For the Responsible Authority: Mr D. Scally of Best Hooper Solicitors

1. This proceeding has a somewhat complex history. It relates to a permit application made by the owners and occupiers of 49 Robe Street, St Kilda. The principal proponent, in the sense of being an opponent of that application, is the owner and occupier of the adjacent premises at No. 47 Robe Street, Ms Hickey.

2. Ms Hickey made a number of objections to the proposed development. The one which engaged our attention and which raised a legal issue was that the two premises had been the subject of a subdivision, initially under the Strata Titles Act 1967 but which as a result of that statute's repeal, came to be governed by the Subdivision Act 1988. The proposed development encroached upon common property in the subdivision. Ms Hickey's contention was that in these circumstances the permit could not or should not be granted.

3. The proceeding was heard together with a related matter which pertained to another permit application development at the same address. There Ms Hickey's contention was that the proposed development could not or should not be permitted because it would involve an interference with statutory easement rights granted to her as the owner and occupier of her unit on the plan of subdivision, initially by the Strata Titles Act 1967 and now by the Subdivision Act 1988. Her contentions as to the threatened infringement of common property were successful. We published a reserved decision upholding her contentions in that regard and thereafter the Tribunal directed that no permit issue. As a result of that decision Ms Hickey now applies for an award of costs against the permit applicant and against the Responsible Authority.

4. She places reliance in the application upon Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. That section governs costs in the Tribunal generally and in the Planning List in particular. Sub-section (1) states a general proposition that in the Tribunal costs lie where they fall. Sub-sections (2) and (3) however state circumstances in which that general rule may be departed from. Ms Hickey submits that this is one of those cases. She places reliance in particular upon some three paragraphs which appear in sub-section (3). Sub-section (3) states in part:

"The Tribunal may make an order under sub-section (2) that is an order that the costs of one party be paid by another only if satisfied that it is fair to do so having regard to [and we now quote the three paragraphs relied upon by Ms Hickey]

(c) the relative strengths of the clams 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 proceedings; and

(e) any other matter the Tribunal considers relevant."

5. In support of her contentions Ms Hickey has provided us with a lengthy written submission. The submission includes a detailed chronology of events surrounding these and related applications. The chronology discloses for instance that an application in many respects similar to the one which has now been dismissed, was made and commenced in 1997 and disposed of by decision of the Tribunal in 1999, constituted by Mr Barr. Mr Barr is not a legally qualified Tribunal Member but when arguments similar to those which have been pressed upon us were pressed upon him, he observed that these were not matters for the Tribunal to consider. Ms Hickey submits that he should be regarded as therefore having declined to determine them as questions of law which he, as a non-legal Member did not have the authority to determine.

6. Mr Scally who appears for the Responsible Authority submits the proper construction of what occurred before Mr Barr was that he determined that issues pertaining to the Subdivision Act were matters irrelevant to the planning jurisdiction.

7. The chronology further discloses that in the course of considering the first application which Mr Barr determined adversely to the permit applicants on ordinary planning grounds, the Responsible Authority, the Council, took legal advice from its present legal advisers, the substance of which was that proprietary issues arising under the Subdivision Act were irrelevant to the consideration of planning discretions and that accordingly the permit application should be determined in accordance with its planning merits and without regard to any contention that rights under the Subdivision Act were being infringed. That appears to be the manner in which the Responsible Authority has conducted itself since receiving that advice. It is certainly the manner in which it conducted itself before us and is consistent with the submission which it pressed.

8. Ms Hickey's submission in the circumstances is that her objection based upon the Subdivision Act 1988 and the rights which it gave her and which she says would be infringed by the development were so obvious and were pressed upon the other parties at so early a stage, even before the making of the permit application which led to the present proceeding, that it is evident that there was no tenable basis in law for the manner in which the proponent and the Responsible Authority conducted themselves. Further, she says that the proceeding was a matter of some complexity. She herself prepared a very lengthy written submission taking us in the utmost detail to provisions, first, of the Strata Titles Act 1967 and then of the Subdivision Act 1988 and to various regulations made under those two statutes.

9. In so far as our decision was ultimately in relatively short compass, she submits that that is no indication of a lack of complexity but rather is indicative of the clarity with which matters could be perceived in light of the lengthy and detailed submissions which she made to us.

10. She was also critical of a number of aspects of the conduct of the applicants and the Responsible Authority. The permit applicants she says have conducted themselves inappropriately in continuing to press an application in violation of her rights under the Subdivision Act. The permit applicants, according to her chronology, lodged an incorrect declaration as to having given notice to her as owner with respect to the first application, the one that was ultimately dealt with by Mr Barr. Further, she says that earlier material lodged in support of that application suggested that the permit applicants were the owners of the entire land affected or upon which the proposed development was to be erected and that was inferred. She says that material by way of legal advice from the permit applicants was inappropriately pressed by them upon the Responsible Authority and inappropriately accepted by the Responsible Authority. All in all in Ms Hickey's submission the circumstances and the discretion to justify the making of a costs award is clearly enlivened and this is a manifestly appropriate case, she says, for the making of a costs award despite the general provision which we find in Section 109(1) that costs should lie where they fall.

11. Mr Scally on behalf of the Responsible Authority submits that the questions as between Ms Hickey on the one hand and the other parties on the other hand were, if not finely balanced, at least arguable the one way or the other. This was not a case Mr Scally said, where the Responsible Authority and the permit applicant were relying upon arguments so flimsy that they would have been proper for summary dismissal. The Responsible Authority has taken legal advice and as a result has filed an originating motion in the Supreme Court seeking leave to appeal from our determination. He says that that in itself is indicative that the points relied upon by the Responsible Authority and for that matter by the permit applicant, were at the very least arguable. Mr Scally drew attention to the Tribunal's general practice in permit review applications not to award costs. He said that a consideration of the determinations of this Tribunal and of its predecessors, the Administrative Appels Tribunal and the Planning Appeals Board would disclose that it was only in exceptional circumstances that in a permit review application a costs order would be made. Examples of that sort of exceptional circumstance were contumelious or arbitrary behaviour on the part of a Responsible Authority failing to determine a permit application on its merits, defiance of Tribunal directions and so forth. No such circumstances existed her in his submission.

12. He submitted further, that a proper analysis of the Responsible Authority's conduct would display it as having been reasonable in all the circumstances. His client took and acted upon legal advice. That advice we have determined as incorrect. The Responsible Authority maintains the opinion that the advice was correct and seeks to vindicate that opinion upon application for leave to appeal to the Supreme Court. Whatever is the correct view on these legal issues, Mr Scally submits it cannot be said that Council has acted unreasonably and therefore there are no other relevant considerations in his submission which would justify the making of a costs order.

13. Ms Johns who appeared on behalf of the permit applicant generally supports the submissions which were by Mr Scally. She echoes the submission that the making of a costs award in a permit review application is very much the exception and quite unusual. She says that this was not an especially complex matter and that many planning permit review applications raised matters of great complexity in fact and law. This was not such a proceeding. Further, she says that in the circumstances her client has not acted at all unreasonably in so far as the permit applicants have renewed their permit application after the first adverse decision from Mr Barr. She says they have acted reasonably, responding she says to Mr Barr's comments on planning merit and encouraged by the view which she says he expressed that rights under the Subdivision Act were not matters relevant to the exercise of discretion in the planning jurisdiction.

14. It is proper before considering these arguments further, to note the quantum of costs which is being sought in the proceeding. The only matters which are particularised are a number of disbursements, namely a $170 filing fee to commence the proceeding; Titles Office search fees of $11 and $50 for the acquisition of various items of statutory material necessary for the preparation of Ms Hickey's submissions. Ms Hickey holds letters patent as one of Her Majesty's Counsel. She has however retired from practice. In so far as she claims any professional fees (and we apprehend that her claim in that regard is not pressed with as much vigour as the claim for the disbursements is), she claims it not according to any particular scale of fees charged professionally, not upon an opportunity cost basis of paying professional work foregone but rather that the time that she has devoted to the preparation of arguments in this proceeding has meant that she has been unable to devote a corresponding amount of time to the Winja Ulupna Ngwala Willumbong Cooperative, an indigenous drug and alcohol rehabilitation facility in the City of Port Phillip.

15. We turn then to the substance of the arguments pressed upon us and consider the arguments pressed with respect to the three paragraphs relied upon. First, in our view, it is an inappropriate approach to Paragraph (c) of Section 109(3) in so far as it invites attention to the strengths of the claims made by each of the parties to conclude merely because the contentions of one party have been accepted and the contentions of the other party rejected, that the paragraph is attracted in operation. If that were the case since in every proceeding which has to be heard and determined, the contentions of one party are accepted and the contentions of the other are rejected, the award of costs in the Tribunal would become the rule rather than the exception. What we conceive the paragraph is meaning to identify are circumstances in which it is not merely a necessary incident of the adjudicative process that one party wins and the other party looses but that the one party or the other has pressed a clearly implausible manifestly weak or incredible case. Here we accept the submissions of Mr Scally and Ms Johns that the issue as we determined and determined in favour of Ms Hickey is by no means self evident the one way or the other. It may be that the Supreme Court will in due course see fit to differ from the conclusion that we have reached. Time will tell.

16. We believe obviously that the determination that we gave was the correct one. We do not believe however that the view urged by Mr Cicero who then appeared for the Responsible Authority and which we rejected, is so implausible, so inappropriate as properly to be described as a view which has no tenable basis in law, therefore we do not believe that the circumstances described in Paragraph (c) of Section 109(3) exists.

17. Next, with respect to the nature and complexity of the proceeding, we agree that there is an element of complexity here. No party referred us to any previous decision of the Supreme Court or this Tribunal or any of its predecessors precisely on point, that is not to say that there have been no such adjudications but the fact that there are no well known ones indicates that this is not a well trodden path. That in itself is indicative of some measure of complexity. It was a task requiring careful preparation for Ms Hickey to take us through the intricacies of the Strata Titles Act and regulations and the Subdivision Act and regulations. Nevertheless, having regard to the sort of complexity that may arise in a whole range of planning matters in this Tribunal, we do not regard this matter as inordinately complex, quite difficult questions of characterisation for instance can arise under planning schemes.

18. What we think is perhaps the most important and significant element of the application of Paragraph (d) to this proceeding is the one touched upon by Mr Scally and also by Ms Johns, namely the nature of the proceeding. The nature of this proceeding is one which seeks a review of a Responsible Authority's determination to grant or refuse a permit. These sorts of proceedings have been Tribunal matters for almost 30 years now. The practice in this Tribunal and in the Administrative Appeals Tribunal and so far as we can determine, the Planning Appeals Board and the Town Planning Appeals Tribunal before that, is that costs lie where they fall in such proceedings. This is in accordance with the general rule which we find embodied in Section 109(1). The reason why this is so remains for the most part unarticulated. We infer that it drives from this consideration that generally permit review applications represent disputes as to the exercise of administrative discretion rather than findings as to the existence or otherwise of particular states of fact or law or the existence of particular legal obligations. The general flavour of Ms Hickey's submission is that this is not an ordinary garden variety permit review application of that sort. Its disposition raised a significant and difficult question of law. Our experience however is that whilst questions of law are frequently determined within permit review applications and the determination of those questions of law might to some degree be regarded as taking those proceedings outside the general description which we have already given them, nevertheless the same practice as to the award of costs or otherwise has tendered to reign.

19. We think that Mr Scally's characterisation of the exercise of the costs discretion, namely that it is an unusual circumstance for a costs award to be made in a permit review application is correct and that really unusual circumstances, certainly so far as the Responsible Authority is concerned are required, such as contumelious conduct. To our mind, taken on balance, a consideration of the nature and complexity of the proceeding supports rather than points away from the application of the general rule set out in Section 109(1).

20. Ms Hickey in referring to the very lengthy chronology was critical of the Responsible Authority at many turns. She feels, we believe, a sense of injustice which is far from uncommon in protagonists in planning matters. The Responsible Authority by the nature of its role is forced to take a particular line either in support or opposition to a development. The party against whom the Responsible Authority comes down will inevitably have a feeling of injustice and a particularly piquant feeling of injustice at the thought that the case being mounted against that party is being paid for at least in part by the rates derived from that party himself or herself. All that is understandable but we do not perceive that the Responsible Authority here has done anything to step into a role of inappropriate partisanship. So far as the permit applicants are concerned, they, like the Responsible Authority, have acted upon what we have found to be an erroneous view of the law. That that view was erroneous is not so clear that the applicant or for that matter the Responsible Authority is worthy of moral censure, much less a costs penalty for having acted upon that view. To bring forward a further development application in response to and in an attempt to cope with criticisms made on planning grounds by a Tribunal determination is not in any way inappropriate or unreasonable behaviour.

21. In summary therefore we do not believe that there are any other relevant matters which would point in favour of there being a costs award. Having regard ultimately to the very modest sums of disbursements which are being claimed there is a very strong temptation simply to award them because of their modest amount. We think that the considerations which we have mentioned support the view that the general rule of Section 109(1) should apply here and that the mere modest size of the disbursements claimed cannot change that. We should also note with regard to the disbursements that their extent was disclosed only in the course of this hearing. It may well be that had their modest amount been disclosed earlier, this matter as to its costs application could have resolved.

22. The hearing on the costs issue commenced at 10.00 a.m. it is now 12.45. Both the Responsible Authority and the permit applicant have been professionally represented. It goes without saying that the cost of that representation far exceeds the $231 and it is perhaps regrettable that matters have turned out in that fashion. Even had we been of a different view as to whether the presumption that costs lie where they fall should in these circumstances be displaced, we would have felt that there was an insuperable barrier to the award of anything in the nature of professional fees in these circumstances. We do not understand it to be an objection to the recovery of professional fees in these circumstances that they represent fees attributable to a legal practitioner representing himself or herself. In that respect we refer to a decision of the High Court of Australia in Guss v Veenhuizen (No. 2) [1976] HCA 57; (1976) 12 ALR 271. The application of Section 314 of the Legal Practice Act 1996 would in the circumstances have given rise to difficulty. It prohibits persons who do not hold practicing certificates from engaging in legal practice and destroys any liability which might otherwise exist to pay the fees of such persons. We have not heard full argument as to whether a legal practitioner representing himself or herself in the circumstances is to be regarded as engaged in legal practice and we think it best to express no view as to what the effect of Section 314 of the statute might have been in these circumstances. What clearly stands in the way of our making any award in these circumstances is that we have been given no certainty as to the quantum and are referred to no scale against which an assessment of the reasonable amount of those fees could be made. Be that as it may, that issue ultimately does not arise having regard to the view that we have already expressed that Section 109 applies so that the proper disposition of this matter is that the costs lie where they fall.