For the Responsible Authority: Ms Lane of Maddock Lonie and Chisholm

1. This request to cancel or amend Permit No. 859/98 issued by Stonnington City Council as Responsible Authority under the Stonnington Planning Scheme was before the Tribunal twice. The proceeding was filed on 22nd December 1999 and on 23 December an application for urgent interim relief by way of a "stop" order pursuant to Section 93 of the Planning and Environment Act 1987 was heard and determined by M.F. Macnamara, Deputy President, who declined to grant the interim relief. On 6 and 7 March 2000 the matter came on for hearing before the present Tribunal which dismissed the request. On the second occasion there was a concurrent proceeding seeking a declaration pursuant to Section 149B of the Planning and Environment Act that the permit was void. This declaration application was heard by M.F. Macnamara, Deputy President, who declined to make the declaration sought.

2. It is unnecessary for us to repeat the circumstances and facts surrounding the proceedings which are set out in the Tribunal's determinations given on 23 December 1999 and 20 March 2000.

3. Consequent upon the dismissal of the request both as to interim and final relief, one of the permit holders, Glenneagles Homes Pty Ltd and the Responsible Authority, the City of Stonnington, have sought orders that the requestor, Mr Kirby Clarke Adams, pay their costs of the proceedings.

4. Mr Pitt of Best Hooper on behalf of Glenneagles Homes Pty Ltd submitted that Mr Adams should pay his client's costs. He observed that the application for interim relief was brought on at very short notice on 23 December in circumstances where it was difficult for Glenneagles to obtain prompt professional advice. Glenneagles was further disadvantaged by the fact that it purchased with the benefit of the permit which was under attack. It was not acquainted with the circumstances surrounding the grant of the permit. Moreover, at that time Glenneagles had not previously been a party to proceedings in the planning jurisdiction of this Tribunal or any of its predecessors. Mr Pitt's firm was retained for the first time to advise on the evening of 21 December. According to Mr Pitt he prepared his client's case on 22 December and the application commenced at midday, terminating at 6.15 p.m. He had charged his client the sum of $15,040 by way of costs and disbursements which consisted principally of daily fees of $3,500 charged for his services and the sum of $3,500 charged by a planing consultant, Mr Rodda who gave evidence on behalf of Glenneagles at the hearing in March. According to Mr Pitt, since the permit under attack affected some three separate lots with houses which had already been "onsold" for in one case a price exceeding $1m, the project challenged could legitimately be regarded as a "multi million dollar development".

"The application for costs is made on the ground that the applicant for review, having had the advice of an experienced member of Counsel regularly practicing in the town planning jurisdiction, must have been aware that the basic cause of complaint namely alleged unreasonable overlooking at an obtuse angle over a distance of 20m across a public road was an untenable basis for the relief which he sought."

6. He referred to a decision of Gobbo J. (as His Honour then was) in the matter of J. & C. Cabot v City of Keilor [1994] VicRp 14; [1994] 1 VR 220 and submitted that:

"These proceedings are vexatious being brought for collateral purposes immediately before Christmas in an endeavour to force a compromise not warranted on the merits and, also, irrespective of the motive of the applicant for review, they were so obviously untenable or manifestly groundless as to be utterly hopeless."

7. Ms Lane of Maddock Lonie and Chisholm represented the Responsible Authority. She said that her client was obliged to obtain legal representation rather than merely attending the hearings represented by one of its planning officers because of:

(a) the short notice upon which the interim application was made;

(b) the complexity of the proceeding being one seeking a cancellation or amendment of a permit; and

(c) the fact that if the permit were cancelled or amended the Responsible Authority might be held liable to compensate the permit holders pursuant to the Planning and Environment Act.

8. She said that her firm had charged the Responsible Authority $4,000 for representation in the proceeding. She referred to Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998 which authorised the award of costs against a party who advances a claim which has "no tenable basis in fact or law" and submitted that having regard to Mr Adams' delay in bringing his proceeding, as to which the Tribunal made findings in its determination of 23 December, the claim had no prospect of success and therefore the costs order should be made.

9. Ms Brennan of Counsel who appeared on behalf of the Requestor placed primary reliance upon Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 which states that as a general rule costs in the Tribunal should lie where they fall. She said that the costs claims made against her client seemed to be based upon the contention:

10. She noted that Gobbo J in the matter of J. & C. Cabot and Zukanovic v City of Keilor (1992) 11 AATR 87 had adopted as applicable to Section 150(4) of the Planning and Environment Act 1987 and Section 58 of the Planning Appeals Act 1980 the formulation of what constituted vexatious proceedings adopted by Roden J. in Attorney-General v Wentworth (´988) 14 NSWLR 481, 491. Judged by that standard she said that Mr Adams' application was brought for no illegitimate purpose but rather "from a concern to protect his home and private open space from overlooking". Further, she submitted that Mr Adams' claim was not utterly hopeless. She referred to findings made by the Tribunal in its determination of 23 December 1999 that there were serious issues to be tried as to a number of matters. She observed that Mr Kirby was deprived of the opportunity of giving evidence at the final hearing because the Tribunal declined to grant an adjournment and therefore "little evidence was available to the Tribunal as to when Mr Kirby became aware of the facts upon which his request was based". She noted that we had specifically abstained from saying that there could never be a case of unreasonable overlooking across a public highway or at a distance of more than 9m and therefore viewed in terms of its planning merits the case put by Mr Adams was not "utterly hopeless". She said "to the extent that the requestor was prejudiced in the conduct of its [sic] case by refusal of the adjournment, it is submitted that the requestor should not now be further penalised by an order for costs on the basis of the relative strengths of the claims made by the parties".

11. Ms Brennan submitted that there was no ground for adopting some special approach to this proceeding because it was a request to cancel or amend a permit rather than an ordinary permit review application. Had Parliament intended special rules to apply to proceedings such as this it would be expected to have said so.

12. As a secondary submission Ms Brennan said that if any costs were to be awarded against her client they should be in far more modest quantum than was claimed by Glenneagles and the Responsible Authority. She said that if contrary to her submission an award of costs was thought appropriate it should be fixed by reference to County Court Scale "B".

13. Since frequent reference is made in submissions to Section 109 of the Victorian Civil and Administrative Tribunal Act and since this is the provision which governs the award of costs in this proceeding, it is appropriate to set the section out in full.

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to--

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as--

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding."

14. A number of things emerge from the Section, first, as Ms Brennan submitted, it creates a presumption that costs in the Tribunal lie where they fall. Secondly, it makes such extensive provision for departure from that general rule that it is fair to say that the section provides a very wide discretion indeed. It might be thought in one sense to say everything and given the width of its discretion in another sense to say nothing as to how the issue of costs should be dealt with in any proceeding. Further, the section applies across a vast range of the Tribunal's jurisdiction. In some cases such as the Transport Accident Act 1986, Section 79(2) specific provision is made in enabling enactments for the award of costs in proceedings brought pursuant to them. More usually the general provisions of Section 109 prevail. Given this generalist approach to costs across the Tribunal and the fact that in accordance with Section 109(3)(d) the Tribunal is authorised and perhaps required to consider "the nature" of any particular proceeding in which a costs application is made, it is not to be expected that differential approaches are not appropriate given the particular nature of a proceeding in which a costs issue arises. Differential approaches based on the nature of an application may be appropriate within particular Lists. We reject the contention that the very nature of a request to cancel or amend a permit may not be a factor pointing to a different costs treatment for such a proceeding to the one which would be appropriate in an ordinary permit review application.

15. The presumption that costs should lie where they fall in proceedings under planning enactments pre-dates Section 109(1) of the Victorian Civil and Administrative Tribunal Act. It applied with equal force under Section 58 of the Planning Appeals Act 1980 (formerly the Planning Appeals Board Act) which governed the award of costs in the Planning Division of the Administrative Appeals Tribunal and in the former Planning Appeals Board. Nevertheless this Tribunal and its predecessors have been far more ready to depart from the presumption that costs lie where they fall where the proceedings are for enforcement or cancellation of permits. See Powell v Shire of Yarra Ranges (1994) 14 AATR 99, 101n. An ordinary permit review application is a dispute as to the discretionary application of policy. It can be heard and determined without the acceptance or rejection of particular propositions of fact or law relied upon by the antagonists. Enforcement or cancellation or amendment proceedings in contrast generally do entail in their adjudication the acceptance or rejection of particular propositions of fact or law. The evidence is generally taken on oath as was the evidence in this proceeding. All in all these proceedings bear a far greater resemblance to proceedings in court than do ordinary permit review applications.

16. In our view the nature of the present proceeding is in itself a factor which justifies a departure from the general rule laid down by Section 109.

17. Despite refusing to rule out the possibility that there may be unreasonable overlooking across a public road or at a distance more than 9m we are of opinion that the contention advanced on Mr Adams that in his particular circumstances, namely overlooking across a public road, upon a substantial offset and over 20m the overlooking was unreasonable is untenable. We also conclude that having regard to the fact that the now permit holders are purchasers or sub-purchasers, the delay entailed in Mr Adams bringing this proceeding rendered it so highly unlikely that relief would be given under Section 87 that for this reason too, his claim is to be regarded as untenable. We regard Mr Adams absence from the hearing in March as his own responsibility. Nevertheless given the extensive evidence and cross-examination to which he was subjected on 23 December 1999 and the findings which the Tribunal made on that day, we cannot accept that anything that he might have said in March this year could have changed the finding which the Tribunal made on 23 December 1999 that the delay in bringing the request would justify the Tribunal in refusing "to even consider the request" (see paragraph 20 of the reasons).

18. We also conclude that Mr Adams could be regarded as having vexatiously conducted the proceeding by bringing the application for an interim "stop" order on such short notice the last business day before Christmas when he had had ample opportunity in the previous weeks to bring the matter on at a more convenient time. Despite the fact that the Tribunal's determination on 23 December found that there were serious issues to be tried as to a number of preliminary matters, in light of the findings made as to the delay in bringing the request, the Tribunal concluded at the end of Paragraph 40 of its reasons that "there is not a serious issue to be tried with respect to the relief which is sought by this applicant as final relief". That was a clear and accurate prophecy of the outcome of the proceeding in March, yet the permit holders and the Responsible Authority were required to outlay further money and trouble in preparing for a further hearing.

19. In summary we are satisfied that both the nature of this proceeding, the circumstances in which it has been bought and its merit or lack of merit amply justify a departure from the general rule that costs should lie where they fall.

20. The question of the quantum of costs claimed raises some more difficult issues. The permit holder, Glenneagles Homes Pty Ltd and the Responsible Authority are seeking a full indemnity for the costs which they incurred in this proceeding. Costs on a full indemnity basis are an exceptional thing even in the court system. Despite all that we have said we do not believe that the matters to which we have made reference either singularly or in combination justify the extreme step of awarding costs on a full indemnity basis. An obvious solution would be to order that the costs claimed by the Responsible Authority and the permit holder be taxed in accordance with a particular scale. Application of such a scale would entail the fixing of a sum of money substantially less than the actual cost to the party claiming recovery. That being a sum which according to established principle in court is regarded as "doing justice" between the parties. If we were to take this course, both Glenneagles Homes Pty Ltd and the Responsible Authority would be required to prepare bills in taxable form. This is a costly and time consuming process. The taxation fees and the cost of preparation of the bill would be payable by the requestor. Mr Pitt urged that we should spare him and his client the trouble of this process.

21. In the circumstances we are persuaded that a more generalist approach fixing a figure which in light of the general principles of taxation of costs would "do justice between the parties" without providing a full indemnity to the beneficiary of the costs orders. Conformably with this approach we believe that the amounts claimed by each of Glenneagles Homes Pty Ltd and the City of Stonnington should be reduced by one-third.