1. The application for correction of the order of the Tribunal made on 5 June 2000 is dismissed.

2. The application for reopening of the order made by the Tribunal on 5 June 2000 is dismissed.

3. The applicant, Mr Philip Stahle, must pay the respondent, Camberlea Properties Pty Ltd, costs fixed at $1,333-00 within thirty days of the date of this order.

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For the applicant for review: Philip Stahle appeared in person.

For the respondent/objectors: Mr Adrian Finanzio of Counsel, instructed by Minter Ellison, Solicitors.

1. These were applications under section 119(1)(c) and section 120(1) of the Victorian Civil and Administrative Tribunal Act 1998 to correct an order made by the Tribunal on 5 June 2000 and to reopen that same order.

2. These applications were made by Mr Stahle by way of letter dated 19 June 2000 to the Tribunal. The pertinent parts of that letter read as follows:

Thank you for forwarding a copy of the VCAT decision pertaining to the above mentioned properties. Following a telephone conversation today with an employee of the Tribunal, I believe one has 14 days from the time of receiving your correspondence to appeal the decision under the provisions of s.119 or 120 of the Victorian Civil and Administrative Tribunal Act 1998.

In accordance with the provisions of s.119, I wish to hereby appeal the decision based on clause `(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order,' but namely `a material mistake in the description of any person, thing or matter referred to in the order'.

In particular, I wish to refer to the wording at point 30. `Mr Burton was unable to advise about the impacts of track maintenance work.' Whilst I stand to be wrong, I believe that Mr Burton admitted under cross-examination that he had had first hand experience of the absolute intense noise of night-time track maintenance works only some hundreds of metres from the proposed development site heading eastward along the Lilydale line. Mr Burton had admitted that you can not sleep through the noise, and said irrespective of proposed acoustic applications - quote "there is no way that you can design such noise out of such a building!" This point is crucially importance (sic) to this case - as the health of the frail and elderly residents of such a proposed development would be at stake.

In light of the fact that it would not be fully possible to design such noise out of the proposed building, the Tribunal is obligated to take up the advice of the three medical practitioners who wrote to the Tribunal pertaining to this matter prior to the close of the hearing. Even if the noise levels can be significantly attenuated, they will still cause sleep disturbance and sleep deprivation, whilst causing increased stress levels, anxiety, and disorientation from daily routines ... but more importantly to this Tribunal ... it is reasonably foreseeable that associated with such factors - premature deaths at and around the time of such night-time - noise related disturbance and trauma should be considered probable.

Further from a medical perspective, the tribunal has been advised by Dr (Sir) Zenon W. Gruba that electro-magnetic radiation from the high voltage railway power lines would have serious implications to the health of residents of such a proposed development who would be trapped at close proximity to such electro-magnetic radiation twenty-four hours a day, 365 days a year.

Unless the Tribunal is prepared to weather the test of time and take on full responsibility and wear the full legal liability of possible medical as well as Coroner's Court findings of increased incidence of stroke, seizure, heart failure and death at and around the time of such night-time track works; ... and/or unusually high incidence of cancer in residents and/or staff of such a proposed development, then the Tribunal needs to reverse their decision.

As this appeal is made with sincere integrity and in good faith, and is not frivolous and is made without malice or pertaining to unnecessary attempt to delay, I trust that there can be no attribution of costs pertaining to such appeal applicable to myself.

3. Copies of this letter were also sent to the following persons:

The Honourable P. Batchelor, Minister for Transport - State of Victoria

The Honourable S. Davies, Member for Gippsland West - State of Victoria

The Honourable S. Garbutt, Minister for the Environment - State of Victoria

The Honourable C. Ingram, Member for Gippsland East - State of Victoria

The Honourable B. Pike, Minister for Aged Care - State of Victoria

The Honourable K. Savage, Member for Mildura - State of Victoria

The Honourable J. Thwaites, Minister for Planning/Health - State of Victoria

The Honourable B. Bishop, Federal Minister for Aged Care

Ms E. Sullivan, Residential Program Management, Department of Health and Aged Care - Aged Care Facilities Registration and Accreditation Division

4. By letter dated 23 June 2000, the Senior Registrar of the Victorian Civil and Administrative Tribunal responded to Mr Stahle as follows:

Thank you for your letter of 19 June 2000 regarding the above application before the Tribunal.

You will appreciate that the Planning List of Victorian Civil and Administrative Tribunal is part of an independent adjudicative body which determines disputes on evidence produced at hearing. Where disputes come before the Tribunal, the presiding Members must acquaint themselves with the facts and then on the balance of probabilities decide the matters in dispute. Each matter before the Tribunal is decided on its `merits' and whilst I understand your dissatisfaction with the decision, I am unable to alter it.

Your letter says you wish to "... appeal the decision based on clause (2) ..." of section 119 of the VCAT Act. Section 119 provides the Tribunal with the power to correct its orders where the order contains errors, mistakes and miscalculations. Whilst I understand you regard the decision as being wrong it would appear section 119 does not provide you with the appropriate remedy in the circumstances. If you believe that the Tribunal came to a decision which is wrong in law, you may seek leave of the Supreme Court to appeal against the decision. You should note that time limits apply to an application for leave to appeal.

Your letter also refers to section 120 of the VCAT Act. Section 120 provides that a person may apply to the Tribunal to review an order if the person `did not appear and was not represented at the hearing'. If the circumstances preclude the operation of section 120 then the only avenue of appeal would be to the Supreme Court as set out above. I would respectfully suggest you seek independent legal advice regarding leave to appeal to the Supreme Court.

5. On 29 June 2000, Mr Stahle wrote again to the Tribunal's Registrar, this time a four page letter. That letter contains his substantive complaints about the impact of the decision made by the Tribunal on 5 June 2000 such as, "an increase of unnatural/premature deaths at and around the time of such prolonged night-time track works because of the noise related disturbance and trauma", that electro-magnetic radiation from the high voltage railway powerlines would have serious implications to the health of residents of such a proposed development, and Mr Stahle opened and closed his letter with the following remarks:

You seem to be under some misunderstanding or misapprehension ... we require you to act and to act swiftly in the correction of the said order based upon rules s.119/120 of the Victorian Civil and Administrative Tribunal Act 1998. Can I make it any more clear than ... categorically there have been (C) `mistakes in the description of' a `person, thing' as well as `matter referred to in the order'! Accordingly, YOU AND THE TRIBUNAL are obliged to make appropriate correction OR HEREBY ACCEPT THAT YOU WILL BE CULPABLE AND LIABLE FOR ANY INCREASED HEALTH PROBLEMS AND/OR ANY UNNATURAL INCIDENTS OF INCREASED DEATHS - RELATING TO THE TIMING OF NIGHTTIME TRACK WORKS ... WITH THE ASSOCIATED PERSONAL PAY OUT IN COMPENSATION! - AS YOU WILL HAVE ACTED IN A WAY THAT IS KNOWINGLY NEGLIGENT OF THE RESPONSIBILITY PLACED UPON YOU WITHIN YOUR APPOINTED POSITIONS!

In accordance with the provisions of s.119, we require you to hereby appeal the decision based on the above mentioned clause `(c)'.

Unless the Tribunal is prepared to weather the test of time and take on full responsibility and wear the full legal liability of possible medical as well as Coroner's Court findings of increased incidence of stroke, seizure, heart failure and death at and around the time of such night-time track works; ... and/or unusually high incidence of cancer in residents and/or staff of such a proposed development, then the Tribunal needs to reverse their decision.

In keeping with the appeal dated 19 June 2000, under section 119 you are requested to reverse the decision that was handed down. Failing this the request from Dr Kelly to be heard under section 120 still stands for a reopening of the case. As this appeal is made with sincere integrity and in good faith, and is not frivolous and is made without malice or pertaining to unnecessary attempt to delay, I trust that there can be no attribution of costs pertaining to such appeal applicable to myself or to other persons involved in such appeal.

6. On 5 July 2000, the Tribunal responded to Mr Stahle by letter enclosing a `Form 2', requiring Mr Stahle to complete the form setting out his applications under sections 119 and 120, and serve a copy of his application on the Tribunal, the responsible authority, the permit applicant and all persons who lodged a written objection with the council. In respect to Mr Stahle's submission on costs, the Registrar responded as follows:

I note that the last paragraph of your letter dated 29 June refers to the issue of costs. For your information I have enclosed a copy of Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 which outlines the powers of the Tribunal to make an award for costs.

In response to your letter of the 20 June, the Tribunal does not have jurisdiction to make any orders regarding the sale of land. If you wish to pursue this issue it would be advisable to obtain legal advice.

7. On 21 July 2000, Mr Stahle completed a `statement of service of documents' indicating compliance with the Tribunal's directions to him in its letter dated

8. On 2 August 2000, Minter Ellison, solicitors for the permit applicant, wrote to Mr Stahle in the following terms:

We confirm it is our view that there is no legal basis for the Tribunal to re-open this matter pursuant to sections 119 or 120 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'). We will be making submissions to this effect at the hearing listed for 22 August 2000.

Also be advised that we will be making an application for costs against you at any further hearing of this matter, pursuant to section 109 of the VCAT Act.

9. The principal issues for consideration in respect of this application were raised by way of preliminary matters by Mr Finanzio for the permit applicant. They were responded to and addressed by Mr Stahle.

10. Mr Finanzio initially took issue with the fact that the Tribunal had not notified the responsible authority of this hearing under sections 119 and 120 but did not continue to press the point and it became a non-issue.

11. The next issue raised by Mr Finanzio was his surprise that the Tribunal was not constituted with the same member that heard the appeal on the merits and handed down the decision on 5 June 2000. Mr Finanzio supported my presence as a legal member to determine questions of law, but said that if there was a correction that needed to be made, the original Tribunal should also be part of the constituted Tribunal in this hearing. Mr Stahle on the other hand had no objection to myself as the constituted Tribunal determining all issues. In the final analysis, this decision and the resultant order is only based on points of law and has only needed to be made by a legal member.

12. The third issue raised by Mr Finanzio was whether there is jurisdiction in the Tribunal to reopen the order under section 120(1) or correct the order pursuant to section 119(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998.

13. The fourth issue raised by Mr Finanzio was procedural defects or hurdles which Mr Stahle cannot overcome to found jurisdiction.

Jurisdiction of the Tribunal under Section 120(1)

A person in respect of whom an order is made may apply to the Tribunal for review of the order if the person did not appear and was not represented at the hearing at which the order was made.

15. Philip Stahle did appear at the hearing, which was conducted over a period of four days. Therefore, on the simple face of the section, the Tribunal has no jurisdiction to reopen the case.

16. To overcome this Mr Stahle argued that he represents a substantial number of other persons, who neither appeared at nor were represented at the four day hearing. For example, the following persons and bodies have, subsequently to the issue of the 5 June 2000 decision, written to the Tribunal in support of Mr Stahle's application:

17. Further, Mr Stahle argued that he represented the citizens of Victoria and that the above groups hold a mandate on behalf of those citizens.

(i) none of those above persons made application themselves to the Tribunal pursuant to section 120;

(ii) none of those persons authorised Philip Stahle to act on their behalf;

(iii) Mr Stahle's initiating letter dated 19 June 2000 clearly said, in the second paragraph "I wish to hereby appeal the decision";

(iv) even if these other persons were interested in reopening the order, they are well out of time to do so and it is public policy that there be a finality to litigation;

The Scope of Section 119 - Jurisdictional Limitations

19. Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 is generally known as `the slip rule'. It reads:

(1) The Tribunal may correct an order made by it if the order contains -

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

(b) on the application of a party in accordance with the rules.

20. Mr Stahle particularly relies on "(c) ... a material mistake in the description of any person, thing or matter referred to in the order".

21. However, when pressed as to the mistake in the description of a person, thing or matter, Mr Stahle's response was far wider than the scope of that section permits.

22. A summary of Mr Stahle's allegations of `material mistake' include:

(i) dissatisfaction with the weight placed by the Tribunal on the expert acoustic evidence of Mr Burton;

(ii) dissatisfaction with the characterisation of Mr Burton as an acoustic expert after he had said that he was unable to advise about the impacts of track maintenance work;

(iii) insufficient weight placed by the Tribunal on medical evidence by persons who made submissions to the Tribunal but were not called for cross-examination. This evidence concerned the impact of the noise of track maintenance works during the night on elderly frail residents of the proposed sixty bed nursing home. Mr Stahle was dissatisfied because this medical evidence was not specifically referred to in the Tribunal's decision and therefore believed that it was not taken into account by the Tribunal;

(iv) a dissatisfaction that notwithstanding competing arboreal evidence on each side, the arboreal evidence of persons acting for the objectors, who were not available for cross-examination but who presented that evidence by way of submission, was not specifically mentioned in the decision;

(v) the fact that the medical evidence by Drs Hubel, Kelly and Gruba and by arborists Dr Ian Ferguson, Mr John Lancaster and Mr Tom Greenwood, was not referred to in the body of the decision is indicative of the fact that no consideration was given to their evidence by the Tribunal, the Tribunal failed to take these relevant considerations into account and therefore there is a technical mistake in the decision which is patent on the face of the record.

The Scope of Section 119(1)(c)

23. As a general rule, once an order has issued, in a form which correctly expresses the intention with which it was made, the court or tribunal that made the order has no jurisdiction to review, vary or set it aside. It can only be varied or set aside on appeal. This rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing. On the other hand, the need for finality in litigation is balanced with a recognition that mistakes are made from time to time by judges and the parties or their advisers which can and should be corrected without resort to appeal so that justice may be done. See Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539 per Gibbs, J; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 @ 235-6.

24. Section 119 effectively enacts the `slip rule'. The scope of the slip rule is not unlimited. The slip rule in terms permits to be corrected an error in a judgment or order arising from an accidental slip or omission. An error in a judgment or order which is the product of a deliberate decision is not within the rule. If the judge has made a mistake in his decision, the remedy is appeal; and if no appeal be brought, or if the appeal be dismissed, the litigants are bound by the decision, even though wrong. See Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210 (Federal Court of Australia). To that extent, the scope of the rule is limited.

25. However, within the scope of the rule there is a surprising breadth. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But is also authorises the court to make an order which it fails to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended. The slip rule applies to an accidental omission of the court to provide for something which ought to have been provided for, and which would have been provided for if the attention of the court had been directed to it at the time. See R v Cripps; ex parte Muldoon (1984) QB 686 at 695; L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594-5:

In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (1892) AC 547 at 558, if the matter had been drawn to the Court's attention would the correction at once have been made?

Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453, per McHugh JA.

26. I find that the defects, deficiencies, dissatisfaction and errors raised by Mr Stahle neither amount to a mistake made by the Tribunal in the description of any person, thing or matter referred to in its decision and order, nor amount to an accidental slip or omission in its findings. Characterisation of the errors adverted to by Mr Stahle would more accurately found the basis of an appeal to the Supreme Court on a point of law and fall within the typical administrative review grounds such as failing to take a relevant consideration into account, or making a decision that was so unreasonable that no reasonable person could have made it.

27. Characterisation of Mr Stahle's alleged defects cannot be the subject of a correction pursuant to section 119.

Procedural Defects in Lodging the Section 119 Application

28. Mr Finanzio raised a preliminary point against Mr Stahle, that Mr Stahle was in breach of Rule 4.06 of the Victorian Civil and Administrative Tribunal Rules 1998, in that he failed to serve a copy of his section 119 application within seven days after lodging the application with the Tribunal. Mr Finanzio admitted that there was discretion in the Tribunal to disregard that failure, or to extend the time for service but urged the Tribunal not to do so in the interests of justice, public policy requiring finality in decision-making, and the economic interests of his client resulting from any delays that would be occasioned by any such extension of time.

29. However, as a result of the conclusions to which I have come on the jurisdictional matters and interpretation of the scope of section 119, there is no need for me to delve into the procedural defects raised by Mr Finanzio. Indeed, this decision has proceeded as if I have ignored the procedural defects and exercised discretion to waive any irregularity. This remains the case even though Mr Finanzio had not given Mr Stahle notice that he would raise this technical defect against him and despite the fact that Mr Stahle waived that lack of notice and was "more than happy" to argue the point before me.

30. Mr Finanzio sought costs against Mr Stahle in favour of his client, on the basis that:

(i) Mr Stahle had been advised by the Tribunal that his complaints were properly the subject of an appeal on a point of law to the Supreme Court rather than the subject matter of an application under sections 119 and 120 of the Victorian Civil and Administrative Tribunal Act 1998; and

(ii) Mr Stahle had been warned by Minter Ellison, solicitors for the permit applicant, that they would be seeking costs because the nature of Mr Stahle's application fell outside the scope of section 119 and it was patently obvious that, because of Mr Stahle's presence at the merits hearing, he had no remedy under section 120;

31. Mr Finanzio claimed the sum of $2,000 in total against Mr Stahle, being $1,200 for counsel's appearance fee, preparation fee and consultation fee and $800 for the conferences held by his instructing solicitors with their client and preparation work including instructions for brief to counsel.

32. Mr Stahle strongly contested the costs application, arguing that had his arguments not been `hot housed' or `gagged' at the merits hearing there would have been no need for him to lodge these applications. Mr Stahle further maintained that he was mounting these applications on behalf of the community and the public of Victoria, to protect their health and security and their best interests.

33. Pursuant to section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal may make an order that a party pay all or a specified part of the costs of another party in a proceeding only if satisfied that it is fair to do so having regard to various matters. One of those matters is:

(c) the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

34. Each and every one of Mr Stahle's arguments clearly related to a matter well outside the scope of section 119 or section 120 and patently the subject (if at all possible) of an appeal on a point of law to the Supreme Court. I find that Mr Stahle's applications have no tenable basis in fact or law. Notwithstanding the fact that the Tribunal sent Mr Stahle the initiating documents, they also sent in a copy of section 109 regarding costs, and he took his risks on his application. On balance, I find it unfair for the permit applicant to have to bear the costs of defending Mr Stahle's applications, as they have no tenable basis in fact or law. I find the $2,000-00 claimed a reasonable amount in circumstances where solicitors and counsel are engaged.

35. However, in my previous decision of Hackett v McConville and Bayside City Council Application for Review No. 2000/26024 dated 6 July 2000 (unreported), I applied the "two thirds rule of thumb", where the taxing master usually allows two-thirds of the amount claimed for costs. I applied that rough rule of thumb, because my immediate decision in that case also meant that no further costs were involved in the applicants having to go for a taxation of costs before the Registrar of the Victorian Civil and Administrative Tribunal, which would also involve them in extra solicitors' costs drawing up an itemised bill and attending before the Registrar.

36. I propose to apply that two-thirds rule of thumb here as well, so I disallow Mr Stahle's applications and will order that he pay the permit applicant total costs of $1,333-00 within thirty days of the date of this order.

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