Mary Drost, (Convenor of Planning Backlash Inc), Joanna Stanley (Brunswick Residents Group), and Ann Reid (Convenor of Malvern East Group) met VCAT President Justice Greg Garde on Wednesday April 18. One of our objectives in having this meeting was to persuade him to arrange a forum for residents such as the ones previously arranged by Justice Kevin Bell and Iain Ross some years ago. Both of those men had actually listened to residents and had approached the then Attorney General to have some changes made to procedure so the "natural justice" would get more attention in the Planning and Environment section of VCAT than had previously been the case. Alas, apart from two minor changes no actual reform was permitted.
Justice Garde's reaction to our request was interesting. He said he would speak at a meeting but did not seem interested in following the previous Presidents and arranging a meeting to hear residents' opinions. He explained that VCAT was run by handpicked professionals who followed the rules to the letter.
We raised a number of issues that we residents have with VCAT.
1. The question of expert witnesses having to give sworn evidence
We raised the question of expert witnesses having to give sworn evidence.
His response was that we could ask for it and the Member would consider the request and it was up to the Member to decide if it was necessary. He then said that expert witnesses were entitled to their opinions on a subject and they were not necessarily lying, as it was their honest opinion. Have you ever been at VCAT and heard expert witnesses sworn in? I even mentioned that Maddocks knows of a case where the witness was heard later laughing about what he had said as he believed the opposite. I was ignored.
We explained that when we met with the Senior Adviser to the present Attorney General he was astonished that expert witnesses did not give sworn evidence. Justice Bell just smiled and said nothing.
So we got nowhere with that.
2. We raised with him the fact that applicants (developers) request a certain Member to hear their case.
Justice Garde said that is prohibited and does not happen. I recently heard from a resident that the developer in the case was saying they asked for a Member and got them. We checked this out at the front desk, whether it was true that this happened, and the front desk person verified that they ask and, if possible, they get the one they ask for. Justice Garde refused to believe this.
3. We raised the subject of order of presentation
We asked if it can be changed as we consider it unfair that the one bringing the case goes last. In a court of law they go first. In VCAT council go first, then objectors and then the developer. This gives the developer an unfair advantage as they hear all we say and then set to work to demolish our points. Councils on the whole agree with us on this.
Justice Garde said it did not matter which way it was as the Member will hear from all whichever way it goes. He did not agree that the current way is to our disadvantage. However he did say that a party could request the change and it was up to the Member.
We said we had never known a case where it is changed. Does anyone know a case where it has been changed???
Justice Garde maintains that it is done. We asked for statistics on this and he said all cases are set out on Aust.Li and we could read them. We said we had tried that and we cant find a case. Justice Garde responded that it wouldn't be mentioned in the report. I did explain to Justice Garde that Justice Bell agreed with us on this.
Suggestion by me to people going to VCAT: Next time you are going to speak in VCAT write to Justice Garde requesting the order of presentation be changed so that the developer goes first and you last so that you can hear what they say and answer them.
Justice Garde said to me that you do have the right of reply to which I said, "Last time I was in VCAT and Michael Wright was the Member, I asked for right of reply and was refused."
4. Applicants bringing ammended plans to VCAT and Compulsory Conferences
We raised the subject of applicants turning up to VCAT with amended plans and even now coming to Compulsory Conferences with amended plans. (We believe that amended plans should go straight back to the Responsible Authority.)
Justice Garde responded that amended plans are a good and positive thing and if they can use those to reach a compromise it is the right thing to do.
In our opinion this is hardly Natural Justice.
5. Malvern East group record of members decisions
We raised the study that was carried out a few years ago by a Malvern East Group member, keeping record of which VCAT Member decided which way and we could then see which members gave nearly all their decisions in favour of the developers. We are always nervous as to which Member we get as we know which side they usually favour.
Justice Garde seemed to absolutely deny that this was a proper study and had any relevance. He said he did not select Members but Government officials did that and they choose the people with the right backgrounds and they are trained thoroughly in what to do. They did their job properly and followed Government policy to the letter. Also last year when they advertised positions available in VCAT they had 400 applications - not sure what that means.
What became very clear from the beginning was that there was no point in Justice Garde having a meeting with residents, as we had hoped for. You see, he seems to think VCAT is perfect right now and no change is possible while Justice Garde is President.
So we are planning to meet with the Shadow Attorney General to educate him about how VCAT must be reformed the way residents and councils see as fairer, in case there is a change of Government next year at the election. Meantime the only thing I can suggest, and I am going to do it, and that is next time you are going to VCAT write to the President and ask for the order of presentation be changed for your case.