Country Endeavours Pty Ltd v Baw Baw SC

This is the fourth preliminary hearing or directions hearing that I have conducted in relation to these various proceedings. In relation to each previous hearing I have made interim orders and given written remarks or reasons. So far as relevant I adopt what I have said already in relation to these matters.
The first hearing was on 18 September 2009. That was an urgent application by Country Endeavours Pty Ltd (Country Endeavours) for an immediate stop development order pursuant to Section 93 of the Planning and Environment Act 1987 (PE Act). That urgent application was made in relation to Country Endeavours' request under ss 87 and 89 PE Act for cancellation of Planning Permit Number PLA 0010/07 issued by the responsible authority on 3 March 2009 at the direction of this Tribunal in its determination of the case of Giles & Others v Baw Baw SC & Casacir Pty Ltd.[2] That case had been heard by two members of the Tribunal[3] over 12 days at the end of 2008 or thereabouts.
At the time of the urgent stop order application before me a directions hearing in relation to the cancellation request had been fixed for hearing on the following Friday, 25 September 2009.
At the stop development hearing Ms Virginia Giles, secretary of Country Endeavours, who is not a lawyer or a planner, appeared for the company. In spite of warnings that it would be necessary to demonstrate genuine urgency and that orders for costs might be made against the applicant, she insisted that the matter was so urgent that it had to proceed on 18 September 2009 and could not wait until 25 September 2009.
The application was refused for several reasons including lack of urgency, that the basis of the request and the grounds upon which it was made could not be discerned, whether there was such a basis could not be ascertained and the refusal of Country Endeavours to give an undertaking as to damages.
In the course of that hearing I went to some trouble seeking to explain the situation to Ms Giles, what would be required for the request to be successful or to enable it to proceed; as well as why the urgent stop order application was being refused.
In written remarks attached to the interim order dated 21 September 2009 I again went to some trouble seeking to explain the situation including that it would be necessary to establish grounds under Section 87(1), and why it was not apparent that such grounds existed. It was clear that Ms Giles had misapprehended or misunderstood at least significant portions of Section 87(1).
The originally appointed preliminary hearing then proceeded on 25 September 2009, and a written document containing interim orders and further remarks and explanations were dated 12 October 2009. On this occasion Country Endeavours was represented by a barrister namely Andrew Walker who appeared on the instructions of his client company. The needs and shortcomings of the request were discussed in the course of the hearing with reference to the legislation and to the previous written remarks. It appeared to me to be very doubtful as to whether there was a basis for the cancellation request. Mr Sowden, barrister who appeared for Casacir Pty Ltd, David Jeffrey and Thomas Curnow on that occasion wished to pursue an application under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) for dismissal of the request proceeding as being frivolous, vexatious, misconceived, lacking in substance and otherwise an abuse of process. I declined to proceed with that application at that stage and gave Country Endeavours and its barrister an opportunity to consider whether it wished to proceed.
Mr Walker had received his instructions only shortly before the hearing. It was contemplated that he would consider the matter and tender advice, indeed he asked for a longer period to undertake this work than I had originally intended to extend to him.
Ultimately, the further hearing was adjourned to 20 November 2009 on the basis that the requestor company was to advise the registrar of the Tribunal and the other parties by 16 October 2009 in writing as to whether the request was to proceed. If it was, then a further direction required the company to file and serve an amended request specifying certain things by close of business on 30 October 2009. I certainly anticipated that Mr Walker would be involved and that, by means of these directions, it would be established whether the case was to proceed or be withdrawn, and if proceeding, that it would be put on a proper basis.
My assumptions in this respect were not realised in that further actions pursuant to the directions were performed by Ms Giles as secretary of Country Endeavours without any reference being made in what was filed and served pursuant to directions as to any further participation by Mr Walker. There was just a very brief note by 16 October 2009 that Country Endeavours wished to proceed. This was followed on 30 October 2009 with a further brief communication that Country Endeavours would not be filing an amended request in accordance with the directions given on 25 September 2009. I assumed from this, when I became aware of it, that this meant that the request would be withdrawn after all, and that the case resolved in that way.
My expectations in that respect were not realised. At the adjourned hearing on 20 November 2009 Mr Craig Porter, barrister, appeared for Country Endeavours. No withdrawal was sought. Again the Respondent company pressed for dismissal pursuant to Section 75 VCAT Act. Nevertheless, I extended to Country Endeavours yet another opportunity to reframe its request into a workable and manageable form. Again, in the course of the hearing on that day, and in the subsequent written interim orders and remarks dated 27 November 2009 these matters were discussed explained and recorded.
One of the things that I had said, which would have been obvious enough to the barristers involved, was that a requestor is required to set out, in a clear and succinct way, the material facts that are being relied upon to establish the grounds for the request. It is not at all satisfactory to provide a great volume of undifferentiated and confused documentation, and then expect the Tribunal and the other parties to sift through it trying to work out whether the requestor has a case and guess at what the basis of that case might be. Nevertheless, during and about December 2009 the already voluminous material from Country Endeavours added so as to create an unmanageable and confusing mass of material.
On 20 November 2009 I made orders for costs against Country Endeavours in favour of the other respondents in respect of the hearing on that day. Costs in relation to the previous hearings, and of the proceedings generally were reserved.
By 20 November 2009 the number of proceedings had also increased with the commencement, by Country Endeavours, on applications P3041/2009 for declarations under the Water Act and P2943/2009 for an enforcement order under Section 114 PE Act.
At the hearing on 12 February 2010, Dr Sadler, the barrister by then appearing for Country Endeavours, sought leave to withdraw the request proceeding. He sought to portray this proposed withdrawal as virtuous, and on the basis that its substance was better covered by the enforcement application with which his client still proposed to proceed.
I am unable to accept that this adequately accounts for the situation. Notice that leave to withdraw would be sought was only given to other parties several days before the hearing on 12 February 2010 and it does not account for the repeated failure or refusal to comply with directions or carry out things undertaken to be done to put the request proceedings in order. Indeed, Ms Giles originally insisted on the request proceedings and eschewed enforcement proceedings. It may well be that the proposed withdrawal is as a response to advice and a realisation that the request proceedings are untenable, as has been maintained throughout on behalf of the respondent company.
Throughout these proceedings, up till and including 12 February 2010 I have been unconvinced that there has been any proper basis for the request proceedings, but I have been prevailed upon to give Country Endeavours successive opportunity to demonstrate to the contrary. It has failed to do this, and I conclude that this failure is because, when properly examined by a competent barrister, it has been found that the proceedings are at least lacking in substance. If the request proceeding had substance there is no reason why it could not now proceed in parallel with the enforcement application.
The response of the responsible authority and the other respondents to the application for leave to withdraw is that they will consent to that but on the basis of seeking orders for costs. These applications for costs are resisted on behalf of Country Endeavours.
I think there is no good reason to refuse leave to withdraw when the requestor no longer wishes to proceed. However, there is a serious issue in this case as to the question of costs, including costs of the request proceedings generally and in relation to the reserved costs as to two of the previous hearings and the hearing on 12 February 2010, which includes the dispute about costs.
I am satisfied that orders for costs should be made against Country Endeavours in favour of the responsible authority and the other respondents. I am now satisfied that the request proceeding has always lacked substance and was substantially based on misconceptions and misunderstandings in the mind of Ms Giles. Furthermore, the way the matter has been conducted on behalf of Country Endeavours has been vexatious, and an abuse of process and quite a pronounced example of a proceeding conducted in such a way as to unnecessarily disadvantage the other parties generally and by failing to comply with orders and directions of the Tribunal. That has been in spite of warnings, opportunities and invitations to consider and reconsider whether that case should proceed.
There was some debate at the hearing as to the terms and the application of various provisions in the VCAT Act relating to the power of the Tribunal to make orders for costs in such circumstances. These discussions included whether particular provisions such as sections 75(2), 74(2)(b) and 78(2)(c) are separate powers from section 109, or wider than Section 109 or invocations of section 109. Section 109 is the general power giving the Tribunal jurisdiction to make orders for costs. In this connection I was referred to relevant portions of the Butterworths publication entitled "Planning and Environment Victoria" and also to "Pizer's Annotated VCAT Act" where some conflicting authorities are discussed. I do not consider it necessary, for the purposes of this case, to go into those matters. I am satisfied that orders for costs should be made and they are well justified under Section 109 and/or Section 74. I am satisfied that it is fair to do so having regard to the relevant considerations under both provisions.
As to quantum, the various parties have asked me specify the basis for costs to be agreed between the parties or, failing agreement, to be taxed by the new Costs Court.
The responsible authority seeks its costs on the basis of Scale "D" of the County Court scale whereas Mr Peake, the barrister appearing for the other respondents, has sought the Supreme Court scale. I consider that the County Court scale "D" is the appropriate scale.
It has further been suggested that costs should be on a solicitor and client basis, rather than a party/party basis, and on the basis of indemnity costs on and from 16 October 2009.
I propose to order costs in relation to the request proceeding on scale "D" of the County Court scale, on a party and party basis (excluding costs already ordered in relation to the November hearing) and on the basis that half of the hearing on 12 February 2010 is attributable to the request proceeding.
The proliferation of cases by Ms Giles and her company include application P3041/2009. The applicants in that case are Country Endeavours Pty Ltd and Shapher Pty Ltd. Ms Giles is a director or the director of Shapher Pty Ltd whilst also being the secretary of Country Endeavours Pty Ltd. The respondents are given in the initiating document that is Baw Baw Shire Council, Southern Rural Water, West Gippsland Catchment Management Authority, Casacir Pty Ltd, David Jeffrey and Thomas Curnow. The proceeding purports to be an application for declarations pursuant to Section 305A of the Water Act 1989 (W Act).
Dr Sadler, appearing for the applicant companies, indicated that they no longer wished to proceed with this application. Notice was given of an intention to apply for amendments to the proceeding which would transform it into a claim under Sections 15 and 16 W Act for damages in relation to alleged interferences with the flow of water from other land onto land of the applicant companies. Such a claim is the present equivalent of a civil claim for damages, and is, in my opinion, entirely different from the existing proceeding pursuant to Section 305A W Act. A proposed Statement of Claim for such a claim has been provided.
Dr Sadler sought orders to either consolidate the proposed damages claims under Sections 15 and 16 W Act with the current proceedings between the parties that, following the hearing of 12 February 2010, will still be ongoing. That continuing proceeding will be the application P2943/2009 by Country Endeavours for an enforcement order pursuant to Section 114 PE Act. If not consolidated, then Dr Sadler would seek to have the Section 15 and 16 W Act claim heard together with the enforcement application. He says that there is some, or some substantial overlap of evidence between them.
This suggestion was resisted on behalf of the responsible authority and the respondents to the enforcement application. The proceedings are entirely different in their nature and as to their legal basis. The parties are different, and not co-extensive. The responsible authority is not and would not be a party to the W Act proceeding and it has no interest in that matter if it eventuates. Differing standards of proof may be relevant, and the time required for the hearing would probably be extended to the disadvantage of parties not involved in both. It would also considerably complicate both cases, their documentation, preparation, presentation, consideration and determination. While I do not doubt that Dr Sadler, in making this suggestion, is seeking a convenient, expedient and time-saving way of dealing with things, I do not think that this suggestion is at all prudent or expedient and I do not propose accede to it. That is notwithstanding that it would probably be possible to constitute a suitable Tribunal of members allocated to both of the Planning and Environment List and the Real Property List.
The Planning and Environment List of this tribunal does not have jurisdiction in relation to such a proceeding. Such matters are allocated to the Real Property List of the Tribunal. The current Section 305A proceeding is a matter registered in the Planning and Environment List.
In my opinion this would be an entirely new and entirely different type of proceeding, and not an amendment to the existing one. Furthermore, I think that it is inexpedient to attempt to graft it onto the present proceeding. I am satisfied that the appropriate course is for a separate claim to be commenced in the correct list, and for it to be dealt with according to the practices and procedures of that list.
I put it to Dr Sadler that the more appropriate course would be to discontinue the existing Section 305A proceeding and to commence the foreshadowed new claim in the correct list. He indicated that his clients would be happy with that course except that they apprehended and feared that they would be confronted with applications from existing respondents in the existing proceeding for costs if they sought leave to withdraw.
In the event no such orders for costs were sought by respondents except for the clients of Mr Peake. On their behalf Mr Peake sought costs to date on a solicitor and client basis and based on the Supreme Court scale. He considered that the amount involved would not be large as some, but not very much work had been expended so far on the Section 305A case.
I do not doubt that there has been some work of that sort, even if in the context of the several current proceedings. Nevertheless I do not think that, there are circumstances, this would warrant the making of an order for costs if the Section 305A proceeding was to be withdrawn or discontinued at this stage. Accordingly, I propose to strike it out with no orders as to costs.
It is foreshadowed on behalf of Country Endeavours, that it intends to commence another new proceeding pursuant to Section 83 W Act. It is out of time to commence this proceeding and an application would be necessary to extend or abridge time. No such application for extension of time has been made at this stage, although Dr Sadler indicated a willingness to proceed with it orally and without the benefit of any documents, on 12 February 2010. There was no file and no registered proceeding before the Tribunal. I think that to properly consider, even the application for leave to proceed out of time, there would need to be some documents including a form of the proposed application for which the extension of time was to be sought. In any event, the prospective respondents, including the clients of Mr Peake had no proper notice or proper opportunity to understand consider or prepare for even an application in relation to the extension of time.
I was unwillingly to entertain that application in these circumstances.
Dr Sadler said that the running of time could be of importance in relation to this proposed proceeding and he wished to draw attention to the claim and that he was ready to proceed with his time application in the course of the hearing on 12 February 2010. I said that I would note that matter in these remarks and that this was all I considered that I could or should do in relation to the foreshadowed Section 83 proceeding or any applications in relation thereto.
This leaves the enforcement application under Section 114 PE Act as the single current proceeding requiring further consideration. In this respect there is significant disagreement between the parties as to how the matter should proceed. Prior to the latest hearing the solicitors instructing Mr Peake wrote to the tribunal, with copies to the other parties, suggesting a number of orders and a timetable for preparatory steps to be undertaken in relation to what is now an amended enforcement order application. The other parties are in agreement with these suggested steps, orders and directions, although some modifications are required as a result of discussions that took place in the course of the hearing.
Although there is an amended enforcement application before the Tribunal, Dr Sadler indicated that it was his view that it would be desirable for his client to further amend the application. Mr Peake was reluctant to agree to that course fearing further delays where he claims that these disputes have been going on for a considerable time, and to the considerable disadvantage of his clients.
Nevertheless, I think that the remaining proceeding is likely to be sufficiently long and complicated that it would be highly undesirable to make it longer and more complicated with disputes about amendments and the like in the course of running the full hearing. It would be better from the point of view of the Tribunal and all the parties, including the respondents, to have a clear written statement of the basis of the application that the applicant wishes to make.
Furthermore, Dr Sadler undertook that he would prepare and have filed and served the further amended enforcement application within seven days of 12 February 2010. This would be on the basis that he would proceed with that work at once, and not wait until receipt of this document with its various orders and directions. The orders and directions were announced orally on the basis that they would be complied with, including as to time, even if there were delays in the issuing of this document.
I referred to past experience where I had granted leave for amended documents anticipating that a barrister would be responsible for their preparation only to find that they were not forthcoming or resulted in something prepared by Ms Giles. I do not wish to be disrespectful in any way to that lady, but she is not a lawyer and, more to the point, has demonstrated repeatedly an inadequate understanding and interpretation of documents, and even as to what is relevant. It is not appropriate that the Tribunal or the other parties should be subjected to further confusions in that respect. Dr Sadler assured me that he had been given specific instructions that he is to prepare the further amended enforcement application. Accordingly I indicated that I would give leave for the filing and serving of such a further amended application, but only on the basis that the document was to be prepared by Dr Sadler and not by Ms Giles.
This circumstance and a couple of others, occasion some adjustments to the time limits in the timetable suggested in the letter of Mr Peake's instructions dated 28 January 2010.
A final matter was debated where Dr Sadler sought directions or an order for authorisation for an expert engaged on behalf of Country Endeavours to go onto the land of Casacir Pty Ltd to inspect certain matters to do with the monitoring of water flows. Some notice had been given that such an application would be made and it was put in relation to condition 54 of the existing permit containing conditions alleged to have been contravened.
In the course of discussion, there was reference to s 129 VCAT Act although I now notice that it appears to relate to inspections by the tribunal, rather than on behalf of opposing parties. Directions under s 80 VCAT Act may be the appropriate provision.
I do not propose to discuss this matter here at any great length, or to deal with all the arguments that were raised in relation to it. I am satisfied that the current application arises from a significant misunderstanding and misinterpretation by Ms Giles of the said condition 54 and that the suggested basis for this application cannot be sustained. I therefore do not propose to make an order at this stage on the current application.
I do recognise that there can well be legitimate and well-founded needs for expert witnesses to inspect land of other parties. I dare say that is recognised by the representatives of those other parties. It may be that if a proper occasion does arise, such inspections might be accomplished by consent. If not, the question may have to be considered again.

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (1)

Country Endeavours Pty Ltd v Baw Baw SC (No 4) [2010] VCAT 342 (5 March 2010)