This application for an order for costs is refused.

1. This case was heard on 24 January 2007. A written determination with reasons was given on 2 March 2007.
2. The case concerned an application for three declarations. One of those declarations was made in somewhat modified terms. A second one was not really pursued and the other was refused.
3. The real dispute concerns a maintenance bond lodged with the responsible authority for certain purposes. A dispute arose as to whether the applicant company was liable to construct handrails on the edges of some boardwalks in a wetland portion of a larger subdivision development. The responsible authority took the view that the company could be compelled to provide such balustrades. The company took the contrary view.
4. The responsible authority deducted from the bond monies of the applicant company sufficient cash to cover the costs of installing the balustrades. The case involved some disputes about agreements. It was said that the responsible authority had agreed that it would not deduct bond monies until the dispute about liability had been resolved. The responsible authority alleged that the company had agreed to bear half of the cost of the balustrades. That was denied by the company. Disputes about contracts and agreements and the return of money allegedly unlawfully retained are matters beyond the jurisdiction of the Tribunal. They are matters for the courts.
5. These proceedings arose because the company sought to require the return of its money. It was for that purpose that the current proceeding was commenced. Of course, the current proceeding could not really result in an order for return of the money.
6. Nevertheless, the company sought three declarations including one to the effect that it had completed all the works required under its permit and approved plans and another that it was entitled to the return of the full amount of the maintenance bond.
7. The latter declaration was refused. The former was granted. The declaration made had some relevance and may have been of some assistance in relation to the resolution of the real substance of the dispute between the parties, notwithstanding that the relevant jurisdiction providing the remedy really being sought was to be found in court rather than before this Tribunal.
8. When the determination was made in relation to the declarations sought costs of the proceeding were reserved. The company has now sought an order for its full costs of the proceedings. It did this by way of a written submission. An answering submission on behalf of the responsible authority resists the making of an order for costs and suggests that each party should bear its own costs in accordance with the general rule laid down by s 109 of the Victorian Civil Administrative Tribunal Act 1998 (VCAT Act).
9. Insofar as the real basis of the proceeding was recovery of the monies, I consider that the matter should have been pursued in court rather than before the Tribunal and that the proceeding, to that extent, is misconceived and lacking in substance. That comment extends to the second and third of the three declarations sought.
10. Consequently, if I was to make an order for costs it would not be for the full costs sought by the company.
11. So far as the first declaration is concerned, that is, the one that was made, it perhaps did have some utility and the company sought to have that matter at least clarified by an expert tribunal familiar with planning law and practice.
12. The claim for costs is based on s 109 VCAT Act. That section provides that each party must bear its own costs but says that the Tribunal may 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 certain specified considerations that appear in paragraphs (a) to (e) of s 109(3). In this case the company has sought to rely on s 109(3) (c).
13. That provision provides that the Tribunal can make an order for costs if it is satisfied that it is fair to do so having regard to:

(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;

1. The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strengths of the claims of the parties.
2. This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1).
3. As I have said, I do not think that the consideration indicates an order for costs where there are strong cases on either side, or perhaps evenly balanced cases on either side.
4. I am not minded to go so far as to say that a weak case will necessarily indicate an order for costs. The word "untenable" is stronger than "weak". The Macquarie Dictionary, second revision, defines untenable as incapable of being held against attack, incapable of being maintained against argument, as an opinion, scheme etc.
5. The ethical rules of the Bar, as I recall them, indicates that a barrister has a duty to do his or her best by the client even if the client has a weak case. On the other hand, a different duty applies if the case is so weak as to be unarguable or "untenable". It extends to a case that is so weak that it should not be argued or so weak that it would be an abuse to seek to maintain it.
6. I think "untenable" in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak.
7. I certainly found that the position of the responsible authority in maintaining that the works required of the company were not complete until the handrails were installed was not justified. For that reason I made a declaration. But was the position of the responsible authority so clearly unjustified as to be untenable?
8. The permit and its conditions did not require handrails. The approved plans did not require them in relation to boardwalks but did require them in relation to other decks. That indicated they were not required for the boardwalks.. The claim of the responsible authority for the construction of handrails seemed to be an afterthought.
9. However, I am not satisfied that its position was so weak as to be unarguable, or untenable in that sense. Before the required works could be said to be complete they should be completed in safe workmanlike fashion so as to eliminate dangers. A roughly finished boardwalk with included splinters, trip points and holes could be argued to be incomplete until those defects were remedied.
10. The responsible authority took the view that the handrails were required for safety purposes, or perhaps to protect it against possible claims for personal injury. It took the view that the boardwalks were not complete until the handrails were installed, notwithstanding that they were not required by the permit, its conditions or its approved plans.
11. I do not think such handrails are in the same situation as splinters, trip points or holes in the decking or edging of the boardwalk. The decking and edging are required, and should be finished in a safe and workmanlike fashion. The handrails have a different status. It was not a matter of whether they were finished satisfactorily and in a safe fashion, but rather as to whether they were required at all by the permit, its conditions and approved plans.
12. Whilst not upholding the case of the responsible authority, and whilst regarding it as rather a weak one (when all the complexities of the case were explored and understood), I do not go so far as to say that it was unarguable, or untenable in terms of s 109(3)(c).
13. Consequently I decline to make an order for costs in this case leaving each party to bear their own in accordance with the general rule in s 109(1).
14. It would be otherwise in court where costs, except for particular reasons, are said to "follow the event". In other words, if the company had brought its claim in the right jurisdiction, and had been obliged to incur costs in pursuit of it rights, it could have expected an order for costs. Wisely or otherwise it chose another jurisdiction which, though knowledgeable in relation to planning or practice, did not really have authority to deal with the substance of its claim or to make an order for costs except in much more limited circumstances.