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In person listings unlikely to be varied – learnings from the Tribunal
In person listings unlikely to be varied – learnings from the Tribunal in Leon Park Pty Ltd v Mornington Peninsula SC [2022] VCAT 1373
What is the case about?
In the recent decision of Leon Park Pty Ltd v Mornington Peninsula SC [2022] VCAT 1373 (Leon Park), the Tribunal considered a request from Council’s advocate that the hearing be converted from an in person listing to a hearing via online platform. The basis for the request was due to the advocate being unavailable to attend in person due to the holiday period and in instances where they had accepted the brief initially given the online listing (meaning they could still attend their holiday and log on remotely to appear).
The parties to the proceeding did not have any objection to this request.
What did the Tribunal say?
The Tribunal, constituted by Deputy President Bisucci, ultimately determined that the hearing would remain in person.
Council submitted that the in-person listing would result in a significant inconvenience due to travel arrangements that had been made, the circumstances in which they accepted the brief and the timeframe between receiving notice of the in person hearing and the listing date.
In considering these submissions and coming to its view, the Tribunal noted that section 100(1) of the Victorian Civil and Administrative Act 1998 (VCAT Act) provides that “if the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication” and the consideration of what is ‘appropriate’ for the purpose of the Tribunal’s discretion must be undertaken having regard to circumstances such as access to justice, procedural fairness, and the principles of natural justice.
The Tribunal, in coming to its decision, drew a distinction between mere convenience and access to justice, denial of procedural fairness or breach of natural justice and remarked as follows:
“[20]
I understand and accept that the conduct of VCAT’s business primarily online has allowed parties and their representatives to appear from varying locations including whilst on leave or when businesses were closed. However, that convenience has changed and will continue to change rapidly in the post restriction environment.[21]
I also accept that it may be more convenient for parties to appear online in perpetuity, but ‘convenient justice’ is vastly different from ‘access to justice’. Convenience imports a notion of ease whereas ‘access’ deals with opportunity or means. Convenience permitted PED to deliver justice in the darkest of times of the pandemic environment. However, the time has come where the delivery of justice is to be optimised including by the return to an in person environment.”[our emphasis]
What does this mean moving forward?
The decision of the Tribunal in Leon Park makes it expressly clear that in the absence of establishing denial of access to justice or procedural fairness, in person listings are unlikely to be varied.
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