and > > > > (b) if so, the President must reconstitute the Tribunal. > > (3) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

3. The reconstitution of the Tribunal was raised by the respondent at the commencement of the second day of the hearing. The Tribunal made orders providing (as relevant):
   1. By noon on 22 January 2026, the respondent, must file with the Tribunal and serve on all other parties the application for the reconstitution of the Tribunal for this proceeding including submissions and any supporting documents.
   2. Any submissions in response to the application for the reconstitution of the Tribunal by the other parties must be filed with the Tribunal and served on all other parties by 4.00pm on 27 January 2026.
4. The order also listed the proceeding for a hearing of the application for the reconstitution of the Tribunal.
5. There was a delay in the circulation of the recording of the second day of the hearing and thus, the Tribunal issued a further order extending the time for the respondent to file its application for reconstitution of the Tribunal.

1. Before I turn to the application for the reconstitution of the Tribunal, I make the following observations.
2. On 14 March 2025, the Mornington Peninsula Shire Council ('council') issued a Notice of Decision to Grant a Planning Permit P17/0079B ('NOD') to use land at 20, 25, 30 and 55 Peter Thomson Drive, Fingal ('land') as a residential hotel and construct a building and carry out works ('proposal').
3. VCAT received three applications under s 82 of the Planning and Environment Act 1987 (Vic) ('PE Act') seeking review of the decision of council to issue the NOD. The three proceedings are:
   • P308/2025 is brought by Owners Corporation No. 1 PS438599;
   • P315/2025 is brought by Lakei Varveris, Patsy Montgomery & Others; and
   • P321/2025 is brought by William Payne & Jennifer Payne.
4. The respondent is the permit applicant for the purposes of all the proceedings.
5. The proceedings were the subject of a preliminary hearing and a compulsory conference.
6. The proceedings were listed for a hearing on 19, 20 and 21 January 2026, noting that proceeding P308/2025 settled on the basis of revised conditions.
7. The Tribunal constituted for the hearing of the proceedings is Member Slattery and Member Nervegna. Member Slattery is the presiding member of the Tribunal in the proceedings.

1. The respondent's application for reconstitution is predicated on the following:
   1. after the first day of hearing 'it came to' the 'attention' of the respondent that Member Nervegna is a member of the Building Appeals Board ('BAB');
   2. one of the applicants, Lakei Varveris, is a member of the BAB; and
   3. Member Nervegna did not 'declare a conflict of interest at the commencement of the [H]earing'.
2. The respondent highlights that the rules of natural justice require VCAT to be seen to be impartial and unbiased.
3. The respondent says that it is concerned that Member Nervegna might not be impartial, in circumstances where one of the applicants in these proceedings is also a member of the BAB. Further, it is said that 'a fair-minded lay observer' might also hold this view.
4. The respondent contends that shared membership of the BAB is a potential interest to which s 19 of the VCAT Act attaches. For completeness, I now set out s 19 of the VCAT Act (as relevant);

Disclosure of interests

(1) This section applies to a member who constitutes, or is to constitute, the Tribunal for the purposes of a particular proceeding, whether with or without others, and who has or acquires an interest, pecuniary or otherwise, that could conflict with the proper performance of the functions of the member in relation to that proceeding.

(2) The member -

(a) must not take part in the proceeding or exercise any powers in relation to it, unless all parties to the proceeding agree otherwise; and

(b) if not the President, must disclose the nature of the interest to the President; and

(c) ...

1. In response to the issue of the shared membership of the BAB, Member Nervegna provided the following information:
   • she did not know that Lakei Varveris was a member of the BAB until it was raised by the respondent on the second day of hearing;
   • she had not met Lakei Varveris prior to the first day of the hearing;
   • she had not attended any meetings of the BAB in person;
   • she had attended two meetings of the BAB that were held online; and
   • since her appointment she had only heard one matter at the BAB.
2. Whilst Member Nervegna explained that she is a specialist member of VCAT and that Member Slattery is the presiding member, the respondent maintains that the decision is made by both members.
3. The respondent also submits it cannot say how any bias arises and that perhaps it is 'subconscious bias' but that the issue would 'not pass the pub test'.
4. The respondent relies on two cases of VCAT where reconstitution was considered. The first is the often-quoted decision in Metrospan Developments Pty Ltd v Whitehorse CC[1] (Metrospan) where VCAT held:
   1. ... However, it appears to me to be clear that the section gives a broad discretion to the President of the Tribunal to order reconstitution of the Tribunal for any proper means or any proper reason. In my opinion the section should be read in light of s98 of the Act which sets out the general procedure by which the Tribunal is to be conducted. In my opinion it would be appropriate for me to order reconstitution if that was necessary to ensure that the proceeding would be heard in circumstances which complied with the rules of natural justice.
   2. Indeed my opinion is that in appropriate circumstances it would be a proper exercise of discretion to reconstitute a Tribunal where there is merely a risk that there may be a compromise of the rules of natural justice...
5. The second is the decision in Jinshan Investment Group Pty Ltd v Melbourne CC[2] (Jinshan) where the Tribunal was reconstituted. The respondent relies upon the following at paragraph 31:

While I accept, as the Council submitted, that it has not been shown that Deputy President Gibson's interest in the National Trust has ever extended beyond mere membership, or that she has ever had any involvement in the management of the National Trust, I am nonetheless of the view that, in the circumstances of this case, the need for the administration of justice to be seen to be above reproach is the paramount consideration in the exercise of the discretion conferred by s 108 of the VCAT Act.

1. The respondent says that it is apparent from Jinshan that VCAT members 'should err on the side of caution with respect to the declaration of interest, and/or to the disclosure of membership and associations.'
2. The respondent refers to the test for apprehended bias as expressed by the High Court of Australia ('HCA') in Ebner v Official Trustee in Bankruptcy[3] (Ebner):

Whether a fair-minded lay observer might reasonably apprehend that the tribunal member (or members) might not bring an impartial mind to the resolution of the question the tribunal is required to decide.

1. The respondent contends that members of VCAT should:[4]

a) be aware of the names of other members of any other tribunal (or similar body) that they are a member of (particularly within the same industry - i.e. building / planning), or perform a cross-check against party names in proceedings they are involved with; and > > b) appreciate that other parties may apprehend bias based around such an interest or association; and > > c) disclose such an interest or association at the commencement of any relevant proceeding, so that other parties are notified and may express their view.

2. Lastly, the respondent says that if the Tribunal is reconstituted, I should direct the member to listen to the audio recording of the first day of hearing to avoid inefficiencies in the process.

THE RESPONSES TO THE APPLICATION FOR RECONSTITUTION

1. Council does not support the application for the reconstitution of the Tribunal.
2. Council says that:
   • at no time has there been any suggestion of apprehended bias, arising from anything that was said or done by Member Nervegna on the first day of the hearing;
   • there are 61 members of the BAB and it accepts that it is likely that Member Nervegna has not met nor knows Lakei Varveris through her work at the BAB; and
   • the members hold different qualifications and thus, are likely to have different interests.
3. Council highlights that the respondent does not articulate the nature of the interest or the nature of the conflict.
4. Moreover, s 19 of the VCAT Act does not deal with perceived conflicts of interest but actual interest, pecuniary or otherwise. Furthermore, council contends that knowing a person or having an unknown association with a person does not always constitute a conflict of interest. In support of this proposition, council relies upon Ebner at paragraph 8 which states:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.*

(*Council's emphasis)

1. Council notes that the respondent says there is a perceived conflict of interest which gives rise to potential bias, but it does not articulate that potential bias.
2. Referring to Ebner, council highlights the following paragraphs:[5]

1. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
2. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified.* In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

1. It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an "association" will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.
2. Having regard to the facts in this case, noting Member Nervegna's comments, council submits that any perception of bias is 'quelled' and any apprehension of bias is remote and not real. Moreover, council submits that in the circumstance of this case, it is unlikely that a fair-minded lay observer might reasonably apprehend that Member Nervegna might not bring an impartial and unprejudiced mind to the resolution of the question she is required to help decide in this proceeding.

1. OC No. 1 opposes the reconstitution of the Tribunal and says the respondent has not established that any reasonable person might conclude that Member Nervegna would not bring an impartial view to any question arising in the proceedings.

William Payne and Jennifer Payne ('the Paynes')

1. The Paynes' say that reconstitution should not be ordered simply because the respondent has requested it as it has failed to meet the test for apprehension of bias.
2. The Paynes' refer to the decision of VCAT in Chopra v Department of Education and Training[6] (Chopra) where Quigley J[7] summarised the observations in Metrospan as follows"
   1. In Metrospan Developments Pty Ltd v Whitehorse City Council (Metrospan), Justice Kellam P made a number of observations about the scope of the section in its original form in the context of a planning dispute. Despite the amendments made to s 108 after that decision was handed down, the observations are as applicable to the current form of s 108 as they were to the terms of s 108 as in force at the time of the decision in Metrospan. In particular, his Honour observed that:
      • the power to reconstitute the Tribunal may be exercised at any time during 'the hearing of a proceeding';
      • s 108 confers a broad discretion to order reconstitution 'for any proper means or proper reason';
      • it appears to be a power which is likely to be exercised rarely;
      • the power to reconstitute the Tribunal may be exercised to ensure compliance with the rules of natural justice;
      • the reconstitution power cannot be used to achieve a de facto rehearing or de facto appeal of what has happened in the proceeding to date, nor be used to signify the President's disapproval as to the conduct of the hearing by the member concerned, nor be used to compromise the independence of the Tribunal in question; and
      • decisions to reconstitute the Tribunal are made in circumstances which are necessary to deal with the exigencies of the particular hearing, and that applications for reconstitution are usually made orally and mostly unsupported by transcript or affidavit material. His Honour also observed that the determination of whether or not, there is for instance, a prima facie case of apprehended bias, cannot be seen as a final determination of that issue.

1. The Payne's also refer to comments made in Chopra regarding the test for apprehension of bias following Ebner these are:
   1. The test of apprehended bias stated in terms used by the High Court in Ebner as adapted to apply to the Tribunal is whether 'a fair-minded lay observer might reasonably apprehend that the [Tribunal member or members] ... might not bring an impartial mind to the resolution of the question the [Tribunal] ... is required to decide'. The assessment must be made by reference to a double 'might'.
   2. This test, that the member might not bring an impartial mind to the resolution of a question, requires no prediction about how the member will in fact approach the matter. As observed in Ebner, '[t]he question is one of possibility (real and not remote), not probability'.

1. In addition, the Paynes' rely upon the summary of the principles articulated in Jinshan to assist in determining whether there is a proper basis for an apprehension of bias. At paragraph 23, VCAT said:

1. In AJH Lawyers Pty Ltd v Careri, the Court of Appeal drew on a wide range of authorities to set out eight principles to assist in determining whether a proper basis for an apprehension of bias is established. As adapted to apply to the Tribunal, they are:

(1) when dealing with an appeal, grounds relating to actual or apprehended bias should be dealt with first, regardless of whether the decision was correct on its merits; > > (2) members should not accept recusal simply because a party has asked for it; > > (3) when called upon to assess the existence of a reasonable apprehension of bias relating to another decision maker, the test is one which requires no conclusions to be drawn about what factors actually influenced that decision maker's conclusions, or as to what their 'actual thought processes' were; > > (4) apprehension refers to an apprehension of the member not deciding a case impartially, as opposed to an apprehension that a case will be decided adversely to one party; > > (5) satisfaction of the test for apprehended bias requires two distinct steps - the first is the identification of what might lead a member to decide a case other than on its legal and factual merits, and the second is an articulation of the logical connection between the matter and the feared deviation; > > (6) the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer, but they are taken to have some understanding of modern decision making practice; > > (7) a line is drawn between robust indications of a member's tentative views on a point of importance in a proceeding, and an impermissible indication of prejudgment; and > > (8) members do not have to devote unlimited time to listening to unmeritorious arguments, but should be cautious of the impression that can be given by rejecting a submission out of hand.

1. Having regard to the relevant cases, the Paynes' contend, the respondent has failed to:
   • identify what might lead a member to decide the case other than on its legal and actual merits; and
   • articulate the logical connection between the matter and the feared deviation.
2. The common membership of the BAB and the failure to disclose that at the commencement of the hearing does not satisfy the test for apprehension of bias.

Lakei Varveris, Patsy Montgomery & Ors ('Varveris')

1. The Varveris' submission provides that no actual or perceived conflict of interest arises in these proceedings. Mr Varveris explains that he has never sat on a panel at the BAB with Member Nervegna and there is no past interaction in any BAB matter.
2. In referring to the test in Ebner, the Varveris' submission says:
   • no relation exists;
   • there is no shared work history;
   • there is no connection that could influence the decision making in this proceeding; and
   • the respondent has not articulated any logical connection.

1. I agree with the parties that the Tribunal must be and must be seen to be impartial and unbiased. So much is clear in ss 97 and 98 of the VCAT Act.
2. I agree with the submissions of council and the applicants that is, the respondent has failed to articulate any logical connection between the matter and the feared deviation.
3. In other words, the respondent has not articulated any logical connection between common membership of the BAB and these proceeding not being decided impartially or otherwise in accordance with their merits.
4. At the hearing the respondent said that it could not say how a bias arises but perhaps it was 'subconscious bias'. The respondent did not clearly say that Member Nervegna would not decide the case impartially but rather alluded to some interference in future duties and obligations at the BAB. That is not relevant to my consideration of this application for reconstitution.
5. At one point in the hearing the respondent did raise concern with the influence one member may have on another but that was in response to s 66 of the VCAT Act. I will address this later.
6. The failure to articulate any logical connection between the matter and the feared deviation is sufficient to refuse the application for reconstitution. This is particularly so in circumstances where the respondent received the submissions of the other parties, where that matter was clearly articulated, prior to this hearing.
7. Relying on paragraph 31 in Jinshan the respondent says Member Nervegna is a member of the BAB, Lakei Varveris is also a member of the BAB, and that is sufficient. Jinshan was not decided on that one fact alone, rather read in context, the Tribunal was reconstituted because of other factors that existed. In summary, these were:
   1. the subject matter of the proceeding. In Jinshan, the proceeding was fundamentally about heritage matters;
   2. the extent of the submissions notably the National Trust made submissions contending that various internal works that had been undertaken were illegal;
   3. the interaction of the above was sufficient to find a logical connection between the membership of the member of VCAT and the feared deviation from the course of deciding that proceeding on its merits;
   4. the timing of any disclosure of membership; and
   5. justice must be done and must be seen to be done having regard to VCAT's critical decision making role in planning matters in Victoria.
8. On the material before me, the respondent has not articulated or even properly stated what, if any logical connection for the purposes of these proceedings might be.
9. Notwithstanding the above, given the matters put to me in written and verbal submissions by the respondent, I consider it necessary to address these in some detail under the relevant topic below.

The 'pub test' and its relevance to an application for reconstitution

1. The respondent says that the common membership would not pass the 'pub test'. Presumably the respondent means that pub test is similar to the test for apprehended bias enunciated in Ebner. I reject that submission because it misunderstands the principles set out in Ebner and cases that have since been decided in relation to this issue.
2. For ease, I now extract the test in Ebner as amended in Chopra for the Tribunal context:

... a fair-minded lay observer might reasonably apprehend that the [Tribunal member or members] ... might not bring an impartial mind to the resolution of the question the [Tribunal] ... is required to decide'...

1. This is not equivalent to the pub test. In Chopra, VCAT also noted the following about a fair-minded lay observer:
   1. In Seachange Management Pty Ltd v Benvol Constructions & Developments Pty Ltd (Seachange), Judge Ross AP quoted with approval the words of Kirby J in Johnson v Johnson, who observed that the fictitious fair-minded observer is not a person wholly uninformed and uninstructed about the law in general or the issue to be decided ... Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context... [the fictitious fair-minded observer] is neither complacent nor unduly sensitive or suspicious.
   2. Judge Ross AP also reiterated that the fictitious fair-minded observer 'must also now be taken to have at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within reasonable limits and to ensure that time is not wasted.'
2. For completeness, I do not accept that a fair-minded observer who is not wholly uninformed or uninstructed about the law or the issue to be decided, on the facts and circumstances of this case, acting reasonably might conclude that common membership in and of itself without any logical connection to something else, raises an apprehension of bias.

Introduction of members, qualifications and associations at the commencement of a hearing

1. The respondent was concerned that VCAT members do not introduce themselves, state their qualifications and their associations at the commencement of hearings. Whilst I do not dismiss the value of that approach in some proceedings or in other forums, VCAT members are appointed by the Governor in Council upon the recommendation of the Attorney General.[8] It is for the Attorney General to be satisfied of a member's suitability for appointment including their qualifications and associations.
2. I consider a declaration of interests at the commencement of a hearing to be an integral part of the administration of justice, in appropriate circumstances. However, that does not mean that a declaration of interest is required in every proceeding as part of any introduction of the Tribunal. On the facts before me, there was no conscious decision not to disclose the common membership. Member Nervegna clearly stated that she did not know that Lakei Varveris was also a member of the BAB. I have no reason to doubt the veracity of that statement. Thus, in those circumstances, it is difficult to reconcile how any declaration of interest could have been made in these proceedings.

1. The respondent opines that cl 12 of Practice Note - PNVCAT8, Applications for Reconstitution of the Tribunal under Section 108 ('PNVCAT8') provides a process that was not followed. Clause 12 of PNVCAT8 states:

An allegation of perceived or actual bias as the basis of an application for reconstitution will need to be carefully articulated. If a party believes that there is a real risk that the member hearing their proceeding is biased, they should first ask that the member recuse themselves. The use of section 108 triggers a certain process which is not the appropriate first instance process for bias applications. However, if a member refuses to cease hearing the matter upon a bias allegation, the aggrieved party may apply for reconstitution under section 108, but this does not mean the application will be successful; it will depend on the decision-maker's assessment.

1. I make the following observations about the respondent's submissions on PNVCAT8:
   • practice notes simply provide processes that should be followed. Non-compliance with the process in a practice note is a matter of discretion;
   • the process set out in cl 12 of PNVCAT8 is not mandatory. Furthermore, once the respondent raised the common membership of the BAB with the Tribunal on the second day of the hearing, Member Nervegna provided an explanation, which could be interpreted as a refusal for any recusal; and
   • section 108 of the VCAT Act contains a cascading series of steps regardless of who makes an application for reconstitution or who gives notice of such an application. Section 108(1)(a) of the VCAT Act refers to a party in a proceeding making an application for reconstitution of the Tribunal. Whereas s 108(1)(b) of the VCAT Act refers to the President or a member of the Tribunal giving notice to the parties that the President or the member seeks reconstitution. Once an application for reconstitution is made or notice is given, s 108(2) of the VCAT Act applies. This means that a presidential member of VCAT decides whether the Tribunal should be reconstituted. If the presidential member decides the Tribunal is to be reconstituted, the President must reconstitute the Tribunal. Thus, even in circumstances where a member decides to recuse themselves from a proceeding, they must give notice under s 108(1)((b) of the VCAT Act and a presidential member will decide if the Tribunal is to be reconstituted.
2. In short, even if cl 12 of PNVCAT8 was strictly followed in this application for reconstitution, a presidential member would still be considering the reconstitution of the Tribunal for these proceedings.
3. Thus, in substance nothing turns on any alleged non-compliance of cl 12 of PNVCAT8.

Presiding member and influence on decision making

1. During the hearing, I asked the respondent about s 66 of the VCAT Act and the fact that Member Slattery was the presiding member. Section 66 of the VCAT Act provides:

Opinions equally divided

If for the purposes of any particular proceeding the Tribunal is constituted by 2 or 4 members and the opinions of those members on a question before them are equally divided, the question must be decided according to the opinion of the presiding member.

1. The respondent says there may be undue influence on the presiding member by a specialist member. I reject that submission, the respondent does not have any basis to make such a claim, nor can it be said that this provides the logical connection between the common membership and the outcome of the proceedings on their merits.

1. Having regard to the submissions of the respondent, the application for the reconstitution of the Tribunal is refused.

[1] [2000] VCAT 44.

[2] [2015] VCAT 635.

[3] [2000] HCA 63.

[4] See respondent's submissions pages 3-4.

[5] I have extracted the entirety of the paragraphs in Ebner referred to by Council.

[6] [2019] VCAT 174 at [10].