AML v Longden Super Custodian Pty Ltd

[2023] VSCA 118

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Procedural fairness
4. › Materiality of breach
5. › Whether breach deprived applicant of realistic possibility of different outcome
6. › Whether applicant required to articulate specific course of action
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
1. Practice and Procedure
2. › Interlocutory injunctions
3. › Serious question to be tried
4. › Balance of convenience
5. › Application for injunction pending appeal from summary dismissal of VCAT appeal
6. › Whether primary judge erred in exercise of discretion
1. Practice and Procedure
2. › Leave to appeal
3. › Decision on matter of practice and procedure
4. › Appellate caution and restraint
5. › Whether arguable error of law demonstrated

Quick Take

The materiality requirement for procedural fairness breaches, as stated in SZMTA and Nathanson, applies in the VCAT context: an applicant must demonstrate that the breach deprived them of a realistic possibility of a different outcome. The passage in Nathanson stating that an applicant need not 'articulate a specific course of action' does not relieve the applicant of the obligation to demonstrate materiality; it merely establishes that where a party was denied an opportunity to present evidence or submissions on a relevant issue, there will generally be a realistic possibility of a different outcome. However, where an applicant is given repeated opportunities to identify what arguments they would have advanced and declines to do so, the breach will not be shown to be material.