VBI Properties Pty Ltd & Anor v VCAT & Port Phillip City Council [2003] VSCA 17

5. On 19th May 2000 Master Wheeler made orders for review under the Administrative Law Act 1978 in proceedings Nos. 5439 of 2000 and 5452 of 2000, corresponding with the two proceedings in the Tribunal. The decision the subject of the order for review in each case was, and was expressed to be, the interim decision made by the Tribunal on 19th April 2000. I shall assume, without deciding, that it was a "decision" within the definition in s.2 of that Act.[1] The orders for review came on for hearing together before Balmford, J.[2] In each proceeding her Honour made an order discharging the order for review and remitting the matter to the Tribunal. It is from those orders that the present appeals are purportedly brought.

8. Section 17A(4)(b) of the Supreme Court Act 1986 provides that, subject to certain exceptions none of which applies here, an appeal does not lie to the Court of Appeal without leave "from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a judge". The words "judgment or order in an interlocutory application" have been held to have the same meaning as "interlocutory judgment or order".[3] Accordingly, if her Honour's orders were interlocutory, the appeals are incompetent unless leave is granted

11. The Court notified the parties last Friday that, when the appeals came on for hearing, it would wish to hear argument first as to whether they were competent and, if not, whether leave to appeal should be granted.

14. An order is interlocutory unless it "finally determine[s] the rights of the parties in a principal cause pending between them".[4] Sometimes the principal cause is in another court. In Brincat v. R.[5] an order was made in the Supreme Court of Victoria in aid of criminal proceedings in Western Australia. In X v. Director of Public Prosecutions[6] an order was made in the Supreme Court under ss.9H and 9I of the Evidence Act 1958 for a witness to give evidence in a committal proceeding by video link from Canberra. In Hornsby v. Kaschke[7] an order was made in the Supreme Court quashing an order in the Magistrates' Court in relation to pre-trial disclosure. In all three cases the order made in the Supreme Court was held to be interlocutory.

17. Of those three cases, Hornsby v. Kaschke is the most in point. The main difference, apart from the originating process (originating motion rather than order for review), is that there the Supreme Court did intervene in the proceedings in the Magistrates' Court, whereas here a remedy said to be in the nature of certiorari has been refused.

20. Brygel v. O'Keefe[8], Hansford v. His Honour Judge Neesham[9] and Thompson v. His Honour Judge Byrne[10] were cases in which relief in the nature of certiorari was refused. In my judgment in Hornsby v. Kaschke I said[11] that they were clearly distinguishable, referred to their being cases of refusal of relief in the nature of certiorari and observed that "[i]t may well be that such refusal finally determined the rights of the parties in a principal cause" (emphasis added). All that was necessary was to show that those cases had no bearing on the decision we had to make. In this case, too, it is unnecessary to say much more about them, for none of them was concerned with an interim decision on a preliminary question: Brygel v. O'Keefe concerned the refusal of a driver's certificate; Hansford v. His Honour Judge Neesham related to a sentence; and Thompson v. His Honour Judge Byrne related to a conviction.[12]

23. In the light of their own researches, counsel for the appellants did not press the Court to hold that Balmford, J.'s orders were final, another case to which they drew our attention being the decision of the New South Wales Court of Appeal in Coles v. Wood.[13]

26. In my opinion the orders made by Balmford, J. in the present case were interlocutory. The Tribunal had made an interim decision. Her Honour declined to intervene and remitted the matters to the Tribunal. She did not finally determine the rights of the parties in either of the proceedings in the Tribunal. The proceedings in the Supreme Court were not a principal cause but like the proceedings in Brincat v. R., X v. Director of Public Prosecutions and Hornsby v. Kaschke. As Chernov, J.A. said in the last case[14], the mere fact that the order determined the proceeding between the parties commenced by the originating motion did not make it final.

29. It would be anomalous and inconvenient, as well as unjust to the respondent because of the potential for delay, if an appeal lay as of right against a decision on an application for judicial review in relation to an interim decision on a preliminary question in the Tribunal. This Court must retain a discretion to prevent the further fragmentation of the underlying process. It is to be remembered, after all, that even an order made in the Supreme Court upon the determination of a question or issue ordered to be determined as a preliminary matter prior to trial is an interlocutory order.[15] See also and compare s.17A(3A)(a) of the Supreme Court Act.[16]

32. The principles that this Court applies in deciding whether to grant leave to appeal from an interlocutory order are well established. Similar, if not identical, principles are applied in the High Court.[17] Had the second respondent applied on summons for the appeals to be dismissed shortly after the notices of appeal were served, a factor in favour of refusing leave would have been the avoidance of unnecessary fragmentation. Unfortunately two years have gone by. Moreover, as Mr Wright submitted, the practical effect of her Honour's orders was to decide an issue of real substance between the parties which may prove to be determinative of the appellants' rights. For both those reasons the critical question must now be whether her Honour's decision in each proceeding is attended with sufficient doubt to warrant the grant of leave.

35. Because these cases were listed as appeals we have had the advantage of outlines of submissions and an opportunity to consider the learned judge's reasons and other relevant parts of the appeal book. We are well informed, therefore, as to the arguments that would be advanced if leave to appeal were granted. There may be parts of her Honour's reasons from which, with great respect, we might have

differed if the appeals had been fully argued, but that is not the question. The question is whether her decision in each case, that is to say the discharge of the orders for review, is attended with sufficient doubt to warrant the grant of leave. In my opinion it is not.

39. It is the salutary practice of this Court not to give detailed reasons for refusing leave to appeal from interlocutory orders.[18] The parties should not be in a better position because leave was not sought at the proper time. Having regard to the unfortunate history of the proceedings I shall nevertheless say that, in my view, the use of premises for the purpose of a backpackers' hostel of the kind described in her Honour's reasons is materially different from their use for the purpose of a boarding house with provision for street kids as described in her Honour's reasons and that that would be so even if the provision of accommodation for half a dozen street kids as so described were a separate purpose. So far as the estoppel point is concerned, on an application for leave to appeal, I can detect no error in what her Honour said.

42. For these reasons I would refuse leave to appeal in each proceeding and dismiss each appeal as incompetent

46. It is essentially common ground, rightly, I think, for the reasons given for the learned presiding judge, that the orders in this case are interlocutory. They do not determine the rights of the parties in the principal cause pending between them. I also agree with his Honour that the decision below is not attended with sufficient doubt to warrant the grant of leave. It seems to me that the use of the premises as a backpackers' hostel in this case is materially different from their use here as a boarding house, even when some "street kids" are accommodated in it.

49. In my view there is also nothing in the estoppel point. Consequently, I would

also refuse leave to appeal in each proceeding and dismiss each appeal as incompetent.

54. I also agree that leave to appeal would be required in each of the proceedings before the Court and, for the reasons advanced by the learned presiding judge, I also would refuse that leave.

1. The application for leave to appeal is refused.

[1] See Shire of Sherbrooke v. F.L. Byrne Pty Ltd [1987] VicRp 29; [1987] V.R. 353 at 357-358 and El Alam v. Northcote City Council [1996] VicRp 95; [1996] 2 V.R. 672 at 675-678.

[2] VBI Properties v. City of Port Phillip [2001] VSC 23.

[3] Border Auto Wreckers (Wodonga) Pty Ltd v. Strathdee [1996] VSC 55; [1997] 2 V.R. 49.

[4] Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R 423 at 443 per Windeyer, J.

[5] Unreported, Full Court, 17th March 1995.

[6] [1995] VICSC 195; [1995] 2 V.R. 622.

[7] [1999] VSCA 153; [1999] 3 V.R. 27.

[8] Unreported, Court of Appeal, 17th April 1997.

[9] [1995] VICSC 58; [1995] 2 V.R. 233.

[10] [1998] 2 V.R. 274.

[12] In neither of the reported cases is there any discussion of the interlocutory point and in Brygel's case, where reference was made to Monash University v. Berg [1984] VicRp 30; [1984] V.R. 383 at 386, the point was assumed in favour of the appellant, whose appeal was dismissed.

[13] [1981] 1 N.S.W.L.R. 723, at 724F and 727C-D.

[14] At p.30 (the paragraph is unnumbered).

[15] Dunstan v. Simmie & Co Pty Ltd [1978] VicRp 62; [1978] V.R. 669 at 670, National Australia Bank Ltd v. Maher (No.2) [1999] VSCA 189; [1999] 3 V.R. 589 at [17] and the cases there cited.

[16] The grounds in the orders for review all complain that the Tribunal misdirected itself as a matter of law. The definition of "order" in s.3 in the Victorian Civil and Administrative Tribunal Act 1998 includes an interim order. Compare Derring Lane Pty Ltd v. Port Phillip City Council [1998] VSC 182; (1998) 14 V.A.R. 460.

[17] Bienstein v. Bienstein [2003] HCA 7 at [29].

[18] See, for example, X v. Director of Public Prosecutions at 623 and 626-627 and Lucas v. Public Transport Corporation Victoria [2000] VSCA 35; (2000) 1 V.R. 156 at [14].