2 My order and reasons are set out in writing in an order dated 24 June 2004. I determined to strike out the Application for Review pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") on the grounds that the Application was misconceived or lacking in substance.

3 As stated in my reasons, I heard oral submissions from Mr O'Farrell for the Respondent supporting an application for costs against the Applicant. The costs application was made under both section 75 and sub-sections (3)(b) and (3)(c) of Section 109 of the Act. Mr O'Farrell sought costs on an indemnity basis given that Mr Gresham had been put on notice that the case would have no merit and that was ultimately found. He stated that the permit applicant had been put to inconvenience and expense in preparing for the Hearing with the added concerns about delays in the ability to start work when only a limited construction period is available. Mr O'Farrell stated that in early June 2004, he had sought further and better particulars from the Applicant and noted that Mr Gresham had subsequently been legally represented. Mr O'Farrell also referred to a lack of substance of the submissions, the distance of the Applicant's land from the review site and inability to see the proposed works from the Applicant's land holding.

4 At the conclusion of Mr O'Farrell's submission, I requested that he file and serve a breakdown of the $7,500 in costs sought by the Respondent, by close of business on 23 June 2004. I directed that Mr Harris file and serve a response by close of business on 6 July 2004.

5 Subsequently, Mr O'Farrell filed a statement of costs, totalling $8,9996.40.

6 A written response has been received from Mr Harris, dated 4 July 2004 wherein the costs application is opposed.

7 In considering the costs application made by Mr O'Farrell, I refer to section 75(2) and section 109 of the Act which gives the Tribunal power to consider such applications:

75(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(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 and 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.

8 I found that the issues raised by the Applicant related to matters beyond the confined scope of the Tribunal's discretion pursuant to the Scheme. It is relevant that the Council officer's report identified the permissions required and in my mind could not have inadvertently misled anyone reading the report in this regard. Nonetheless, I can appreciate how a lay person may see links between the matters of concern to the individual and the proposal, although ultimately I formed a different view about the validity or relevance of those links referred to by Mr Gresham in this case.

9 The Respondent sought a priority hearing through the Tribunal on 7 May 2004, but it seems that it was not until around 7 June 2004 that the Applicant was "put on notice" by the lawyer for the Respondent that the issues upon which the Applicant might rely were felt by the Respondent to potentially be irrelevant to the permissions required pursuant to the Scheme. That was some 11-12 days prior to the scheduled Hearing. I note that a response was sought within 10 business days (ie. by 17 June 2004 or only several days prior to the Hearing).

10 At this point I observe that an application for the Application for Review to be struck out was not raised in the priority hearing request by the Respondent and it is relevant that no notice of such a request was formally given to all parties prior to the merits Hearing on 22 June 2004. It is also relevant that there was also no request for a preliminary hearing on this point nor was it raised in a formal way as a preliminary matter at the merits Hearing.

11 Further particulars were provided by Mr Gresham, under a covering letter from Mr Harris dated 15 June 2004. It appears that Mr Harris, Mr Gresham's legal representative who appeared at the Hearing, had become involved by this stage but prior to that time correspondence referred to and on the Tribunal's file was under Mr Gresham's signature. Mr Gresham suggests in a facsimile of 7 May 2004 that he would be instructing a solicitor and Mr Harris states in his letter of 4 July 2004 that he only became involved "on 17th of June when I filed the better particulars..." [although I have already noted that correspondence was dated 15 June 2004 and it was received by the Registrar of the Tribunal on 17 June 2004].

12 I have considered Mr O'Farrell's submission having regard to the provisions of the Act that I have set out. While ultimately the Application was found to be misconceived or lacking in substance, it was not submitted by the Respondent that the Application was vexatious. The Application was struck out for legal reasons although the merits arguments would have failed for similar reasons. However, I do not think that was obvious to Mr Gresham as a lay person, or that he could have been expected to realise the potential for the matter to be struck out until that application was made at the Hearing. In forming that view I am mindful of the submissions made by Mr Harris when I asked him to address the matter of the ambit of discretion.

13 In the circumstances, I am not persuaded that it would be fair to award costs pursuant to section 75 of the Act.

14 In relation to section 109 of the Act, the usual course is that each party must bear its own costs. The grounds relied upon by Mr O'Farrell are relevant to sub-sections (3)(b) and (3)(c) being that Mr Gresham prolonged unreasonably the time taken to complete the proceeding and that his case was untenable. I note that an application for costs under section 109 was foreshadowed in the letter of 7 June 2004 to which I have referred and there was also a suggestion by the Respondent in the same letter that the Applicant consider withdrawing the Application for Review.

15 I am not persuaded that the proceeding was unreasonably prolonged, in so far as a speedy hearing was granted by the Tribunal once the Practice Note 2 material was supplied by the Council and it was only around two weeks before the merits Hearing that the question of relevance appears to have been formally raised by the Respondent with the Applicant. I form that view because the priority hearing request was supported by several points including that the issues would be "confined" but not irrelevant.

16 Moreover, once the legal issue was raised by Mr O'Farrell at the Hearing, Mr Harris & Mr Gresham did not seek to protract a debate about the strike out application or request the matter be referred to a legal member or adjourned. That fact is properly highlighted by Mr Harris in his response.

17 Mr O'Farrell's case for costs seems stronger in relation to his reliance on sub-section (3)(c) of section 109, that being that the Applicant's case had no tenable basis in fact or law for reasons that I have already described. Again, I am not sure that was entirely apparent to Mr Gresham or Mr Harris. Although the grounds submitted by Mr Gresham in his letters of objection were more confined and of little relevance to the matters upon which a decision would be based, those subsequently filed and presented at the Hearing sought to draw links with relevant planning considerations. I can appreciate that the Respondent may feel that the Applicant had an "ulterior motive" and that the case had been "dressed up". However, that was possibly not so clear cut to cause the Respondent, on receiving further and better particulars by way of letter dated 15 June, to seek an urgent hearing to possibly avoid the need to prepare for a full Hearing. That must, however, be fairly qualified when observing the short timeframe before the Hearing was scheduled, on 22 June 2004.

18 In my view, to award costs on an indemnity basis at the level sought by the Respondent in the circumstances I have described would be punitive. The request seeks to recoup all costs associated with the involvement of Phillips Fox lawyers in this appeal process which is unfair in the circumstances that I have described. It is important that the ability to appeal a Council decision is not about penalising lay persons for applications brought on poor or untenable grounds and without a full appreciation or understanding of the legal issues involved concerning the confined discretion that applies to permit applications such as that in this case. The clear intent of the legislation is that ordinary citizens should be free to protect their rights by taking action before the Tribunal without the fear of punitive costs. Moreover, 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 of each case. In considering that question, I have taken into account the submissions received at the Hearing including the facts and matters I have already referred to and the contents of Mr Harris' response dated 4 July 2004. I have not been persuaded that it is fair to make the order sought by the Respondent. I will accordingly dismiss the costs application.