Plaintiff v Defendant

Supreme Court of Victoria|2011-02-22|Before: PAGONE J

1 Mr Alex Hoe appeared in person on his appeal against an order of an Associate Justice refusing him leave to appeal from a decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") made on 29 June 2010. The notice of appeal from the decision of the Associate Justice was filed out of time. The defendant did not oppose Mr Hoe's application that I treat the appeal as having been brought within time or that I otherwise give him leave to make his application out of time, which I did upon Mr Hoe's explanation for the delay and misunderstanding of what he had been told.

2 An appeal from the Tribunal may be brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act") on a question of law with leave of the Court. The Tribunal made formal orders against Mr Hoe on 29 June 2010 and leave to appeal to this Court was sought from an Associate Justice on the return of a summons filed 2 September 2010. Leave was not granted by the Associate Justice and Mr Hoe has brought the present appeal against that refusal to grant leave to appeal. The Associate Justice refused to grant leave to appeal on the basis that the leave sought was not on a question of law. An appeal from the Associate Justice does not require leave and is by hearing de novo. The issue for decision being, therefore, whether I should grant him leave to appeal the decision of the Tribunal.

3 In considering whether to grant leave to appeal a decision of the Tribunal it is essential to focus upon the question or questions of law in respect of which the leave is sought. The nature of this Court's jurisdiction in an appeal under s 148 of the VCAT Act was recently described by Davies J in Commissioner of State Revenue v STIC Australia Pty Ltd[3] where her Honour said:

The jurisdiction of the Court to hear an appeal from VCAT is conferred by s 148 of the VCAT Act, which permits an appeal only on a question of law. The right of appeal conferred by s 148 is of a limited nature only. In Osland v Secretary to the Department of Justice, the High Court recently affirmed that the Court's jurisdiction conferred by s 148 to hear an appeal from the Tribunal is enlivened only if there is a question of law, which is not merely a qualifying condition to ground the appeal but which is to constitute the subject matter of the appeal. Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re-determine facts or re-exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court under s 148 is not a merits review nor is it an appeal that merely involves a question of law. The matter comes before the Court solely by way of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made. As Mason J stated in Minister for Aboriginal Affairs v Peko- Wallsend Ltd:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

The role of the Court is limited to reviewing the legal limits of the exercise of power. "Merits" review resides with the Tribunal and the Court is not to intervene in an essentially evaluative matter.[4]

These considerations emphasise the need and importance of an exact identification of the error of law said to enliven and to form the basis of this Court's jurisdiction to hear an appeal. The need to identify a question of law serves as the criteria upon which several policy objectives are achieved through s 148(1) of the VCAT Act. It is the means by which finality of litigation by Tribunal decisions is achieved as well as the trigger by which the statutory appellate jurisdiction of this Court may be enlivened. The general policy evinced by s 148(1) is in part to ensure that litigation comes to an end by the decision made by the Tribunal. It is also in part to ensure that its decisions are legally correct but that within its legal domain it will be its decision that will end the dispute between the parties.[5] It is not part of this Court's appellate jurisdiction to review decisions by the Tribunal which are not legally incorrect.

4 The need to identify precisely an error of law is important also to identify and define the subject matter and ambit of any appeal to this Court and thus to ensure that the statutory appellate jurisdiction of this Court is lawfully engaged, defined and circumscribed. In Osland v Secretary to the Department of Justice[6] French CJ, Gummow and Bell JJ emphasised the need for precision in definition of the question of law upon which an appeal under s 148 of the VCAT Act was brought saying:

There is a need for better definition of the questions of law upon an appeal to the Court of Appeal under s 148 of the VCAT Act than appeared in these proceedings. The questions of law are not to be distilled from the grounds of appeal. What Gummow J said of s 44 of the Commonwealth AAT Act in TNT Skypak International (Aust) Pty Ltd v FCT is true also of s 148:

...The existence of a question of law is ... not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.[7]

These observations emphasise the need for precision in articulating the question of law in an appeal and emphasise a fundamental reason for the need for that precision. The Court's jurisdiction to hear an appeal depends upon there being a question of law in issue but it is only the question of law which the Court is permitted by the statutory appeals jurisdiction to consider. The fact that a question of law may have been involved in a decision does not permit the whole of the decision to be agitated upon an appeal.[8] The question of law is the trigger for an appeal but is also the entire subject matter of the appeal and for both purposes it is essential that the question of law said to have been erroneously decided is identified exactly.

5 The fact that Mr Hoe is an unrepresented litigant potentially creates difficulties for the Court as well as for opposing parties and their legal representatives. The adversarial system of justice works best when parties are equally represented by competent legal practitioners who are knowledgeable of the law and skilled in forensic craft. The duties to the administration of justice of adversaries, their representatives and the Court come into sharp focus when a party is not legally represented. In such cases the duties of litigants and their representatives to the Court and the duties of the Court itself in the administration of justice require careful regard to ensure that the unrepresented litigant is neither unfairly disadvantaged nor unduly privileged.[9] A litigant may in some cases also be expected to act as a model litigant where, for example, the litigant is the Crown, a government agency or an official exercising public functions or duties.[10]

6 In Abram v Bank of New Zealand[11] the Full Federal Court said:

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[12]

That will mean that different considerations may be called for in different contexts and at different stages of the Court's functions. The right of a litigant to have a fair and just hearing may require such assistance as diverse as listening patiently to an explanation of why something may not be given in evidence. The Court "must ensure that an advantage is not conferred on the unrepresented party"[13] and "to maintain impartiality".[14] The Court's task is "to ascertain the rights of the parties"[15] and can ordinarily look to the legal representatives of the parties to assist it in the discharge of that task. The Court relies upon the assistance it receives from the parties, and their representatives, in doing justice between them. It is, after all, the parties who have knowledge of the facts and the interest in securing an outcome. It is the parties who have the resources, in the form of evidence and knowledge, needed to be put to the Court for an impartial decision to be made. Public confidence in the proper administration of justice, however, may be undermined if the Courts are not seen to ensure that their decisions are reliably based in fact and law. That may require a judge to test the facts, conclusions and the submissions put against an unrepresented litigant and to "assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy".[16] It may require a judge to focus less upon the particular way in which the case is put by the parties and more precisely upon the decision which is required to be made.

7 The identification of a question of law by Mr Hoe in this case does not have the advantage of careful consideration on behalf of Mr Hoe by a legally qualified lawyer. Mr Hoe is not a lawyer, is not trained in law, and appeared on his own behalf unrepresented. The originating motion prepared and filed by him, and the accompanying summons also prepared and filed by him, was not expressed in the usual language adopted by lawyers when drafting grounds of appeal. It is clear, however, from those documents that Mr Hoe's complaint about the Tribunal's decision was the Tribunal's conclusion that his premises had been used in a manner not ancillary to its use as a dwelling but as a store within the meaning of the several relevant provisions of the Planning Scheme.

8 The Tribunal's decision was made in an application by the Manningham City Council on 22 April 2010 for a determination under s 149A of the Planning and Environment Act 1987 (Vic) ("the Planning Act"). The Council's application was to have the Tribunal determine two distinct questions, namely, (a) whether the keeping by Mr Hoe of vehicles on his dwelling, in the particular circumstances in which they were kept by him at his dwelling, was a lawful use to be considered ancillary to the lawful use of the land for a dwelling, and (b) whether the keeping of vehicles on the subject land in those circumstances was considered a non-compliant "store" within the meaning of the relevant Planning Scheme. Each question involved a construction of a legislative instrument and an application of that construction upon the facts found upon the evidence presented.

9 The relevant facts found by the Tribunal were that Mr Hoe was a motor car enthusiast who had kept 8 to 10 vehicles on his residential property at 36 Ardgower Court, Lower Templestowe. The Tribunal accepted that an authorised officer of the Council had inspected the premises on 18 January 2010 and had counted 10 vehicles parked on the land of which only 3 were registered. The Tribunal accepted that Mr Hoe was an enthusiast and not a trader or repairer of vehicles on the land, and that it "would appear that the vehicles [were] simply being kept on the land as part of Mr Hoe's hobby as a car enthusiast". Indeed, the Council's written submissions to the Tribunal had stated quite clearly that there was "no evidence to suggest that any commercial operation such as car sales or mechanical repairs for gain [were] occurring on the land".

10 In Secretary to the Department of Premier and Cabinet v Hulls[17] the Court of Appeal said:

Because an appeal under s. 148 lies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal's succeeding or failing. Thus, if the would-be appellant seeks to have the order below set aside and reversed, the question of law must bear upon the granting of that relief. The question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced.

On the other hand, on an application for leave to appeal it cannot be expected that error below be established: that is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. In other contexts, this has sometimes been called "a prima facie case", or "an arguable case", but these are no more than attempts to describe the degree to which an applicant must satisfy the court from which leave is sought that there is a real or significant argument, in favour of the applicant, on the question of law which is identified. (Contrast in a different context Beecham Group Ltd. v. Bristol Laboratories Pty Ltd. [1968] HCA 1; (1968) 118 C.L.R. 618 at 620, per Kitto J.) It is not possible to lay down in advance any standard of satisfaction, for much may depend upon the importance of the question of law to the remedy to be sought. What is peripheral may be thought less persuasive, in relation to leave to appeal, than an issue which is central.

Moreover, though never a necessary factor in this court, sometimes the public or general importance of the question of law which has been identified may be a consideration on the application for leave. Thus, if the question of law, affecting the determination below, is one that not infrequently arises in a type of proceeding which is quite common, there may be compelling reason for a grant of leave so that the point may be exposed on appeal and corrected, if error there be, before error becomes entrenched.[18]

The Council relied upon those observations in submitting: (a) that Mr Hoe must identify a question of law arising out of the Tribunal's decision; (b) that the question of law must be relevant to the relief sought on appeal and must be such that, if the Tribunal erred in respect of that question, the applicant's claim to relief will be advanced; (c) that the public or general importance of the question of law may be a relevant consideration such that if the question is one that may not infrequently arise there may be a compelling reason for granting leave so that the point may be exposed on appeal and corrected (if there be an error) before it is entrenched; (d) that Mr Hoe need not establish that the Tribunal erred in respect of the question of law since that is for the appeal if leave is granted but must establish that the Tribunal's decision is "attended by sufficient doubt" to justify the granting of leave; and (e) that it must be just to grant leave.

11 It is significant when considering these matters in this case to bear in mind the task which the Tribunal had undertaken. The specific task of the Tribunal was to make a declaration under s 149A of the Planning and Environment Act 1987 (Vic). Three specific questions were posed by the Council's application for the specific consideration of the Tribunal, namely:

(a) Whether the keeping of vehicles on the subject land in circumstances such as those in the application was a lawful use that was considered ancillary to the lawful use of the land for a building?

(b) Whether the keeping of vehicles on the subject land in the circumstances of the application was considered a non-compliant "store" in that a store may be permitted (with a planning permit) on the land, but must be a dwelling?

(c) The extent to which the keeping of vehicles on the land in the application can be considered a hobby and therefore was ancillary to the lawful use of the land for a dwelling in a residential area?

The Tribunal's consideration of each of these three questions necessarily required a construction of the relevant provisions of the Manningham Planning Scheme. The land which was the subject of the application before the Tribunal was within a Residential 3 zone. The scheme provided that no permit was required to use the land for the purposes of a dwelling (that use being a "section 1" use pursuant to clause 32.06-1 of the scheme). Clause 32.06-1 also provided that the use of the land for the purpose of a store was a "section 2" use. Such a use requires a permit which can be granted subject to specified conditions, namely, that the store:

Must be in a building, not a dwelling, and used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

If these conditions could not be satisfied the use became a "section 3" use which was prohibited and no permit could be issued. What the Tribunal was being asked to do, therefore, was to decide whether the facts of Mr Hoe's actual use fell within the meaning of the relevant provisions. It was a task given legal sanction by the Planning Act and it involved construing the terms of the Planning Scheme before deciding how the facts fell into its operation.

12 The Tribunal's decision in its formal order dated 29 June 2010 is in the following terms:

For the purposes of s 149A of the Planning and Environment Act 1987, I declare that the semi-permanent parking of between 8 and 10 vehicles (of which only three are registered vehicles) on the land at 36 Ardgower Court, Lower Templestowe is not ancillary to the use of that land as a dwelling, but constitutes an additional and separate use of the land as a "store" (as that term is defined in the Manningham Planning Scheme).

Expressed in these terms the actual decision has many of the hallmarks of a legal conclusion that the facts as found were such as to bring the case within the provisions of a statutory enactment. In Farmer (Surveyor of Taxes) v Trustees of the Late William Cotton[19] Lord Parker said:

My Lords, it may not always be easy to distinguish between questions of fact and questions of law for the purpose of the Taxes Management Act, 1880, or similar provisions in other Acts of Parliament. The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. The question in the present case is whether the facts found by the Commissioners with regard to a block of buildings situate [sic] in Princess Street, Edinburgh, and known as the "Windsor Buildings," entitle such buildings to the partial exemption from inhabited house duty provided by sub-s. 1 of the 13th section of the Customs and Inland Revenue Act, 1878. This question can only be determined by putting a construction on the sub-section in question, and, therefore, is one of law, on which the Court of Session had jurisdiction to reverse the determination of the Commissioners.[20]

In other words, a question of law arises when the issue to be decided is whether the facts come within the statutory description. That is not because an appeal is allowed about the facts found but because whether the facts as found come within the statutory description involves an understanding of what the words in the statute (or in another legislative instrument or principle or rule of law) mean independently of the facts. Such legal challenges are not about the evidence tendered, or about the facts as found upon the evidence, but about the interpretation given to the words in the statute. Such legal challenges do not re-open the hearing for debate about the evidence and generally (unless there was no evidence to justify a finding) do not permit complaints that the factual findings were not supported by the evidence. Rather, such legal challenges focus upon the interpretation or construction of a statute, or some other principle or rule of law, to determine whether an interpretation or construction of the law supports its application on the facts as found.

13 The decision by the Associate Justice to refuse leave to appeal correctly identified that the principles to apply were those expounded in S v Crimes Compensation Tribunal.[21] In that case Phillips JA reviewed the cases and articulated three propositions relevant to a general consideration to the distinction between errors of law and errors of fact, namely:

1. What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant's success or failure is a question of law.[22]

2. Once the task of construction is over, the question whether the claimant's particular circumstances falls within the relevant statutory description is essentially a question of fact.[23]

3. Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which is not open to it is a question of law.[24]

The learned Associate Justice considered that the question before the Tribunal was not one of statutory construction but, rather, one of applying facts to the term "store". He also considered that it had not been shown that the Tribunal's finding of fact was not open to it or that it had proceeded arbitrarily or on a frolic of its own. Accordingly, the learned Associate Justice concluded that the application for leave to appeal had to be refused there being no question of law identified.

14 An appeal from an Associate Justice to the Court is an appeal de novo and, therefore, I am required to reconsider the matter afresh.[25] In my view, the question posed for the Tribunal's consideration necessarily required a construction of the relevant provisions of the scheme and, once the task of construction was over, a determination of whether the particular facts fell within the relevant description of the Planning Scheme. It is true, as the learned Associate Justice considered, the Tribunal's decision also involved findings of fact which Mr Hoe is not entitled to appeal (or to seek to appeal) under s 148 of the VCAT Act, but the issue for the Tribunal also involved a construction of the Planning Scheme by which rights were given and obligations were imposed. The Tribunal was primarily being asked whether the words in the Planning Scheme covered the facts and circumstances of Mr Hoe's case although Mr Hoe's submissions and advocacy may have obfuscated the force of that point.

15 Clause 74 of the scheme provides general definitions of "dwelling" and "store". The former is defined as:

A building used as a self-contained residence which must include

(a) a kitchen sink;

(b) food preparation facilities;

(c) a bath or shower; and

(d) a closet pan and wash basin.

It includes out-buildings and works normal to a dwelling.

"Store" is defined by clause 74 as "land used to store goods, machinery or vehicles". There seems no doubt that Mr Hoe's premises fell squarely within the definition of dwelling. The Tribunal's reasons identified the land as an ordinary suburban block of approximately 766m². The facts relied upon by the Council in its application to the Tribunal described the site as having been developed with a double storey rendered brick building with a gable roof. At least one of the many photographs tendered by the Council to the Tribunal shows what appears to be a relatively ordinary suburban block used as a dwelling.

16 The point about the Council's application to the Tribunal was that Mr Hoe had a number of vehicles on land that was otherwise and undoubtedly used as his home, that is, as a dwelling within the meaning of the Planning Scheme. Whether that use disentitled Mr Hoe to the benefit of those provisions in the Planning Scheme attaching to use of land for the purpose of a dwelling required a construction of those provisions. Indeed, the Tribunal did not find that the land was not being used as a dwelling but that, "the semi-permanent parking of between 8 and 10 vehicles ... [was] not ancillary to the use of that land as a dwelling". The Tribunal's reason for that view was not that parking a number of cars on property used as a dwelling was not a permitted ancillary use of a land as a dwelling, nor that a hobbyist might not have several cars as an ancillary use of a dwelling, but that a hobby may increase to such an intensity that it becomes a separate and additional use of land such as to deprive that use of the benefit of a use as something ancillary to the use of the land as a dwelling. Specifically the Tribunal said:

The consideration of when a hobby increases in intensity, such that it becomes a separate and additional use of the land, is problematic. Here, however, I agree with the Council's overall analysis. The keeping of 8-10 vehicles in the manner described has in my view become something which is no longer ancillary to the use of the land as a dwelling. Another indicator of whether a use is [sic] ceased to be ancillary is the extent to which it is creating off-site amenity impacts. Although this is not wholly determinative, the indications are the storage of vehicles is causing amenity impacts.

It is clear from this passage that the learned Deputy President accepted the Council's construction of the relevant provision of the Planning Scheme to the effect that the Planning Scheme does not permit a dwelling to be used for the hobby of a car enthusiast in circumstances where the use for the hobby has reached such an intensity that it has become a separate and additional use of the land. The Planning Scheme itself does not say so expressly. In saying that I do not mean to suggest that the Tribunal's decision is wrong: whether it is or is not may be a matter of an appeal. My point is, rather, that the view that the use of land for a hobby could reach such an intensity that the use could not be incidental to the use of the land as a dwelling is a construction of the terms of the Planning Scheme. It would be a different case if the Planning Scheme had itself provided that an intense use of land for a hobby (or certain hobbies) was not an ancillary use of the land as a dwelling. In such a case a complaint about the finding that the use had become so intense to trigger the qualification would have been a complaint about the facts and no appeal would be available, but here the Tribunal's conclusion depends first upon a construction of the relevant provision. That construction of the Planning Scheme is a matter of sufficient public significance to justify the grant of leave to appeal. The use of dwellings for hobbies is no doubt a common occurrence. Hobby motor enthusiasts are likely to enjoy their hobby in their use of their dwelling. The question of construction of the Planning Scheme is one with potentially wider application to Mr Hoe.

17 The Council relied in aid of its submissions observations of Teague J in Northcote Food Wholesalers Pty Ltd v Northcote City Council[26] to the effect that whether a use is ancillary to the use of land as a dwelling is a matter of fact and degree to be decided upon the particular circumstances of each case. So much may be accepted for present purposes where what is at issue is whether the circumstances come within a description, but the critical question for the Tribunal first to have considered (and which it seems to have considered in accepting the arguments of the Council) was whether a use (assuming the facts to come within it) was such to come within an ancillary use of a dwelling as contemplated by the Planning Scheme.

18 The Council contended that Mr Hoe, a litigant without legal qualifications appearing in person, did not point to any error of law. It may be that a question of law could be identified with greater elegance than found in the various documents prepared and filed by Mr Hoe on his own behalf. The initiating process is, however, a relatively short document and it does contain the proposition that the Tribunal's decision contained "an error in law" by deciding "that the premise [sic] is used as [sic] "store", ancillary to the use of the land as [sic] dwelling". It is to that document that one must look primarily to see whether an appeal is sought on a question of law. The more lengthy submissions by Mr Hoe may have obfuscated his rights by his own advocacy.[27] The basis for his claim might benefit from requests for particulars or further refinement at argument or by case management but the assertion of error which is made is that the facts do not justify the Tribunal's conclusions when the Planning Scheme is properly construed: his complaint is that the Tribunal misconstrued the terms of the Planning Scheme by applying it as it did on the facts that it found.

19 Allied to that contention is Mr Hoe's complaint with the Tribunal's other conclusion that the use of the land was as a "store". The Tribunal's two conclusions (namely that the use had become too intense to be ancillary to the use as a dwelling and that the use was as a store) were joined in the Tribunal's decision in one sentence by the conjunctive "but". It is not clear from the Tribunal's decision whether the conjunctive was being used in the sense of "and", "therefore" or "because". In other words it is not clear what view the Tribunal took about the legal relationship that was required between two provisions in the Planning Scheme concerning the use of land both as a "dwelling" and as a "store". Mr Hoe's submissions included a statement which appeared to accept that his property was a store for his hobby of unique cars but maintained that a question of law arose about whether a store of that kind fell within the operative provisions of the Planning Scheme.

20 Whether the use by Mr Hoe of his premises to pursue his hobby as a motor enthusiast by keeping motor cars in the land comes within the definition of "store" required the Tribunal to interpret that word, in light of the provisions about dwelling, and then apply it to the facts. It also required the Tribunal to form a view about whether the fact of storage of motor vehicles sufficient to come within the definition of "store" (in the context of the Tribunal's finding that Mr Hoe had a hobby as a car enthusiast) would necessarily disentitle him from the benefit of those provisions of the Planning Scheme applicable to the primary use of the land as a dwelling. The Tribunal may be correct in all of its conclusions, but they are conclusions which depend upon questions of law which Mr Hoe seeks to challenge.

21 The way in which Mr Hoe advanced his argument before the Associate Justice, and before me, was essentially that the facts and evidence before the Tribunal did not justify the conclusion which it reached. Mr Hoe placed considerable reliance upon the principle well known to lawyers derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[28] He also relied upon the decisions in Environment Protection Authority v Daracon Engineering Pty Ltd[29] and Australian Gas Light Co v Valuer-General.[30] Whether or not Mr Hoe will succeed in establishing an error of law based upon those principles is a matter to be decided at the hearing of an appeal. It may be that his reliance upon those principles misdirected the focus of his inquiry. The "no evidence" grounds of review may easily be mistaken as an impermissible complaint (for a statutory appeal on questions of law) about the evidence and the facts; as, perhaps, it may frequently be even when propounded by qualified lawyers. In this case, however, Mr Hoe appears to me to be complaining primarily that the facts found (and for present purposes he is to be assumed to be bound by the facts) do not fit the legal description required by the Planning Scheme. Some of his submissions may well appear to take issue with the facts as found, but that does not detract from the force of the principal complaint that the provisions of the Planning Scheme do not apply to the facts found by the Tribunal. In this case the language used by Mr Hoe in his submissions frequently suggested complaints about the Tribunal having reached its decision without evidence or to have made findings without evidence. The view adopted by the Associate Justice that Mr Hoe's complaint involved no question of law is one given much force by the language used by Mr Hoe and understandably encouraged by those representing the Council. However the form of the complaint in the originating motion in light of the task required of the Tribunal and undertaken by it, reveals that it necessarily embarked upon the construction of the relevant provisions of the Planning Scheme before an application of that meaning to the facts.

22 In a document dated 1 September 2010 described as an affidavit made by Mr Hoe he identified a number of grounds upon which he sought review. The very first reason given was:

Reasoning to the fact is highly questionable as to how the Deputy President Mark Dwyer is able to make a ruling that 10 is too many of vehicles to be parked on a 763m² block of land and yet not being able to make a ruling on what is acceptable number claiming that would be "A hypothesis" based on the same following attributes or conditions that he used. This constitutes and [sic] "Error of Law" as this is a decision that no reasonable decision maker in his view can make.

Four other reasons were offered in that document which I need not traverse for present purposes because it is sufficient to note that the first reason of his complaint is not a challenge to the facts or to the evidence but is a challenge to whether the facts or evidence justifies the conclusion reached by the Tribunal. Similarly in another document also described as an affidavit by Mr Hoe, this time dated 28 January 2011, there is a potentially misleading heading which states:

Fact-finding without any evidence to support it has always been an error of law in its own right.

Much of what appears under that heading would seem to be a complaint about the evidence found by the Tribunal. However, in it there is also a clear complaint that the evidence did not support the conclusions reached by the Tribunal upon the proper construction of the Planning Scheme. The document is not well expressed and may obscure the critical point (or points) which are also contained in the document.

23 It may be that directions may need to be made to ensure a more precise focus by Mr Hoe of those points in any appeal which come strictly within the terms of s 148 of the VCAT Act and which alone are capable of forming the appellate jurisdiction of the Court under that provision. For present purposes it may be sufficient for me to indicate my conclusion that I consider his application to have identified an error of law in the proposed appeal and, accordingly, I will grant leave for the appeal to be brought.

That the order of Associate Justice Mukhtar refusing leave to appeal made on 8 October 2010 be vacated.

That the plaintiff be given leave to appeal the order of the Victorian Civil and Administrative Tribunal made on 29 June 2010.

[5] The Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 0003, [44] (J Forrest J).

[8] Cf with the former s 196 of the Income Tax Assessment Act 1936 (Cth) which permitted an appeal of the

whole of a decision once a matter involved a question of law: Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153, 196 (Isaacs J); Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 151 (Knox CJ, Gavan Duffy, Powers and Starke JJ); Krew v Federal Commissioner of Taxation (1971) 2 ATR 230, 235 (Walsh J).

[9] Rajski v Scitec Corporation Pty Ltd (Unreported, NSW Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) 27 (Samuels JA).

[10] Commonwealth Attorney-General, "Appendix B: The Commonwealth's obligation to act as a model litigant", Legal Services Direction 2005; Australian Tax Office, "Conduct of Tax Office Litigation" Practice Statement Law Administration 2009/9; Bruce Quigley, "The Role and Implications of Litigation in Tax Administration" (Speech delivered at the Australian Petroleum Production & Exploration Association Annual Conference, Hobart, 22 November 2007); Dale Boucher, "An Ethical Code ... Not a Code of Conduct" (1996) 79 Canberra Bulletin of Public Administration 3, 4; GE Dal Pont_, Lawyers' Professional Responsibility in Australia_ (2006) 296-7; see also Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333, 342 (Griffith CJ); SCI Operations Pty Ltd v Commonwealth (1996) 139 ALR 595, 613-4, 621 (Beaumont and Einfeld JJ); Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, 704 (Beaumont, Burchett and Goldberg JJ); Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 146 ALR 1, 40-1 (Finn J); Scott v Handley [1999] FCA 404; (1999) 58 ALD 373, 383-4 (Spender, Finn and Weinberg JJ); White v Minister for Immigration Multicultural Affairs [1999] FCA 1433, [81] (Ryan, North and Weinberg JJ); One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 171 ALR 227, 233 (Burchett J); ACCC v Warner Music Australia Pty Ltd [2000] FCA 647; Challoner v Minister for Immigration Multicultural Affairs (No 2) [2000] FCA 1601; NAFK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1374, [9] (Lindgren J); NAOY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 275, [8] (Driver FM); Wodrow v Commonwealth of Australia [2003] FCA 403; (2003) 129 FCR 182, [38]-[43] (Stone J); ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261, [35] (Heerey, Stone and Bennett JJ).

[12] Ibid 42,347 (Hill, Tamberlin and Sundberg JJ).

[13] Platcher v Joseph [2004] FCAFC 68, [105] (Tamberlin and Emmett JJ).

[14] McWhinney v Melbourne Health [2011] VSCA 22, [26] (Neave, Redlich and Mandie JJA); Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 446 (Sackville, North and Kenny JJ).

[15] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[18] Ibid [9] - [11] (Phillips JA with Tadgell and Batt JJA in agreement).

[25] Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 77.06(7); Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VicRp 23; [1980] VR 187, 190 (Starke, Murphy and Brooking JJ).

[27] Cf Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

Civil and Administrative Tribunal Act 1998

Environment Act 1987

Court (General Civil Procedure) Rules 2005

Tax Assessment Act 1936

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