(1) Tribunal is not functus officio.

(2) Hearing to proceed on 7 November 2005.

Mr P Lacava SC, instructed by the Victorian Government Solicitor.

1 On 8th July last, I made the following orders:-

"(1) Application dismissed. Decision of the Respondent of 13 January 2003 affirmed.

(2) Pursuant to s.118 of the Victorian Civil and Administrative Tribunal Act 1998, Order 1 does not come into effect until 8 October 2005.

(3) Pursuant to s.149 of the Victorian Civil and Administrative Tribunal Act 1998, operation of Order 1 is stayed pending the determination of any appeal that may be instituted.

(4) No order as to costs.

2 Appeal proceedings were initiated but later abandoned. Chailai Richardson ("Richardson") now comes before me seeking an extension of time in relation to the date contained in Order 2. The Business Licensing Authority ("the BLA") opposes any extension, and argues that I am functus officio. It is this point upon which I am now asked to rule. In the meantime, the matter has been adjourned until 4th November 2005, and I understand that no steps will be taken in relation to Richardson's licence in the meantime.

3 On this occasion Mr D E Phillips appeared on behalf of Richardson. Mr Lacava again appeared on behalf of the BLA.

4 Some argument took place as to the reasoning behind the making of two separate orders effectively staying the coming into operation of Order 1. I should add that Mr Lacava, whilst he had been present through the many days of the hearing of this matter, was not present when I handed down judgment and therefore was not privy to the discussion that took place on 8th July between Mr Tovey, on behalf of Richardson, a solicitor from the BLA, and myself.

5 I have now had the opportunity to listen again to the recording of what took place on 8th July. It confirms what I stated from the bench during the hearing of this argument. Mr Tovey made two quite separate applications in relation to what could broadly be described as stays. They were quite separate. He made an application that Order 1 not come into effect until 8th October 2005, and in making that application relied upon s.118 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"). The stated purpose of this application was to allow Richardson the opportunity to make orderly arrangements for the transfer of the brothel licence to another person. A possible application by her to obtain a manager's licence was also foreshadowed. However, there is no doubt that this was what was intended.

6 Mr Tovey then made a quite separate application pursuant to s.149 of the Act that the order be stayed pending the determination of any appeal. At that stage, there had been no opportunity for him to analyse the quite lengthy judgment, only part of which had been orally delivered. There had been no opportunity for him to obtain instructions or give advice in relation to any proposed appeal. Accordingly, it may have been that no appeal process would be initiated. In that eventuality, Richardson still wanted the advantage of a three month period in which to attempt to arrange the orderly disposition of her licence. Of course, if appeal proceedings were instituted and leave to appeal obtained, a potentially longer stay would operate.

7 It was spelt out quite clearly that separate orders were sought, and the purpose of them explained. Apart from the fact that I was minded to make such orders, the solicitor for the BLA asked for some time to obtain instructions in relation to these matters. Accordingly, I left the bench. Upon my return, I was informed by the solicitor for the BLA that there was no opposition to the orders - in fact, they were consented to - and I made them accordingly.

8 Thus, Order 2, being a separate order made pursuant to the provisions of a separate section, was not meant, in some way, to be enmeshed with or contingent upon the pursuit of an appeal.

9 That being so, the question remains as to whether the date contained in Order 2 can be varied so as to grant an extension of time before Order 1 comes into effect. Whether or not it should be so varied - that is, the merits of the matter - is another question. The first question is whether it can be done or whether I am functus officio.

10 In my opinion the key to this question lies in Order 5 - the reservation of liberty to apply. Liberty to apply has been specifically reserved, so there is no need for me to embark upon a discussion concerning any inherent liberty. I should also add that the recording of what occurred on 8th July does not indicate that liberty to apply was reserved for any specific purpose.

11 As is said in Williams "Civil Procedure - Victoria", at I 59.01.20, the words "liberty to apply" are not intended to reserve to a court making a final order a right either to set aside or vary in any material respect the operative and substantive part of the order. The reservation of liberty to apply is simply a device by which further orders may be made when necessary for the purpose of implementing and giving effect to the principal relief already pronounced - see Nicholson v Nicholson [1898] ArgusLawRp 94; (1974) 4 ALR 212. It is a mechanism which obviates the necessity of a further proceeding being brought to deal with matters that are essentially consequential upon the making of the original order - see Abigroup Ltd v Abignano [1992] FCA 567; 112 ALR 497.

12 Indeed, there are some useful comments contained in the judgment of the Full Court of the Federal Court of Australia in Abigroup and particularly at 509. These comments are as follows:-

"The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders ... Historically, orders reserving leave to apply are for limited purposes ... Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentially consequential upon the making of the initial final decree ... It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court."

13 Clearly the fact that I reserved liberty to apply would not permit me to revisit Order 1 and, for example, uphold the application. Does it, however, permit the variation of the date upon which the perfected order is to come into effect?

14 I was not directed towards any authority specifically on this point, and indeed any such authority is difficult to find. However, some assistance may be obtained from the decision in A P Marr Pty Ltd v Chaplin (1986) 66 ACTR 31. I appreciate that the decision in Marr was dealing with a decree for specific performance and a time fixed for completion of an agreement. However, there seem to me to be some parallels to the present situation. In Marr, Kelly J quoted at some length from the judgment of Sir Robert Megarry V-C in Singh (Sudagar) v Nazeer [1979] 1 Ch 474, and it is of interest that, in Singh, a distinction is drawn between the decree of specific performance and what is referred to as the consequential directions which regulate the performance of the contract (presumably including the date for completion). Whilst specifically confining his observations to a decree for specific performance, Kelly J found that the date fixed for completion of the contract was a consequential direction, although I note that the fixing of the date was clearly an order, and earlier described in the judgment as a "consequential order". I attach no significance to the use of the word "direction" as opposed to "order".

15 What is of significance is that Kelly J was prepared to vary the date previously ordered and stated that:-

"The liberty to apply reserved by the order was in respect of, inter alia, just such a circumstance as has arisen here."

16 Kelly J also quoted from the decision in Dowdle v Hillier (1949) 66 WN (NSW) 155 as follows:-

"The only effect of such a reservation (of liberty) is to permit persons having an interest under the [order] to apply to the court touching such interest in a summary way without again setting the case down."

17 Just as the order setting a date for the completion of a contract was viewed in Marr as being a consequential order, it seems to me that Order 2 in the present case is a consequential order. If it is a consequential order, it seems to me that it can be varied. This is consistent with both the decision in Marr and the decision in Abigroup. It also seems to me to be a situation which falls within what was described by Roper CJ in Eq in Dowdle. A person having an interest under the order - namely Richardson - can apply to the court touching such interest in a summary way without again setting the case down.

18 Thus, it seems to me that I am not functus officio and that I can entertain an application to vary the date contained in Order 2 of the orders made on 8th July 2005. In my opinion, I can proceed to deal with the merits of the application.