VCAT Required to Ensure a ‘Fair Hearing’ under the Charter

Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 (23 June 2008) This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog.  During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions were made that VCAT had failed to abide by the principles of natural justice and the Charter.

The matter was heard by Philip Martin, the Presiding Member, and David Rae, Member.

The members determined that the Charter applied to the proceedings and must be complied with, particularly the fair trial requirement under s 24.  The members determined that, as VCAT was reviewing the failure of the Council to make a decision in the statutory period, VCAT constituted a tribunal ‘acting in an administrative capacity’ as per s 4 (1)(j) of the Charter (and presumably constituted a public authority that must act compatibly with the Charter).

However the members rejected the argument that s 24 now requires all VCAT site inspections to be accompanied.  In relation to natural justice issues raised generally, the members determined that the VCAT Act 1998 (Vic) provides VCAT with broad powers as to how it conducts its hearings and VCAT is not required to conduct hearings in the same manner as court proceedings.  VCAT is intended to be less formal than a court and VCAT hearings should take place with ‘as much speed’ and ‘ little formality and technicality’ as possible, in accordance with the VCAT Act.  The members determined that in this instance VCAT had followed a fair process, consistent with natural justice principles, and had complied with the Charter right to a fair trial.

While receptive to Charter arguments, the members were critical of the applicant’s failure to refer to any relevant case law from comparable overseas jurisdictions with a human rights charter, as is permitted by s32(2) of the Charter.

The decision is available at

Melanie Schleiger is a lawyer on secondment to the HRLRC from Lander & Rogers