VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P636/2022
Permit Application no. MV/627/2021	
CATCHWORDS
Section 82 of the Planning and Environment Act 1987; Failure to attend compulsory conference; Failure to attend two practice day hearings; Section 78 of the Victorian Civil and Administrative Tribunal Act 1998; Conduct of proceeding; Unnecessary disadvantage; Application stuck out.

Applicant	Gwendalyn Kelly	

Responsible Authority	Moonee Valley City Council	
Respondent	Branson Property Group Pty Ltd	
SUBJECT LAND	497-501 Keilor Road, 2 Ryder Street and 14 Hotham Road
NIDDRIE  VIC  3042	
HEARING TYPE	Practice Day Hearing	
DATE OF HEARING	2 December 2022	
date of further responses	9 December 2022	
DATE OF ORDER	15 December 2022	
cITATION	Kelly v Moonee Valley CC [2022] VCAT 1437	

Order
Vacate hearing
1	The hearing scheduled to commence at 10.00 am on 16 and 17 January 2023 is vacated.  No attendance is required.
Application struck out
2	Pursuant to section 78 of the Victorian Civil and Administrative Tribunal Act 1998, the proceeding is struck out because the applicant has failed to comply with Tribunal orders without reasonable excuse.

Teresa Bisucci
Deputy President	

Appearances
For Gwendalyn Kelly	No appearance	
For Moonee Valley City Council	William Wheeler, town planner	
For Branson Property Group Pty Ltd	Jane Sharp of counsel, instructed Edward Mahoney, lawyer, Best Hooper, Lawyers	

reasons
background
1	On 24 May 2022 Gwendalyn Kelly (applicant) filed an application under section 82 of the Planning and Environment Act 1987 (PE Act) seeking a review of the decision of the Moonee Valley City Council (council) dated 26 April 2022 to issue a Notice of Decision to Grant a Planning Permit (NOD) that allows:
Use of the land for dwellings, construction of a part-four, part-three storey development comprising two retail premises and 40 dwellings in a Commercial 1 Zone, General Residential Zone and Design and Development Overlay (DDO7), a reduction in car parking requirements and alteration of access to a road in a Transport Zone 2. (proposal)
2	The land the subject of the NOD is 497-501 Keilor Road, 2 Ryder Street and 14 Hotham Road, Niddrie (site).
3	The application was transferred into the Major Case List by order on 26 July 2022.  The application was listed for a compulsory conference on 26 September 2022 for three hours commencing at 10am and a hearing for two days commencing 16 January 2023.
4	The Tribunal’s file contains a note that registry attempted to contact the applicant by telephone before the compulsory conference but could not leave a message.  Consequently, the Tribunal sent the details of the online platform using express post.  However, the applicant says that she did not receive the details of the online platform until after the date for the compulsory conference had passed.
5	Consequently, the applicant failed to attend the compulsory conference which was held via an online platform.  Following that compulsory conference, the Tribunal scheduled a practice day hearing to consider the following:
•	whether the proceeding should be struck out under either sections 75 or 78 of the Victorian Civil and Administrative Tribunal Act 1998.
6	A further note on the Tribunal’s file indicates that the applicant did not receive notification of the compulsory conference until after it had been held.  
7	The Tribunal’s order dated 26 September 2022 listing the proceeding for a practice day hearing was sent to the applicant by post well in advance of the date of the practice day hearing. 
8	The practice day hearing on 14 October 2022 proceeded before me via an online platform.  The applicant did not attend the practice day hearing and I reserved my decision with respect to the respondent’s request for the proceeding to be struck out.  
9	However, immediately following the practice day hearing the Tribunal’s registry was contacted by the applicant advising that she did not have access to a telephone and that due to unforeseen circumstances could not attend the practice day hearing.  
10	In the circumstances, I relisted the practice day hearing to 2 December 2022 and required that appearances be in person rather than on an online platform.  The same order required the applicant to provide to the Tribunal and all parties written submissions explaining the non-attendance at the compulsory conference.  The purposes of the practice day hearing were to consider:
•	the reasons why the applicant did not attend the compulsory conference on 26 September 2022;
•	whether the hearing of this application on 16 January 2023 should be in person at 55 King Street, Melbourne; and
•	whether the proceeding should be struck out under either sections 75 or 78 of the Victorian Civil and Administrative Tribunal Act 1998, if the respondent pursues its application for strike out.
11	The applicant explained that she did not receive details of the online platform until after the date of the compulsory conference had passed.
12	The respondent advised in writing on 21 November 2022 that it would be pursuing its application for the proceeding to be struck out.  This correspondence was sent to the applicant.
13	The applicant did not attend in person and contacted the Tribunal by telephone to advise that she had sent an email either on 1 or 2 December 2022 noting her inability to attend the practice day hearing on 2 December 2022.  I note that the Tribunal does not have any record of receiving such email from the applicant.    
legislative regime
14	Section 78 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) states:
Conduct of proceeding causing disadvantage
(1)	This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as—
(a)	failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)	failing to comply with this Act, the regulations, the rules or an enabling enactment; or
(c)	asking for an adjournment as a result of (a) or (b); or
(d)	causing an adjournment; or
(e)	attempting to deceive another party or the Tribunal; or
S. 78 (1) (f) amended by No. 51/2000 s. 20.
(f)	 vexatiously conducting the proceeding; or
S. 78 (1) (g) inserted by No. 51/2000 s. 20.
(g)	failing to attend mediation or the hearing of the proceeding.
(2)	If this section applies, the Tribunal may—
(a)	order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or
(b)	if the party causing the disadvantage is not the applicant—
(i)	determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii)	order that the party causing the disadvantage be struck out of the proceeding;
(c)	make an order for costs under section 109.
(3)	The Tribunal's powers under this section are exercisable by the presiding member.
Submissions
15	The respondent seeks an order that the proceeding be struck out under sections 78(1)(a) and (g) of the VCAT Act.  
16	It says that the applicant has failed to comply with Tribunal orders without reasonable excuse by failing to attend the compulsory conference and the two practice day hearings.  The respondent says it has been unnecessarily disadvantaged by the conduct of the applicant in the proceeding.  This unnecessary disadvantage includes attending the compulsory conference with its lawyers, architect and planning consultant.  Further, it was willing to participate in the process and engage in discussions with the applicant, but it has been denied this opportunity.
17	The disadvantage now extends to the attendance of two practice day hearings in the absence of the applicant.
18	Council submits that it is a matter for the Tribunal’s consideration.
tribunal determination
Failure to comply with a Tribunal order without reasonable excuse
19	There is little doubt the applicant has failed to comply with Tribunal orders including:
a	Order 7 of the Tribunal order dated 4 July 2022 which states:
All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(Note: See more information in Appendix A of this order).
Appendix A to the order dated 4 July 2022 provides:

b	The above information was repeated in the Tribunal’s order dated 26 July 2022.
c	Order 4 of the Tribunal order dated 26 September 2022 required written submission to be provided addressing the purposes of the practice day hearing scheduled on 14 October 2022.  The purposes of this practice day hearing included whether the application should be struck out;
d	Not attending the practice day hearing on 14 October 2022 using an online platform; and
e	Not attending the practice day hearing on 2 December 2022 in person. 
20	Further, I note that all Tribunal orders include the following information:
The details of the online platform will be provided to the parties before the hearing.
21	I am aware that the applicant does not have access to a computer or a telephone thus, making communication with the applicant very difficult.  However, the Tribunal has made all reasonable attempts to contact the applicant including by sending orders using express post.  I note in passing that the respondent has also used various means of communication to contact the applicant, to no avail.  This is supported by the following correspondence to the Tribunal:
We continue to act on behalf of the Respondent/Permit Applicant in relation to the abovementioned proceedings. We refer to the abovementioned party list, which details that the Objector Applicant for Review does not have a contact phone number nor email address, thus the only way to communicate with her is via the post. Our client has made four separate, in person, visits to the address listed in the Application for Review and instructs us that the property may be unoccupied. The Respondent/Permit Applicant does not wish to be in the position at the compulsory conference where the Objector Applicant for Review does not attend the compulsory conference due to issues in not being able to access an online platform. 
Noting the above, our client seeks clarification from the Tribunal whether the platform to conduct the compulsory conference on 26 September will be online via Zoom or whether it will be facilitated at 55 King St, Melbourne in person?
The Respondent/Permit Applicant foreshadows that should the Objector Applicant for Review (or representative of same) not attend the compulsory conference (whether it is facilitated online or in person), the Respondent/Permit Applicant will seek to strike out the proceeding considering attendance at the compulsory conference is compulsory. 
We wish to bring this to the attention of the Tribunal so that this is considered in advance of the scheduling of the compulsory conference either online or in person. 
22	I accept the Tribunal’s registry staff sent the information regarding the online platform for the compulsory conference late, such that the applicant could not readily attend.  I find that this provides the applicant with a reasonable excuse for not attending the compulsory conference.  However, the applicant has been on notice from the very first order dated 4 July 2022 that the proceeding would occur using an online platform and should have made arrangements to assist her to attend in those circumstances.  Further, as the compulsory conference date approached the applicant could have contacted the Tribunal seeking the relevant details.  None of this occurred.  
23	The submissions relied upon by the respondent for the practice day hearing scheduled on 14 October 2022 were sent by courier to the applicant.
24	The applicant has received the Tribunal orders dated 26 September 2022 and 19 October 2022.  This is evident because the applicant called to advise she could not attend either of the practice day hearings.  
25	I listed the practice day hearing on 2 December 2022 at 55 King Street, Melbourne.  In other words, the practice day hearing was conducted in person to allow the applicant to attend noting, the lack of access to a computer and a telephone.  However, the applicant did not attend and instead advised the Tribunal’s registry of her inability to attend the practice day hearing after it had occurred.
26	Whilst I am sympathetic to the applicant’s situation, and I have provided her with an opportunity to attend including in person, I have not been provided with a reasonable excuse for her non-attendance at either practice day hearings.  The applicant was advised well in advance of these practice day hearings but did not attend and on each occasion advised the Tribunal’s registry after the practice day hearing had taken place that she was not able to attend.
27	In these circumstances, the applicant has conducted the proceeding in a manner that has unnecessarily disadvantaged the respondent because she has failed to comply with Tribunal orders without a reasonable excuse.  In particular, the applicant has not advised the Tribunal or the parties that she would not be able to attend the practice day hearings until after they had occurred.  That is conduct that has unfairly disadvantaged the respondent and the council.  
Failure to attend a mediation or hearing
28	The examples of non-attendance by the applicant have been set out earlier. It is by no means certain that a compulsory conference is either a mediation or a hearing for the purposes of section 78(1)(g) of the VCAT Act.  
29	Further, it is not clear whether a practice day hearing is a hearing for the purposes of section 78(1)(g) of the VCAT Act.  
30	I do not have the benefit of any fulsome analysis of these issues from the respondent.  On that basis, and given my determination above, I do not make any findings about whether a compulsory conference constitutes a meditation or a hearing for the purposes of section 78(1)(g) of the VCAT Act.
31	I note in passing that the purposes of the practice day hearing have included a consideration of the respondent’s request to have the application struck out.  To that end, the applicant was on notice that the Tribunal would be determining this request and that a final order may be made at the practice day hearing. In such circumstances, a practice day hearing may constitute a hearing for the purposes of section 78(1)(g) of the VCAT Act.  However, I do not finally determine this issue in this proceeding.
conclusion
32	Having regard to the above, I find that the applicant has conducted the proceeding in a manner that has unnecessarily disadvantaged the other parties because she has failed to comply with Tribunal orders without reasonable excuse namely, she has not attended the two practice day hearings.  Therefore, the proceeding is struck out pursuant to section 78(1)(a) of the VCAT Act.

Teresa Bisucci
Deputy President