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What can happen to community groups when they brave VCAT


This interesting letter about the experience of a citizen representing a group's appeal at VCAT vindicates the citizen, educates others about the VCAT attitude, and shows VCAT up.

Protectors of Public Lands Victoria Inc. (PPL VIC).

The Hon. Justice Kevin Bell
President
Victorian Civil and Administrative Tribunal
55 King Street
Melbourne 3000
13 August 2009
Your Honour

ADDENDUM TO SUBMISSION TO VCAT REVIEW

I refer to my letter of 15 May 2009, written on behalf of our organisation Protectors of Public Lands Victoria Inc., containing our submission to the review of VCAT. I am writing to you with an addendum about a number of urgent concerns about VCAT proceedings following a Practise Day Tribunal hearing on 13 March 2009.

See attached the VCAT Order (Reference P3692/2008) relating to the Practice Day hearing on 13 March 2009, the applicant being the Protectors of Public Lands Victoria Inc. and the Responsible Authority Port Phillip Council. We were represented by a barrister.

A matter which perturbs us greatly is the failure of the Tribunal to comply with the Practice Note which sets out procedures for submitting evidence and submissions. Port Phillip Council failed to comply with the Practice Note as its legal representative produced additional documents at the hearing without having previously circulated them to us the requisite two days beforehand or at all. Apparently this is a routine occurrence at VCAT hearings and puts community groups at a significant disadvantage because they cannot afford the expense of an adjournment to consider fresh material. I have heard from a number of our member groups that this has happened to them. In our case the Port Phillip Council brought its request to strike out our case on 13 February 2009 yet came up with additional material five minutes before the hearing a month later on 13 March 2009. Hence Council’s legal representative had plenty of time to circulate additional documents.

I understand that there are many different jurisdictions (14 different lists?) and each has different procedures for “bringing applications”. There are different Practice Notes, different forms and requirements for the different jurisdictions. It appears that Tribunal members do not enforce them, as we found in our case.

The Tribunal member hearing our case justified allowing Port Phillip Council’s legal representatives to provide additional material five minutes before the hearing by saying:

“The applicant was aware of the statement of grounds being relied upon by the council prior to the hearing; they have not come as a surprise... In the present case, there was nothing in the council’s outline of submissions or the additional material that the applicant or I could not comprehend or respond to on the day”.

In fact, some of the material was new and there was no time to even read it closely. (See Paragraph 9, Page 2 of Order.)

The Chair further made the following comment:

“The applicant, Protectors of Public Lands Victoria Inc., through its spokespersons, Julianne Bell, appears regularly before VCAT and is familiar with Tribunal procedures, planning legislation and planning control. The applicant was represented by experienced legal counsel who himself presented detailed written submissions and was well able to request an additional opportunity to respond to anything at the practice day hearing if indeed he has been taken by surprise. He did not do so.”

(See Paragraph 10, Page 5 of Order.)

Not only was the statement about regular appearances before VCAT false, and not based on any evidence, it is apt to create great disincentive to community groups seeking to have a voice at VCAT hearings. The Protectors of Public Lands Victoria Inc. has not appeared regularly at VCAT, in fact we have had two cases only since our establishment in 2004 - the present one included. The other case was an application in July 2008 to obtain information under FOI from Port Phillip Council. (VCAT referred the case to the Ombudsman who was unable to extract information from the Council and the case lapsed.) The organisation does not know about planning legislation or Tribunal procedures as claimed by the Tribunal Chair and accordingly engaged lawyers to represent it. I have only had very limited further contact with VCAT in other matters and do not pretend to understand the procedural requirements.

The comments by the Tribunal carry the implied slur that Protectors of Public Lands Victoria Inc. has been vexatious, but of course there is no redress for a community group confronted by this kind of attack from a VCAT member.

Community groups come to VCAT in order to have a hearing according to law about issues of importance to the community. In many ways they ought to have more entitlement to a proper hearing than those who do so from motivations of profit. The refusal to hear a properly formulated proceeding, accompanied by this studied slight to the group bringing the claim, is typical of the type of alienation of the community by VCAT which has been so distressing for those involved in the process.

Yours sincerely

Julianne Bell
Secretary
Protectors of Public Lands Victoria Inc.
PO Box 197
Parkville 2052

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