39 It remains desirable to consider the applicant's contention that the proposed installation and use of gaming machines is a transitional application for the purpose of the gaming provisions in the new planning scheme provisions.
40 Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 provides that in exercising its review jurisdiction in respect of a decision the tribunal has all the functions of the decision maker. Thus, in exercising its review jurisdiction, the tribunal "stands in the shoes" of the primary decision maker.[9] A "function" is defined to include "jurisdiction, power, duty and authority".[10] And the tribunal's powers, including the power in section 51, should be construed liberally.[11] Section 51 further provides that in determining a proceeding for review of a decision the tribunal may, by order, affirm, vary, or set aside the decision under review; and in the last case it may either make another decision in substitution for the decision under review or it may remit the matter for reconsideration by the decision maker. Section 51(3) then provides, subject to exceptions which are not presently relevant, that a decision made by the tribunal in substitution for the decision of a decision maker is deemed to be a decision of that decision maker.
41 It is significant that the definition of "transitional application" in clause 52.28-5 of the planning scheme refers to an application made before 18 October 2006 to the Commission, and does not refer to the determination of the application by the Commission. In other words, the transitional provisions are not concerned with the identity of the determiner, but with the determination itself.
42 In my opinion, in the context of the transitional provision in clause 52.28-5, the "determination" of a gaming venue application embraces the entire process of determination and means the final determination of the application. As I will explain, this conclusion is not only preferable as a matter of jurisprudence, but also best gives effect to the obvious underlying policy of the provision.
43 If the tribunal orders that a primary decision is set aside it may do so with or without a specification of when that order will come into effect. If no date is specified then, in my opinion, the primary decision is set aside from the date the primary decision was made. In this circumstance, at least for substantive purposes, the primary decision is to be taken as having not been made.[12] This follows from the notion of "setting aside". It must also be so because, unless any order is made to the contrary, any decision made by the tribunal, in lieu of the primary decision, has or is deemed to have had effect from the time at which the decision under review has or had effect.[13] Hence if the tribunal was to simply set aside the decision of the Commission (without specifying a date) the application will not be one which has been determined before 18 October 2006.
44 In interpreting legislation and subordinate instruments, the tribunal is entitled to have regard to the context and to any underlying policy revealed by that context. The transitional arrangements set out in clause 52.28-5 are designed to protect applicants who may have spent many thousands, even hundreds of thousands, of dollars preparing an application. It would be an odd and unfair outcome if the transitional arrangements protected those who had an application in the pipeline before the Commission but did not provide similar protection to an applicant whose application was further down the pipeline and was before the tribunal.
45 Thus I do not accept the submission by the council that the application the subject of this proceeding is not a "transitional application" within the meaning of clause 52.28-5 of the relevant planning scheme.
46 I should indicate that if I was of the view that the present proceeding was not a transitional application, I would hold that is open for the tribunal to consider the application for the approval of the premises as suitable for gaming and to grant approval, in accordance with section 3.3.9(3)(b) of the Act, subject to a condition that the approval does not take effect until the applicant satisfies the Commission that the applicant has obtained a permit permitting the premises to be used for gaming on gaming machines. Further, I would have granted approval subject to such a condition.