The applicant in this proceeding is ordered to pay to the respondent Casacir Pty Ltd costs fixed at $2,126.00 in relation to this proceeding.
[2]
This case was an application under s 126of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) by Country Endeavours Pty Ltd (Country Endeavours) for an extension of time to commence a proceeding. The proceeding that Country Endeavours wished to commenced out of time was a proposed application under s 83(1)(b) of the Water Act 1989 for review of a decision under 69(1) of that Act to approve an application under s 68 for works on waterway licence
There were two respondents. The first was West Gippsland Catchment Management Authority (the Authority). It does not seek an order for costs. It was the Authority's decision that Country Endeavours wished to review if it could obtain the extension of time. The other respondent was Casacir Pty Ltd (Casacir). I does seek an order. It holds a planning permit to reopen and conduct a basalt quarry on land at Neerim North Road, Neerim North. This land adjoins land in which Country Endeavours has an interest. Country Endeavours is a company of Mrs Virginia Giles and her husband David Giles. She is the secretary and he is the director thereof. They have a similar relationship with another company Shapher Pty Ltd which owns their adjoining land as trustee for a self-managed superannuation scheme of Mr and Mrs Giles. Mr and Mrs Giles live elsewhere but sometimes stay on this land.
The application for an extension of time to commence a proceeding was heard by me on 26 March 2010. The application was refused for reasons given at some length in a written determination dated 17 May 2010.
This case was one of a complex of numerous cases that Mrs Giles or Country Endeavours (alone or with others) have engaged in against Casacir in opposing the proposal of that company to re-establish and operate the quarry. The first such proceeding of which I am aware was a lengthy case heard and determined in late 2008 and early 2009 whereby this Tribunal (constituted by members other than myself) rejected an application for review by Mrs Giles and others of a decision of the responsible authority to grant a planning permit for the quarry proposal. Since then there have been a number of cases under various enactments. Some of them, it must be said, were ill considered, misconceived or notably weak. In my reasons of 17 May 2010 in relation to this present case there is an account of the background and history of the present case in the context of the other cases. I noted at paragraph [5] that:
[3]
[5] This matter arises in the context of a number disputes with a complex history arising from the proposal by Casacir to reopen a previously disused quarry on its land.
[4]
I believe I expressed concern about the proliferation of cases commenced by Mrs Giles and Country Endeavours against Casacir. Whilst they are entitled of commencement proceedings, reasonable and responsible conduct calls for proper consideration as to whether particular proceedings are warranted and as to whether they have a reasonable prospect of success. It would not be reasonable or responsible to commence proceedings for an ulterior motive or to harass a respondent. However, proceedings that are commenced have to be dealt with fairly and it may not become apparent until a late stage as to the merits or otherwise of a particular case or as to whether it was reasonable or responsible to commence it. In my reasons of 17 May 2010 I concluded, amongst other things, that Country Endeavours did not have a legal right to notice of application for the works on waterway licence in question, did not have a legal right to make submissions nor to review the decision made by the authority. I also gave my reasons for concluding that, if an extension of time was given, it would be for the conduct of a very weak case on behalf of Country Endeavours which case was based on mistakes and misunderstandings and which had no reasonable prospect of success. Furthermore, even if successful, I concluded that there is no reasonable legal or practical remedy available that would be of benefit to Country Endeavours. All and all the application for extension of time (and the review it sought to enable) amounted to a misconceived endeavour.
This application by Casacir for costs has been made in writing. The question was first raised in correspondence and twice mentioned in the course of the hearing of another case involving the current parties in late November 2010. In the course of those mentions it was decided that the matter would be determined on the basis of written submissions that were then tended on behalf of Casacir and Country Endeavours.
The Casacir submission refers to a number of passages from my reasons of 17 May 2010. It seeks an order for costs making reference to s 109 VCAT Act including, particularly, the considerations in s 109(3)(c)(d) and (e).
Section 109 lays down the general rule that, in proceedings before the Tribunal, each party will bear its own costs. However, s 109(2) and (3) empower the Tribunal to make an order that a party pay all or part of the costs of another party if it is satisfied that it is fair to do so having regard to several listed considerations. The consideration in s 109 (3)(c) is 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. Section 109 (3)(d) refers to the nature and complexity of the proceeding and (e) states:
[5]
Casacir seeks an order that Country Endeavours pay its costs of this proceeding fixed at $2,126.00 being the fees charged by its barrister for appearance and a conference in connection with the hearing on 26 March 2010. Attached to its submission is a copy of a tax invoice of the barristers' clerk with an endorsement that the fees have been paid. Casacir does not seek an order for any other costs in relation to this proceeding beyond those disbursements in fact incurred and paid.
The written submissions on behalf of Country Endeavours raise a number of points. In the first place it is pointed out that this is a separate application distinct from the previous planning matters. That is true, but it is also true that it is part of a series of proceedings commenced by Mrs Giles or Country Endeavours against Casacir Pty Ltd aimed at frustrating or obstructing it in acting upon the planning permit granted to it by the Tribunal. This is not a first or one isolated case brought by a person or company with no familiarity with the Tribunal and who might be deterred by the prospect of an order for costs. On the contrary, Mrs Giles and Country Endeavours are not easily deterred by warnings, advise or the knowledge that the Tribunal has and will exercise the power to make orders for costs in suitable cases where it considers it just to do so. I do not regard these circumstances as being irrelevant. On the contrary, I regard them as matters covered by s 109 (3)(e) namely other maters that I consider to be relevant to the question of costs in the circumstances. In fact it would be wholly artificial to ignore this circumstance.
Furthermore, I am aware that Mrs Giles and Country Endeavours have availed themselves of the advice of a series of barristers in relation to these various cases. They knew or should have known that these proceedings generally, and this one amongst them, occasion a good deal of expense, inconvenience and trouble to other parties, and in particular Casacir. Also they should know that Casacir will be obliged to defend these proceedings, including this one, and to incur costs in doing so. Furthermore they knew or should know there is a good chance for an order for costs being made in respect of a hopeless or very weak case where that could and should have been assessed and where there is a real danger that a judgment might be made that the proceeding was misconceived and should have not been commenced or maintained.
It is said that an order for costs is unjustified having regard to the nature of the proceeding being a proceeding for an extension of time under s 126 VCAT Act. I do not think that this is a relevant consideration. Section 109 applies to a proceeding of this nature including the general rule that parties will bear their own costs and the exception where an order for costs can be made. It is a matter to be dealt with on the merits of the particular case. I would not lay it down as a rule that costs could not be ordered in relation to s 126 extension of time application.
It is certainly not the legislative intention that people should be dissuaded from participating in Tribunal proceedings because of a fear of punitive damages. However, I do not think that the Tribunal should refrain from making compensatory orders for costs in circumstances where it is fair to do so having regard to the s 109(3) considerations. It can be fair to compensate opposing parties in such circumstances, and if that has the result of discouraging unmeritorious or unreasonable proceedings, the purposes the legislation will be realised rather than defeated.
I Certainly agree that costs are to compensate and not to punish, and that costs can certainly be saved if unjustified proceedings are prevented or curtailed. In this case only compensatory costs are sought, and only for disbursements actually incurred.
It is suggested that the works on waterway licence sought to be challenged was granted retrospectively. I do not recall at present whether I made a finding on that point but I do not regard it as relevant to the question of costs. Even if it was granted retrospectively that did not give Country Endeavours a right of review it sought, or relieve it of the responsibility of deciding whether, in the circumstances, there is reasonable justification for taking proceedings.
The same is true in relation to the contention that there may have been a misunderstanding between the Authority and Mrs Giles as to what sort of Casacir application the authority would give her notice of.
I do not accept that there is a "pre disposition" to grant costs in enforcement applications or requests to cancel or amend permits. It is perhaps true that the Tribunal has been more ready to make orders for costs in relation to original proceedings of that sort compared with to planning review proceedings, but they are all governed by s 109 VCAT Act (unless reliance is being placed on one of the more specific power to order costs such as in relation to misconceived or vexatious proceedings).
Reference is made to Gresham v Bass Coast SC[1]. I agree that:
[6]
... even if a case brought by an Applicant is found to be weak or untenable it does not automatically follow that costs must be awarded. The proper question is what is fair in the facts and circumstances for each case.
[7]
I also agree, conversely, that it does not mean that an order for costs should not be made. In this case I consider that an order should be made for the costs being sought.
I do not regard the circumstance that the authority has not applied for an order for costs is any reason, one way or the other, as to whether an order should be made in favour of the respondent who has made such an application.