In respect to the gaming application, the Tribunal's ruling is that it does not have jurisdiction to amend that application because-

1. Section 51(1) of the VCAT Act does not confer power on the Tribunal to accept an amended application under s 3.3.4 of the GR Act. In its review jurisdiction, the Tribunal acquires only those powers and discretions of the Commission necessary to make the decision under review and not any powers and discretions relevant for any other purpose.

1. Section 127 of the VCAT Act, properly construed in the context of the Tribunal's review jurisdiction, does not allow the amendment of an application the subject of the decision the Commission's decision under s 3.3.8 of the GR Act for the following reasons -

1. In the absence of a specific statutory power to the contrary, the Tribunal in its review jurisdiction may only review matters that were the subject of an actual or deemed decision made by the Commission under s 3.3.14 of the GR Act; and

1. An application under s 3.3.4 of the GR Act is not a document "in a proceeding" as such a document was created prior to the commencement of the relevant proceeding.

Victorian Commission for Gambling and Liquor Regulation

Victorian Commission for Gambling and Liquor Regulation

26, 27, 28 & 29 November and 3, 4 & 5 December 2018

T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74

1. Pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998, leave is given to the applicant to withdraw the application and the application is withdrawn accordingly.
2. The practice day hearing scheduled at 10am on 6 February 2019 is vacated. No attendance is required.
3. The hearing scheduled at 10am on 22 July 2019 for four days is vacated. No attendance is required.

1. Pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998, leave is given to the applicant to withdraw the application and the application is withdrawn accordingly.
2. The practice day hearing scheduled at 10am on 6 February 2019 is vacated. No attendance is required.
3. The hearing scheduled at 10am on 22 July 2019 for four days is vacated. No attendance is required.

For T C Rice Pty Ltd (ACN 067 356 334) and Station Hotel Officer Pty Ltd

Mr N Tweedie, SC and Ms L Hicks of counsel instructed by Zervos Lawyers

They called the following witnesses (in the order listed below):

Ms C Peterson, town planner of Ratio Consultants Pty Ltd;

Mr L Barrett, regulatory compliance consultant of Leigh Barrett and Associates Pty Ltd;

Mr T Rice, director of Station Street Hotel Officer Pty Ltd; and

Mr C McDonald, director and authorised officer of Station Street Hotel Officer Pty Ltd, Chartered Accountant, a Victorian Venue Operators licence holder and experienced hotel and gaming operator.

For Victorian Commission for Gambling and Liquor Regulation

No. 1 Station Street, Officer is located on the southeast corner of Princes Highway and Station Street. The proposal will sit on the northern 'half' (0.983ha) of a larger irregular shaped lot (1.555ha). The subject site's frontage to the Highway is 144m and the frontage to Station Street is about 92m. It is relatively flat land devoid of vegetation that contains one dwelling formerly used as a display home.

Construction of two multi-storey buildings that wrap around the street frontages with car parking behind.

One building will be located at the street corner containing the hotel entertainment venue, which includes a bistro and dining areas, sports bar, function rooms and a gaming room with 80 EGMs. The hotel will accommodate 481 patrons.

The planning application proposed hours of operation for the hotel of 7am to 3am with the external terraced areas and rooftop bar closing at 1am. The gaming room was proposed to operate 7am to 2am.

The gaming application contained recommended gaming room hours of operation in Mr Barrett's witness statement of 8am to 2am.[1] This equates to 126 trading hours each week.

The other building is along the remainder of the Highway frontage containing offices and a 52 room motel to operate in conjunction with the hotel.

P2573/2017 - Application under section 77 of the Planning and Environment Act 1987 (the P&E Act) to review the refusal to grant a permit.

P1063/2018 - Application under section 3.3.14 of the Gambling Regulation Act 2003 (the GR Act) to review the refusal to approve the premises as suitable for gaming.

1. T C Rice Pty Ltd (ACN 067 356 334) and Station Hotel Officer Pty Ltd (the Applicant) are seeking permission to construct a hotel containing a gaming room, a motel and offices on the land at 1 Station Street, Officer. They have sought two permissions - an application for a planning permit from Cardinia Shire Council (the Council) and an application for approval of a premises suitable for gaming from the Victorian Commission for Gambling and Liquor Regulation (the Commission).
2. The Council generally supports the majority of the proposal. It refused planning permission solely because of concerns related to the gaming room proposed to contain 80 electronic gaming machines (EGMs). The Commission refused to approve the premises as suitable for gaming with 80 EGMs. Hence, these proceedings involve the hearing of two related review applications: P2573/2017 and P1063/2018 (the review applications). Given the reasons for refusal in both proceedings relate to the proposal for 80 EGMs, the Tribunal decided that the two proceedings should be heard together. The submissions and expert evidence presented at the hearing have focussed primarily on the gaming aspect of the overall proposal.
3. The hearing was conducted over seven days in late November/early December 2018 and, for reasons that we will explain shortly, was adjourned until 22 July 2019 for a further four hearing days. This hearing was being conducted in a manner generally applied to combined planning and gaming application hearings. The parties had made opening submissions, the Tribunal had informed itself by hearing from three resident/community groups, and the Applicant had almost concluded the calling of its witnesses. At the time of the adjournment, the applicant was yet to conclude its witnesses[2], the Council had not yet called its witnesses, and all three parties had not yet presented their closing submissions.
4. On day 6 of the hearing, the Applicant sought leave to amend each of the review applications by amending the proposed trading hours from at least 126 trading hours each week[3]. The specific terms of the amendment sought to both the gaming application and the planning application were provided in writing as follows -

1. for more than 95 hours in any single week;
2. for more than 18 hours on any given day; or
3. later than 2am on any given day. [4]
4. Senior Counsel for the Applicant orally amended the above terms to clarify that the proposed gaming room would not open before 8am on any given day. Senior Counsel also advised that, should this leave be granted, the Applicant did not propose to recall any of the four expert witnesses (including Mr Clyne) who had given evidence over the preceding five days of the hearing.
5. Senior Counsel relied upon sections 51 and 127 and Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to support its request, particularly in regard to the gaming application. Senior Counsel also relied upon the Tribunal's findings in Bakers Arms Pty Ltd v Victorian Commission for Gambling and Liquor Regulation[5] (Bakers Arms Hotel). Detailed oral submissions over days 6 and 7 of the hearing were provided about the merits of the amendment applications and the jurisdiction in the VCAT Act to amend applications, particularly the gaming application. At the end of these submissions on day 7 (5 December 2018), the Tribunal reserved its determination on the amendment applications. The Tribunal also adjourned the hearing to:
   1. A directions hearing on 6 February 2019 to deal with any procedural issues arising as a result of the Tribunal's determination on the amendment applications; and
   2. Four further hearing days on the merits of the review applications commencing on 22 July 2019.
6. On 20 December 2018, the Tribunal received a request from the Applicant 'to formally withdraw its applications'. This request was accompanied by consent to the withdrawal from both the Council and the Commission.
7. Given this circumstance, we have decided not to provide reasons about the merits of the amendment applications. We have decided to provide the reasons why the Tribunal is not satisfied that there is jurisdiction to amend the gaming application. We trust that these reasons will be of assistance to applicants, municipal councils and the Commission in the future in understanding the importance of ensuring applications made to the Commission are both comprehensive and correct.
8. In respect to the gaming application, the Tribunal's ruling is that it does not have jurisdiction to amend that application under s.51(1)(a) or s.127 of the VCAT Act. In summary, the reasons for this ruling are as follows:

1. Section 51 and s.127 are found in separate parts of the VCAT Act dealing with separate considerations. 2. Section 51 is found in Part 3 of the VCAT Act and that part sets out the general jurisdiction and the functions of the Tribunal. Section 51 sets out the functions of the Tribunal in its review jurisdiction. It does not confer jurisdiction on the Tribunal to review a decision.

1. On the facts of the gaming application, jurisdiction to review the Commission's decision on the Applicant's application for premises approval is found in s.3.3.14 of the GR Act. That section allows an applicant to apply to the Tribunal for review of a decision of the Commission on the application.

1. In exercising its review jurisdiction in respect of a decision, s.51(1)(a) confers on the Tribunal all the functions of the Commission necessary to make the decision under review (which is the decision of the Commission on the application before the Commission). 2. Section 127 is found in Part 4 of the VCAT Act. Part 4 sets out the general procedure applicable to the conduct of a proceeding before the Tribunal. It is a procedural power and it applies to the conduct of all proceedings commenced in both the Tribunal's original jurisdiction and review jurisdiction. 3. Section 127 allows amendment by the Tribunal of 'any document in a proceeding' at any time. Although very broad, s.127 has limitations. As a 'procedural power', it cannot be used to confer jurisdiction on the Tribunal. 4. In the context of the gaming application, this means that s.127 cannot be used to amend the gaming application that is the subject of the Commission's decision under review, because to do so would be to confer jurisdiction onto the Tribunal that it does not acquire under Part 3 of the VCAT Act (in this case specifically under s.3.3.14 of the GR Act).
2. The reasons explaining these findings are structured as follows -

1. Part A outlines the separate and distinct applications that have overlapping aspects to their consideration. 2. Part B sets out the background to the amendment applications.

1. Part C are the reasons relevant to the Tribunal's decision on the jurisdiction of the amendment applications.

1. Part D are the reasons relevant to the Tribunal's decision on the application for leave to withdraw the review applications.
2. Part C is authored by Member Djohan, an Australian lawyer, under s.107(1) of the VCAT Act. Senior Member Naylor agrees with those reasons.
3. Both members constituting this Tribunal jointly make the orders forming the Tribunal's decisions in respect of the application for leave to withdraw the review applications.

PART A - THE SEPARATE AND DISTINCT APPLICATIONS THAT HAVE OVERLAPPING ASPECTS TO THEIR CONSIDERATION

1. The two proceedings have some overlapping aspects to their consideration, but also have distinct assessment and approval requirements.
2. The distinct assessment and approval requirements are specified in the P&E Act and the GR Act. For a gaming application, this includes that the Commission cannot grant approval for the use of premises for gaming unless, in particular, the net economic and social impact of such approval will not be detrimental to the well-being of the community of the municipality, i.e. the municipality of Cardinia in this case. For a planning application, a key consideration is whether or not the proposal is an 'acceptable' outcome. The planning scheme encourages a balancing of any competing policy considerations in favour of achieving net community benefit and sustainable development. The gaming provisions in the planning scheme focus upon the location of the proposed EGMs.
3. An example of the overlapping aspects is the fact that the estimated gaming expenditure and the social and economic impacts of the proposed EGMs need to be considered in each application. What impacts are relevant and how the impacts are considered varies in each application. In VCAT hearings where the gaming and planning review applications are heard together, it is commonplace for expert witnesses giving evidence about gaming expenditure, social impacts and economic impacts to provide one evidence statement at the combined hearing that addresses all relevant aspects of the impacts. This approach has been followed in this case as the Council's intended expert witnesses and the Applicant's expert witnesses each provided an evidence statement addressing the various impacts. It is for the Tribunal to consider the relevance of these impacts to each of the review applications.
4. For a number of years now, VCAT has endeavoured to list gaming and planning review applications together for a hearing when the review applications are received and processed by VCAT at a similar time. Because of the synergy and efficiency in processing and hearing these applications together, a few years ago gaming applications were transferred from VCAT's Occupational and Business Regulation List (as it was then) to the Planning and Environment List. Whilst this creates efficiencies in the processing and listing of these applications, the applications are affected by differing provisions in the VCAT Act, specifically in Schedule 1.

1. Schedule 1 contains variations from Parts 3 and 4 of the VCAT Act for various proceedings. It defines a 'planning enactment', which is a term used to describe specific enabling enactments or sections thereof. A 'planning enactment' includes the P&E Act except for s.94(5) and s.105.
2. Neither the GR Act nor sections thereof are included in the definition of a 'planning enactment'.
3. Part 16 of Schedule 1 outlines the variations from Parts 3 and 4 that apply to 'planning enactments'. These variations include:
   • Clause 64 that enables the Tribunal at any time in a proceeding to make any amendment it thinks fit to a review application or a failure to grant a permit application under the P&E Act or specific types of review applications under the Environment Protection Act 1970; and
   • Clause 66 that enables a presiding member under a planning enactment constituted without a judicial member or a member who is an Australian lawyer to decide a question of law unless the parties that are present at that hearing of the proceeding disagree.
4. The GR Act is not an Act mentioned in Schedule 1 at all. Neither of the variations mentioned in the previous paragraph apply to a review application under the GR Act. Hence, in considering the amendment applications and particularly the issue of jurisdiction, the gaming application does not have the benefit of being able to be amended pursuant to clause 64 of Schedule 1 to the VCAT Act.

PART B - BACKGROUND TO THE AMENDMENT APPLICATIONS

1. The amendment applications arose as a result of:

A significant error made by an independent expert witness, Mr Clyne, which has impacted adversely upon the Applicants' ability to present its case.[6]

1. Mr Clyne is a gaming consultant contracted by PVS Australia Pty Ltd to provide to the Commission, and then to the Tribunal, an estimate of the first 12 months gaming expenditure at the proposed hotel with 80 EGMs, and an estimate of the proportion of expenditure which is likely to be 'transferred' from other venues. PVS Australia Pty Ltd operates the 'Geotech Model', which uses retail gravity theory to model gaming venue expenditure. On day 2 of the hearing, Senior Counsel for the Applicant provided an overview document dated April 2018 that explained the background to, and the methods and results generated by, the Geotech Model.[7] Mr Clyne states in his evidence statement that he has assumed 'the Geotech Model was run' on the basis that there are no other changes to EGM numbers within the local network. He also states that the documents and materials he has relied upon in section 5 of his evidence statement dated October 2018 include:
   1. A summary of the output from the Geotech Stage 6.0 as supplied to me by Shaun Hodson of PVS Australia Pty Ltd.
   2. Data and mapping provided by Geotech Information Services. [8]
2. At the start of the hearing on day 1, the Tribunal expressed concern to the Applicant that Mr Clyne's evidence statement failed to comply with the requirements of the Tribunal's Practice Note PNVCAT2 Expert Evidence (PNVCAT2), in particular the matters to be included in the report.[9] The Tribunal provided the Applicant with an opportunity to address this.
3. On day 2, the Applicant provided an amended statement of evidence by Mr Clyne dated 27 November 2018 purportedly conforming with the requirements of PNVCAT2.[10] Mr Clyne's list of assumptions and documents/materials relied upon did not change between his first and second evidence statements. We will return to this evidence statement and the requirements of PNVCAT2 later in these reasons.
4. Mr Clyne was the Applicant's final expert witness to be called. This occurred on day 5 of the hearing. Mr Clyne's evidence was about the estimated transferred expenditure and new expenditure associated with the proposed venue. None of the parties sought to clarify with Mr Clyne the assumptions or documents/materials that he had relied upon during his evidence-in-chief or cross-examination.
5. The Tribunal sought to clarify these matters by asking questions of Mr Clyne regarding the facts and circumstances he had proceeded upon and also posed questions regarding the assumptions of the Geotech Model relied upon by him in forming his opinions as expressed in his statement. In particular, the Tribunal enquired of Mr Clyne whether he knew what were the total weekly trading hours for the proposed venue. Mr Clyne was unable to assist the Tribunal as to the actual figure, but acknowledged that such a figure would have been given to him by the Applicant and that figure would have been an input into the Geotech Model used to calculate both transferred and new expenditure for the proposed venue.
6. The Tribunal also enquired of Mr Clyne whether he had any information regarding how the 'facility score' recorded in his evidence statement for the proposed venue was calculated. It appeared to the Tribunal that a component necessary to derive a facility score for any proposal required knowledge of the proposal's intended trading hours per week. Mr Clyne was unable to assist the Tribunal in providing any further detail about the facility score recorded in his evidence statement.
7. Mr Clyne gave oral evidence that, when preparing his written report to the Commission and evidence statement to the Tribunal, he had had regard to a spreadsheet document containing output information from the Geotech Model in respect to the proposed venue. He then tabled this document. [11] The Tribunal enquired of Mr Clyne whether he was able to assist the Tribunal in deciphering '95TH' in a Notes section on that spreadsheet that stated:

1. Mr Clyne was unable to assist the Tribunal in this regard, informing the Tribunal that he 'did not know what 95TH meant'.
2. On the morning of day 6 of the hearing, the Applicant informed the Tribunal that Mr Clyne, overnight, had become aware that his evidence before the Commission and the Tribunal regarding the estimated transferred and new expenditure for the proposed venue, was based on trading hours for the proposed venue set at 95 hours per week when, in fact, the proposal before the Commission and the Tribunal was for total trading hours of 126 hours per week.
3. As a result of this, the Applicant tabled a further updated expenditure report prepared by Mr Clyne dated 3 December 2018.[12] In it, Mr Clyne acknowledged that, in supplying the further information requested by the Tribunal on the previous day, it had come to his attention that the Geotech 'prediction request' that he submitted to Geotech was for 95 hours, not 126 hours as is being sought by the Applicant.[13] To be clear, this means the evidence initially presented to the Commission and the Tribunal by Mr Clyne was that the gaming expenditure of this proposed venue was less (as based on 95 hours) than what the proposal is (as based on 126 hours).
4. In essence, Mr Clyne's evidence before the Commission and the Tribunal was based on a materially different set of trading hours to that actually proposed by the Applicant in both the planning application and the gaming application.
5. Senior Counsel for the Applicant described the error made by Mr Clyne as 'both significant and highly regrettable'.[14]
6. Senior Counsel for the Applicant also acknowledged that the expenditure figures for the proposal 'influence most, if not all, of the evidence in this proceeding'.[15] This is correct as, prior to Mr Clyne's evidence, the Applicant had called expert evidence from the following persons -
   1. Mr Quick in regard to a socio-economic assessment;
   2. Ms Peterson in regard to social and economic impacts; and
   3. Mr Barrett in regard to responsible gambling management and practices.
7. It is clear from both the written and oral evidence of Mr Quick, Ms Peterson and Mr Barrett, that they have each based their evidence before the Tribunal on instructions that the proposed venue would operate 7 days per week, between the hours of 8am and 2am daily, totalling 126 hours per week.[16] It is also clear to the Tribunal that the application as made to the Commission and the subject of the Commission's decision under review was for a proposed venue that would operate 7 days per week, between the hours of 8am to 2am daily, totalling 126 hours per week (as explained earlier in the Information section). Further, the estimated new expenditure and transferred expenditure in Mr Clyne's evidence has been relied upon by Mr Quick and Ms Peterson in their assessments of the economic and social impacts of the proposed gaming.
8. This situation highlights the importance of understanding the content of and the background to the material contained in an expert witness statement. Section 11 of PNVCAT2 identifies what an expert witness report must include, such as:

(e) all instructions that define the scope of the report (original and supplementary and whether in writing or oral);

(f) the facts, matters and all assumptions upon which the report proceeds;

(g) reference to those documents and other materials the expert has been instructed to consider or take into account in preparing his or her report and the literature or other material used in making the report;

(h) the identity and qualifications of the person who carried out any tests or experiments upon which the expert relied in making the report;

1. Mr Clyne's witness statement (dated 27 November 2018) relied upon by the Applicant in these proceedings was amended to purportedly comply with PNVCAT2 and was tendered by Senior Counsel to the Tribunal.[17] Under the section in that statement entitled "Facts, matters and all assumptions upon which the report proceeds[18]" is included the following -

In the preparation of this report the following assumptions were made:

• The Geotech model was run assuming that there are no other changes to EGM numbers within the Local Network pertaining to this application.
• That the 80 EGMs if approved will be installed in 2022.

In the event that I am provided with information that reveals any of the assumptions made in this report to be incorrect, I reserve the right to amend the opinions expressed in this report.

1. Amongst other things, paragraph 11 of PNVCAT2 requires that an expert witness' statement include matters fundamental to the facts and circumstances of the decision the subject of the application under review upon which the report proceeds.
2. Mr Clyne always stated the same assumptions and materials that he relied upon in the various versions of his evidence statement, but those documents/materials were never contained in or attached to his evidence statement.[19] As such, this error was not identified during the processing of the Commission's application, during the Commission's hearing or during this Tribunal hearing until day 6. This is most unfortunate and, as the Applicant's withdrawal request states, it is a significant error in this case that has impacted adversely upon the Applicant's ability to present its case. If the Applicant wished to pursue 126 trading hours per week, the Applicant's expert witnesses would need to prepare revised evidence statements and be re-called. The Council's expert witnesses would also need to prepare revised evidence statements. Hence, the Applicant's request to amend both review applications to lessen the trading hours to 95 per week seeks to avoid the necessity to revise expert statements and re-call witnesses.
3. Mr Clyne's statement of evidence tendered by Senior Counsel for the Applicant, is, in our view manifestly deficient and was shown to be so during the course of Mr Clyne's evidence. Despite the venue's operating hours being a determinant of the Venue Attractiveness Score calculated by the Geotech Model for the proposed venue, Mr Clyne's report does not include any statement regarding the intended operating hours for the proposed venue. Neither does it contain any statement, in respect of the matters that determine the Facility Score for the proposed venue (another determinant of the Venue Attractiveness Score for the proposed venue) or a statement that Mr Clyne proceeded on the basis that the proposed venue would fall within the top performing 10% of all venues in Victoria and the reasons why he made such an assumption. The latter assumption was only revealed by Mr Clyne in answering the Tribunal's questions on the inputs to the Geotech Model that led to the proposed venue's Venue Attractiveness Score being derived.
4. Diligent observance of the requirements of PNVCAT2 is fundamental to an expert witness' ability to properly assist the Tribunal in making the correct and preferable decision on a review application. In our view, observance of the practice note is not only a duty of an expert witness but it is also incumbent upon the legal advisers of a party (including counsel, senior and/or junior, who may settle expert witness statements) to ensure that the matters required to be included in a witness statement are so included with as much detail as is necessary to establish the factual basis upon which any expert opinion is proffered to the Tribunal.

PART C - REASONS RELEVANT TO THE AMENDMENT APPLICATIONS

1. As explained earlier, there is no doubt that the Tribunal has jurisdiction to amend the planning application pursuant to clause 64 of Schedule 1 to the VCAT Act.
2. On day 7 of the hearing, the Tribunal heard submissions from the parties regarding the Applicant's amendment applications including submissions from the Applicant and the Commission about the Tribunal's power to amend the gaming application made to the Commission. The Council declined to make submissions on this issue.
3. The Tribunal does not intend to deal with the submissions of the parties about the merits of the amendment applications because the Tribunal finds there is no jurisdiction to amend the gaming application; and because the Applicant has requested to withdraw both applications. As explained earlier, the Tribunal has provided the reasons why the Tribunal finds there is no jurisdiction to amend the gaming application. These reasons will assist applicants, municipal councils and the Commission in the future.

1. This part of the reasons is authored by Member Djohan, an Australian lawyer, under s.107(1) of the VCAT Act. Senior Member Naylor agrees with the reasons expressed in this section.
2. Section 39 of the VCAT Act provides that Part 3 of that Act sets out the general jurisdiction and functions of the Tribunal.
3. Section 58 of the VCAT Act provides that Part 4 of that Act sets out the general procedure of the Tribunal.
4. Schedule 1 of the VCAT Act sets out -
   1. the variations from the general jurisdiction of the Tribunal; and
   2. the variations from the general procedure of the Tribunal.[20]
5. When exercising its review jurisdiction, s.42(1) of the VCAT Act provides that 'jurisdiction is conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker'.
6. It is clear from s.42 of the VCAT Act that, in the absence of a contrary statutory provision, the Tribunal may only review matters that are the subject of a decision (actual or deemed)[21] by the original decision-maker under the relevant enabling enactment.
7. The Commission's decision under review was a decision under s.3.3.8 of the GR Act to refuse the applicant's application for a premises approval made under s.3.3.4 of that Act.
8. The enabling provision conferring jurisdiction on the Tribunal to review a decision of the Commission in respect of a premises application is s.3.3.14 of the GR Act_._ In the present circumstances s.3.3.14(1) is directly relevant and provides -

(1) An applicant for approval of premises may apply to the Tribunal for review of a decision of the Commission on the application.

1. That provision confers jurisdiction on the Tribunal to review only the decision of the Commission on the application before the Commission at the time the decision was made.
2. Schedule 1 of the VCAT Act does not set out any variations to the jurisdiction of the Tribunal to review a decision made by the Commission under the GR Act_._[22] As a consequence, the jurisdiction of the Tribunal to review the Commission's decision is as expressed in s.3.3.14 of the GR Act.
3. Senior Counsel for the Applicant submitted that the Tribunal's power to amend the application for premises approval that is the subject of the Commission's decision is contained in s.51(1) and s.127 of the VCAT Act.
4. Senior Counsel relied on the decision of the Tribunal in Bakers Arms Hotel in support of the submission that the Tribunal has power under s.51 and s.127 of the VCAT Act to amend the gaming application.
5. The Bakers Arms Hotel proceeding involved review by the Tribunal of the decision of the Commission to refuse to approve an amendment to an existing venue operator's licence granted under Part 4 of the GR Act for 19 additional EGMs at the Braybrook Hotel. At the start of that hearing, the relevant applicant applied to the Tribunal to amend its application to vary its venue operator's licence to include additional EGMs by reducing the number of additional EGMs from 19 to 14. The Commission opposed this amendment on the basis that the Tribunal did not have jurisdiction to amend an application and that the application would be 'totally different' to that assessed by the Commission. The Tribunal held that it had jurisdiction to amend the original amendment application to the Commission and listed four reasons why (footnotes omitted):
   1. First, we do not accept that the Commission's power to grant a licence amendment must be read down so that it must not grant it with a change to the addition gaming machines sought in a particular application. Without deciding the matter, let us assume that the Commission in applying the no net detriment test is not required to consider or must not consider any alternative number of gaming machines if the number in the proposed amendment does not meet the test. The GR Act provides-

The Commission must decide whether to make the proposed amendment, either with or without changes from that originally proposed, and must notify the venue operator of the decision.

1. In addition, we see nothing in the legislative record (eg explanatory report for the Bill or the second reading speech) that states or implies any intention to limit the Tribunal's power to amend any type of licence amendment application.
2. If the legislature had intended to limit the Commission's powers as contended in relation to the number of gaming machines, it had opportunities in legislative amendments in 2009 and 2011 to do so but it did not.
3. Second, if (as we find) the Commission has the power to amend a licence in a way that changes the number of additional gaming machines sought in the application (ie in the 'proposed amendment'), the Tribunal has the same power as the Commission. Hence, there is no inconsistency between the GR Act and the VCAT Act such that the GR Act must prevail. Even if an applicant does not apply to the Tribunal to amend a licence application, the Tribunal may vary or set aside a Commission decision and amend a licence to change the number of additional gaming machines allowed under a licence.
4. Third, as a matter of logic, if the Tribunal may amend a licence to change the number of additional gaming machines allowed under a licence, the Tribunal is not be deprived of its discretionary power to amend a document, including a licence amendment application under the VCAT Act.
5. Fourth, the Tribunal's power to amend a document in a proceeding must not be read down having regard to clause 64 of schedule 1 of the VCAT Act. There is no implication in that clause that the legislature intended that the Tribunal would not have the power to amend a document under the GR Act. The clause expressly provides that it is 'in addition to, and does not limit or affect' the Tribunal's power to amend a document.
6. The facts in these proceedings are quite different to those before the Tribunal in Bakers Arms Hotel. The present gaming application is for approval of new premises as suitable for gaming rather than an increase (or top up) in the number of EGMs at an existing venue. The first two reasons given by the Tribunal in the Bakers Arms Hotel are relevant to amendment applications under Part 4 of the GR Act and are not relevant to gaming applications for approval of new premises under Part 3 of the Act.
7. The third and fourth reasons (at paragraphs 21 and 22) in the Bakers Arms Hotel decision rely on the application of s.127 of the VCAT Act as conferring on the Tribunal the power to amend a licence amendment application made under the GR Act prior to determination of the review application_._ In so far as these paragraphs are relied upon as authority for the proposition that the Tribunal has the power in these proceedings to amend the gaming application, the Tribunal rejects that submission (for the detailed reasons that follow) because s.127 of the VCAT Act, properly construed in the context of the Tribunal's review jurisdiction, does not allow the amendment of an application the subject of the decision under review before the Tribunal.

1. Senior Counsel for the Applicant's submissions in respect of s.51 may be summarised as follows-

1. Section 51(1)(a) of the VCAT Act confers on the Tribunal all the functions of the Commission under the GR Act_;_ 2. The term 'function' in s.51(1)(a) extends to include the powers available to the Commission under the GR Act_;_

1. The Commission at first instance had the power to amend the application for a premises approval under s.3.3.5AB of the GR Act;

1. As the Commission had power under s.3.3.5AB of the GR Act to amend an application prior to making a decision, the Tribunal has the same power and can now amend the application for a premises approval as requested by the applicant.
2. The Commission, although not specifically relying on s.51(1)(a), submitted that the Tribunal has the same power as the Commission to accept an amended application under s.3.3.5AB of the GR Act.
3. The Commission's decision made on 1 May 2018 is the decision under review before the Tribunal.
4. The Applicant's application to the Tribunal to review the Commission's decision invoked the Tribunal's review jurisdiction under s.42 of the VCAT Act.[23]
5. In its review application, the Applicant sought a review of "the decision made by the Victorian Commission for Gambling and Liquor Regulation on 1 May 2018 and the reasons given for that decision dated 21 May 2018". One of the grounds of the Applicant's review application is -

The preferable decision is that on the evidence before it, the Commission ought to have been satisfied that the net economic and social impact of the proposal will not be detrimental to the wellbeing of the community of the municipality.

1. The unambiguous function of the Tribunal in its review jurisdiction is to "review a decision made by a decision maker" as conferred under s.3.3.14 of the GR Act_._
2. The nature of the function of this Tribunal in its review jurisdiction is well described in the decision of Emerton J in Mond v Perkins Architects Pty Ltd [2013] VSC 455 at [10] (footnotes omitted) -

The Tribunal does not sit as an appellate tribunal in judgment on the findings and conclusions reached by the original decision-maker. Its function on a review of an administrative decision is not to sit in appeal from the decision, but to re-exercise the function of the original decision maker. When exercising its review jurisdiction, the Tribunal reviews decision on the merits. Its task is to 'stand in the shoes' of the original decision-maker and make the 'correct' or 'preferable' decision having regard to the material before it. The Tribunal's review must take place without any presumption as to the correctness of the decision under review and it must conduct its own independent assessment and determination of the matters necessary to be addressed. While the Tribunal may have to consider the factual findings upon which the decision under review was based in order to decide whether that decision was the correct or preferable one, it must make its own findings of fact and is not bound by the original decision-maker's findings of fact.

1. Section 51 is contained in Part 3 of the VCAT Act and that part sets out the general jurisdiction and the functions of the Tribunal.
2. Section 51(1) provides -
   1. Functions of Tribunal on review

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal-

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

1. The ambit and application of s.51(1) of the VCAT Act is confined to the exercise of the Tribunal's review jurisdiction. Section 51 does not confer any additional or other jurisdiction not conferred by the enabling Act, in this case, the GR Act. This is made clear from the opening words of s.51.
2. In the exercise of its review jurisdiction, that is, re-exercising the function of the original decision maker in the making of the correct and preferable decision, the Tribunal has all the functions conferred by the enabling Act, the GR Act, when making its decision.
3. The Tribunal does not acquire all the powers of the Commission, only those powers that are relevant to the decision under review.
4. In Re Reginald Sidney Fletcher; Coral Emily Fletcher; James Warren Dunlop and Lilian Ann Dunlop v The Commissioner of Taxation[24], in considering the breadth of s.43(1)[25] of the Administrative Appeals Tribunal Act 1975, the Full Court of the Federal Court held -

As a matter of principle, it must be correct, as submitted on behalf of the applicants, that the powers and discretions referred to by s43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose. If authority be needed for this conclusion it is to be found in Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 429. See also Secretary, Department of Social Security v Riley (1987) 13 ALD 608.

1. As in all cases, the specific statutory regime of the enabling enactment must be considered. In this matter, both the Applicant and the Commission submitted that s.3.3.5AB of the GR Act is relevant and confers some function or power on the Commission to accept an amended application, and therefore on the Tribunal when exercising its review jurisdiction_._ For the following reasons, the Tribunal rejects that submission.
2. Section 3.3.5AB of the GR Act provides -

(1) An applicant may amend an application made under section 3.3.4 for the approval of premises as suitable for gaming before the Commission determines the application under section 3.3.8. The applicant may do so by submitting the application, with amendments, to the Commission.

(2) The applicant must also give a copy of the application, as amended, to the relevant responsible authority on the same day the applicant submits the amended application to the Commission.

1. Section 3.3.5AB of the GR Act is not the only provision that deals with the process of amending an application for premises approval. Section 3.3.5A is also relevant and prohibits an applicant from making an amendment to a premises approval application that changes the number of EGMs originally stated in the application after 30 days of giving a copy of the original application to the responsible authority.
2. In the Tribunal's opinion, s.3.3.5AB is properly construed in the context of Part 3 of the GR Act (which includes s.3.3.5A) and provides 'an applicant' with an opportunity to amend an application for premises approval at a particular point in time, being at a time before the Commission makes its decision under s.3.3.8.
3. In the circumstances of this matter, that point in time has long passed for the Applicant to avail itself of the opportunity to amend its original application as the Commission has made its decision and that decision is now the subject of one of the review applications before the Tribunal.
4. Further, s.3.3.5AB does not confer any power or discretion on the Commission. As the section itself makes clear, provided that an applicant complies with the requirements of s.3.3.5AB(2), the Commission is required to accept the amended application.
5. The Commission must then exercise its function to decide the amended application subject to the requirements of s.3.3.7, s.3.3.8(1), s.3.3.8(3) and s.3.3.8(4) of the GR Act. These are the provisions relevant to the making of a decision by the Commission on the application and therefore relevant to the Tribunal in making the correct and preferable decision in its review jurisdiction.
6. In the Tribunal's opinion, if it was Parliament's intention to -
   1. require the Tribunal, when exercising its review jurisdiction in respect of a decision, to accept an amended application that was not the application the subject of the decision under review; or
   2. otherwise confer a discretion on the Tribunal to amend an application not the subject of decision under review,

then such intention would be expressed in a specific statutory provision either within the GR Act or in Schedule 1 of the VCAT Act as a variation to the Tribunal's review jurisdiction. No such specific statutory provision exists in either Act.

1. Consistent with the Tribunal's ruling above, s.3.3.14 of the GR Act makes it clear that it is the Commission's decision under s.3.3.8 of that Act that is the subject of the Tribunal's review. In the absence of any specific statutory power either in the GR Act or the VCAT Act permitting the Tribunal in its review jurisdiction to amend an application that is the subject of the decision under review, the function of the Tribunal in its review jurisdiction in a proceeding enabled under s.3.3.14 of the GR Act is limited to reviewing the merits of the decision made by the Commission under s.3.3.8 of the GR Act_._

1. Senior Counsel for the Applicant submitted that -

1. Section 127 confers on the Tribunal an extremely wide power that permits the Tribunal to amend or to order that any document in a proceeding be amended; 2. The application documents before the Commission, both in terms of the specific documents but also taken as a whole, contain within it specification of the trading hours of the proposed venue; and

1. The application documents are 'documents in a proceeding' and, therefore, s.127 is available to the Tribunal to amend the gaming application as requested by the applicant.
2. Section 58 of the VCAT Act makes it clear that Part 4 sets out the general procedure of the Tribunal and that any variations to that general procedure are found in Schedule 1. Part 4 contains provisions that allow the Tribunal to regulate the conduct of proceedings before it.
3. In order for the Tribunal to be vested with the powers contained in Part 4, a proceeding must have been commenced before Tribunal, that is, the jurisdiction of the Tribunal must have been invoked.
4. The term 'proceeding' is defined in s.3 of the VCAT Act as follows:

... means a proceeding in the Tribunal, including -

(a) an inquiry conducted by the Tribunal, including an inquiry under section 141 of the Equal Opportunity Act 2010 or; a compulsory conference under section 83; or

(b) a mediation under section 88; or

(c) a rehearing or reassessment under Part 6 of the Guardianship and Administration Act 1986.

1. There is nothing in the VCAT Act that permits the Tribunal to exercise those powers contained in Part 4 unless and until a proceeding is properly commenced under an enabling enactment.
2. The general procedure set out in Part 4 applies to all proceedings in all divisions of the Tribunal unless a statutory modification is listed in Schedule 1 of the VCAT Act.
3. Schedule 1 of the VCAT Act does not set out any variations to Part 4 of the VCAT Act for proceedings commenced in the Tribunal to review a decision made by the Commission under the GR Act_.[26] As a consequence, the general procedure set out in Part 4 applies, without variation, to the conduct of a review by the Tribunal of a decision of the Commission commenced under s.3.3.14 of the GR Act._
4. Section 127 is found in Part 4 of the VCAT Act and it provides that the Tribunal, may at any time, "order that any document in a proceeding may be amended". It is a procedural power and it cannot be used to confer jurisdiction on the Tribunal.
5. The power conferred on the Tribunal under s.127 of the VCAT Act is not unique. Indeed, similar powers are found in other jurisdictions within Victoria, and in other State and also Federal jurisdictions.[27] Such provisions are routinely used to case-manage proceedings before courts and tribunals both at State and Federal level to ensure that the real issues in dispute are bought to the fore and are efficiently heard and determined.
6. The power under s.127 is broad and wide ranging but it does, as it must, have limitations. An unlimited application of such a power would permit the decision the subject of a review to be amended so as to render the review application useless. Such an outcome cannot be within the scope of s.127 properly construed. Yet by extending the Applicant's argument, the document containing the original decision-maker's decision is as much a 'document in a proceeding' as the application the subject of the decision under review.
7. Section 127 must be construed according to its terms and in the context of the review jurisdiction of the Tribunal. Once properly construed, the proper exercise of discretion guides its fair and just application in particular circumstances.
8. In the Tribunal's view, s.127 does not apply to any document that may be relevant to a proceeding, such as documents that have come into existence prior to the filing of a review application or documents belonging to parties that are brought into evidence. As is made clear by the section itself, its application is limited to 'any document in a proceeding'. The Tribunal's ruling is that the words 'in a proceeding' have a limiting effect such that the documents the subject of s.127 are limited to those documents brought into existence once a proceeding has invoked the jurisdiction of the Tribunal and for the purposes of the proceeding. Documents falling within the scope of s.127 would include a review application, a statement of grounds, further particulars provided by a party, and any document identifying the issues between the parties or the controversy between the parties that has invoked the Tribunal's jurisdiction.

1. Consistent with the Tribunal's ruling above, the Applicant's gaming application is not a 'document in a proceeding' and in the absence of a specific power in either the GR Act or variation to Part 4 in Schedule 1 of the VCAT Act permitting the Tribunal to amend an application under s.3.3.4 of the GR Act after the filing of a review application, it is the Tribunal's ruling that the Tribunal does not have the power under s.127 to amend the gaming application.
2. Further, the reasoning of Judge Macnamara, when as Deputy President of the Tribunal, in Niebieski Zamek Pty Ltd v Southern Rural Water[28] (Zamek) is to be followed. In that decision, the Tribunal ruled that the correct interpretation of s.127 is constrained by the nature of the Tribunal's review jurisdiction, "that is, to the consideration only of the controversy which it considered at first instance".
3. In light of the Bakers Arms Hotel decision on the application of s.127 in circumstances where clause 64 of Schedule 1 of the VCAT Act does not apply, consideration of the Tribunal's reasoning in Zamek is warranted -
   1. The first point that we note in that regard is that as Mr Doyle concedes, the application which we considered and which was considered at first instance by the respondent Southern Rural Water, was not an application for an allocation of 2,700ML per annum or such lesser volume as Southern Rural Water or this Tribunal on review might allocate. It was an application simply for an allocation of 2,700ML. In that regard we refer to a consideration of what this Tribunal in its planning jurisdiction can consider relative to what might have been considered at first instance by a Tribunal consisting of the present Presiding Deputy President in the matter of Li Ming Wai v Boroondara City Council (2000) 7 VPR 76. These words are quoted not because they have any particular eloquence but simply because they conveniently summarise the matter to which we now wish to draw attention. At paragraph 35 at the bottom of page 83 of the report, the Tribunal said:

"This Tribunal is successor to the Victorian Administrative Appeals Tribunal. That Tribunal was modelled on the Commonwealth Administrative Appeals Tribunal. The Commonwealth Tribunal has no jurisdiction to review any matter which has not been the subject of a primary determination by the respondent agency and has no jurisdiction to determine any matter other than the question determined by the agency at first instance.

Re Brian Lawlor Automotives Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167, 175; Re Tradigrain Pty Ltd and Export Development Grants Board (No. 1) (1984) 6 ALD 442; Hospital Benefit Fund of Western Australia Inc. v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1, 11; Flick, Federal Administrative Law paragraph [1416/1] (Release 58). The planning review jurisdiction existed before the establishment of t e State Administrative Appeals Tribunal under a number of names, most recently as the Planning Appeals Board. The strict rule that only the same controversy could be considered on review which had been the subject of a primary determination never applied in the planning jurisdiction. Section 53 of the Planning Appeals Act 1980 permitted the Planning Appeals Board and after its abolition, the Planning Division of the Administrative Appeals Tribunal to amend a permit application thereby permitting the Board and then the Tribunal on review, to consider a proposal materially different from the one which was the subject of the initial determination. The position in this Tribunal has not, so far as I am aware, been the subject of authoritative exposition and analysis. Section 127 of the Victorian Civil and Administrative Tribunal Act 1998 provides a power to amend "any document in a proceeding" in most general terms authorising the Tribunal to make such amendment either on application by a party or on its own motion. In addition in the planning jurisdiction Clause 64 of Schedule 1 authorises the Tribunal to amend permit applications etc in terms generally similar to Section 55 of the Planning Appeals Act Sub-clause (4) of Clause 64 specifically states that the power is "in addition to, and does not limit the effect of Section 127'; It remains to be determined whether the existence of Section 127 which is applicable to all parts of the Tribunal, including not only its Civil Division exercising original jurisdiction but also its Administrative Division exercising review jurisdiction changes the nature of the review jurisdiction. One possible conclusion is that the strict nature of the review jurisdiction as derived from the Commonwealth Tribunal has been abolished and that all review jurisdiction is to be placed on the same level as planning reviews viz. that there is power to consider something other than what has been considered at first instance. If this interpretation is correct it leaves unanswered the question why Clause 64 has been included in the First Schedule. Unless Section 127 is subject to some sort of implied limitations relative to the nature of the review jurisdiction (in so far as it applies in the Administrative Division and review jurisdiction) Clause 64 would have been unnecessary. Perhaps Clause 64 was included simply as a matter of abundant caution. These are all interesting questions for another day."

1. Perhaps the day to answer them, at least to the extent that this division of the Tribunal can do so authoritatively has arrived. In our view the correct interpretation is that the nature of the review jurisdiction in the Tribunal remains constrained in the same way as the Commonwealth Tribunal's jurisdiction is constrained, that is, to the consideration only of the controversy which it considered at first instance.
2. Clause 64 of Schedule 1 represents a particular exception to that with respect to matters arising under planning enactments. Schedule 1 defines matters under these provisions of the Water Act as being matters under a planning enactment. Accordingly, it would have been possible for Mr Doyle to have sought an amendment to his application or rather to his client's application so that it was an application not just for 2,700ML by way of allocation per annum but also for such lesser allocations as the Tribunal might determine....

1. The 'controversy' that is the subject of the gaming review application is the decision of the Commission made on 1 May 2018 made in respect of an application under s.3.3.4 of the GR Act. That is the decision of the Commission on the application that s.3.3.14 refers.
2. The applicant now seeks to change that application. An amendment to the gaming application, post the making of the decision under review, results in the decision under review no longer being relevant to the proceeding and changes the controversy the subject of the review application.

PART D - THE APPLICATION FOR LEAVE TO WITHDRAW THE REVIEW APPLICATION UNDER S.74 OF THE VCAT ACT

1. The reasons given by the applicant for seeking to withdraw both review applications before the Tribunal are:
   1. A significant error made by an independent expert witness, Mr Clyne, which has impacted adversely upon the Applicant's ability to present its case.
   2. Amendment C232 to the Cardinia Planning Scheme is currently before a planning panel.

Amendment C232 proposes to implement the revised Officer Precinct Structure Plan (Amended February 2018) and make significant changes to some of the provisions of the Cardinia Planning Scheme which affect the subject land.

It now appears likely that those changes will be in effect (or at least capable of being regarded as seriously entertained) prior to the resumed hearing dates in July 2019, or at least before the Tribunal determines these applications.

This would undoubtedly require further evidence, submissions and potentially even amendments to the application to enable the Applicants and other parties to properly respond to the new controls. This is likely to further increase the costs and complexity of the hearing for all parties.

1. The need for additional four hearing days has significant costs implications for the Applicant and other parties, costs which were not anticipated at the time the applications for review were lodged, or at the time the hearing commenced.
2. This request for leave to withdraw these proceedings is consented to by both the Council and the Commission. Given the reasons provided and the Tribunal's finding about the lack of jurisdiction to amend the gaming application, the Tribunal considers granting leave is appropriate.

1. Leave is given to withdraw both the gaming application and the planning application.

Mr Barrett's witness statement states - 'I have recommended that the gaming room be operational between the hours of 8am and 2am, allowing for a six-hour shut down of gaming availability, consistent with the Productivity Commission's recommendations. The Applicant has accepted this recommendation.'

[2] Mr McDonald was under cross-examination by the Council.

[3] Refer to the description of the proposal in the Information section for an explanation of the proposed trading hours in each application.

[4] Exhibit A-25 Applicant's proposal to amend both applications (& possible conditions) to reduce the trading hours from 126 to 95

[5] [2014] VCAT 1192 at [13] - [22]

[6] This is a quote of the first reason why the Applicant is requesting to withdraw the applications contained in the request made by the Applicant's instructing solicitors.

[7] Exhibit A-4 Geotech Model explanatory document

[8] Extract from page 3101 of the Tribunal Book.

[10] Exhibit A-13 Mr Clyne's updated evidence statement that includes the expert witness information required by VCAT Practice Note PNVCAT2

[11] Exhibit A-17 Geotech Gravity Model Spreadsheet for Scenario 711

[12] Exhibit A-23 Mr Clyne's new 3/12/18 Expenditure Report that includes 126 trading hours

[14] Audio recording of proceeding - 4 December 2018

[16] Expert Witness Statement of Colleen Peterson - October 2018, paragraph 3.1.3 at p.14 (Tribunal Book p.3030); Expert Witness Statement of Rhys Quick - 15 October 2018, paragraph 18 at p.8 (Tribunal Book p.2967); Expert Witness Statement of Leigh Barrett - 31 October 2018, paragraph 26 at p.5 (Tribunal Book p.3147).

[19] Other than a four page word document titled "model outputs" authored by Mr S Hodson dated 7/2/2017 (Tribunal Book p.3119 - 3122)

[20] See s.39(2) and 58(2) respectively

[21] See definition of 'decision' in s.4 of the VCAT Act

[22] For the purposes of Schedule 1 of the VCAT Act, the Gambling Regulation Act is not a 'planning enactment' as that term is defined in clause 2 of Schedule 1.

[24] (1988) 19 FCR 442 at 452

[25] which provided at the relevant time "for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision" and is therefore similar in its terms to s.51(1)(a) of the VCAT Act_._

[26] For the purposes of Schedule 1 of the VCAT Act, the Gambling Regulation Act is not a 'planning enactment' as that term is defined in clause 2 of Schedule 1.

[27] See Reg 36.01, Magistrates' Court General Civil Procedure Rules 2010 (Vic); Reg 36.01, Supreme Court Rules 2015 (Vic); Reg 375, Uniform Civil Procedure Rules 1999 (Qld); r7.01, Federal Circuit Court Rules 2001 (Cth); s 64(5) Civil Procedure Act 2005 (NSW).

[28] [2001] VCAT 1627 at [20]