Participation by primary decision makers in merits review proceedings
The Romsey Hotel decision
May 2008 - Client Newsletter
Summary : What is the role of primary decision makers when their rulings are challenged in merits review proceedings in VCAT? Sometimes they are inclined to act in line with the dicta of the High Court in Hardiman1 and not participate in the review, simply taking the line that they will ‘abide the decision’ of the higher body. The Romsey Hotel case2 illustrates that despite Hardiman, primary decision makers should not be reluctant to participate in VCAT reviews. The non-participation of the primary decision maker was criticised by the Court of Appeal in this case because it contributed to VCAT erring in law by failing to take into account a relevant consideration. This resulted in VCAT’s decision being overturned.
_________________________________________________
The principle in Hardiman's case
What was the background to the Romsey Hotel case?
What happened at the VCAT hearing?
What did VCAT ultimately decide?
What did the Court of Appeal say about the role of a primary decision maker in a VCAT hearing?
What effect did this have on the validity of VCAT's decision?
The main message for primary decision makers?
________________________________________________
The principle in Hardiman's case
In Hardiman, the Australian Broadcasting Tribunal (ABT) had approved a share acquisition in a company that had an interest in a broadcasting licensee. On application to the High Court, it was claimed that the ABT had made various errors of law. The ABT was represented by senior counsel who actively sought to defend the legality of the ABT’s decision.
The High Court was critical of the ABT and said the ABT should have submitted to such order as the Court may made, and warned that to not do so would risk the impartiality that it would be expected to maintain if the Court remitted the matter to the ABT.
What was the background to the Romsey Hotel case?
The Romsey Hotel (the Hotel) applied to the Victorian Commission for Gambling Regulation (the Commission) for an approval under the Gambling Regulation Act 2003 (the GR Act) to install 50 gaming machines. The GR Act required the Commission to refuse the application unless it was satisfied that ‘the net economic and social impact of the approval will not be detrimental to the wellbeing of the community of the municipal district in which the premises are located’.
The Macedon Ranges Shire Council (the Council) opposed the grant of the approval. At a hearing before the Commission, the Council presented the results of a community survey it had conducted about community attitudes to gaming machines in the municipal district. The Commission took the survey results into account in finding the local community was strongly opposed to gaming machines and in deciding to refuse the application. The Hotel applied to VCAT to review the Commission’s decision.
What happened at the VCAT hearing?3
Under the GR Act, the Commission, as primary decision maker, was an automatic party. The Commission did not appear at the VCAT hearing. At the later Court of Appeal hearing, the Commission said it chose not to attend because it relied on an observation in an earlier VCAT proceeding4 that the Commission can decide whether it or another party should attend as contradictor. It appears the Commission considered the Council would be a relevant contradictor.
At the VCAT hearing, the Council somewhat surprisingly did not lead evidence about its community survey or the Commission’s conclusions about community attitudes. VCAT concluded that, in the absence of evidence of the survey, the Council no longer supported the Commission’s decision on grounds of community opposition and that the Council recognised that the survey was not relevant. VCAT therefore disregarded the evidence of community opposition.
_________________________________________________
What did VCAT ultimately decide?
VCAT set aside the Commission’s decision and granted the approval for the gaming machines. The Council obtained leave to appeal VCAT’s decision to the Court of Appeal.
What did the Court of Appeal say about the role of a primary decision maker in a VCAT hearing?
The Court said that the Hardiman principle was not a proper basis for the Commission to not participate. In a VCAT merits review hearing, the primary decision maker’s responsibility is to assist VCAT. The Court emphasised that a primary decision maker has unique ‘experience, knowledge and expertise’ in administering the relevant statutory scheme.
It was proper for the Commission ‘to seek actively to support the decision under review’ and in doing so it could lead evidence, examine witnesses and make submissions. Even if there is a contradictor (in this case, the Council), the primary decision maker is not precluded from actively participating, particularly as there might be a risk that all relevant matters may not be canvassed at VCAT.
The Court found there was no real risk to impartiality. Hardiman concerned judicial review proceedings, and if errors of law were found, the usual course was for the matter to be remitted to the primary decision maker for a rehearing. However, VCAT conducts merits review proceedings and decides what is the correct or preferable decision on the material before it. A primary decision maker is seldom required to reconsider a decision and so the risk of loss of impartiality does not arise.
The Court concluded that the Commission should have played an active role in the VCAT proceeding and supported its decision by reference to the material on which it relied and the statutory scheme.
What effect did this have on the validity of VCAT's decision?
The Court of Appeal found that VCAT had erred in law in disregarding the evidence of community opposition because it meant that it had not properly determined the social impact of the proposed gaming machines. It should have considered the evidence even if the Commission was absent and if the Council did not lead the evidence. VCAT’s decision was set aside and the matter remitted to VCAT for rehearing.
_________________________________________________
The main message for primary decision makers?
The Romsey Hotel decision is a reminder that primary decision makers should always be prepared to participate in VCAT merits reviews, even if another party will act as ‘contradictor’. Most often, they should participate as an active party before VCAT. In line with their unique position, their focus should be on assisting VCAT in the conduct of the review. However, this does not preclude them from actively defending their primary decision, if appropriate. In any event, they should always identify all relevant material and ensure it is put before VCAT in the merits review.
For further information
For further information or legal advice on any issues raised in this Newsletter contact:
Jonathan Smithers on 8684 0411
Assistant Victorian Government Solicitor
Geoff Code on 8684 0412
Principal Solicitor
James Ruddle on 8684 0470
Deputy Victorian Government Solicitor
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.
_________________________________________________
1 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
2 Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45 (19 March 2008) (Warren CJ, Maxwell P, Osborn AJA).
3 Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation [2007] VCAT 1 (11 January 2007).
4 Branbeau Pty Ltd v Victorian Commission for Gambling Regulation (2005) 22 VPR 262, [2003] VCAT 2606 (16 December 2005), [43].
