VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT List	vcat reference No. P13/2024	

Applicant	Taungurung Land and Waters Council (Aboriginal Corporation)	
Decision Maker	Goulburn Murray Water (as delegate of the Minister for Water)	
Respondent	Rubicon Station Pty Ltd	
SUBJECT LAND	441 Rubicon Road
RUBICON VIC 3712	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	4 April 2024	
DATE OF ORDER	5 April 2024	
citation	Taungurung Land and Waters Council (Aboriginal Corporation) v Goulburn Murray Water [2024] VCAT 308	
order
Joinder application – refused 
1	The application made by the applicant in March 2024 to join Goulburn Broken Catchment Management Authority is refused. 
Hearing schedule
2	The application is scheduled for a preliminary hearing, a compulsory conference and a hearing and is confirmed as detailed below. 
All hearings and the compulsory conferences will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.

Preliminary hearing	
Date and time	5 & 6 June 2024
10.00 am – 4.30 pm 
For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 4:30pm on the day before the hearing	
Conduct	In person at 55 King Street, Melbourne	

Compulsory Conference:	
Date and time	31 July 2024
10.00 am – 4.30 pm	
Conduct	In person at 55 King Street, Melbourne	

Hearing:	
Date and time	28, 29, 30, 31 October 2024 and 6, 7, 8, 11, 12, 13, 14, 18, 19, 20, 21 and 22 November 2024. 
(16 days including an accompanied site inspection)
10.00 am – 4.30 pm	
Conduct	In person at 55 King Street, Melbourne	

What all parties must do – file a joint statement of facts agreed and not agreed
3	The parties must file a Joint Statement of Facts Agreed and Not Agreed before the preliminary hearing by 1 May 2024.
Preliminary hearing
4	The purposes of the preliminary hearing are:
(a)	To consider whether it is appropriate to make the following declaration sought by the applicant pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) that:
The decision of the decision maker to approve application WLCM0003-20 and issue works licence WLE086675 (‘the Decision’) is affected by jurisdictional error.
(b)	To consider the following questions of law:
1.	Whether the works the subject of the Decision are, or include, works to deviate a waterway?
2.	Whether Goulburn Murray Water had authority, pursuant to the instrument of delegation dated 29 May 2023, to make the Decision?
3.	Whether, on a proper construction of section 69(2) of the Water Act 1989 (Vic), there was a ‘related application under Part 4’ before Goulburn Murray Water at the time it made the Decision?
4.	Whether, if there was a ‘related application under Part 4’ before Goulburn Murray Water at the time it made the Decision, Goulburn Murray Water was required to defer the making of the Decision pursuant to section 69(2)(b) of the Water Act 1989 (Vic)?
5.	Whether Goulburn Murray Water was required by section 69(3)(b) of the Water Act 1989 (Vic) to refuse the Application that was the subject of the Decision?
(c)	To give directions about the future conduct of the proceeding having regard to the submissions of the parties about the consequence of the form of decision the Tribunal may make about the questions of law and if the declaration that is sought is made.
What all parties must do – file submissions before the preliminary hearing
5	By 29 May 2024, before the preliminary hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
6	Submissions from each party must address, but are not limited to, the consequences that the party asserts may or should follow from the Tribunal’s determination of the questions of law and the declaration that is being sought.  
7	If a party is seeking specific orders or directions at this preliminary hearing, a draft Microsoft Word copy of the orders or directions must be lodged electronically with the Tribunal and given to the other parties.  This must be completed by no later than 29 May 2024.  
8	Any expert evidence being relied on in the preliminary hearing must be filed and served in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.  
Tribunal Book – for the preliminary hearing
9	The Applicant, in consultation with other represented parties, must prepare a common Tribunal Book for the preliminary hearing including:
•	An index of its contents;
•	Copies of the applications and all interlocutory material;
•	Copies of all relevant documents (i.e. those on which a party will seek to rely in submissions, evidence in chief or which they reasonably expect will be referred to in cross examination);
•	Copies of all statutory provisions and authorities which will be referred to in submissions.
10	Documents in the Tribunal Book should be grouped where convenient, each grouping clearly divided and all pages indexed and numbered or tabbed sequentially.
11	By 27 May 2024, the Applicant must file with the Tribunal and give to all other parties an electronic copy of the proposed index of the Tribunal Book.
12	By 29 May 2024, each party in the proceedings must give to the Applicant, an electronic copy of any documents to be added to the Tribunal Book, and a mark-up of the proposed index of the Tribunal Book. 
13	By no later than 30 May 2024, the Applicant must file with the Tribunal and give to all other parties an electronic copy of the Tribunal Book with all documents in pdf searchable or unlocked versions. 
Compulsory conference 
14	All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(See more information in Appendix A of this order).  
15	By no later than 24 July 2024, any party must give all other parties and the Tribunal a copy of any amended grounds or conditions it wants to discuss or rely upon at the compulsory conference. 
16	The decision maker must give the Tribunal and all parties an electronic copy in Microsoft Word format of ‘without prejudice’ conditions or requirements that may be discussed at the compulsory conference.  This document must be received by all parties and the Tribunal by no later than 24 July 2024.
Witness material (staged exchange) – for the hearing
17	By no later than 16 August 2024, the Applicant must give the Tribunal and all the other parties an electronic copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which the applicant intends to rely at the hearing.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au.
18	By no later than 6 September 2024, the other parties must give the Tribunal, the applicant and each other party an electronic copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or lay witness on which they intend to rely at the hearing.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
19	The content of all expert evidence must otherwise comply with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.  
Conclave of expert witnesses – for the hearing
20	Expert witnesses must meet after the circulation of all expert evidence (‘conclave of experts’).  The meeting(s) must be concluded by 20 September 2024.  
21	The conclave(s) of experts must be based on evidence or topics of similar subjects / areas of expertise.  
22	The arrangement and conduct of each conclave is at the discretion of the experts.  
23	The conclave must only be attended by the experts being called to give evidence, and a non-participating independent note taker if necessary. 
24	By 27 September 2024, the experts must circulate an electronic copy of agreed conclave minutes to the Tribunal and to all parties. The conclave minutes must concisely:
(a)	Record attendees, including attendances and absences for any significant discussion point if some attendees are only there for part of the meeting.
(b)	Identify all issues of opinion and issues of fact that are agreed and that are in dispute within the subject matter of their area of expertise.  Reasons for disagreement must be given. 
(c)	Set out or reference:
(i)	the relevant available data; 
(ii)	methodology (for any sampling, analysis and assessment); 
(iii)	interpretation of data / results; and 
(iv)	certainty of outcome(s) or risk assessment conclusions that each expert relies on. 
25	The conclave minutes must be signed by all participants.  
26	If any expert witness attending a meeting is instructed not to reach agreement in respect of points of difference, these instructions must be reported in writing to the Tribunal by that expert witness. 
Updated Joint statement of Facts Agreed and Not Agreed – for the hearing
27	The parties must file an updated Joint Statement of Facts Agreed and Not Agreed before the preliminary hearing by 4 October 2024.
Supplementary expert evidence statements – for the hearing
28	Any supplementary expert witness statement following on from a conclave of experts and relied upon by a party must be filed electronically with the Tribunal and given to all parties by no later than 11 October 2024.  
29	The content of supplementary expert evidence must:
(a)	be confined to addressing matters of disagreement between the experts as confirmed in the conclave minutes; and
(b)	otherwise comply with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Tribunal Book – for the hearing
30	The Applicant, in consultation with other parties, must prepare a common Tribunal Book for the main hearing including:
•	An index of its contents;
•	Copies of the applications and all interlocutory material;
•	Copies of all relevant documents (i.e. those on which a party will seek to rely in submissions, evidence in chief or which they reasonably expect will be referred to in cross examination);
•	Copies of all statutory provisions and authorities which will be referred to in submissions.
31	Documents in the Tribunal Book should be grouped where convenient, each grouping clearly divided and all pages indexed and numbered or tabbed sequentially.
32	By no later than 14 October 2024, the Applicant must file with the Tribunal and give to all other parties an electronic copy of the proposed index of the Tribunal Book.
33	By 17 October 2024, each party in the proceedings must give to the Applicant, an electronic copy of any documents to be added to the Tribunal Book, and a mark up of the proposed index of the Tribunal Book. 
34	By 22 October 2024, the Applicant must file with the Tribunal and give to all other parties an electronic copy of the Tribunal Book with all documents in pdf searchable or unlocked versions. 
Providing opening submissions for the hearing
35	By 21 October 2024, each party must file with the Tribunal and give to all other parties an electronic copy of opening submissions in support of their respective cases.  Opening submissions are to encompass:
(a)	an overview of their respective position of the issues in contention;
(b)	the relevant statutory decision-making framework; and
(c)	an outline of the evidence to be relied upon by any party. 
Conduct of hearing 
36	The hearing of the proceeding will be conducted in the following order:
•	Opening submissions:
o	applicant for review  
o	decision maker
o	respondent
•	Calling of any lay evidence where applicable in the following order:
o	Applicant for review
o	decision maker
o	Respondent
•	Calling of expert evidence grouped in like subjects where applicable, in the following order:
o	Applicant for review’s expert;
o	decision maker’s expert;
o	respondent’s expert.  
•	Main / closing submissions in the same order of opening submissions.  
•	Short right of reply from applicant for review.  
•	Without prejudice submissions about the licence conditions.  
Itinerary for a site inspection
37	By 7 October 2024, each party must give to the applicant a list of any feature or location that the party considers is desirable for inclusion in the itinerary for the Tribunal’s site inspection.  
38	By 14 October 2024, the Applicant must file with the Tribunal and give to all parties, a draft itinerary for the Tribunal inspection during the hearing.
39	By 21 October 2024, all information on safety on the inspection (including any safe work statement), must be filed with Tribunal.
Requests for procedural orders	
40	Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.

Carol Daicic		Ian Potts
Deputy President	Senior Member

Appearances
For the applicant	Rupert Watters of Counsel, with Tara Hooper of Counsel, instructed by Dr Bruce Lindsay, lawyer of Environmental Justice Australia and Matthew Burns, CEO	
For the decision maker	Robert Sadler of Counsel instructed by Christopher Watt, lawyer of Holding Redlich with Joseph Monaghan of Holding Redlich observing	
For the respondent	Tyrone Rath, lawyer of Planning Property Partners instructed by Greg Salter, Director with Charlotte Townshend, lawyer of Planning and Property Partners observing	
For the Goulburn Broken Catchment Management Authority	Emma Peppler of counsel by direct brief instructed by Sarah Parker, Chair of the Board of Goulburn Broken Catchment Management Authority.	

reasons
Purpose of practice day hearing
1	The purposes of the practice day hearing were set out in Tribunal Order 7 dated 8 March 2024 as follows:

2	We address each purpose in below and other relevant issues raised in correspondence filed prior to the practice day hearing. 
Should GBCMA be joined as a party to the proceeding?
Background
3	At the first practice day hearing on 8 March 2024, the applicant indicated that it makes application for the Goulburn Broken Catchment Management Authority (‘GBCMA’) to be joined as a party to the proceeding pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). The Applicant gave a brief explanation about the basis for the request. 
4	However, given there was no appearance by the GBCMA, it was agreed that a ruling could not be made at the practice day hearing. 
5	The respondent indicated that it contests the joinder of GBCMA.
6	We made orders requiring the applicant to provide to the GBCMA the relevant application documentation and the request that GBCMA be joined as a party to the proceeding. 
7	Service by the applicant was completed in accordance with our order dated 8 March 2024. 
8	GBCMA was also directed to attend the second practice day hearing where the question of GBCMA’s joinder was be considered. 
Submissions
Applicant
9	The applicant submits that:
(a)	the Tribunal’s power under s 60(1) of the VCAT Act is broad;
(b)	sub-paragraph (c) permits joinder where for any other reason (not addressed in ss 60(1)(a) or (b)) ‘it is desirable that the person be joined as a party’, could not be expressed in wider terms;
(c)	it is desirable that GBCMA be joined to the proceeding because catchment management authorities have a distinct and specific statutory role to play in the administration of water resources and the involvement of GBCMA will assist the Tribunal;
(d)	in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (‘Romsey’) the Court of Appeal was critical of a primary decision maker for choosing not to take part in a review proceeding. In making its criticism, the Court emphasised the particular role played by statutory bodies in the decision making process. It said:
30 Active participation by the primary decision-maker is of particular importance if the person seeking review of the decision did not appear before the decision-maker, or if there would otherwise be no contradictor, as is often the case. But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker playing such a role. The most obvious example is a tripartite planning appeal before the Tribunal, where the permit applicant and the objectors will be on opposite sides but the planning authority nevertheless seeks actively to defend the decision which it made, and may well adopt a position different from both applicant and objectors on facts in issue and on conditions to be attached to approval.
31 Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the Tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed – exclusively – by the aims and objectives of the statutory scheme.
(e)	whilst the applicant accepts that the remarks in Romsey were directed to a primary decision-maker under an enabling enactment, the applicant submits that they are also applicable to a catchment management authority in this proceeding.  This is because GBCMA has specific statutory functions relating to the management of waterways in catchment / waterway management district:
(i)	under the Catchment and Land Protection Act 1994 (Vic) (‘CALP Act’), specifically pursuant to s 12 for:
•	the preparation of a regional catchment strategy for its region and co-ordinating and monitoring its implementation (s 12(1)(a), CALP Act);
•	to promote the co-operation of persons and bodies involved in the management of land and water resources in the region, including representatives of specified Aboriginal parties, in preparing and implementing the strategy and special area plans and in furthering the objectives of the CALP Act (s 12(1)(c ), CALP Act);
(ii)	relevantly, the objectives of the CALP Act include establishing a framework for the integrated and co-ordinated management of catchments which will:
aim to ensure that the quality of the State’s land and water resources and their associated plant and animal life are maintained and enhanced (s4(a)(ii), CALP Act);
(iii)	under the Water Act 1989 (Vic) (‘Water Act’), GBCMA is an ‘authority’ with a ‘waterway management district’ and thus has functions conferred on such an authority by s 189 of the Water Act for a designated waterway;
(iv)	GBCMA is a referral authority for works applications under the Water Act;
(v)	GBCMA has responsibilities to adhere to the binding Statement of Obligations for Catchment Management Authorities dated 5 January 2018 issued by the Minister for Water to, relevantly:
•	authorise works on waterways and undertake enforcement according to the catchment management authority Waterways Protection By-law and delegated works power under s 67 of the Water Act (clause 18.1);
•	to act as a referral authority for any application to construct works (clause 18.2);
•	to advise rural and urban water authorities, and local and State government agencies on aspects of their operations that impact waterway health (clause 18.5);
•	to contribute to water planning and allocation under clause 21 and collaboration on integrated water management under clause 27;
(vi)	GBCMA has specialist experience, knowledge and expertise to assist the Tribunal in reaching the correct or preferrable decision and therefore it is desirable to join it as a party;
(vii)	GBCMA has in the past taken a strong position on the merits of the works application and opposed the grant of the works application, noting its ground of objection under section 67B of the Water Act are:
1.	The proposal includes a significant structure across the lower Rubicon River that would be detrimental to waterway health; and
2.	Cumulative impacts. 
(viii)	it is important for the Tribunal to understand whether GBCMA has changed its position on the merits of the proposal and whether GBCMA considers the correct or preferable decision has been made. Equally, if GBCMA has changed its position and can give good reason for that change, then that it is also relevant. 
10	The applicant concedes that requiring the GBCMA to attend the full hearing is a significant burden on GBCMA given what GBCMA says about its resourcing issues, and so the applicant would support GBCMA’s alternative submission that it could have a limited role in the proceeding in assisting the Tribunal but not actively participating in the whole hearing.  The applicant asserts however that joinder of GBCMA provides an opportunity for participation compared to a much more complicated and convoluted process that would arise if there was a desire by the Tribunal to hear from the GBCMA, or the GBCMA itself sought to participate, at a later date. 
11	That said, the applicant submits that on balance, GBCMA’s resourcing issues should be capable of being managed and to the extent that GBCMA’s issues can be ventilated by others, the principles set out by the court in Romsey suggest that GBCMA would still bring a distinct perspective which would be useful to the Tribunal. 
12	To clarify this level of participation further, the applicant submits that joinder of GBCMA would not require GBCMA to actively participate and call witnesses and there would be no expectation on the applicant’s part for GBCMA to participate in the preliminary hearing because the legal questions for determination by the Tribunal do not bear on GBCMA. 
Goulburn Broken Catchment Management Authority
13	GBCMA submits that its Board has resolved twice that it does not wish to be joined as a party to the proceeding because:
(a)	GBCMA has fulfilled all their statutory functions and legal obligations under the CALP Act, the functions under the Water Act and the Ministerial Statement of Obligations (‘Statement of Obligations for Catchment Management Authorities’) as a referral authority;
(b)	GBCMA understands it is not the decision making authority in relation to this matter;
(c)	GBCMA has provided all relevant information in relation to this matter;
(d)	GBCMA does not have the resources to participate in the proceeding as detailed in Tribunal Order dated 8 March 2024.
14	The two fundamental reasons why GBCMA does not wish to be joined as a party to the proceeding are couched as follows:
(a)	first, it does not consider that it is necessary for it to be a party to the proceeding because it is not the decision maker in relation to the applicant, nor is it the proponent or applicant for review. Notably, the decision maker is a water authority well equipped to advise on the relevant statutory considerations in the appeal, and GBCMA’s position has been clearly stated and all technical information which supported that position has been provided to the parties and the Tribunal; and
(b)	second, for matters of resourcing. GBCMA has limited resources and it must make difficult decisions about the allocation of these resources.  In this occasion it has chosen not to expend what it anticipates would be significant resources on this single application, noting the application has already been to the Tribunal once. 
15	In oral submissions the GBCMA submits that:
(a)	the Tribunal is urged to respect the decision of the Board of the GBCMA who is best placed to know where to apply its limited resources and this should be afforded appropriate weight;
(b)	it would be unusual for the Tribunal to compel GBCMA to be joined as a party when it resists this action;
(c)	it is not a matter of ‘simply turning up by having an officer attend the hearing’ as was put by the applicant. It has limited people resources with the technical expertise who could attend the compulsory conference and the hearing and they are busy dealing with flooding issues and management of floodplain areas. To dedicate these limited resources to reviewing all the relevant materials including technical evidence and the like, would be a significant imposition on GBCMA;
(d)	it is not necessary for GBCMA to be joined as a party because Goulburn Murray Water (‘GMW’) has its own specialist waterway expertise and there will be ‘no gap’ in technical knowledge at the hearing;
(e)	the proceeding has an applicant, a decision maker and respondent who will all bring different perspectives which will be ventilated at the hearing; 
(f)	for the record, GBCMA has made no change to its position since the decision was made and the documents which informed that position are all before the Tribunal now;
(g)	the decision in Romsey is completely different to the facts here because GBCMA is not the primary decision maker and it does not have an ongoing statutory role.  It is not a scenario where the Tribunal is left without a water authority to assist it; further it is not derogating its responsibilities which have been fulfilled;
(h)	in this case, the Minister for Water has delegated authority to license works on waterways under the Water Act to GMW.  The GMW and GBCMA do have overlapping expertise and delegated authorities across Victoria.  However, in this licence application, it is GMW that has the delegated authority to make the decision after taking into account the matters raised by GBCMA, whereas the GBCMA is a statutory referral body and its role has been discharged; and
(i)	in considering what justice requires and whether it is desirable for GBCMA to be joined as a party, GBCMA is entrusting the decision made by GMW to the Tribunal to make the correct or preferable decision. 
16	If despite GBCMA’s objection, the Tribunal nonetheless orders that GBCMA be joined as a party to the proceeding, then GBCMA seeks to limit its role in the proceeding on discrete issues to assist the Tribunal rather than taking an active role beyond that. GBCMA’s preference would be to be given an allocated time to appear at the hearing under this alternative position. 
17	GBCMA concedes that:
(a)	the power to join a person as a party to a proceeding is broad under s 60 of the VCAT Act; 
(b)	there is no legal bar to the Tribunal ordering GBCMA to be joined as a party; and
(c)	in a ‘perfect world’ where resources were not in issue, GBCMA’s position with respect to joinder, may have been different but this is not the case or reality.   
Goulburn Murray Water
18	Goulburn Murray Water submits that it does not support or oppose the joinder of GBCMA. 
19	However, in oral submissions GMW submits that:
(a)	it has the delegated responsibility in this matter and is the decision maker with the expertise to assist the Tribunal in respect to the matters raised against its decision; 
(b)	whilst the position of GBCMA with respect to the decision by GMW is desirable to know, and has been revealed as unchanged, this does not necessitate that GBCMA be joined as a party;
(c)	GBCMA’s grounds for its position are known and on the record and can be set out by GMW, acknowledging that this is relevant to the Tribunal’s considerations; 
(d)	in considering what justice requires, it is difficult to know how GBCMA may be able to assist the Tribunal until the evidence is filed, but it is apparent that requiring GBCMA to attend the hearing for 15 [sic] days is an impost on GBCMA’s resources;
(e)	it is open to the Tribunal to hear from GBCMA without making it a party should this be required; and
(f)	to make GBCMA a party but limit its participation will be cumbersome and potentially problematic; whilst not impossible it would require management. 
Respondent
20	In adopting the submission made by GBCMA and GMA, the respondent opposes the joinder of GBCMA because:
(a)	GBCMA is not a determining referral authority and the decision maker was only required to ‘have regard’ to the advice and comments of GBCMA and thus GBCMA’s role is limited;
(b)	as GBCMA is not the decision maker, its interests in the outcome of the proceeding are limited. The functions of GBCMA cover a very broad catchment and it will not be impacted by a decision in this proceeding and its powers as a statutory body will not be affected by the decision;
(c)	whilst s 60(1)(c) of the VCAT Act provides opportunity for the Tribunal to consider the significance of other factors, these factors weigh against any contention to join GBCMA, because:
(i)	as the GBCMA’s role is limited, there is no utility in GBCMA playing an active role as a party to the proceeding; 
(ii)	if GBCMA is forcibly joined to the proceeding, the financial impost of it needing to prepare and appear at a hearing that is anticipated to last some 15 days weighs against joinder; 
(iii)	the position of the GBCMA is known, and has been confirmed, as are the supporting reasons and material for forming this position.  This position and reasons will be ‘squarely addressed’ in the hearing;
(iv)	joining GBCMA may increase the duration of the hearing and / or the complexity of managing the proceeding if the GBCMA’s role is limited at its request; and
(v)	if the question of whether it is desirable to join GBCMA is about utility,  the Tribunal should take into account that all the relevant information and advice from GBCMA has already been provided and the impost on GBCMA’s resources outweighs any perceived utility or benefit in GBCMA being joined as a party.
Reply submissions by the applicant
21	In reply, the applicant submits that the test of desirability under s 60(1)( c) is met and we should exercise discretion and join GBCMA as a party to the proceeding. 
22	Further, the applicant submits in reply that:
(a)	submissions made by other parties with reference to the joinder not being ‘necessary’ is a higher test than that under s 60(1)(c) of the VCAT Act which refers to ‘desirability’ and this is what is needed to be satisfied;
(b)	GBCMA’s concession that ‘in a perfect world’ it’s position might be different is an indication, respectfully, that it would be desirable to have GBCMA joined as a party to the proceeding;
(c)	in reliance on Romsey, it would be preferable for GBCMA to represent its position at the hearing rather than GMW as the latter may present a more nuanced perspective given it will be defending its decision;
(d)	there should be little doubt that GBCMA is a referral authority with respect to the application under the Water Act and under the Statement of Obligations for Catchment Management Authorities and the views of GBCMA informed the decision of the GMW.  Accordingly, the Tribunal would be assisted by GBCMA participating as a party in the proceeding in light of its statutory functions;
(e)	GMW’s submission that the Tribunal should not join GBCMA because it would be cumbersome to manage by the Tribunal, has the disbenefit of maintain a cumbersome situation without the benefit of GBCMA being given information at the same time as all other parties; in fact its messier to engage with GBCMA as a non-party procedurally than as a party; and
(f)	there are special circumstances as to why GBCMA should be joined as a party because there are two water authorities with overlapping responsibilities and expertise, and the Tribunal would be assisted in hearing from GBCMA in the circumstances. 
Consideration and Tribunal ruling
23	Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that:

24	In circumstances where GBCMA strongly contests joinder including on the basis of limited resources to participate in a proceeding of this scale, we must consider whether the applicant’s application to join GBCMA is justified. 
25	The case put by the applicant is one that relies upon the power afforded to the Tribunal under s 60(1)( c) of the VCAT Act rather than s 60(1)(a) or (b) and so our focus is on s60(1)(c) only. 
26	For completeness, Section 60(1)(a) would require us to consider whether GBCMA would be bound by, or have the benefit of, an order of the Tribunal. This is unlikely in a strictly legal sense, but we make no finding in this regard.
27	Section 60(1)(b) would require us to consider whether GBCMA is a person whose ‘interests are affected’ by the proceeding.  No grounds for joinder based on the GBCMA’s interests were advanced by the applicant nor raised by the other parties.  We therefore decline to venture a view about GBCMA’s interests under section 60(1)(b), though it is apparent from the submissions made about its statutory responsibilities it has an interest in the management of waterways and waterway health; matters that arise in this licence application.
28	With respect to joinder pursuant to s 60(1)(c) of the VCAT Act that has been pressed, it is instructive to examine a wide variety of factors to consider whether it is desirable to join a person as a party including:
(a)	it is not necessary, particularly in matters involving the exercise of VCAT’s review jurisdiction, for the person proposed to be joined to establish that they will seek relief against an existing party or that an existing party will seek relief against them; 
(b)	whether the Tribunal will have the jurisdiction to deal with the case that the person proposed to be joined is seeking to put;
(c)	whether, where an applicant seeks to join a person as a respondent, the applicant’s case against that person is ‘open and arguable’; whether that case ‘is sustained in the end is a matter for trial’;
(d)	the case does not have to be one that is ‘certain to succeed’, but neither should it be one that is clearly ‘misconceived or hopeless’;
(e)	are there special circumstances to warrant joining persons in specific application types; and
(f)	whether the joinder would enable all the issues in dispute to be determined effectively.  
29	If we find that at least one of the conditions in s 60(1) of the VCAT Act is satisfied, the Tribunal enjoys a discretion to join a person as a party. This discretion is ‘unfettered’ but it must be exercised judicially. The power must be exercised reasonably and according to the particular circumstances of the case. The VCAT Act does not specify what factors the Tribunal should take into account when exercising its discretion.  
30	Having heard from the parties, we prefer the submissions filed by the GBCMA, GMW and the respondent and find that it is not presently desirable at this point in the proceeding to join GBCMA as a party. 
31	We make this ruling because:
(a)	we are told by GBCMA that all information relating to GBCMA’s position at first instance has been disclosed and is available to the Tribunal who is sitting in review and tasked with making the correct or preferable decision;
(b)	GBCMA has now indicated that its position has not changed since the decision made by GMW to grant the licence and there is no additional information to be provided nor is further information intended to be provided by GBCMA if it were joined;
(c)	we have given appropriate weight to the submissions made that the Board of GBCMA, who strongly resists GBCMA being joined as party on the basis of the ‘two planks’ which underpin its position, including the significant impost this would have on the limited resources available to GBCMA at the present time;
(d)	despite submissions only being made from the bar table rather than by way of evidence, we accept GBCMA’s submissions (which are not contested by the applicant) that participation in this proceeding will have an impact on GBCMA resources;
(e)	we are mindful that in forming a view whether joining GBCMA is desirable, a relevant consideration is that the utility to be gained GBCMA’s participation as a party should outweigh the impost on GBCMA’s resources.  Given that GBCMA has indicated that it does not intend to actively participate in the hearing, we consider that the impost of being joined now and everything this would entail for GBCMA outweighs the utility of GBCMA being joined on the facts currently before us. This is because we have the information which informed GBCMA’s position and GBCMA does not intend to provide anything further as it does not intend to actively participate in the proceeding even if joined;
(f)	there are a number of interlocutory steps which need to take place before the hearing commences, including a compulsory conference where the matter may resolve, and this does not need to involve GBCMA;
(g)	we rely on GMW’s submissions that it has the technical knowledge and in-house specialist expertise to assist the Tribunal, which we accept but note that the Tribunal’s view about this may change after the filing of evidence and submissions for the hearing and noting the parties have a duty to assist the Tribunal as appropriate; 
(h)	whilst we appreciate GBCMA’s important role and functions in the statutory framework, we rely on GBCMA’s submissions that as a referral authority it has discharged its obligations with respect to the application at the present time and there are no changes in circumstances which have been brought to its attention; 
(i)	Romsey is not ‘on all fours’ because in that case the decision maker did not participate in the hearing. Here, GBCMA is a referral authority and GMW, the decision maker is participating in the hearing;
(j)	the onus lies with GBCMA to form a view whether it should consent to the request that it be joined as a party in light of its statutory responsibilities and duties to the Tribunal. In response, GBCMA has strenuously resisted joinder. Thus, the Tribunal will rely on GBCMA’s submissions and we have given this appropriate weight in refusing the applicant’s joinder application; 
(k)	the Tribunal has the ability to direct GBCMA to assist the Tribunal as a non-party if this is required. Whilst this will require management and may result in disruption to the current timetable, we consider this is a preferable pathway than the alternative of joining GBCMA as a party now and all that goes with that status. 
32	However, whilst we are not persuaded that it is appropriate to join GBCMA now, that does not mean an application for joinder could not be made in the future on application of the Tribunal or any person. 
33	We say this in recognition of some of the persuasive submissions made by the applicant about GBCMA’s detailed knowledge, function and strategic role in the statutory framework which may be nuanced and of assistance to the Tribunal at a later stage, particularly once evidence has been filed.  
34	Given the positions taken by GMW and the decision maker to resist joinder of GBCMA at the present time, we can only assume that they appreciate the risk that the joinder of GBCMA at a later time in the lifecycle of this proceeding may cause.  
35	However, we have ultimately formed the view that justice at this stage does not require the joinder of GBCMA as a party to this proceeding based on the information provided to us by the parties. We expect that if there is a change in circumstances, that the parties and GBCMA will bring this to the Tribunal’s attention. 
Questions of law / declaratory relief and preliminary hearing
Background
36	Further to our order dated 8 March 2024, the parties were given an opportunity to reframe any questions of law and indicate whether any party seeks declaratory relief. 
37	With respect to declaratory relief, the parties were asked to make submissions about whether it is appropriate for an application to be made under s 305A of the Water Act 1989 for consideration at the second practice day hearing. 
38	We repeat our remarks in our order of 8 March 2024 that the parties agree that the other matters raised by the applicant about what are mandatory or certain relevant considerations and the weight to be given to relevant considerations are matters that can be considered at the merits hearing and not at the preliminary hearing. In particular, no party (including the respondent) contests that aspects of the following matters are relevant in this proceeding:
(a)	Flora and Fauna Guarantee Act 1988  (Vic);
(b)	Charter of Human Rights and responsibilities Act 2006 (Vic); and
(c)	Aboriginal Heritage Act 1996 (Vic). 
Submissions
39	Initially, the applicant submits that:
(a)	the following declaration is sought:
That the decision of Goulburn-Murray Water to approve application WLCM0003-20 and issue works licence WLE086675 is affected by jurisdictional error.
(b)	the following questions of law should be determined by the Tribunal:
(i)	Whether Goulburn Murray Water had authority, pursuant to the instrument of delegation dated 29 May 2023, to make the decision?
(ii)	Whether, on a proper construction of s 69(2) of the Water Act 1989 (Vic), there was a ‘related application under Part 4’ before Goulburn Murray Water at the time it made the decision?
(iii)	Whether, if there was a ‘related application under Part 4’ before the Goulburn Murray Water at the time it made the decision, was it open to Goulburn Murray Water to make the decision to grant a works licence?
(iv)	Was Goulburn Murray Water required by s69(3)(b) of the Water Act 1989 (Vic) to refuse the Application 
40	GBCMA did not make any submissions with respect to question of law or declaratory relief. We record that GBCMA indicated that it did not wish to make any submissions about any proposed declarations or questions of law sought. 
41	GMW submits that:
(a)	there are two questions of law for consideration at the preliminary hearing:
(i)	Was the decision maker required to defer the application in accordance with s 69(2) of the Water Act 1989 (Vic)?; and
(ii)	Was the decision maker required to refuse the application in accordance with s 69(3)(b) of the Water Act 1989 (Vic);
(b)	it does not request any declaratory relief under s 305A of the Water Act and is of the view that any declaratory relief sought by the applicant would be adequately addressed by resolution of the questions of law proposed. 
42	The respondent submits that:
(a)	it agrees with the applicant that the questions of law for determination relation to this proceeding relate to:
(i)	whether the Minister’s delegate has failed to defer a decision in accordance with s 69(2) of the Water Act 1989 (Vic); and
(ii)	whether the Minister’s delegate has failed to refuse the application for a licence in accordance with s69(3) of the Water Act 1989 (Vic);
(iii)	questions of law in relation to the following are more appropriately dealt with at the merits hearing:
•	Flora and Fauna Guarantee Act 1988  (Vic)
•	Charter of Human Rights and responsibilities Act 2006 (Vic)
•	Aboriginal Heritage Act 1996 (Vic). 
(iv)	It does not seek any declaratory relief under s 305A of the Water Act.  
43	During this practice day hearing, there was a discussion about conflating the various proposed questions by consent and the need to include:
(a)	an additional question of law about whether the works the subject of the Decision by GMW are, or include, works to deviate a waterway;
(b)	an amendment to the applicant’s third proposed question of law to refer to whether GMW was required to defer the making of the Decision; and
(c)	an order making it clear that the parties are entitled to make submissions about the consequences of the making of the declaration requested and the determinations of the questions of law. 
44	Further, in response to Tribunal questions, we record that no party indicated they opposed the Tribunal using its power pursuant to s 124 of the VCAT Act despite the existence of s 305A of the Water Act.  In fact, GMW supported this path and the respondent adopted the submissions of GMW.
Consideration and Tribunal ruling
Questions of law 
45	Whilst the questions of law to be determined put forward by each of the parties were worded slightly differently, there are common themes raised in their respective submissions about whether decision maker had the power to make the decision to grant the application. 
46	We have made orders articulating the questions of law (as amended at the second practice day hearing with consent of the parties) to be determined at the preliminary hearing based on the wording provided by the applicant because:
(a)	we accept they provided an additional level of granularity and provide a clearer focus on the controversy between the parties; and
(b)	the parties consented to the refined wording discussed at the second practice day hearing and filed by the applicant immediately following.
47	We have made minor amendments to the wording of the questions of law given we make reference to ‘the Decision’ as a defined term in the declaration sought. We do not consider this should be of any concern to the parties. 
Declaratory relief
48	No party other than the applicant seeks declaratory relief. 
49	However, the applicant has not filed an application pursuant to s 305A of the Water Act seeking declaratory relief. 
50	In response to Tribunal questions, the applicant submits that the Tribunal is able to use its power pursuant to section 124 of the VCAT Act.
51	Unfortunately despite our order dated 8 March 2024, no party has specifically addressed the Tribunal in writing about whether it is appropriate for the Tribunal to exercise its power under section 124 of the VCAT Act in circumstances where section 305A of the Water Act exists.
52	Whilst GMW submits that the Tribunal need only answer the questions of law it proposes in its submissions and there is no need to make a declaration, GMW submits that if a declaration is sought it is preferable for it to be made under section 124 of the VCAT Act. 
53	The respondent does not oppose the declaration request provided the Tribunal makes an order making it clear that the parties are able to make submissions about the consequences of determining the questions of law and the granting declaratory relief, particularly noting in submissions, the implications of s 4(2)(b) of the VCAT Act and any other consequences of the declaration that may affect the future conduct of the proceeding. 
54	We are reluctant to delay the preliminary hearing or require a third practice day hearing that may follow from a determination of the questions of law or any declaratory relief.  Accordingly, the parties (and the applicant in particular) will need to address the Tribunal:
(a)	with respect to the threshold question about whether it is appropriate to grant declaratory relief pursuant to section 124 of the VCAT Act in circumstances where s305A of the Water Act 1989 (Vic) exists and on the application has been made under that provision; and
(b)	the consequences of granting the declaratory relief and consequences of the Tribunal’s determination of the questions of law in respect to the future conduct of the proceeding.  
55	Whilst we have included the request for declaratory relief as a potential purpose of the preliminary hearing, it is ultimately a matter for the Tribunal conducting the preliminary hearing to consider whether it should exercise its discretion and make the declaration sought. 
Witnesses to be called by the decision maker and expert conclave issues
56	GMW indicated in its submissions that evidence from an in-house hydrologists employed by GMW should be treated as lay evidence. 
57	In response to Tribunal questions, GMW explained that this is a point that is not strongly pressed and only made because a different division of the Tribunal in another matter raised the appropriateness of an in-house expert participating in an expert conclave given there was a perceived lack of independence and impartiality given the relationship of employment.  There were also questions about whether such evidence should be treated as lay, factual evidence, expert evidence or a hybrid form of evidence and how this was to be managed in hearing. 
58	In response to Tribunal questions without notice, the other parties indicated some nervousness about an inhouse employee of the GMW participating in any expert conclave. The other parties do not oppose in-house expert witnesses not participating in an expert conclave.
59	On reflection, we are not minded to separate any ‘hybrid witnesses’ who are employed by GMW but intend to give both lay and expert evidence. 
60	It is important to draw a distinction between lay evidence given by a person about facts in a proceeding, as opposed to opinion expert evidence (which is generally referred to as expert evidence).
61	To the extent that any witnesses called by GMW purport to give opinion evidence based on that person’s expertise in a specialist field, they will be treated as expert witnesses and must participate in any relevant expert conclave process as provided by these orders. 
62	Whilst we appreciate that in-house expert witnesses may not be thought of as independent because of their involvement in the application or due to a relationship with a party, we do not consider that on the information before us that their evidence should be treated as lay evidence in principle. Rather, this goes to the weight to be afforded their evidence, which will nevertheless be treated by the Tribunal as expert evidence if it delves into matters of technical or specialist expertise or analysis.
63	In addition, we are mindful that the purpose of an expert conclave is to identify issues in dispute between experts and issues which are not in dispute. This will assist the Tribunal is running an efficient hearing, particularly on technical matters. We do not consider that an in-house expert of GMW participating in the expert conclave will improperly influence an expert who is retained by a party. 
64	Further, we consider that it would not be efficient to require the expert conclave to exclude experts who are employed by GMW. Rather, it is for all experts, including the in-house expert, to carefully and appropriately conduct themselves with the aim of achieving the purpose of the expert conclave in accordance with these orders. 
65	We have made orders confirming the expert conclave in accordance our orders dated 8 March 2024. 
Timetable for provision of a Joint Statement of Facts Agreed and Not Agreed before the preliminary hearing and updated before the hearing
66	At the second practice day hearing, GMW and the respondent indicated that they withdraw or no longer rely on their written submissions with respect to timetabling matters. 
67	We have taken this to mean that no party opposes making orders confirming the timetable set out in our orders dated 8 March 2024. 
68	Thus, our orders dated 8 March 2024 with respect to the preparation of:
(a)	a Joint Statement of Facts Agreed and Not Agreed prior to the preliminary hearing are confirmed; and
(b)	an updated Joint Statement of Facts Agreed and Not Agreed prior to the hearing are confirmed. 
Whether opening submissions should be staggered
69	Our orders dated 8 March 2024 with respect to the staggering of opening submissions are confirmed. 
Conduct and Timetable for the hearing
70	Our orders dated 8 March 2024 with respect to the timetable leading up to the hearing are confirmed. 
Accompanied Site inspection
71	Our orders dated 8 March 2024 with respect to an accompanied site inspection are confirmed.
72	At the request of the applicant, we have included an additional order requiring the GMW and respondent to advise the applicant of any locations or feature they consider the Tribunal should visit on a site inspection. 

Carol Daicic		Ian Potts
Deputy President	Senior Member