(given orally at the hearing and subsequently revised)

1 On 4 March 2004 the Manningham City Council decided to grant a permit for alterations to an hotel in Parker Street, Lower Templestowe. Prior to the council making that decision, the application had been advertised and about ten objections had been received to the grant of a permit. One of those objections had been lodged by Cynthia Wade of 23 Ruffey Street, Lower Templestowe. Another objection had been lodged by O and R Lanza of 36 Parker Street, Lower Templestowe. The latter objection was lodged for Mr and Mrs Lanza by their son, who is a solicitor, and the address given for correspondence in relation to the objection was M P Lanza, Lawyers, 104 Queensberry Street, Melbourne.

2 On 24 March 2004 Ms Wade lodged an application for review of the decision with the tribunal. A statutory declaration has been sworn by Mrs R Lanza in which she states that prior to Ms Wade lodging her application for review, Mrs Lanza had discussions with Ms Wade regarding the lodging of an appeal. Mrs Lanza says in the statutory declaration

"I was of the understanding that Ms Wade would be lodging an appeal on behalf of the objectors specifically including myself and my husband."

3 The matter is listed for a mediation next week. I am informed by the permit applicant, who is the respondent to Ms Wade's appeal, that there are good prospects of the matter being resolved at the mediation. Further, it would seem, both by reference to Mrs Lanza's statutory declaration and what Mr Lanza, solicitor, informed me today, that in the event that Mr and Mrs Lanza are parties to the proceeding, and in particular if further objectors are parties to the proceeding, that the issues that are likely to be raised will be broader than those raised by Ms Wade.

4 The application today is, first, for an order that Mr and Mrs Lanza be joined as parties to the proceeding. In the alternative, the application is that the time within which an application for review by an objector must be lodged be extended to permit Mr and Mrs Lanza to appeal out of time. It has also been foreshadowed that a further application of one sort or another, may well be made on behalf of other objectors, dependent of course on how this application fares.

5 Under section 60 of the Victorian Civil and Administrative Tribunal Act the tribunal may order that a person be joined as a party to a proceeding if the tribunal considers that the person ought be bound by, or have the benefit of, an order of the tribunal in the proceeding, or the person's interests are affected by the proceeding or for any other reason it is desirable that the person be joined as a party. There is no doubt there is power available to the tribunal to join Mr and Mrs Lanza to the proceeding initiated by Ms Wade. However I generally believe that, as a matter of discretion, the tribunal should not join additional objectors to an application for review by an objector. It is open for an objector to appeal against a decision of the council to grant a permit either jointly, whereby usually only one application fee is payable, or separately. If an objector does not participate in a joint or separate appeal lodged within time, and then wishes to participate in the case, usually the correct mechanism for this will be to extend the time within which an appeal may be lodged; and then for the person seeking to be added to lodge an appeal in their own name. If section 60 was extensively used to join additional persons as objector appellants, it could defeat the purpose of the time limit. Moreover it would mean that persons would avoid the obligation to pay a fee on the lodgement of an appeal to the tribunal.

6 As a matter of discretion I do not join Mr and Mrs Lanza for those reasons.

7 The alternative application is that the time within which an application for review may be lodged be extended pursuant to section 126 of the Act. The power given by section 126 is extensive. It is, however, subject to considerations relating to the prejudice that will be suffered by the respondent (see section 126(4)). It is also subject to the principles articulated by Justice Wilcox in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment[1]. Having regard to those principles and the issue of the prejudice, I am not satisfied that Mr and Mrs Lanza have discharged the onus upon them such that I should exercise the discretion available to the tribunal in section 126 of the Act to extend time. There may have been confusion by Mr and Mrs Lanza as to the scope of the document lodged with the tribunal by Ms Wade. But I take into account the fact that Mr and Mrs Lanza were represented by a lawyer and they should be imputed with the knowledge that a lawyer examining the notice of decision and accompanying letter should have had about the matter. When such knowledge is imputed, Mr and Mrs Lanza should be taken as understanding the need to sight a document which purports to be an appeal by them. They did not sight Ms Wade's appeal before it was lodged.

8 I am also concerned that if I were to extend time it would impose some prejudice upon the respondent permit applicant. That is a factor which I must also weigh in the balance, and when I weigh that in the balance, together with the lack of a sufficient, acceptable explanation for the delay, I am not satisfied that I should exercise the discretion so as to extend time.