1. Section 109 of the VCAT Act provides the legislative framework for the consideration of an application for costs. Section 109 of the VCAT Act provides:

(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 subsection (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); > > > > > > (iv) causing an adjournment; > > > > > > (v) attempting to deceive another party or the Tribunal; > > > > > > (vi) vexatiously conducting the proceeding; > > > > (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; > > > > (d) the nature and complexity of the proceeding; > > > > (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 subsection (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 subsection (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. > > (7) A power of the Tribunal under this section is exercisable by any member.

2. It is important to note that s 109(1) of the VCAT Act provides the general rule with respect to costs that each party is to bear its own costs.

1. The respondent says that it would be unfair for her to remain liable for the costs of and associated with the practice day hearing. Further, the respondent says that justice in this case is done by ordering the applicant to pay those costs, or a part of those costs.
2. The respondent relies upon s 109(3)(a) and (c) of the VCAT Act. I now summarise the submissions of the respondent in respect of each claim under s 109(3) of the VCAT Act.

1. The respondent relies upon the following in support of her application for costs under s 109(3)(a) of the VCAT Act:
   1. the applicant failed to comply with an order or direction of the Tribunal without reasonable excuse (s 109(3)(a)(i));
   2. the applicant attempted to deceive the Tribunal (s 109(3)(a)(v)); and
   3. the applicant vexatiously conducting the proceeding (s 109(3)(a)(vi)).

1. The respondent says the applicant failed to comply with orders requiring the provision of written submissions prior to the practice day hearing because the verbal submissions advanced at the practice day hearing were markedly different from the written submissions.
2. The respondent relies upon paragraph 89 of my decision in Graham that states:

I also record the applicant sought to particularise each of the grounds at the practice day hearing, which the respondent said was unfair. Whilst I agree with the respondent, I gave the applicant the opportunity to fully address me on each of the grounds to ensure that I understood the substance of those grounds. And five of the six grounds as fully articulated are either misconceived, lacking in substance or both.

1. The respondent says the applicant attempted to deceive VCAT in two ways.
2. Firstly, the applicant claimed he was a spokesperson for the community who had a mandate to put forward the community's objections. The respondent highlights the applicant abandoned this claim at the practice day hearing and further, that his claim at being a spokesperson for the community was an attempt to deceive VCAT.
3. Secondly, the respondent says the applicant's reliance on the Barring Order was another attempt to deceive VCAT because the applicant failed to disclose, he had issued the Barring Order and further, that it had been revoked.

1. The respondent says the applicant vexatiously conducted the proceeding because he brought and vigorously pursued claims that were obviously untenable and manifestly groundless. The evidence for this submission is said to be the summary dismissal of the proceeding.
2. The respondent relies on two decisions of VCAT as follows:
   1. Green v Ballarat CC [2006] VCAT 2535 (Green) where VCAT stated:
      1. The Tribunal has generally adopted that tests propounded by the Supreme Court of New South Wales in Attorney General v Wentworth as to whether proceedings were vexatious:
         1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
         2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise.
         3. They are also thought properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
      2. There is a distinction between a proceeding that is vexatious and vexatiously conducting a proceeding, which relates to the conduct of proceedings not to the nature of the application itself. Nevertheless we consider that "vexatious" means the same thing in both contexts and should be interpreted in the same way as in Attorney General v Wentworth.
   2. Clifford Hallam Healthcare Pty Ltd v Price (Anti-Discrimination) [2010] VCAT 1117 (Clifford Hallam) where VCAT stated at paragraph 35 (inter alia):

... It may be that pressing on with a hopeless case could be separately regarded for the purposes of a costs application as vexatiously conducting a proceeding...

1. Under s 109(3)(c) of the VCAT Act the respondent submits that the relative strengths of the applicant's claims weigh in favour of an award of costs because I ultimately summarily dismissed the application as the grounds relied upon were either misconceived, lacking in substance or both.
2. The respondent says the applicant failed to respond to my questions about clause 52.27 of the Yarriambiack Planning Scheme ('scheme') preferring to refer to the Planning Practice Note 61 - Licensed premises: Assessing cumulative impact ('PN61').
3. The respondent also refers to the applicant's written submissions in response to the application for summary dismissal that states:
   1. ... an application for summary dismissal is rare in planning review matters, given the nature of the merits-based discretion commonly to be exercised. For an application to succeed, it must be demonstrated that the proceeding is obviously unsustainable in fact or law and bound to fail.
4. Having regard to that submission, and the respondent's successful application for summary dismissal of the proceeding, the respondent says that the decision was not 'lineball' or one in which reasonable minds might have differed.
5. Thus, the respondent says that any assessment of the reasonable prospects of the application would have revealed its untenable nature.

1. The applicant notes that my order only reserved costs with respect to the preparation and attendance of the practice day hearing on 17 December 2024 and thus, the application for costs is limited to those considerations.
2. In respect of the respondent's claims the applicant says as follows.

1. He did not fail to comply with VCAT's order. Rather, the applicant acknowledges that the written submissions were expanded upon and 'fleshed out' at the practice day hearing which he submits 'is not an unusual practice'.
2. Thus, the applicant says that I should not give any weight to the respondent's claim under s 109(3)(a)(i) of the VCAT Act.

1. The applicant says that he did not attempt to deceive VCAT as he did consider himself to be a community spokesperson 'of sorts' because he had spoken with many people from the local community about the application for permit.
2. In respect of the Barring Order, the applicant simply notes that I found that issue to be irrelevant.

1. The applicant denies that he vexatiously conducted the proceeding. He refers to the six grounds relied upon by him in his application for review and my determination that five of the six grounds were either misconceived, lacking in substance or both. But, the applicant says, I did not find that any of the grounds or the application for review was vexatious nor hopeless.

1. The applicant says that the respondent's application for summary dismissal was based on commercial competition grounds arguing that the application was brought to secure or maintain a direct or indirect commercial advantage and that I did not accept that part of the application.

1. Whilst I understand the respondent's submissions, I do not consider that it is fair to award costs against the applicant for the following reasons.

1. I do not accept the applicant failed to comply with orders because his submissions were expanded upon at the practice day hearing. That is insufficient to support an award of costs because the chapeau of s 109(3)(a) of the VCAT Act provides:

(3) The Tribunal may make an order under subsection (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 -

(VCAT emphasis)

1. An expansion of written submissions that stray beyond matters contained within those written submissions may cause prejudice to other parties. However, in this proceeding I am struggling to identify what 'unnecessary disadvantage' there was to the respondent, given she was represented by an experienced firm of lawyers who was readily able to respond to any new matter raised.

1. I do not accept it is fair to award costs under s 109(3)(a)(v) of the VCAT Act for the reasons that follow.

1. It is very common in the planning jurisdiction for a person to claim that they are acting on behalf of a group of people or the local community. In my experience, once this issue is raised with the person making that claim there is rapid acceptance that they are not speaking on behalf of the community.
2. In the proceeding before me that matter was dealt with swiftly. In any event, again I note the requirement in s 109(3)(a) of the VCAT Act that the conduct unnecessarily disadvantaged the respondent. I do not consider the applicant's erroneous claim about the community caused any unnecessary disadvantage to the respondent.
3. However, I do note the applicant was asked by VCAT's registry staff to clarify whether the application was brought by him individually or by a group of people. Whilst the applicant confirmed to VCAT registry by email prior to the practice day hearing that the application was brought on an individual basis, reference in the written submission to 'on behalf of' or 'other objectors' was unfortunate. Notwithstanding, I do not consider there is any evidence for me to conclude that this was a deliberate attempt to deceive VCAT.

1. The applicant's response regarding the Barring order and the claim for an award of costs lacks sufficient detail and is thus, unhelpful to my consideration of this matter.
2. Nonetheless, I agree with the respondent that ground 6 in support of the application for review was factually inaccurate. This stated inter alia:
   1. The person applying for the liquor license who previously owned the pub, has since been barred from the pub, re Barring Order 283203 issued on 14/7/2023 by police Mark Keenan for annoying and quarrelsome behavior [sic]. The community will vouch for her ongoing argumentative and obnoxious behavior [sic].
3. The Barring order was issued by the applicant himself, as the licensee of the hotel business. The reference in the application for review to the Barring order being issued by the police is evidently incorrect and false. The Barring order is set out below.

1. The respondent relied on evidence by way of an affidavit from Harrison Leslie Waller ('Waller Affidavit')[2]. The respondent's reliance on the Waller Affidavit was principally to establish her case that the application for review was brought principally to secure or maintain a direct or indirect commercial advantage. In respect of this matter, I said as follows:[3]

I add that whilst I have determined to summarily dismiss the application for review because it is either misconceived or lacking in substance, I do not consider the facts in this proceeding as they are before me lead to a conclusion that the application was brought primarily to secure or maintain a commercial advantage. Rather, the respondent is seeking that I draw an inference simply because the applicant is the owner and operator of the hotel. I am not satisfied that I should draw that inference on the material before me.

1. The Waller Affidavit also exhibited the Barring order and its revocation.
2. However, I am not satisfied that it is fair to award costs to the respondent with respect to that relatively minor part of the evidence. Bearing in mind the application has been made with reference to s 109(3)(a)(v) of the VCAT Act and that requires the applicant to have conducted the proceeding in a way that unnecessarily disadvantages the respondent. Given, the primary purpose of the Waller Affidavit, I am not satisfied that I should make an award of costs.
3. Notwithstanding the above, I am concerned with the applicant's reliance on Ground 6 in circumstances where the information is obviously incorrect and false. This is particularly problematic and concerning when the person who completed the application for review is the same person who issued the Barring order. Of further concern, is the reliance on that ground before me at the practice day hearing. However, orders for costs are to compensate a party for costs it has incurred, and, in the circumstances, I am not satisfied that the respondent has incurred any substantial unnecessary costs in dealing with the Barring order.
4. However, for completeness, I note that s 136 of the VCAT Act provides that:

False or misleading information

A person must not knowingly give false or misleading information to the Tribunal or a registrar.

Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.

1. Having regard to the facts in this proceeding with respect to the Barring order, it is fortunate for the applicant that the proceeding was summarily dismissed following the practice day hearing.

1. The applicant is correct to note that I did not find any of his grounds to be vexatious. However, that is a different consideration to whether he vexatiously conducted the proceeding.
2. In Attorney General v Wentworth[4] (AG v Wentworth), the Supreme Court of New South Wales ('Court') was considering an application under s 84 of the Supreme Court Act 1970 (NSW) ('SC Act') to have Katherine Wentworth prevented from instituting or continuing any legal proceedings without leave of the Court. Several questions of law were put to the Court and in answering what can be regarded as vexatious, the Court concluded:[5]
   1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
   2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
   3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
3. The Court also arrived at conclusions with respect of s 84 of the SC Act that are not directly relevant in this proceeding.
4. I do not accept the proceeding was brought with the intention of annoying or embarrassing the respondent as there is no material before me to reach such a conclusion. Nor, did I accept that there was a collateral purpose when I summarily dismissed the proceeding as I refused to infer that the proceeding was brought primarily to secure or maintain a commercial advantage.
5. Lastly, I agree with the applicant the reasons for summarily dismissing the proceeding did not include that the application was hopeless. However, I did conclude that five of the six grounds were either misconceived or lacking in substance or both and, one of the grounds was not a ground at all. Arguably, if a proceeding has been summarily dismissed because the grounds in support of it are either misconceived or lacking in substance, it is also hopeless.
6. In other words, it might be said the applicant conducted the proceeding in a way that unnecessarily disadvantaged the respondent by vexatiously conducting a proceeding that was hopeless.
7. The decision in Green can be distinguished from the facts in this proceeding. At paragraph 10 and 11, VCAT stated:
   1. However, it seems to us that Mrs Black was trying to "have her cake and eat it too". She was prepared to take advantage of joining the joint application and thus saving herself the cost of a separate application fee but was not prepared to go along with the rest of the joint applicants in negotiating settlement of the proceeding. She was not prepared to withdraw from the proceeding altogether though because, as she acknowledged in her written submission regarding costs, this "was not an option for me because by doing so I would not be able to put my case to the Victorian Civil and Administrative Tribunal." Any separate application for review lodged by Mrs Black would have been out of time. Mrs Black therefore refused to sign the request for a consent order. She says in her submission about costs:

I could not agree to the conditions of the settlement. I was happy with the 20 lot subdivision but I was not happy with the conditions because they did not protect the native vegetation on the site or on the roadside reserve.

1. However, this is not what was reflected in the submission she made at the hearing. Her submission at the hearing related to the original application, which included 48 lots and an internal subdivision road. It did not address the changes to the permit application to reduce the number of lots to 20 and to remove the internal subdivision road. There was no reference to the draft conditions or suggested improvements. It was a very generalised submission based on the original, generic grounds included in the application for review and ignored the fact that all these concerns had been more than adequately met by the amended subdivision proposal. Mrs Black only addressed the issue of conditions when questioned by the Tribunal at the hearing. We found her responses and suggestions about "improvements" to be both contradictory and unrealistic, and demonstrated that she had not seriously considered the implications of the amended proposal or the draft conditions agreed to at the meeting of parties held on 13 October 2006.
2. Given the behaviour in Green as set out above, it is hardly surprising that VCAT concluded that one party was vexatiously conducting the proceeding in a way that unnecessarily disadvantaged another party. The facts in this proceeding are not analogous to the pertinent facts in Green.
3. In this proceeding the applicant vigorously pursued grounds that were ultimately held to be misconceived or lacking in substance. However, that conclusion was reached following review of the applicant's submissions and detailed reasoning. In these circumstances, in my view it does not reach the threshold of 'utterly hopeless' such as to make the conduct of the applicant vexatiously conducting the proceeding.

1. I disagree with the applicant that the respondent's case for summary dismissal was based solely on commercial competition grounds. That is simply a mischaracterisation of the respondent's case for summary dismissal.
2. The focus of the application for summary dismissal was based on two principal submissions. Firstly, that the application for review was brought primarily to secure or maintain a direct or indirect commercial advantage and second, that the grounds were misconceived and/or lacking in substance. Notably, the respondent succeeded in the second principal submission. However, that does not mean that an award of costs must follow. To that end, I agree with the findings in Clifford Hallam that to make a finding that a case was not strong does not itself create an entitlement to an award of costs. At paragraphs 36 and 37, VCAT held:
   1. Given that I acceded to the application that Ms Price's complaint be struck out I was necessarily satisfied to the very high degree necessary that the complaint was doomed to fail. A consideration therefore of the relative strength of the claims by each party for the purposes of Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act will lead to a conclusion that Clifford Hallam's case was very strong and Ms Price's was very weak and I must necessarily accept that her complaint had no tenable basis. To make that finding however does not in itself create an entitlement to a costs order. Section 109(3) is introduced by the word 'may'. This is apt to bestow a discretion Section 45 Interpretation of Legislation Act 1984. Moreover sub-section (3) requires the Tribunal to have regard to all of the matters referred to in its paragraphs and sub-paragraphs including paragraph (d) 'the nature and complexity of the proceeding' and paragraph (e) 'any other matter the Tribunal considers relevant'. These provisions entitle or perhaps oblige me to consider the access to justice issues which were raised by Mr McDonald*. It was a convenient course for Clifford Hallam to take to mount the successful pre-emptive strike which it has done rather than go through conciliation processes at the Commission. Is it entitled however to achieve that favourable result requiring Ms Price to pay its legal costs in doing so? Whatever arguments there might be for requiring Ms Price to pay costs had she sought and achieved a referral of her dispute from the Commission to this Tribunal requiring an unsuccessful complainant to pay costs at the Section 109 stage is in my view a threat to access to justice for complainants under the Equal Opportunity Act who at that stage had sought no more than the conciliation service of the Commission. These considerations are properly referrable to the nature of the proceeding in question and other matters which may be regarded as relevant.
   2. For these reasons I am not persuaded that Section 109 of the Victorian Civil and Administrative Tribunal Act justifies my awarding costs against Ms Price.

1. Objector rights are central to the Victorian planning regime and enshrined in the PE Act. Often these types of applications are brought by self-represented persons who are less familiar with the notion relevant planning considerations. In such cases planning is often erroneously considered to be the 'panacea for all perceived social ills'[6] or a forum for addressing all kinds of community concern. With that in mind, I note that objectors should not be discouraged from filing applications for review for fear of an award of costs being made. In other words, I must also consider s 109(3)(e) of the VCAT Act which would include issues such as access to justice and resolution of disputes in an expeditious and timely manner.
2. The grounds in support of the application for review lacked particulars but once those particulars were provided by the applicant, I was readily able to consider the application for summary dismissal.
3. Given the matter was finally resolved following a practice day hearing in a relatively expeditious manner and bearing in mind the rights afforded to objectors in this State and the principles of access to justice, I am not satisfied that it is fair in the circumstances of this proceeding to award costs.

1. The application for an award of costs is refused. I note that in the circumstances, I do not need to consider any quantum of costs.

[1] Graham v Yarriambiack SC [2025] VCAT 41 (Graham).

[4] (1988) 12 NSWLR 191.

[6] See Hunt Club Commercial Pty Ltd v Casey City Council (includes Summary) (Red Dot) [2013] VCAT 725 [15].