Mr Mark Hayes, Solicitor of the firm of Maddock Lonie and Chisholm, Solicitors appeared for the Council.

1. It appears from material on the file that the Council at its meeting on the 20 April 1998 declared a special rate for the purpose of defraying expenses incurred by the Council in relation to marketing of the Melton Shopping Centre with such special charge to be in force between the 1 July 1998 and the 30 January 2001. A notice was sent to Mr Coleman in relation to this declaration. The notice said that at the same meeting the Council also confirmed that, in its opinion, the marketing of the Melton Shopping Precinct is or will be of special benefit to Mr Coleman. The Solicitor appearing for the Council was unable to produce a copy of this document. However, Mr Coleman had a copy with him and has undertaken to bring photo copies thereof to subsequent hearings in relation to this proceeding.

2. It appears that Mr Coleman subsequently communicated with Officers of the Council by telephone and by letter trying to ascertain what special benefit he was alleged to derive, how the special benefit had been arrived at, what relevant evidence there was to support the contention and seeking advise as to the status of various residential properties within the area covered by the scheme. A copy of his letter to the Tourism & Leisure Manager of the Shire of Melton dated 14 May 1998 is on the file. After saying that his above questions had not been answered Mr Coleman went on to say:

"As a result of you being unable to do this I believe that I will derive no Special Benefit.

Therefore I wish to advise you that I will be lodging an appeal with the Administrative Appeals Tribunal against this Special Charge if satisfactory answers are not received by Tuesday 17th May."

2. Presumably no reply, or at least no reply that Mr Coleman regarded as satisfactory, was received by that date because, on the 25 May 1998 the Registrar received his application for review dated 21 May 1998.

4. In making this application for review Mr Coleman was taking up an option which the notice sent to him said he had. The notice indicated the liability on his part to pay $265.00 per annum. In its section headed "Right of Review" it said:-

"If you are aggrieved by Council's imposition of the special charge, you may apply to the Planning Division of the Administrative Appeals Tribunal (A.A.T.) for a review of Council's decision."

5. The notice went on to warn that this must be done within one month of the date of the notice and specified that he may object on one or more of four specified grounds. Two of the grounds referred to arise from Section 158(2)(b)(iii) and (iv) of the Local Government Act 1989 (LG Act) which only apply to road construction and drainage schemes and would appear not to be relevant to this special charge.

6. Mr Coleman, on lodging his application for review, paid the required fee of a $170.00. A hearing has been fixed for 10.00am on Friday the 27 November 1998.

7. This directions hearing was appointed as a result of a letter dated 27 August 1998 from the solicitors now acting for the Council. The relevant part of the letter reads:-

"We have advised our client that, almost certainly, the Appellant has no standing to make the application for review. In the circumstances, we request that a Directions Hearing be held, to determine this issue.

The Directions Hearing would not exceed 30 minutes in duration. If we are successful in submitting that the Appellant is without standing and no jurisdiction exists, the application for review will be dismissed. This will obviate the need for a hearing on 27 November (and perhaps enable you to fix another application or appeal in its stead).

We look forward to hearing from you on whether a Directions Hearing will be convened."

7. As a result of this request the directions hearing was appointed. The notice of the directions hearing said that it was to consider the matters raised in the letter of the Solicitors dated 27 August 1998 and that the time allocated for the hearing was 30 minutes.

8. I believe that staff of the Tribunal enclosed a copy of that letter with the notice for the information of Mr Coleman. However, it is unlikely to have been that much use to him, even if he understood what is meant by the expression "the Appellant has no standing", because the letter gives no indication of the grounds for making this claim.

9. Certainly the Tribunal had no knowledge of the basis or grounds for the claim that Mr Coleman lacked standing until the commencement of the directions hearing. The 30 minutes made available for the hearing was occupied in hearing the solicitor for the Respondent Council explain the basis. During the course of his submissions he referred to and relied on 3 previous determinations of the Tribunal, one of which was unreported. Copies were provided to Mr Coleman (and the Tribunal), but it is highly unlikely that he had never heard of these cases and he had no opportunity to read them during the hearing.

10. The claim that the Appellant lacks standing to maintain the appeal really means that Mr Coleman has no right to apply for the review of the Council's decision, in spite of what was said to him in the notice he was sent.

11. The solicitor's argument in this respect is that the right to a review sought to be relied upon by Mr Coleman is provided by Section 185(1) of the LG Act. He quoted this subsection as being in the following terms:-

"(1) A person who is aggrieved by a Council's imposition of a special rate or special charge on that person may apply to the Planning Division of the Administrative Appeals Tribunal for a review of the decision."

He referred to a person "who is aggrieved" and, in particular, to the imposition "on that person".

12. I believe that this provision has now been amended by item 55.6 in Schedule 1 of the Tribunal's and Licensing Authorities (Miscellaneous Amendments) Act 1998 being Act No 52 of 1998. It substitutes a subsection in the following terms:-

"(1) A person may apply to the Victorian Civil and Administrative Tribunal for review of a decision of a Council imposing a special rate or a special charge on that person."

This amendment is effective from 1 July 1998, but the rate was declared and notice was given before that date. In any event, although the reference to a person aggrieved has been deleted, the reference to the imposition of a special charge "on that person" remains. I think that is the important phrase for the purposes of the solicitors argument.

13. The argument is that Mr Coleman, although he has applied for the review, is not the person on whom the special rate or special charge has been imposed. The solicitor alleged that Mr Coleman is not the owner of the land, but rather is an occupying tenant and that it is the owner rather than such an occupier, who is made liable to pay rates and charges on the land. Section 156 of the LG Act is headed "Liability to pay rates and charges" and the first two subsections read as follows:-

"(1) The owner of land is liable to pay the rates and charges on that land.

(2) If the owner cannot be found or identified, the occupier of the land is liable to pay the rates and charges."

14. On this basis it is said that Mr Coleman, if he is only the occupier and not the owner, is not liable and has had no special charge imposed on him. It would only be if the owner cannot be found or identified that he could be said to be "aggrieved" (in terms of the previous subsection), and to have had the special charge imposed on him.

15. I do not know whether the owner can be found or identified, although I dare say that this can be ascertained. As a matter of fact, so far as the hearing on the 21 September 1998 was concerned, it was not proved that Mr Coleman was not in fact the owner. The only evidence produced on this point was a photo copy of the face side of a Certificate of Title said to relate to his premises. Certainly he is not shown on the face as the first registered proprietor of the land, but no copy of the reverse side, where any subsequent dealings would normally be recorded, was produced. The solicitor suggested that there is some new form of Certificate of Title. I do not know if this means that there has been a reversion to the original concept of the Torrens or Transfer of Land Act system of titles whereby new certificates of title would be issued for each transaction. Very early on in the history of the use of this system the practice has been adopted in Victoria of not issuing a new certificate of title for each subsequent dealing, but rather endorsing them on the reverse side of the original Certificate of Title document. The copy certificate of title produced did not appear to be any different to the normal ones to which that practice has been applied.

16. The solicitor further pointed out that, although there may be a private contractual relationship between a landlord and a tenant for the tenant to pay the rates on the leased property, nevertheless on the basis of Section 156(1) it is the owner on whom the legal obligation is imposed by the Local Government legislation. It is contended therefore that only the owner can appeal.

17. If indeed Mr Coleman is not the owner, he may be in difficulties on this point. I am not in a position to determine that point at this stage. The time for the hearing was exhausted before Mr Coleman had an opportunity to make submissions and, in any event, he was confronted with an application of which he had no proper notice. He had notice of when the hearing was to be conducted, but none of the basis of the application to be made and he had no proper opportunity of considering the application whilst knowing the case he would be called upon to answer. In my opinion it would have been a denial of natural justice to compel him to proceed at that time, even if time had been available. As it was I had another matter which had been given a special listing as being of some urgency.

18. I did raise with the solicitor the question whether the commencement of this appeal in Mr Coleman's name was, in affect, a misnomer which could be corrected by an amendment to the application for review to substitute the owner's name. He doubted that this remedy was available. Another possibility may be the commencement of a new application in the name of the owner, if the owner is other than Mr Coleman. As to this, the Solicitor points out that such new application would be out of time. There might then be a question as to whether there is an ability under the Victorian Civil and Administrative Tribunal Act 1998 to extend the time for making such an application. It may, be of course, that if Mr Coleman is obliged by a lease to pay rates that such contractual obligation extends only to ordinary rates and not to this special charge. That would depend on the terms of the lease.

19. The irony of this situation is that the Council sent Mr Coleman a notice, in effect advising him that he was liable to pay a special rate and further advising him that he could apply for a review of the decision to impose the rate on certain specified grounds. It was not unreasonable for Mr Coleman, in those circumstances, to assume that he did have a right to make an application for review (especially if de facto he is the one who pays rates). Before doing so he sought to obtain more information about the alleged special benefit, presumably to provide himself with information upon which he can make a sensible judgement as to whether he had any reasonable prospect of succeeding on such a review. It appears that this information was not forthcoming and that he therefore, very sensibly, decided that he had better apply for the review before his time for doing so expired. I have only had a glance of the notice sent to him at this stage, but it did not appear to have any warning to him that the right to apply for a review would be limited to land owner and would not be available to occupiers who are not owners. If he was not a person aggrieved under the previous wording of Section 185(1), he is certainly aggrieved now to find that he has spent a $170.00 on a fee and closed his business, at least for part of the day, on the 21 September 1998 only to be confronted for the first time with the legal argument from the party who has invited him to apply for a review to the effect that he has no right to make such an application.

20. In the circumstances I considered that I had little option but to adjourn the application to give Mr Coleman a reasonable opportunity of considering his position and to prepare his case in relation to this point. In doing so I invited him to make a note of the expenses he incurred by appearing on the 21 September 1998. In subsequently reserving the question of costs, I sought to reassure him that this was not done in contemplation of making an order for costs against him.

21. It was appropriate, for the Council, upon becoming aware of a legal question like this question of the right of Mr Coleman to apply for a review, to advise the Registrar. As a matter of fact, Practice Note 1.3 of Practice Note Planning 1 of the Victorian Civil and Administrative Tribunal Practice Notes 1998 provides:-

"When a party to an application becomes aware that a legal question is likely to be required to be determined in the course of the application, that party should immediately advise the Registrar and all other known parties of the matter and its nature. If the matter is one that could determine the outcome of the application without a consideration of the substantive merits of the application, that party should make an application for a directions hearing."

22. Although going some distance towards complying with this direction it appears to me that the Council failed to advise the other known party and failed to make the grounds on the application clear, even if its nature was indicated. It think this should have been done, whether or not there is scope for argument as to whether Practice Note 1.3 requires it.

23. At the conclusion of the hearing I adjourned the further hearing of the application to a date to be fixed. The solicitor suggested that a prompt further hearing might be in order as the hearing of the merits of the application has been fixed for the 27 November 1998. I feel some difficulty about this situation. Am I to call Mr Coleman back for a further hearing on this point, possibly with a third hearing to proceed on the 27 November 1998? Although it is generally expedient to conduct one preliminary hearing on such a point, particularly if it may obviate the need for a full hearing, I am reluctant to impose the burden of two such preliminary hearings on Mr Coleman. Whether the fault of this situation that has arisen rests with the Council's solicitors or is shared by the Tribunal in not requiring a specification of the grounds of the application, the one person who is clearly free of all blame in this respect is Mr Coleman. I propose therefore to adjourn this preliminary point to the hearing already fixed for the 27 November 1998 when I will be available to hear the application for review. If Mr Coleman prefers to have a 30 minute hearing appointed in the meantime to finalise this preliminary point he should write to the Registrar saying so. Such a letter should refer to the appeal number of this case, to the fact that I conducted a hearing on the 21 September 1998 and it should ask that the matter should be referred to me for further directions. If he makes no such request the matter will be dealt with on the 27 November 1998.

1. This directions hearing is adjourned to 10.00 am on the 27 November 1998.

2. The Applicant for Review, Mr Paul Coleman, is at liberty to apply in writing to the Registrar for an earlier preliminary hearing to dispose of the issue raised at the directions hearing of the 21 September 1998 if he wishes.