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[2005] VCAT 2092
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2005-10-04
Stuart Morris J
Original judgment source is linked above.
1 The application for an enforcement order is dismissed.
2 The applicant (Bayside City Council) must pay to the respondents (Darren Hunter and Sandra Margate) the sum of $6,000 within 28 days of the date hereof in respect of the costs of this proceeding.
1 On 17 June 2005 I made certain orders concerning an application by the Bayside City Council for an enforcement order in this proceeding. One of those orders was to refuse the application for an enforcement order at that stage; and to indicate that, in the event that the responsible authority did not bring the matter on within two months of that date, the application was to be dismissed. The responsible authority did not seek to bring the matter on within the specified time. Consequently I now order that the application be dismissed.
2 On 17 June 2005 I also reserved costs and directed that, if there was no further hearing, any such application would be dealt with in writing. The respondents (Darren Hunter and Sandra Margate) have now applied for an order that the responsible authority pay their costs. This application was supported by a detailed submission prepared by Middletons, Lawyers. The submission states that the total costs, including the costs of the present application, were $13,907.66. The submission further states that the respondents would accept an order for two-thirds of their total costs, that is an order in the sum of $9,271.76. The responsible authority has replied to the respondents' written submission and referred the tribunal to a number of authorities in relation to costs.
3 The facts of the application are sufficiently set out in the reasons for the order dated 17 June 2005. It is apparent that the responsible authority sought an order to stop the construction of a tennis court in circumstances where there was no basis for the application.
4 Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 commences with the principle that each party is to bear their own costs in a proceeding. This principle is subject to the tribunal having power to order a party to pay costs if it is satisfied that it is "fair to do so" having regard to a number of factors.
5 In Solid Investments Australia Pty Ltd v Greater Geelong City Council[1] I commented:
The power of the tribunal to order that a party pay costs is discretionary; and because it turns upon fairness the discretion is a broad, sweeping one. For this reason, and because every case is different, it is difficult to articulate clear principles that promote predictability in relation to costs, notwithstanding the obvious attraction of promoting certainty.[2]
6 Earlier in Sweetvale Pty Ltd v Minister for Planning[3] I had sought to identify a number of factors that would make it "more likely" that the nature and complexity of a proceeding would make it fair to make an order as to costs. One of these was if the proceeding failed and was of a type where a party had asserted a right which it knew, or ought to have known, was tenuous. In Sweetvale that factor was an important part of the mix of factors that swung the balance in favour of an order for costs. By contrast, in Stonnington City Council v Blue Emporium Pty Ltd[4], a case decided after Sweetvale, I refused to make an order for costs in the context of an application for an interim enforcement order.
7 Although I understand the call for greater certainty and predictability in relation to costs[5] this is difficult when the guiding principle is fairness and the facts of each case will vary significantly. Hence, rather than seek to set down general principles, I will confine my attention to the circumstances of the present case.
8 I am persuaded that it is fair to require the council to pay costs incurred by the respondents in this proceeding, having regard to the following factors, taken together. The proceeding was in the tribunal's original jurisdiction, not its review jurisdiction. The proceeding failed and was of a type where the responsible authority had asserted a right which it ought to have known was tenuous. Further a practice has developed where, in clear-cut cases, a responsible authority is awarded its costs when it succeeds in an enforcement application.[6] There is no reason why the practice should not operate in reverse.
9 I wish to stress that the purpose of awarding costs is not to punish the responsible authority. Moreover the fact that costs are awarded against a responsible authority does not necessarily imply any criticism of the authority or its conduct. Rather the purpose of an award of costs is to compensate a person who has incurred costs in circumstances where it would be unfair to require that person to be liable for the costs.
10 In the circumstances facing the respondents, I find that it was reasonable that they incurred legal costs. As matters have transpired, to require them to now pay all those costs is unfair, because the proceeding should not have been brought against them. Hence it is fair that the responsible authority pay a reasonable sum to compensate the respondents in respect of those costs.
11 Section 111 of the Victorian Civil and Administrative Tribunal Act provides that if the tribunal makes an order for costs the tribunal may fix the amount of costs itself. In my opinion, in cases where the amount of costs are less than $10,000, it is generally desirable that the tribunal fix those costs rather than order a further process, that will inevitably incur further costs, to resolve the matter. Inevitably there will be an element of judgment when it comes to fixing costs, informed though it will be by actual bills which have been prepared in the matter. In exercising this judgment the tribunal is entitled to bring to bear its own experience, not only in respect of legal costs, but also as to the legal work that would be usually involved in particular proceedings.
12 Applying these principles to the present circumstances, I regard a fair and appropriate order to be one whereby the responsible authority is required to pay the sum of $6,000 in respect of the respondents' costs.
[2] [2005] VCAT 244 at [4].
[5] See, for example, Terry Montebello "Costs in the VCAT Planning List", a paper presented at the launch of the 2nd edition of Pizer's "Annotated VCAT Act", 20 July 2004.
[6] See, for example, Bayside City Council v La Fontaine, Morris J, 12 November 2004.
Bayside CC
Hunter [2005] VCAT 2092