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Buttigieg v Melton SC No. 2 [ 2004] VCAT 868  (14 May 2004)

Last Updated: 19 July 2006

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

CATCHWORDS

Application to review the validity of Minister's call-in of a planning appeal--Power exercised under Clause 58 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 --Whether the tribunal had "commenced to hear the proceeding" --Characterisation of a directions hearing-- Jurisdictional challenge to the tribunal's authority to deal with the application.

APPLICANT FOR REVIEW	Joe Buttigieg
RESPONSIBLE AUTHORITY	Melton Shire Council
RESPONDENT/OBJECTOR	M Kyriackou
OTHER PARTY	Minister for Planning
SUBJECT LAND	677-749 Troups Road South MOUNT COTTRELL 3024
WHERE HELD	Melbourne
BEFORE	Justice Stuart Morris, President
HEARING TYPE	Hearing concerning jurisdiction
DATE OF HEARING	7 May 2004
DATE OF ORDERS	14 May 2004
CITATION	[2004] VCAT 868

ORDERS

1 I declare that the direction made by the Minister for Planning in her letter to the Principal Registrar dated 20 April 2004 does not have legal effect pursuant to clause 58(2)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 as the tribunal had commenced to hear the proceeding before the letter was received.
2 I direct that the proceeding be listed for further hearing, as soon as practicable on or after 28 June 2004, with 5 days being set aside.
3 I direct that Mr Custance serve on the responsible authority and the applicant, and file with the tribunal, within 7 days, a list of all the parties on whose behalf he acts and a statement of the grounds upon which the parties he represents intend to rely at the further hearing.

REASONS

1 Joe Buttigieg, who is the applicant for review in this proceeding, has applied for a declaration that a direction by the Minister for Planning (“the Minister”) that the Principal Registrar refer the proceeding to the Governor in Council for determination was invalid. It is desirable to set this application in context.
2 Mr Buttigieg made a permit application to use land at Troups Road South, Mount Cottrell for the purpose of a broiler farm which will accommodate 160,000 birds. The application for the permit was advertised and a large number of objections were received. The Shire of Melton (“the council”), being the responsible authority pursuant to the Melton Planning Scheme (“the scheme”), failed to determine to grant a permit. Subsequently, on 19 December 2003, Mr Buttigieg applied to the tribunal to review that failure and sought from the tribunal the grant of a permit for the broiler farm.
3 On 17 February 2004 the parties to the proceeding were given notice that the hearing of the proceeding was to be held on 28 April 2004.^[1]

4

By letter dated 23 January 2004 (but sent on 23 February 2004) Maddocks, solicitors acting on behalf of the council, sought a preliminary legal hearing in relation to the application for review. Maddocks submitted that the proposed broiler farm was prohibited because, contrary to clause 52.31 of the scheme, it did not comply with the “Victorian Code for Broiler Farms, September 2001” (“the code”). In order to resolve whether there should be a preliminary hearing, the tribunal decided to hear from the parties on the practice day of the tribunal’s Planning and Environment List.

5 On 27 February 2004 the parties to the proceeding were given notice that a directions hearing had been listed for 10.00 am on 12 March 2004. The notice stated that the purpose of the hearing was to consider whether there should be a preliminary hearing to consider the matters raised in Maddocks’ letter dated 23 January 2004.^[2]
6 On 12 March 2004 the parties appeared before me, in a hearing that lasted just under two hours. Detailed submissions were made by Ms Moles, on behalf of the council, and Mr A Hooper QC, on behalf of Mr Buttigieg, as to the applicability of the code, the interpretation of the code, and whether it was desirable to hold a preliminary hearing to determine the question as to whether or not the proposed broiler farm failed to comply with the code and, hence, was prohibited by reason of clause 52.31 of the scheme. After hearing these arguments from Ms Moles and Mr Hooper, as well as submissions from Mr N Rintoul, a solicitor acting on behalf of various objectors, I refused the application for a direction that there be a preliminary hearing on the question of whether or not the proposed broiler farm failed to comply with the code. I gave oral reasons for my decision which were subsequently typed and revised. The revised reasons consisted of 25 paragraphs and seven pages of text.
7 In order to determine whether or not a preliminary hearing was desirable I felt it necessary to understand the nature of the argument that might be put at any such preliminary hearing and the principles which ought be applied in determining whether or not a broiler farm complies with the code. It is unnecessary to set out the arguments advanced by Ms Moles on 12 March 2004. But I record that she placed significant reliance upon the fact that a building permit had been obtained for the construction of a dwelling on what was described as site 3 on an adjoining lot, being a site which was within the 500 metre minimum separation distance for a broiler farm having 160,000 birds. When my revised reasons were published (a few days after the date of the hearing) I commented:

“21 One issue which may need to be determined at the hearing is whether it is likely that a dwelling will be constructed on Site 3 or on some other location within the minimum separation distance. The fact that a building permit may exist for the construction of a dwelling on Site 3 will be a relevant factor, but is hardly decisive of the issue. For example, the evidence may reveal that a building permit was obtained to construct a dwelling on Site 3 as a device to thwart the proposed broiler farm. It may be that Site 3 is poorly served by infrastructure, such as electricity, roads and water, when compared with other sites on the relevant parcel of land. The somewhat peripatetic character of the site for the dwelling on the parcel of land in question might be thought to be relevant in the determination of this question. It is sufficient to note that the question will require factual findings and, generally, these are best made in the context of a full hearing.

22 It also seems to me that whether or not a dwelling is likely at a particular site ought be determined on the basis of what is likely to occur if the proposed broiler farm was not in contemplation. The scheme of the code is not that a broiler farm can be thwarted by a neighbouring or nearby landowner deciding to erect a dwelling in a particular location on the basis that such a dwelling would prevent a permit being granted for the broiler farm. Justice normally turns its back upon boot straps arguments; and if a person could thwart a broiler farm application by proposing to erect a dwelling in the most unlikely location this would be contrary to the intent of the code.

23 In any event, as Mr Hooper pointed out, the minimum separation distance would be reduced if a condition was imposed upon any permit restricting the capacity of the broiler farm to 120,000 birds (or some fewer number). I was informed that such a reduction, combined with a minor relocation of the broiler farm buildings, would mean that Site 3 would be beyond the minimum separation distance. Once again, the determination of this question is best left to a full hearing.

24 Given my findings, and the holdings that I have made, it is unnecessary to hold a preliminary hearing. Rather the issues that the council wishes to ventilate concerning the likelihood of a sensitive use commencing on the land to the north is best done at the hearing which is scheduled for 28 April 2004.

25 Mr Hooper sought the costs of today. He said that the directions hearing had been called by the council and, effectively, its application had been unsuccessful. So much may be true, but it does not follow that costs should be awarded. The usual course in planning cases before the tribunal is that each party bears their own costs. That usual rule should apply here. The point that was raised by the council is one of some substance. Its view that there may have been advantages in having the Class C issue determined as a preliminary matter was legitimately held and was a point that could not be described as hopeless. I regard the costs that are incurred in an application of this sort as being, what I have described on previous occasions as, the rub of the green.”

8 On 17 March 2004 the written orders and revised reasons were forwarded to the parties under cover of a letter which referred to “VCAT’s decision in this matter” and which emphasised that “the decision is final and binding” unless set aside or corrected. The order, which followed the newly adopted VCAT template, described the type of hearing as “Directions Hearing”. Two orders were made: one refusing the application for a preliminary hearing; and the other refusing an application for costs.
9 By letter dated 20 April 2004, received in facsimile form on 21 April 2004, the Minister wrote to the Principal Registrar of the tribunal in reference to the proceeding. She stated:

“I have formed the view that the application raises major policy issues and that the determination of the review may have a substantial effect on the achievement of planning objectives.

Accordingly under clause 58(2)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 I direct you to refer the application for review to the Governor in Council for determination.”

The letter itself was received by the tribunal on 22 April 2004.
10 Upon receipt of the facsimile copy of the Minister’s letter, the Principal Registrar forwarded the tribunal’s file in the proceeding to an officer of the Department of Sustainability and Environment.
11 On 20 April 2004 the Minister published her reason for using her power of intervention. In these reasons she set out the following background matters:

2 On 11 September 2003 an application was lodged with the Melton Shire Council for a 160,000 bird broiler farm and ancillary facilities at 677-749 Troups Road South, Mount Cottrell (Planning Application Ref: PA/2003/371).
3 The application was advertised to adjoining land owners and 88 objections were received.
4 The applicant, Mr Buttigieg, lodged an application with the Victorian Civil and Administrative Tribunal (VCAT) on 19 December 2003 for review of the failure of Council to grant a permit within the prescribed time.
5 Council resolved that they would not support the application at VCAT at its meeting on 1 March 2004.
6 VCAT held a directions hearing on 12 March 2004. At this hearing Council requested that a preliminary hearing be scheduled to determine if the proposal was prohibited as a building permit was issued for a dwelling within the separation distance required for a broiler farm. Justice Morris considered questions of law around the effect of the proposed dwelling. He advised that this matter would be addressed at the scheduled hearing date and that a preliminary hearing was not necessary.
7 On 15 April 2004, Don Nardella, MP and Mary Gillett MP wrote to me to request that I call-in the matter before VCAT using intervention powers available to me. Mr Nardella and Ms Gillett raised the concern that the application for review at VCAT will pre-empt the preparation of a Green Wedge Action Plan in accordance with Melbourne 2030 for which Council has received funding. They also expressed concern that the review may pre-empt a review of buffer zones specified under the Victorian Code for Broiler Farms.
8 A review of Council’s decision by VCAT is set to commence on 28 April 2004.

12 The Minister also stated in her reasons that she considered that:

the application for review raises major policy issues relating to implementation of aspects of Melbourne 2030 and in particular to the long term management of Green Wedges and the review of the area between Melton township and Caroline Springs as a possible new growth area and that the determination of the review may have a substantial effect on the achievement of planning objectives.

13 On 29 April 2004 Mr Buttigieg, through his agent Mr David Proctor, made a request to the tribunal that the matter be listed on the practice day of the Planning and Environment List. That request indicated that orders would be sought to the effect that the Minister’s direction was invalid and that the matter be refixed for hearing.
14 When the practice day request was received by the tribunal I directed that it be listed for hearing in order to provide Mr Buttigieg with an opportunity to advance his claims. Notice was also given of this hearing to those parties to the proceeding of which the tribunal was aware. Notice was also given to the Minister. At the hearing on 7 May 2004 I gave the Minister, who was represented by Mr Dreyfus QC and Mr Smithers, leave to address the tribunal.
15 When the matter came on for hearing on 7 May 2004 it was apparent that some persons might not have received a copy of the notice of that hearing. Because there was doubt about whether all parties had been notified, I directed that a transcript be made of the hearing and that any party who had not received notice be given notice that the hearing would resume on Friday 14 May 2004.
16 On 13 May 2004 I received a written submission from Mr Dreyfus and Mr Smithers, on behalf of the Minister, which I have considered. Further, on 14 May 2004 there was a further opportunity for oral submissions. On this day I heard from a large number of unrepresented objectors, generally to the effect that they supported the Minister’s call in. I also heard further from Mr Dreyfus and Ms Moles; and heard a reply from Mr Proctor.

The claim of invalidity

17 Essentially Mr Buttigieg claims that the Minister’s direction is invalid for each of four reasons. Before setting out these reasons it is desirable to set out the relevant statutory provision.
18 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) sets out certain variations from the body of the Act that apply in different circumstances. One of those variations is contained in clause 58 of schedule 1. This provides:

“(1) This clause applies to a proceeding for review of a decision under the Planning and Environment Act 1987 if –

(a) the Tribunal has not commenced to hear the proceeding; and

(b) the Minister administering the Planning and Environment Act 1987 considers that –

(i) the proceeding raises a major issue of policy; and

(ii) the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

(2) The Minister administering the Planning and Environment Act 1987 may –

(a) direct the principal registrar to refer a proceeding to which this clause applies to the Governor in Council for determination; or

(b) invite the Tribunal –

(i) to decline to hear the proceeding and refer it to the Governor in Council for determination; or

(ii) to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.

(3) The Minister administering the Planning and Environment Act 1987 cannot give a direction or invitation under sub-clause (2) later than 7 days before the date fixed for the hearing of the proceeding unless the President directs otherwise.”

19 In order to provide context, I also set out clause 61, which outlines the effect of referring a proceeding to the Governor in Council:

“(1) If a proceeding is referred to the Governor in Council under clause 58, 59 or 60 –

(a) the principal registrar must –

(i) give a copy of the recommendations that accompanied the referral to each party to the proceeding within a reasonable time after the referral; and

(ii) make a copy of the recommendations available during office hours for inspection by any person without charge; and

(b) the Governor in Council may determine the proceeding and make any orders in relation to the proceeding that could have been made by the Tribunal.

(2) An order made by the Governor in Council referred to in sub-clause (1)(b) is deemed to be an order of the Tribunal.”

20 Mr Buttigieg claimed, first, that the power of the Minister to direct the Principal Registrar to refer the proceeding to the Governor in Council has been lost because the tribunal has commenced to hear the proceeding. In this respect he claimed that the hearing held on 12 March 2004 was a hearing of the proceeding. He said that the orders and reasons given by me on that date bear directly and specifically upon the application for review and the proper interpretation of the code. Accordingly, he submitted, the hearing of the proceeding had commenced before the Minister’s call-in letter was received.
21 Second, Mr Buttigieg submitted that the Minister’s call-in direction was given later than seven days before 28 April 2004; and, assuming that the hearing was not to commence until 28 April 2004, the Minister had nonetheless lost her power to give the direction by reason of clause 58(3). Initially this argument seemed to be based upon the fact that the tribunal received the Minister’s letter on 22 April 2004. However, upon being informed that the letter had been received by facsimile transmission on 21 April 2004, Mr Buttigieg persisted with the contention and submitted, in essence, that the letter needed to be received by 20 April 2004 to make the call-in effective.
22 Third, it was said that the call-in letter was not a lawful foundation for the exercise of the Minister’s power under clause 58(2)(a) because the letter merely restated the factors set out in clause 58(1)(b) without providing any substance or disclosing any foundation for the call-in.
23 Fourth, it was said that the call-in does not raise any major issue of policy; and, further, the call-in was contrary to both the objectives and purposes of the relevant sections of the scheme, the code and the green wedge zone.

Jurisdiction

24 The first issue I must address is whether or not the tribunal has jurisdiction to deal with this application. Mr Dreyfus submitted that the tribunal did not have jurisdiction, but offered no authority to support that proposition, contending that he did not need any.^[3] I do not agree.
25 Even if the Tribunal did not exercise judicial power, it would, in common with other administrative bodies, need to ascertain whether it had jurisdiction before exercising its powers. There may be an issue as to whether or not, in this situation, the administrative body determines a legal question upon which its jurisdiction rests or whether it merely forms an opinion about it in order to decide whether to proceed or not. In the context of Federal constitutional law this is likely to be significant having regard to Chapter III of the Constitution of the Commonwealth of Australia. But even in this context Brennan J, sitting as President of the Administrative Appeals Tribunal, observed in Adams and The Tax Agents Board:^[4]

"An administrative body with limited jurisdiction is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect."

In that case Brennan J expressed doubt as to whether an administrative body ought to consider the constitutional validity of a statute affecting its power. But he observed that the problem is one which can only arise where the power of the legislature is limited (such is the case with the Commonwealth Parliament); and does not arise where the Parliament may constitutionally exercise plenary power (as would be the case with the states in relation to the exercise of judicial power pursuant to state law).
26 By contrast, in Boulton; ex parte Construction, Forestry, Mining & Engineering Union^[5] Kirby J of the High Court of Australia inferred that an administrative body not exercising the judicial power of the Commonwealth, such as the Australian Industrial Relations Commission, should determine questions of the constitutional validity of legislation if it went to the body's jurisdiction. Kirby J said:

"In point of principle, it would seem to me, the Constitution being part of the law of the land, that if a constitutional challenge to the jurisdiction of a court or tribunal is available, it ought to be taken as soon as practicable and before that court and tribunal concerned. Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that it has. I find it difficult to see how resolution of the issue can be properly avoided when it lies at the threshold of the proceedings."

27 In Santamaria v Department of Human Services^[6] the Court of Appeal held that the Administrative Appeals Tribunal of Victoria was empowered by its constituting statute to determine facts upon which the existence of its jurisdiction depends. Indeed, in that case the Court allowed an appeal from the tribunal on the basis that the tribunal’s conclusion that it lacked jurisdiction was premature. Various other examples can be given to similar effect.^[7] In Attorney General for the State of Tasmania v Estcort^[8] the Full Court of the Supreme Court of Tasmania held that the Resource Management and Planning Appeal Tribunal could consider its jurisdictional basis if an issue arose as to whether or not the tribunal had jurisdiction. Similarly in Cook v City of Doncaster and Templestowe^[9] the Administrative Appeals Tribunal of Victoria held that it could determine the validity of certain plans, in the context of an application for an enforcement order, and that it was not necessary for the plans to be directly challenged in an application for a declaration. In Simjanovski and Docklands Cotton Mills Pty Ltd^[10] the Tribunal relied upon the decision in Boulton to determine that the Tribunal had jurisdiction to decide whether or not a retail lease was in existence in order to determine whether it had jurisdiction.^[11] And in Al-Hakim v Monash University^[12] the Court of Appeal cited Boulton in rejecting an application for leave to appeal from VCAT.
28 Where one party asserts that the tribunal has jurisdiction to hear and determine a proceeding, but other persons contend that the tribunal does not have such jurisdiction, it is open to the tribunal, if not the duty of the tribunal, to determine whether or not it has jurisdiction. It is not to the point, as Mr Dreyfus submitted, that a party could go to the Supreme Court of Victoria and obtain a writ of mandamus requiring the tribunal to accept jurisdiction. A writ of mandamus requires a person or body to do their duty according to law. If it is the case that the tribunal does have jurisdiction, it should be able to determine that question and, hence, do its duty according to law, without being told to do so by a superior court.
29 I put to Mr Dreyfus the situation where a call-in letter was received by the tribunal two days before the commencement of a hearing. He responded by agreeing that, in such a case, the tribunal could decide to disregard the direction on the basis that the Minister’s power had lapsed by reason of clause 58(3) of schedule 1 of the Act. The character of the contentions being made to the tribunal by Mr Buttigieg, particularly the first two contentions, are similar in nature. Hence, at least in relation to these contentions, it must follow from Mr Dreyfus’s concession, as a matter of logic, that the tribunal has jurisdiction to determine them.
30 Thus, even if the Victorian Civil and Administrative Tribunal was a mere administrative body, it would need to determine whether it had jurisdiction in any case where this was raised and it would need to do this as a preliminary matter. In the present case this would necessarily involve forming an opinion as to whether or not the purported call-in was legally effective.
31 The Minister also contended that the applicant’s real complaint was not with the Minister’s direction, but with the action of the Principal Registrar in referring the matter to the Minister for determination by the Governor in Council. It was said that, as a result of this act, the proceeding was no longer before the tribunal. I note that there is nothing in clause 61 of the schedule to the VCAT Act which requires the principal registrar to do anything when a matter is called in under clause 58(2)(a). But even if there was, it seems to me that any such action by the Principal Registrar is irrelevant to the question of whether the tribunal has jurisdiction. If the Minister’s call in is invalid (such as in the two day example referred to above), the tribunal has jurisdiction; and this would be so regardless of who gave the tribunal’s file to whom.
32 What I have said is sufficient to dispose of the jurisdictional question, but it is necessary to explain why I can make a declaration as to why the call in was legally effective. VCAT is not a mere administrative body; rather it is a body which exercises judicial power. It is sufficient to illustrate this by reference to sections 123 and 124 of the Victorian Civil and Administrative Tribunal Act. These sections enable the tribunal to grant injunctions and to make declarations. Section 124 provides:

"(1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding."

These powers are available in all proceedings before the tribunal, whether in the Tribunal's original jurisdiction or its review jurisdiction. In their written submission Mr Dreyfus and Mr Smithers contended that section 124 was available only in respect of a proceeding before the tribunal. But if there is a proceeding before the tribunal, which can only be ascertained after considering whether the call in complied with the requirements of clause 58, then there is power to make a declaration to that effect. In this respect the tribunal is in no different a position to a court of limited jurisdiction.
33 Indeed, the provisions in the VCAT Act which vest in the tribunal judicial power, in relation to state law, are supplemented by various provisions, in relation to planning matters, contained in the Planning and Environment Act 1987. Section 149B of that Act gives the tribunal a broad power to make a declaration "concerning any matter which may be the subject of an application to the tribunal" under the Planning and Environment Act. The elasticity inherent in the word "concerning" would certainly make this power available to deal with the present case. Further, the Planning and Environment Act gives the tribunal judicial power in relation to planning scheme amendments^[13] and planning scheme interpretation.^[14] These powers were given to the Tribunal's predecessor following the infamous Doug Wade case.^[15] The intent of Parliament was to broaden the tribunal's powers in planning matters, so as to include judicial powers, and make the tribunal a one stop shop in relation to planning matters.
34 It is unnecessary to decide whether VCAT is a court in order to determine that the tribunal has jurisdiction to deal with the matter now before it. There is authority that one of the tribunal's predecessors, the Land Valuation Board of Review, is not a court: see Roads Corporation v Melbourne Estates and Finance Co Pty Ltd [No 2].^[16] There is also authority that another of the tribunal’s predecessors, the Domestic Building Tribunal, is a court for the purposes of Victoria’s Fair Trading Act 1985: see Volpe v Greenhill Homes Pty Ltd.^[17] In Re Maltall Pty Ltd v Bevandale Pty Ltd^[18] Deputy President Macnamara usefully canvassed the question of whether VCAT is a court and concluded, that, in the context of exercising judicial power under the Commonwealth Trade Practices Act, VCAT is not a court.^[19] It might be thought that VCAT is an entirely different entity to the Land Valuation Board of Review: in particular, it has power to punish persons for contempt of the tribunal, including committing a person in contempt to a term of imprisonment for up to five years.^[20] Further, many of the other indicia of a court, which were found to be lacking in the case of the Land Valuation Board of Review, are now to be found in VCAT. Indeed, the VCAT Act is modelled, not so much on the Administrative Appeals Tribunal Act 1984, but on the Domestic Building and Tribunal Act 1995. When it comes time to determine this question, in a particular context, “function and purpose, not labels, should be our guides”.^[21]
35 But if VCAT is a court generally, this does not mean that it will be a "court" in every context. For example, as explained in the tribunal decisions of Maltall and Zhi Ping Wan v Yatrasone Pty Ltd^[22] VCAT will not be a court in the context of the exercise of judicial powers under federal legislation, even though it may be a court for other purposes.
36 Further, the fact that the tribunal exercises judicial power and may well be a "court" in most contexts does not mean that it must adopt the trappings of some courts, with wigs, gowns and the like. Indeed, none of these trappings are essential for a court.

The call-in power

37 The power of the Minister to direct the tribunal to refer a matter to the Governor in Council for determination was introduced into the Town and Country Planning Act 1961 on 20 December 1978. Subsequently it was included in the Planning Appeals Board Act 1980; then the Planning Appeals Act 1980; and is now to be found in clause 58 of schedule 1 of the VCAT Act.
38 The power has been considered on a number of occasions, most notably in Orientimex Australasia Pty Ltd v City of Melbourne^[23], Venture Stores (Retailers) Pty Ltd v Minister for Planning and Environment^[24], Minister for Planning v Braybridge Pty Ltd^[25] and Moonee Valley City Council v Quadry Industries Pty Ltd^[26]. However the provisions being considered in these cases were not identical to that currently in the VCAT Act. Thus it may be helpful if I set out the history of the legislative provisions.
39 In 1978 section 21(4I) was introduced into the Town and Country Planning Act 1961. This provided:

“Where it appears to the Minister that any appeal raises a major issue of policy and that the determination of the appeal may have a substantial effect on the achievement of planning objectives or the development of planning objectives within the region in which the land the subject of the appeal is situated or in other parts of Victoria, he may direct the Tribunal to hear the appeal but not make a determination thereon.”

40 On 23 December 1980 this provision was replaced with provisions in section 41 of the Planning Appeals Board Act 1980. Section 41(3) provided:

“Where at any time prior to the determination of an appeal brought under the Town and Country Planning Act 1961 it appears to the Minister administering that Act that the appeal raises a major issue of policy and that the determination of the appeal may have a substantial effect on the achievement of planning objectives or the development of planning objectives within the region in which the land the subject of the appeal is situated or in other parts of Victoria, he may direct the Board to hear or continue to hear the appeal but not to make a determination thereon.”

41 On 16 February 1988^[27] the provisions of clause 41 of the Planning Appeals Act 1980 (as it was then called) were once again altered. Section 41(1) and (3) then provided:

“(1) If, before the Tribunal makes a decision on an appeal brought under the Planning and Environment Act 1987, it appears to the Minister administering that Act that the appeal raises a major issue of policy and that the determination of the appeal may have a substantial effect on the achievement or development of planning objectives, and subject to sub-section (3), the Minister –

(a) may direct the registrar to refer the appeal to the Governor in Council for determination; or

(b) may invite the Tribunal –

(i) to decline to hear the appeal and refer it to the Governor in Council for determination; or

(ii) to hear the appeal but, without determining it, refer it with recommendations to the Governor in Council for determination.

(3) A direction to the registrar or an invitation to the Tribunal to refer an appeal without a hearing to the Governor in Council under sub-section (1) or (2) for determination has no force or effect unless the direction or invitation is given no later than 7 clear days before the date fixed for commencement of hearing of the appeal.”

42 It is to be noted that the 1988 changes included a change to the time at which the Minister might exercise his or her power. In the 1980 formulation this was “at any time prior to the determination of an appeal”; whereas in the 1988 formulation this was changed to “before the tribunal makes a decision on an appeal”. In 1988 the Planning Appeals Act provided that “determination” in relation to the tribunal, includes “decision”.^[28] However there was no provision to the effect that the word “decision” included a determination. Perhaps the answer to the change lies in the different appeal provisions; compare section 66 of the Planning Appeals Board Act with section 52 of the Administrative Appeals Tribunal Act 1984. In 1980 the right to appeal to the Supreme Court, which was given by section 66 of the Planning Appeals Board Act, was effectively confined to the “determination” of the appeal. However, following the integration of the Planning Appeals Board into the Administrative Appeals Tribunal of Victoria in 1987, the right to appeal to the Supreme Court was broadened and included the right to appeal to the court, on a question of law, “from a decision of the tribunal” in a proceeding.^[29] This provision meant that the Supreme Court could be seized of an appeal in relation to a decision made by the tribunal which did not finally determine the proceedings, at least in some circumstances.^[30]
43 The insertion of section 41(3) in 1988 appears to have been the initiative of the Leader of the Opposition in the Legislative Council, The Honourable A J Hunt. Mr Hunt told Parliament that he supported the power of the Minister to call-in an appeal where the interests of the State are affected, but that the rights of the parties must also be safeguarded.^[31] Mr Hunt also told Parliament that although the Minister should retain the right to call-in a matter at any time prior to the making of a determination (provided that a hearing is still held and an advisory recommendation made), that power should only be exercisable without a tribunal hearing if it is used at least seven clear days from the day fixed for hearing.^[32]
44 It is quite apparent from the wording of the current provision, in clause 58 of schedule 1 of the VCAT Act that yet further changes were made to the provision in 1998. For example, the reference to seven clear days has been replaced by a reference to seven days. Further, the provision that the clause applies to a proceeding if the tribunal has “not commenced to hear” the proceeding is new; the equivalent provision in the Planning Appeals Act confined the exercise of the Minister’s power to circumstances “before the tribunal makes a decision on an appeal”.

Relevant cases

45 In the Orientimex case, decided in 1983, Fullagar J decided that a determination of an appeal by the Governor in Council could not be reviewed under the Administrative Law Act 1978. Although that disposed of the matter before him, he stated his views, very briefly, on some other matters that were argued. These views do not constitute the ratio decidendi of that case. One such view was that the Supreme Court cannot go behind the Minister’s certificate that the appeal raises a major issue of policy.^[33]
46 In June 1988 the Minister for Planning and Environment called in an appeal concerning a development in the Frankston District Centre. This decision resulted in two legal challenges, one by Venture Stores (Retailers) Pty Ltd and another by Braybridge Pty Ltd. Each of these challenges was heard by Southwell J in the Practice Court of the Supreme Court.
47 One of the arguments which was advanced in the Venture Stores case was that the Minister’s power to call-in the appeal had expired because the proceeding had previously been listed for a directions hearing and, at that hearing, certain orders had been made. Southwell J found that notice of the directions hearing should not be regarded as “fixing the date for the commencement of the hearing” because it did no more than state that the matter was listed for mention and directions to deal with procedure and preliminary points of law. Further, Southwell J held that the directions which were given, which related to the date the hearing should commence, did not constitute “a decision on an appeal” within the meaning of section 41(1) of the Planning Appeals Act.
48 Although these cases are relevant, it is necessary to firmly bear in mind that the legislative provisions that are now applicable are significantly different than those in 1983 and 1988; that the VCAT Act and VCAT processes are not the same as those of the Planning Appeals Board and the Administrative Appeals Tribunal of Victoria; and the circumstances as to what occurred at the hearing before this tribunal on 12 March 2004 are substantially different to what appeared to have occurred at the directions hearing before the tribunal in the Frankston case.

Has the tribunal commenced to hear the proceeding?

49 The power of the Minister to call in an appeal is dependent upon the fact that the tribunal has not commenced to hear the proceeding for review of a decision under the Planning and Environment Act 1987.^[34] In other words, whether or not the tribunal has commenced to hear the proceeding is a jurisdictional fact, which must be ascertained objectively.^[35]
50 The word "proceeding" is used throughout the VCAT Act. It is defined in section 3 of the Act to mean “a proceeding in the tribunal”, and also includes compulsory conferences and mediations.^[36] Ordinarily, a proceeding commences when process (usually an application) is lodged with the tribunal; and is completed when all issues are finally determined.
51 In the context of clause 58 of schedule 1, the reference to "the proceeding" in sub-clause (1)(a), is a reference to the application for review of a decision under the Planning and Environment Act, including an application to review a failure to make a decision under that Act. Thus, in the present case, "the proceeding" is the matter which commenced on the lodgement of the application for review on 19 December 2003.
52 The VCAT Act does not define the word "hear" or, for that matter, a "hearing". Ordinarily, a hearing would involve the tribunal bringing the parties together and listening to submissions or evidence, with a view to making a decision.
53 Thus, on its face, the tribunal conducted a hearing, in the proceeding, on 12 March 2004. However, it is said that the hearing conducted on that day, and the decision made following that hearing, only related to a preliminary matter and, hence, did not involve commencing to hear "the proceeding". In this respect Mr Dreyfus relied upon the description of the hearing contained in the written orders which were forwarded to the parties on 17 March 2004, which referred to the type of hearing as "directions hearing".
54 Although the tribunal commonly refers to certain hearings as a "directions hearing", in truth there is no such thing. Section 80 of the VCAT Act provides that the tribunal may give directions at any time in a proceeding; and that the tribunal's power to give directions is exercisable by any member. However, there is no requirement that a hearing be held before such directions are given. Sometimes no hearing is held. More often the tribunal convenes a hearing of the parties in order to hear submissions before it makes directions.
55 Division 7 of part 4 of the VCAT Act deals with hearings.^[37] Section 97 provides that the tribunal must act fairly and according to the substantial merits of the case in all proceedings. Section 98 sets out certain requirements in relation to natural justice and other matters. Importantly, section 98(3) provides:

"Subject to this Act, the regulations and rules, the tribunal may regulate its own procedure."

Section 99 of the VCAT Act requires the Principal Registrar to give notice, in accordance with the rules, "of the time and place for the hearing of a proceeding" to each of the parties and each other person entitled to notice of the proceeding or hearing.^[38] Section 100 enables a proceeding to be conducted by telephone or video link; and, if the parties agree, the hearing may be conducted entirely on the basis of documents. Section 101 generally requires all hearings of the tribunal to be held in public. Importantly, none of these provisions makes a distinction between different types of hearings. I conclude that Division 7 of Part 4 of the VCAT Act applies to all hearings, whether final, preliminary or interlocutory.
56 It is common place in civil litigation, and in the review of administrative decisions, for the hearing of the proceeding to be divided into segments. For example, in a civil case, separate hearings might be conducted in relation to liability and damages. Occasionally there may be a hearing in relation to jurisdiction before a hearing of the substance of the case. In a disciplinary proceeding, a separate hearing might be conducted in relation to liability and penalty. In a planning hearing, involving the review of a decision, a separate hearing might be conducted in relation to whether a permit should be granted and what conditions should be imposed upon the grant of a permit. Further, in such a matter, the hearing of the proceeding might be divided into a preliminary hearing, as to whether or not a proposed development is prohibited, and, assuming it is not prohibited, a second hearing in relation to the merits of the development. Indeed, clause 4.3 of Practice Note Planning and Environment List (No 1) provides that if, before the day fixed for the hearing of an application, a party becomes aware that a question of law needs to be determined, that party must immediately serve written notice on all other parties and the tribunal. The purpose of this provision is explained to be that if the question is one which could determine the outcome of the application, without a consideration of its merits, a party may then apply to the tribunal for a preliminary hearing of that question.^[39]
57 The functions of the tribunal in the exercise of its review jurisdiction are set out in section 51 of the VCAT Act. These are very broad, and include the functions conferred on the tribunal by the VCAT Act. This section also sets out the powers of the tribunal in determining a proceeding for review of a decision, which will usually be exercised following (what I will call) the final hearing. But an examination of the VCAT Act also reveals an array of powers available to the tribunal, or members of the tribunal, which might be exercised other than at the time fixed for a final hearing of a proceeding. Examples of these powers are set out.

•	The power to order a stay of a decision under review (section 50).
•	The power to order that a person answer a question that would involve the disclosure of certain information (section 55(2)).
•	The power to order that a person be joined as a party to a proceeding (section 60(1)).
•	The power to make an order that service be dispensed with (section 72(3)).
•	The power to give leave to an applicant to withdraw an application (section 74).
•	The power to make an order summarily dismissing or striking out a proceeding that is vexatious or misconceived (section 75).
•	The power to make an order summarily dismissing or striking out a proceeding for want of prosecution (section 76).
•	The power to make an order striking out a proceeding on the basis that it would be more appropriately dealt with by another body (section 77).
•	The power to order that a proceeding be dismissed or struck out if a party is unnecessarily causing disadvantage to another party (section 78).
•	The power to order security for costs (section 79).
•	The power to give directions (section 80).
•	The power to make an order that a non-party produce documents to the tribunal (section 81).
•	The power to consolidate proceedings (section 82).
•	The power to authorise a person to take evidence on behalf of the tribunal for the purposes of a proceeding (section 103).
•	The power to decide a question of law in a proceeding where the tribunal is constituted by a member of members who are not judicial members or legal practitioners (section 107).

58 Some of the powers set out may be exercisable without a hearing. But, more commonly, these powers are exercised after a hearing; indeed, having regard to the tribunal's obligation to observe the rules of natural justice, some of these powers may only be exercised following a hearing.
59 It is quite apparent from the foregoing, that from time to time important questions will be determined following a hearing of the parties which is not the final hearing. For example, it may be that directions are made which make it more likely that one party, or another, will succeed, by requiring a certain procedure. The making of an order that a person disclose some secret information, or document, may effectively decide the proceeding. Of course, an order summarily dismissing a matter, or determining that a proposed development is prohibited, would be final; but there are many other orders that might be made, which are interim and not final, that are nonetheless crucial in influencing, if not determining, the outcome of the proceeding. Because many interim decisions are crucial to the outcome of the proceeding it is necessary for the parties to be heard before these decisions are made.^[40] Further, because interim orders may be significant in affecting rights, leave can be sought to appeal to the Supreme Court from such orders.^[41]
60 Experience tells us that many cases which arise before courts and tribunals, whether in a civil jurisdiction or in an administrative review jurisdiction, are heard and decided iteratively. VCAT is no exception. Moreover, the hearing of planning review cases before VCAT is no exception. Decisions are often made by the tribunal, along the way, whether at “directions hearings” or “preliminary hearings”, which either determine matters in dispute or set a course which influences how the dispute will ultimately be determined. Having regard to the tribunal’s power to “regulate its own procedure”^[42], and the absence of any provision to the contrary, this is a lawful process, as well as offering practical advantages in the timely and efficient disposition of business.
61 Clause 57 of schedule 1 of the VCAT Act, which forms part of the set of provisions dealing with Ministerial intervention, allows the Minister to intervene^[43] in a proceeding under a planning enactment “at any time”, even after the tribunal has heard the proceeding, provided this is before “it has delivered its final determination in the proceeding”. This acknowledges that the tribunal may deliver determinations of a preliminary kind.
62 Further, at the time the VCAT Act was enacted the Parliament also enacted the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, which was a cognate Act. Section 9 of that Act dealt with proceedings which were pending from previous tribunals. A distinction was made between cases where the previous tribunal had not begun to hear the proceeding or had begun to hear it but had not been given evidence on any material question of fact, on the one hand, and cases where the previous tribunal had begun to hear the proceeding and had been given evidence on any material question of fact, on the other hand.^[44] It follows from this that the Parliament envisaged a situation where the hearing of a proceeding may have been commenced, even though no evidence on a material question of fact had been given. These provisions give some general support for the notion that when the Parliament enacted clause 58 of schedule 1 of the VCAT Act, it understood that there might be more than one hearing in relation to a proceeding.
63 It follows that where the tribunal hears from the parties to the proceeding, following notice being given of the time and place of that hearing in accordance with section 99 of the Act, the tribunal is engaged in hearing the proceeding. This is so even if the hearing is solely for the purpose of receiving submissions from the parties and then, following receipt of those submissions, making directions. Sometimes directions will be routine and will not involve the tribunal in any more than a superficial examination of the matter before it. But, on other occasions, directions may be broad sweeping in their ambit and may involve the tribunal in a detailed consideration of the issues raised in the application for review. Moreover, even if the hearing has been listed for the purpose of making directions, it would always be possible for the tribunal to exercise other powers, of a more profound character, at such a hearing. For example, if it became apparent at a directions hearing that the application was totally misconceived the tribunal might, after hearing from the parties, exercise its powers, pursuant to section 75 of the VCAT Act, to summarily dismiss the proceeding.
64 In their written submission, Mr Dreyfus and Mr Smithers relied on three cases in support of the proposition that the commencement of the hearing of a proceeding is when the substantive hearing begins. The first case was Smyth v F H Brunning Pty Ltd^[45], but that case offers no support for the proposition. The second case was In re Ress and Cohen’s Contract^[46], but in that case the court was concerned with a quite different provision that required an affidavit to be served “before a hearing”. The third case was Re Rimpas and Commonwealth of Australia^[47], but, for what it is worth, this case held that a “hearing” is not necessarily the final hearing.
65 If case law is required, the decision of the House of Lords in 1881 in Green v Lord Penzance^[48] would seem more relevant, if not directly in point. In that case Lord Selborne said:

It appears to me that the whole determination of the matter of the representation, with all its necessary antecedents and proper consequences, was intended by and included in that power, which is given to the Archbishop to require the Judge to “hear” it in London or Westminister.^[49]

66 In fact there are two much more recent case which would seem in point. In Martin v Abbott Australasia Pty Ltd^[50] it was held that the phrase a “hearing on the merits” should be construed as including the hearing of an interlocutory matter in which both parties appeared and in which the issue between them in that interlocutory matter (whether of fact or law) was investigated by the tribunal.
67 Even more relevant is the New Zealand case of Island Bay Residents’ Association (Inc) v Wellington City Council.^[51] In that case the court held, in relation to a provision in a resource management Act:

“...it would appear that the words “the commencement of the hearing” be read as relating to the first call of the proceeding for hearing. Any other meaning would result in confusion and difficulty. It is clear that on the first call of the proceeding for hearing it may be disposed of, or the hearing may be adjourned to a later sitting, or the proceeding may be part heard.”^[52]

And the court concluded:

“The commencement of the hearing ... is the time and date upon which the proceeding is called in accordance with the first notice of hearing in relation to it.”^[53]

68 Thus, I conclude that the hearing of the present proceeding commenced on 12 March 2004; and that the Minister's direction to the tribunal, given on 21 April 2004, was legally ineffective.
69 The effect of this decision is to constrain the Minister’s power to call in a proceeding before the tribunal, but it does not emasculate^[54] the Minister’s powers. Generally directions hearings are not held in planning review matters; and when they are held this is typically some weeks after the application has been lodged with the tribunal. Further, the Minister’s power to intervene in a proceeding, by making submissions, is unaffected. Indeed, such as submission may be to the effect that the tribunal should exercise its power to “send in” an appeal under clause 60 of schedule 1 of the VCAT Act. Moreover the Minister now has power to call in a planning application, when it is still before a responsible authority.^[55]
70 I should point out that the hearing on 12 March 2004 was not a "plain vanilla" directions hearing; and the decision which followed it was not of this character either. Rather the parties took the opportunity to make quite detailed submissions in relation to the application for review, the applicability of the code, the interpretation of the code and the proposed house on the land adjoining the subject land. In this same spirit, I gave detailed reasons for my decision to refuse to hold a preliminary hearing of the legal question; and, in the course of these reasons, I set out a number of principles as to the operation and interpretation of the code. My intention in doing this was to facilitate the hearing of the merits of the application and to avoid (or minimise) further, and repetitive, submissions as to the legal principles that should be applied in interpreting the code. It is true that in making my comments I was not deciding these questions and it would still have been open for any of the parties to have raised them at the final hearing and to have invited the tribunal to take a different approach. However, although not binding, my comments would at least have been persuasive. Thus, even if my general conclusion, that a directions hearing is a hearing of the proceeding for the purposes of clause 58(1)(a) of schedule 1 of the VCAT Act, is wrong, the directions hearing in this case involved the hearing of the proceeding.
71 This brings me to another issue. A purpose of paragraph (a) of clause 58(1) of schedule 1 of the Act would seem to be to constrain the Minister from calling in an application for review once the tribunal^[56] has become seized of a particular matter. One can understand the policy underlying this purpose. It is common for judicial officers to give some indication, during a hearing, of their tentative views. In a proceeding which is heard and determined iteratively, decisions, which will at least influence the final outcome, will be made from time to time. It seems to have been the Parliament's intention that the Minister was not permitted to see which way the wind was blowing at the tribunal before making her decision to call a matter in. Comments made in a hearing, whether it be a hearing for directions or for some other preliminary purpose, may contain at least a zephyr. Detailed comments in written reasons about the method of interpreting the key document in an application for review, even if not determinative, amount to something more.

Seven days

72 In the circumstances it is unnecessary to decide whether the Minister gave her direction later than seven days before the date fixed for the hearing of the proceeding. However, if the hearing of the proceeding was not to commence until 28 April 2004, I would have thought that a direction received by the tribunal on 21 April 2004 was given not later than seven days before that date. Section 41(1) of the Interpretation of Legislation Act 1984 provides, that where in an Act a period of time is expressed to be reckoned from a particular day, that day shall not be included in the period. Applying this method the day upon which the direction was received would appear to me to be seven days before the date fixed for the final hearing of the proceeding.

Basis for Minister's direction

73 Unlike paragraph (a) of clause 58(1) of schedule 1 of the Act, paragraph (b) does not appear to raise any jurisdictional fact. This is because the matters set out therein depend upon the Minister's opinion; and this is not the language which usually gives rise to a jurisdictional fact. It may be that there could still be judicial review, possibly before the tribunal, based upon the argument that it was unreasonable for the Minister to have formed that opinion. However, in the present case, the material before me would not appear to discharge the heavy onus of demonstrating that the decision was so unreasonable that no Minister, acting lawfully, could have made it; indeed, the Minister's reasons for seeking to call in the appeal are, on their face, quite credible. Ultimately, though, I do not have to decide these matters and I do not do so.

^[1] For some reason the notice to Maddocks was not given until 24 February 2004.

^[2] On 10 March 2004 a further notice was given changing the time of the directions hearing to 2.15 pm.

^[3] In a subsequent written submission dated 13 May 2004 Mr Dreyfus QC and Mr Smithers referred the tribunal to Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, R v Hickman [1945] HCA 53; (1945) 70 CLR 598, Attorney General v Estcort [1995] TASSC 65; (1995) 4 Tas R 355, Re Adams and the Tax Agents Board (1976) 12 ALR 239 and Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579.
^[4] (1976) 12 ALR 239, at 242
^[5] (1998) 77 ALJR 129
^[6] [1998] 2 VR 296 at 301.

^[7] These include cases cited by Mr Dreyfus and Mr Smithers, such as Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 and R v Hickman [1945] HCA 53; (1945) 70 CLR 598.

^[8] [1995] TASSC 65; (1995) 4 Tas R 355.

^[9] (1990) 5 AATR 181.
^[10] (1999) 15 VAR 26, per Deputy President Macnamara

^[11] Compare Torrisi v Oliver [1951] VicLawRp 54; [1951] VLR 380, at 383-4, were it was held that the Fair Rents Boards have jurisdiction to determine the fair rent of prescribed premises and nothing more. In that case the Court held that such a jurisdiction authorises the Boards to decide whether the relationship of lessor and lessee exists. “But whether the decision on this collateral matter is to be conclusive between the parties can only be discovered from an examination of the Landlord and Tenant Acts of 1948.” See also Tavares v Tavares ([2003] VSCA 12; 2003) 6 VR 577.
^[12] No. 3707 of 2003, 28 March 2003, per Charles and Vincent JJA.
^[13] Section 39.
^[14] Section 149A.

^[15] [1985] VicRp 48; [1985] VR 433. See also section 52 of the VCAT Act which gives VCAT priority over courts in relation to the hearing of certain planning matters. This was originally introduced as section 66A of the Planning Appeals Board Act 1980.
^[16] [1993] VicRp 94; [1993] 2 VR 620, per Gobbo J.
^[17] (1997) 12 VAR 437, per Judge Davey.
^[18] (1998) 14 VAR 368.
^[19] I should not be taken as necessarily agreeing with all of the tentative opinions expressed by

Deputy President Macnamara in this decision.
^[20] Victorian Civil and Administrative Tribunal Act, section 137.
^[21] Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497, at 515, per McHugh J.
^[22] [2003] VCAT513, per Member Vassie.

^[23] (1983) 62 LGRA 152.

^[24] (1988) 2 AATR 90.

^[25] (1988) 2 AATR 82.

^[26] [1999] VSC 95, (1999) 6 VPR 196.

^[27] This was the same day that the Planning and Environment Act 1987 commenced operation and

replaced the Town and Country Planning Act 1961.

^[28] Section 3.

^[29] Section 52(1) of the Administrative Appeals Tribunal Act 1984.
^[30] Compare Australian Broadcasting Authority v Bond [1990] HCA 33; (1990) 170 CLR 321.

^[31] Hansard, Legislative Council, 25 March 1987, page 580.

^[32] Hansard, Legislative Council, 25 March 1987, page 580.

^[33] (1983) 62 LGRA 152, at 158.

^[34] The reference to a review of "a decision" in clause 58(1) of schedule 1 of the Act includes a failure to make a decision: see section 4 of the VCAT Act.
^[35] I refer to my decision in Melbourne City Council v Becton Corporation Pty Ltd [2003] VCAT1077 and the authority cited therein.

^[36] The word “order” is also defined in section 3 of the VCAT Act and includes an interim order. This is consistent with a proceeding including a hearing leading to the making of an interim order.

^[37] Division 5 of Part 4 deals with compulsory conferences, mediation and settlement. It would seem that neither a compulsory conference nor a mediation is a hearing: see sections 86(1) and 88(6). Of course, these are usually conducted in private.
^[38] Section 99(1)(b) requires notice to persons entitled to notice of the proceeding or hearing (my

emphasis).
^[39] This practice has been used in planning appeals for at least the last 20 years.

^[40] In Pizer’s Annotated VCAT Act, paragraph [3379], the learned author notes that the power to make directions at a compulsory conference “should also extend to matters such as challenges to the VCAT’s jurisdiction and applications to be joined as a party.”

^[41] See section 148 of the VCAT Act, the definition of “order” in section 3 of the Act and Derring Lane v Port Phillip City Council [1998] VSC 182; (1998) 14 VAR 460, per Balmford J. The Derring Lane case is an example of the tribunal using an iterative approach in determining an application to review a planning decision.
^[42] See section 98(3) of the VCAT Act.
^[43] In the sense of making a submission.
^[44] See section 9(1), (2) and (3).
^[45] [1913] VicLawRp 90; [1913] VLR 362.
^[46] (1933) Angus LR 380.
^[47] (1989) 19 ALD 45.
^[48] [1881] 6 App. Cas. 657.
^[49] [1881] 6 App. Cas. 657, at 669.
^[50] [1981] 2 NSWLR 430, at 435-436, per Hunt J.
^[51] [2000] 2 NZLR 737, per Doogue J.
^[52] [2000] 2 NZLR 737, at 745.
^[53] [2000] 2 NZLR 737, at 746.

^[54] This word, which might be regarded as inappropriate in current circumstances, is used in light of the comment made by Southwell J in the Venture Stores case discussed earlier in this decision.

^[55] See sections 97A to 97M of the Planning and Environment Act 1987. These provisions were introduced in 1993.

^[56] This is a reference to the members of the tribunal empowered to made decisions in the proceeding, not the Principal Registrar or his staff.