Moreland City Council v Glenroy RSL (No 2) [2018] VSC 178 (19 April 2018)

Last Updated: 19 April 2018

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S CI 2017 01813

MORELAND CITY COUNCIL	Plaintiff (Applicant)
v
GLENROY RSL SUB BRANCH INC	Defendant (Respondent)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2018
DATE OF JUDGMENT:	19 April 2018
CASE MAY BE CITED AS:	Moreland City Council v Glenroy RSL (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 178

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ADMINISTRATIVE LAW — Appeal on questions of law from decision of VCAT — Appeal successful on one ground— Rehearing by VCAT required — Whether rehearing should be before a differently constituted Tribunal — Directions for rehearing — Victorian Civil and Administrative Tribunal Act 1998 s 148(7) and (8).

PRACTICE AND PROCEDURE — Orders entered after judgment — Application to amend order — Slip rule — Inherent jurisdiction — Whether party had opportunity to be heard as to part of the order — Supreme Court (General Civil Procedure) Rules 2015 r 36.07.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (Applicant)	Mr R Chaile	Harwood Andrews
For the Defendant (Respondent)	Ms L Hicks	Williams Winter Solicitors

HIS HONOUR:

1 I delivered judgment in this matter on 27 March 2018. In the final paragraph of my reasons for judgment I stated:

I conclude that the error of law identified in question one has been established. I therefore grant leave to appeal in respect of that question and associated grounds and allow the appeal. The relevant parts of the order of VCAT of 19 April 2017 are set aside and the application to VCAT is remitted for rehearing before a differently constituted Tribunal.

2 When I delivered judgment and when both parties were represented, I read that paragraph aloud. I indicated that I needed the assistance of the parties to identify the parts of the Tribunal order that should be set aside. Subsequently, my chambers circulated draft minutes of orders describing parts of the Tribunal order that would be set aside. The minutes of orders also stated that the application to VCAT be remitted for rehearing but omitted the words ‘before a differently constituted Tribunal’.

3 Subsequently, after considering submissions from the parties about the parts of the VCAT order that should be set aside, I made the final order including the words ‘for rehearing before a differently constituted Tribunal’.

4 The legislation dealing with the remittal of proceedings to VCAT for rehearing includes s 148(7) and (8) of the Victorian Civil and Administrative Tribunal Act 1998 which state:

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal―

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceedings;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

(8) If the court makes an order under sub-section (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

5 The respondent RSL, in effect, applies for amendment of the order so that the proceeding can be reheard before the Tribunal as originally constituted. It says that because of the terms of the minutes of order circulated, it was unaware that I would remit the proceeding for rehearing before a newly constituted Tribunal. It points to the additional costs and expense that would be incurred if a differently constituted Tribunal reheard the proceeding. The Council opposed the application and submits that the Court lacks power to amend the order.

6 The parties made submissions about the Court’s jurisdiction under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015, ‘the slip rule’ and the inherent jurisdiction of the Court. Rule 36.07 states that the Court:

[a]t any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.

7 The authorities establishing the limits of the jurisdiction to vary or set aside an order after it has been authenticated are well known.^[1] As Menzies J stated:

However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend [to] the making of orders in litigation that has been brought regularly to an end. ^[2]

8 As Kaye J stated:

[S]ubject to certain well established exceptions, there is no inherent jurisdiction in the Court to set aside or vary orders which have been perfected by authentication by the Prothonotary.^[3]

9 One exception to these principles is where a party has not had an opportunity to make submissions about an order or part thereof, in which case the court has inherent jurisdiction to correct the order.^[4]

10 I am satisfied that the RSL may have understood that the terms of the minutes of order that were circulated indicated that I would not order the proceeding to be reheard before a differently constituted Tribunal. In those circumstances, I consider that I should approach the matter as one in which the Court does have power in its inherent jurisdiction to amend the order if satisfied that it is in the interests of justice to do so.

11 I note that the RSL has no formal application before me for amendment of the order and if I were persuaded that I should make the order it wishes such an application would have to be filed.

12 However, I am not persuaded that I should amend that part of the order that required that the proceeding be remitted to a differently constituted Tribunal. As the Full Federal Court has stated:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon the facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member’s views have been stated.^[5]

13 I consider that this reasoning applies in this case and makes it appropriate that the proceeding be remitted for rehearing before a differently constituted Tribunal. The Tribunal will be required to make findings about the social and economic impacts of the additional gaming machines in circumstances when it, as originally constituted, already made findings about those issues in reliance on the Victorian Commission for Gambling and Liquor Regulation’s findings.^[6] That is not to suggest that the members of the originally constituted Tribunal would not impartially undertake the rehearing of the proceeding. But the perception that may arise from the findings that the Tribunal made, make it appropriate that a newly constituted Tribunal conduct the rehearing.

Directions for rehearing

14 The parties agree that I should give directions for the rehearing as s 148(7)(c) permits. The only issues for the reconstituted Tribunal to consider and assess are the social and economic impacts and net community benefit of the proposed ten additional gaming machines and whether the grant of approval for them would be an acceptable planning outcome.

15 In that regard, I apply the reasoning of Emerton J in The Sisters Wind Farm Pty Ltd v Moyne Shire Council^[7] concerning the role of VCAT upon the remittal of a proceeding in respect of a particular issue. Her Honour stated that although the Tribunal’s decision had been set aside and no part of it survived, the Tribunal on remitter only had to decide the question in dispute. Her Honour stated:

The Tribunal on remitter therefore continues to be required to make a contemporaneous, de novo decision having regard to the Moyne Planning Scheme as in force from time to time. Nothing in the nature of the Tribunal’s jurisdiction has changed. Although its inquiry is limited to one issue, in making its decision having regard to the Moyne Planning Scheme, it must endeavour to integrate the policies relevant to the issue to be determined (noise impacts) and balance any conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.^[8]

16 As stated, the only issues in dispute in this proceeding for the Tribunal to determine when it is remitted are the social and economic impacts of the additional gaming machines, their net community benefit and whether approval of the additional machines would be an acceptable planning outcome. In paragraphs 68 to 90 of my reasons of 27 March 2018, I found that the Tribunal constructively failed to exercise its jurisdiction to make findings about those issues. The net community benefit and the social and economic impacts of the additional gaming machines are relevant considerations under s 60 of the Planning and Environment Act 1987 and the Moreland Planning Scheme. The Tribunal must rehear the proceeding by determining afresh the social and economic impacts of the additional gaming machines and their net community benefit. Having made findings on those issues the Tribunal will have to decide whether approval of the application to permit the ten additional gaming machines is an acceptable planning outcome.

17 It was also accepted that I should give directions that the newly constituted Tribunal may act on evidence led in the previous hearing relevant to the issues referred to in the previous paragraph and may also allow further evidence to be led that is relevant to those issues.

Costs

18 On 12 April 2018 I heard submissions concerning the appropriate costs order of this further hearing. I consider that the RSL should pay the Council’s costs of and incidental to the further hearing on 12 April 2018 and the delivery of this judgment. An outstanding issue arose about the part of the order authenticated on 29 March 2018 providing for the composition of the Tribunal upon the remittal of the proceeding and therefore a further hearing was required to enable the parties to make submissions about it. The costs of that further hearing are costs of the proceeding and should be paid by the RSL.

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^[1] See Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 and DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226.

^[2] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 531-2.

^[3] Lollis v Loulatzis (No 3) [2008] VSC 231, [30].

^[4] TM Burke Estates Pty Ltd v Noosa Shire Council [2001] QCA 42 [46], [71]-[82].

^[5] Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 and see Body Corporate Strata Plan No 4166 v Stirling Properties (No 2) [1984] VicRp 73; [1984] VR 903.

^[6] See Vegco Pty Ltd v Gibbons [2008] VSC 363 and Barro Group Pty Ltd v Brimbank City Council (No 2) [2012] VSC 199 (‘Barro’).

^[7] [2012] VSC 324.

^[8] Ibid [58].