Bonnie H Black must pay the respondent/permit applicant, Dixon Hearn Pty Ltd, its costs fixed at $3.600 within 60 days of the date of this order.

1 This decision relates to an application for costs made by the respondent/permit applicant against Mrs Bonnie Black in the sum of $3,600. The circumstances giving rise to the application for costs set out in our order dated 27 October 2006.[1] In summary, Mrs Black was an original objector to a planning permit application to subdivide the subject land into 48 lots. The council decided to grant a permit to subdivide into 40 lots. A joint application for review under section 82 of the Planning and Environment Act 1987 was lodged by Brian Green on behalf of 37 objectors, including Mrs Black. Negotiations between the parties led to a meeting on 13 October 2006 when the permit applicant agreed to amend the permit application to reduce the number of lots to 20 and the objectors agreed to a consent order which would eliminate the need for the hearing scheduled for 26 October 2006. A letter was indeed sent to the Tribunal consenting to the grant of a permit for subdivision of the land into 20 lots on certain conditions. It was signed by all the joint applicants for review except Mrs Black.

2 On 23 October 2006 the Tribunal received a fax from Mrs Black advising that she had not reached agreement with any of the parties and that she did not seek a consent order. As a consequence, the hearing scheduled on 26October 2006 proceeded. After hearing from the parties, we gave an on the spot decision but reserved costs. With leave, Mrs Black has made a written submission in response to the permit applicant's request for costs.

3 The general rule is that each party bears their own costs in proceedings before the Tribunal.[2] However, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding if it is satisfied that it is fair to do so, having regard to the following matters set out in section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998:

(3) The Tribunal may make an order under sub-section (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);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

4 Having regard to these matters we are satisfied that it would be fair to make an order that Mrs Black pay the permit applicant's costs because we find that she has conducted the proceeding in a way that unnecessarily disadvantaged the permit applicant and the way in which she conducted the proceeding was vexatious.

5 The Tribunal has generally adopted that tests propounded by the Supreme Court of New South Wales in Attorney General v Wentworth[3] 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.[4]

6 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.[5] 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.

7 In the present case, the application for costs by the permit applicant relates only to the period of time subsequent to Mrs Black's communication that she did not agree to a consent order being made. We find that the way in which she conducted the proceeding by sending this communication, by proceeding with the hearing and by presenting the submissions she did at the hearing, can be characterised as vexatious for the following reasons.

8 Mrs Black chose not to lodge an individual application for review but to be part of a joint application for review lodged on behalf of 37 objectors. Section 67(3) of the Victorian Civil and Administrative Tribunal Act 1998 provides that two or more persons are entitled to make an application to the Tribunal may make a joint application. The issue of joint applications was considered in Dixon v Alpine SC[6] where Deputy President Gibson held that "if persons intend to rely upon the same grounds and there is no conflict in terms of identity of issue between the persons who are to be the joint applicants, it will be appropriate for a number of persons to group together to lodge a joint application."[7] In Dixon's case Deputy President Gibson reviewed and distinguished the decision of Armstrong and Ors v City of Greater Geelong[8]. She said:

[15] I consider that the findings in Armstrong's case can be distinguished from the present proceeding not only on the basis that the legislation has changed but that the nature of the grounds relied upon by each of the applicants (and presumably other applicants who wish to make a joint application) are the same grounds and there is no conflict between the issues each person wants to raise or the outcome they want. In these circumstances, I consider it is appropriate for people to make a joint application. The situation will be different in the event that applicants to a joint application intend to rely upon different grounds in support of their application or if there is likely to be some conflict between the joint applicants. In such circumstances, whilst a joint application may be made, the principal registrar is likely to determine that separate fees are payable for the reasons relied upon in Armstrong's case. I consider these principles are applicable to all applications made to the Tribunal.

9 The substance of this decision is reflected in the Guidelines for the Making of Joint Applicants which appears on the Victorian Civil and Administrative Tribunal Website.

10 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.

11 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.

12 Mrs Black was present at this meeting and although she says that she did not agree with the conditions resolved upon at the meeting, this was not communicated adequately to the other people at the meeting, and certainly not to the permit applicant or his consultant who believed that she had agreed to the conditions (along with the other objectors) after discussion about a number of issues.

13 We do not accept Mrs Black's submission that she became confused when the application was amended to 20 lots at the beginning of the hearing and that it was this fact that made her submission irrelevant because she had prepared her submission in accordance with the "48 lot subdivision passed by the Ballarat City Council". This is simply not accurate. Mrs Black was well aware from the meeting on 13 October 2006 that the permit applicant had agreed to reduce the number of lots in the subdivision to 20 and what the amended conditions were that had been agreed upon by the other objectors, the permit applicant and the council. It was a waste of everyone's time for Mrs Black to appear at the hearing and make a submission based on the original subdivision proposal without taking account of what had subsequently transpired, the substantial reduction in lot numbers, the removal of the internal road and without any reference to the amended conditions. Mrs Black has appeared at other Tribunal hearings relating to development in this area of Ballarat and is no stranger to the Tribunal. We therefore do not accept that she was confused by the amendment of the permit application at the beginning of the hearing and that it was this which meant she was unable to present her case "in a reasonable and positive way".

14 We consider that Mrs Black's true motives are revealed in her written submission at the hearing when she describes the land as being "inappropriately zone [sic] Residential 1." Essentially, Mrs Black does not wish to see this area developed for residential purposes. She has opposed this and other residential subdivisions in the area even though she is not an immediate neighbour and lives some distance away from the site. In an earlier Tribunal case concerning the subject land, which resulted in the grant of a permit for a 31 lot subdivision, the Tribunal said with respect to issues raised by objectors:

The matters raised regarding the rural nature of the area, which is located approximately 4 kilometres north-east of the centre of the City of Ballarat, are matters which would be legitimate to raise if this were an application for re-zoning from a Rural to a Residential Zone.

That is not the case here. The land is already zoned for residential purposes. This Tribunal is not empowered to review zones that already exist but only to ensure that development that takes place within those zones is in accordance with the objectives of the zone, its purpose and the particular characteristics of the relevant area. There is no doubt that the proposed development complies with these requirements.[9]

Mrs Black is aware of this decision and referred to it in her submission.

15 We consider that by refusing to agree to a consent order and pursuing the proceeding to a hearing, Mrs Black has been motivated by a collateral purpose, which is to maintain and express her opposition to the residential development of this land, notwithstanding its zoning and past Tribunal decisions, and to cause inconvenience and difficulty for developers wishing to obtain permits to carry out such residential development. Her actions are part of an ongoing campaign in this respect. We find that her conduct of the proceeding was not for the purpose of having the Tribunal adjudicate on the planning issues to which it gave rise, but rather was part of an ongoing campaign against legitimate development.

16 In fact, with respect to the grounds for appeal set out in the original application for review, Mr Keath said on behalf of the other objectors, "through negotiation we have been able to address, to a large degree, the grounds for our appeal". In our view, the objectors have been remarkably successful in negotiating an outcome that is far less intense than what the council was prepared to grant a permit for and what the previous permit, issued at the direction of the Tribunal, allowed. We doubt that the objectors could have been more successful if the application had been fully contested at a hearing. Any reasonable person in Mrs Black's position who was truly concerned about the issues listed in the grounds of appeal would have recognised that the permit applicant had made major concessions and the objectors had, in fact, had a major "win" in negotiating the terms of the proposed consent order. We therefore consider that in refusing to endorse the consent order proposed and proceeding to a hearing Mrs Black was conducting the proceeding vexatiously.

17 To justify an award of costs under section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998, a party must have conducted the proceeding in a way that unnecessarily disadvantages another party to the proceeding. With respect to this provision, Deputy President Gibson said in Falconbridge Pty Ltd v Yarra CC:

[18] Section 78(1) and section 109(3)(a) both refer to situations where a party has conducted the proceeding in a way that unnecessarily disadvantages another party to the proceeding. Under these provisions the Tribunal must be satisfied that the proceeding has been conducted in a way that unnecessarily disadvantages another party. It is not simply sufficient that another party is disadvantaged: they must have been unnecessarily disadvantaged. Any party that is a respondent to an application which is ultimately rejected is likely to have been disadvantaged in some way in terms of time, trouble, expense, delay or lost opportunity. Indeed, any dispute could be considered to disadvantage the parties, but the Victorian Civil and Administrative Tribunal is set up to resolve disputes. Rights are conferred upon people under various pieces of legislation to bring their disputes before the Victorian Civil and Administrative Tribunal for resolution. Thus the simple fact that someone takes advantage of a right conferred by an Act to make an application to the Tribunal should not justify an award of costs if that application is unsuccessful. If this were the case, it may discourage people from making applications and undermine the objectives of the Victorian Civil and Administrative Tribunal to provide expeditious and cost effective resolution of disputes. This is no doubt the reason for the general rule expressed in section 109(1) of the Act that each party is to bear their own costs in the proceeding, which is an important distinction between the Tribunal and the courts. Rather, there must be some conduct that takes a matter outside the normal bounds of a proceeding to make it fair that an award of costs be made. Thus both section 78(1) and section 109(3) provide that another party must be unnecessarily disadvantaged by a party's conduct of the proceeding to justify an award of costs. The test is therefore whether the disadvantage is unnecessary.

18 In the present case, we consider that the permit applicant has been unnecessarily disadvantaged by the conduct of Mrs Black. The permit applicant was prepared to make substantial concessions to satisfy the concerns of the objectors and thereby avoid the costs and uncertainties of a hearing. It was denied this advantage by reason of Mrs Black's actions. Her conduct unnecessarily disadvantaged the permit applicant because it had agreed to a compromise and given an undertaking to amend the permit application accordingly but was then denied the benefits of avoiding a hearing, which this compromise was intended to generate.

19 In her submission Mrs Black said:

"Ordinary people would never come to VCAT if they ran the risk of costs of the magnitude of $3,600.

20 This is true and this is one of the reasons for the general rule set out in section 109(1) of the Act that each party bears their own costs in proceedings before the Tribunal. But hand in hand with Victoria's generous rights of third party participation in planning decisions and access to a low cost decision making forum such as the Victorian Civil and Administrative Tribunal goes a responsibility not to abuse the process. As the Tribunal said in Dodd v City of Fitzroy[10]:

Third parties' rights of appeal are a valuable community right but one with considerable potential to create delay and expense for applicants. Misusing that right of appeal causes detriment not only to the individual applicant, as in this case, but to the community at large. There is a real danger that frustration at the delays and expense which third party appeals can cause may lead to pressure to have those appeal rights curtailed. Even though the misuse of such rights is the exception rather than the rule, it is the exceptions which are invariably remembered and used to justify calls for removal of those rights.

Not only does the misuse of rights jeopardise those rights, but the misuse of rights, if it amounts to an abuse of process, can give rise to an award of costs as provided for under section 109 of the Act. Ordinarily costs are not a risk when people come to the Victorian Civil and Administrative Tribunal. It is only when they lack bona fides or abuse the process that costs become a risk, which is what has occurred here.

21 In the circumstances, we consider it is fair that the permit applicant be recompensed for its costs incurred after 23 October 2006 when Mrs Black communicated her lack of consent to the consent order thereby necessitating the case proceeding to its scheduled hearing on 26 October 2006. We fix these costs in the sum of $3,600 which represents the costs of Mr Jewell in preparing for and attending the hearing.

[1] Green v Ballarat City Council [2006] VCAT 2245

[2] See section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998

[3] (1988) 14 NSWLR 481

[4] See James W Sadler Pty Ltd v City of Keilor 6 AATR 200 at 204; Cotsonis v Darebin CC [2005] VCAT 1131

[5] Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449

[6] [2005] VCAT 2204

[7] [2005] VCAT 2204 at [9]

[8] (1995) 14 AATR 347

[9] Lewis& Gilbert v City of Ballarat (appeal No 1998/02377)

[10] 10 AATR 211 at 215