Vidovich v Mildura Rural City Council & Ors [1999] VSCA 49

Vidovich v Mildura Rural City Council & Ors [1999] VSCA 49 - VSCA 1999 case summary — Zoe

[22]

"The Tribunal informed the parties that following receipt of the appeal lodged by Maddock Lonie & Chisholm, Solicitors, on 14 July 1997, that (sic) Mr Finanzio of that firm was summoned to appear before the Tribunal to explain and clarify the two plans endorsed to Permit No P113/86 by the City of Mildura. It appears that on 30 October 1986 plans were endorsed to the permit indicating sixteen shops in a development at the corner of Eighth Avenue and Langtree Streets, Mildura, linked by an "L" shaped mall linking these two streets. On 30 September 1987 amended plans were endorsed showing a configuration with twelve shops with a truncated area shown as a mall off Eighth Street with what appeared to be a connecting passageway through an area shown on the plan as Shop 1. The later plan did not show any north point nor any abuttal to named streets. The Tribunal explained that the purpose of requiring Mr Finanzio's attendance at the Tribunal was to explain the street layout and the configuration of the second of the endorsed plans and how it related to the earlier plan so that it could be established who might be affected by the application for the declaration. After Mr Finanzio explained the correlation between the two plans the Tribunal indicated that it was satisfied with his explanation and the following are notes made by the Presiding Member at that time:- 'The Tribunal is of the view that copies of the Application should be served on all of the 'smaller' tenants whose interests are or may be affected and that they should be informed of the time and place of the hearing. Directions 1. Responsible Authority is to advise the Tribunal the names and address of all tenants so affected. 2. The Responsible Authority is to serve a copy of the application on all such persons and advise them that they will each be notified in due course by the Tribunal of the time and place of the hearing. 3. When the list of names and addresses is supplied by the Responsible Authority notice of the hearing for Friday 22 August 1997 is to be sent to all addressees.'"

[24]

"4. ... on or about 16 July 1997 I was contacted by the Assistant Registrar of the Tribunal, Ms Jenny Phillips, who advised me that I was required by Deputy President Ball to attend a directions hearing in relation to procedural matters arising from the material which accompanied the Application. I was advised that the other parties to the Application would not be present. I expressed concern that such a directions hearing was proposed to be conducted in the absence of the other parties. I was advised that Deputy President Ball had only minor concerns or queries relating to the two plans accompanying the Application and that such a matter would be better resolved in person, rather than by written correspondence. I was advised that Deputy President Ball was of the opinion that it would be unnecessary to require the presence of the other parties. 5. In accordance with its request, I appeared before the Tribunal on 18 July 1997. I took brief notes at this hearing. My attendance before the Tribunal was for a duration of not more than 15 minutes. Now produced and shown to me marked "AJF1" is a copy of my notes of that hearing. 6. The hearing was conducted before Deputy President Ball and Mr Barr (Member). At the commencement of the hearing I expressed concern about conducting a directions hearing in the absence of all the parties. Deputy President Ball assured me that the purpose of the hearing was to clarify some of the material accompanying the Application. In particular, both Tribunal members queried the relationship between the two floor plans which were annexed to the Application. I explained that the plan marked "SK2" dated August '86 ("the First Plan") accompanying the Application was a plan endorsed by the City of Mildura on 30 October 1986 in accordance with Planning Permit No.P113/86 ("the Planning Permit"). I further explained that the plan marked "AO6" dated September '87 ("the Second Plan") was a plan endorsed by the City of Mildura on 30 September 1987, amending the layout of the development permitted to be constructed by the Planning Permit. ... 10. Deputy President Ball explained that its difficulty arose because the Second Plan was deficient in two respects: (a) the absence of a "north" orientation; and (b) the absence of street names which might have assisted in orientation. 11. The members of the Tribunal asked whether I could inform the Tribunal as to the way the Second Plan should be read with the First Plan. I advised that this was something which, in preparing the Application, I myself had had difficulty with. I advised the Tribunal that my instructions were that if the Second Plan was held in the upside down position, then both plans would be comparable in terms of the floor layout and orientation. Upon examination Mr Barr agreed and concluded the matter by marking "north" on the Second Plan. The Tribunal then advised that it intended to conduct an inspection of the site prior to the full hearing, as Mr Barr would be in Mildura prior to the hearing and it would be convenient for him to do so. I made no notes in relation to these matters. 12. Following my explanation of the relationship between the two plans, Deputy President Ball explained that the purpose of the directions hearing was to clarify this matter in order that the Tribunal could make an assessment as to which of the shop tenancies would be affected by the Application, and therefore which persons should receive notice of the Application. 13. Deputy President Ball stated that, in the circumstances an ex parte hearing was appropriate given that the issues at the directions hearing were very minor (related only to the Tribunal clarifying a matter arising out of the material accompanying the Application)."

[28]

"We have been asked by Mr Gobbo on behalf of his client Chain Reaction Pty Ltd to disqualify ourselves and arrange for another Division of the Tribunal to hear and determine this appeal on the basis of apprehended bias arising from our meeting with Mr Finanzio who acts for the Applicant/Responsible Authority, in the absence of any other parties. We have decided that in the circumstances of this case that we will not accede to this request: We do so on the following basis:- 1. We have explained clearly to all parties before the commencement of the hearing why we asked Mr Finanzio to attend before the Tribunal to clarify the orientation and correlation of the two amending sets of plans endorsed to the relevant permit. 2. We have said that at no time did any discussion take place with Mr Finanzio as to the meaning or effect of any aspect or detail of the plans. 3. We, at the time when Mr Finanzio was called before the Tribunal were not aware of the identity of any of the owners and occupiers of any of the other shops in the overall development and sought this information from Mr Finanzio in order to arrange for service of copies of the application on all relevant parties. Those steps could have been taken by a staff member by correspondence with the parties or by telephone without any suggestion of perceived bias. 4. We agree with Mr Pitt that this is not a situation as in the Evindon case that the appeal was heard and determined before the parties became aware of the contact between one of the parties and a Tribunal member. In this case all parties will have the opportunity to make submissions to the Tribunal as to the meaning and effect of the endorsed plans. 5. To delay the hearing of these proceedings might prejudice Mr Pitt's clients and we believe his clients' interests are best served by proceeding today with this hearing. On the other hand we do not believe Mr Gobbo's or Mr Jones' respective clients will be prejudiced in any way by us proceeding to hear the merits of this appeal. In the circumstances the application is dismissed."

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties