Victorian Civil and Administrative Tribunal|2000-01-31|Before: Ms J

Jacobsen v Whitehorse City Council [2000] VCAT 400 (31 January 2000)

For the Respondent: Mr Townsend of Counsel, instructed by Macquarie Lawyers & Strategists

1. This proceeding was commenced by a referral filed with the Tribunal on the 13th of December 1999 by Ms Jeanette Jacobsen of 8 Campaspe Street, Box Hill North.

3. The respondent Whitehorse City Council had entered into a program whereby the entirety of this land was being disposed of as an unnecessary right-of-way or reserve closure. In that regard it engaged a consultancy carrying on business under the name Centaur.

4. Correspondence from Centaur Consulting to Ms Jacobsen in August of last year suggested that she would be entitled to purchase half of the right-of-way abutting her property. In the event, Council has determined to sell the entirety of that right-of-way to a neighbour and to permit Ms Jacobsen to purchase no part of it. This decision appears to have been based upon considerations of physical occupancy of the right-of-way. I have no precise evidence before me as to the nature of the land in dispute. It is apparently comprised in a certificate of title and a caveat has been lodged on behalf of Ms Jacobsen against that title at the Office of Titles. No copy of the relevant certificate of title or duplicate certificate of title was available to me and no particulars of the person or persons shown as registered proprietors.

5. Mr Townsend of Counsel appears on behalf of the respondent Municipality. He submits that there is no jurisdiction for the Tribunal to entertain the referral which has been made or purportedly been made. The Tribunal's jurisdiction sought to be invoked is under Section 39 of the Subdivision Act 1988. Sub-section (1) states:

"(1) An owner, an applicant, a Council or a referral authority may apply to the Victorian Civil and Administrative Tribunal for the determination of a dispute arising under this Act or the regulations."

6. Mr Townsend submits that this dispute, however characterised, cannot be said to arise under the Subdivision Act or the Subdivision Regulations. He says that his client, the Council, was acting under Section 206 of the Local Government Act 1989 and related provisions including specific powers in one of the schedules to the Act to close and dispose of an unnecessary road which that statute defines as including a right-of-way.

7. Mr Jacobsen, the son of the applicant Ms Jacobsen, has drawn my attention to a statement of policy of the City of Whitehorse, contained in its Corporate Policy Manual. Paragraph 2 of that Policy headed "Discontinuance and Sale of Unnecessary Roads and Reserve Policy" which is under the sub-heading "Objectives", states:

"Council has the right to discontinue and sell unnecessary roads and reserves by private treaty or retain them for municipal purposes as prescribed under Sections 189 and 206 of the Local Government Act 1989 and Section 24A of the Subdivision Act 1988 and obtain the best financial return for the benefit of all ratepayers within the municipality."

8. Mr Jacobsen has highlighted the reference to Section 24A of the Subdivision Act 1988 and as I understand his submission it is that provision which he says provides the link between this dispute and the Subdivision Act so as to render it a proper one for a referral under Section 39. Sub-section (1) of Section 24A says:

"If required or authorised to do so by the planning scheme or a permit a person or body listed in Column 1 of the table may lodge at the Titles Office for registration a certified plan to do any of the things listed in relation to that person or body in Column 2 of the table in relation to the whole or any part of the land referred to in that column."

9. There then follows subjoined to this sub-section, a table consisting of two columns. The first column describes persons or bodies and the second column describes actions which the section in the circumstances described, authorises that person or body to take. Councils are empowered to take as Councils the following action:

First, Council may "vest in itself land shown or set aside or set aside as a reserve on a registered but not certified plan". Secondly, "vest in itself on a registered but not certified plan that is shown as a lot, common property, road or reserve". Thirdly, a person described as the person or body in whom or in which the land is vested (and the Local Government Act vests public highways in the relevant local council), may "remove a reservation from land shown or set aside as a reserve on the registered but not certified plan or shown on a plan prepared under this Section or remove a reservation from land set aside as a reserve on a certified and registered plan"

The balance of Section 24A is not at present relevant.

10. Can it be said in the circumstances which I have described that any action is being taken by Council under Section 24A so as to render this dispute to be properly described as one arising under the Subdivision Act or the Regulations. In my view it cannot so be said.

11. First, Section 24A establishes a procedure which is initiated by lodgement at the office of Titles of what the Section describes as a certified plan to do any of the things listed in relation to that person or body. There is no evidence before me and it was not suggested by Mr Jacobsen that Council has proceeded to do any of those things. Per contra the action which Centaur Consulting undertook on behalf of the Council, appears to be consistent with the exercise of powers under Section 206 of the Local Government Act 1989. It is not for me to express any view as to whether the Local Government Act authorises in a general sense the action which has been taken with respect to this particular piece of land, or if it does, whether Council has properly invoked those procedures and done it in a manner which is immune from legal attack. What is clear however to my mind is that whatever has been done has not been purportedly done in any way pursuant to the Subdivision Act and therefore there exists, as I see it, not the ghost of a connection between the Subdivision Act and the dispute which is sought to be brought before me.

12. It follows therefore that the Tribunal lacks jurisdiction to hear and determine the dispute which Ms Jacobsen wants to bring before it.

13. Mr Townsend submits in those circumstances that this application should be dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. He did not submit that the application was frivolous or vexatious, rather he said that it was properly described as misconceived in so far as it sought to obtain relief by way of dispute determination under a statutory provision, namely Section 39 of the Subdivision Act which simply had no application.

14. Mr Townsend went further and said, in the circumstances as authorised by Section 75, Ms Jacobsen should pay the costs which have been incurred by Council in coming here to challenge jurisdiction. He says that Council has been put to considerable cost and expense. Section 75 of the Victorian Civil and Administrative Tribunal Act specifically contemplates that a person in Ms Jacobsen's position should compensate the Council for that. Sub-section (2) of Section 75 states:

"The Tribunal may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience, embarrassment resulting from the proceeding."

15. Mr Townsend further relies upon Section 109 of the Victorian Civil and Administrative Tribunal Act which he concedes creates a primary assumption that the costs of the proceeding will lie where they fall but in sub-sections (2) and (3) authorises the Tribunal to depart form that general rule and order one party to the pay the other party's costs by reference to a very lengthy list of considerations. The ones from that list which he says are relevant are those set out in sub-section 3(b) and (c), namely:

"(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and

(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."

16. Mr Townsend submits that in so far as the jurisdiction is wrongly invoked there is no tenable basis for the proceeding in law. Further, he refers to correspondence in which his instructing solicitors pointed out the jurisdictional difficulties which I have sustained in the clearest possible terms. Nevertheless, the applicant has proceeded to bring this matter on. In those circumstances, Mr Townsend submits that the applicant is to be regarded as having unreasonably prolonged the proceeding having had the jurisdictional difficulty clearly pointed out to her.

17. The consideration of this costs issue raises to my mind some difficult issues. Section 75(2) certainly does specifically contemplate that costs and other expenses may be ordered to be paid by a party whose claim is unsuccessful. It is to my mind unnecessary for me to consider whether this applicant's claim is to be regarded as frivolous, vexatious or misconceived in accordance with Section 75 of the Victorian Civil and Administrative Tribunal Act. Even if Section 75 of the Victorian Civil and Administrative Tribunal Act did not exist, there is an overriding and fundamental principle that the Tribunal must not proceed with a matter in which it has no jurisdiction. Nevertheless, I accept that Section 75(2) does enliven a discretion in circumstances such as the present to make a costs order. Further the provisions in Section 109 dealing specifically with costs and relied upon by Mr Townsend which I have quoted, likewise enliven that jurisdiction.

18. With some hesitation however I have come to the view that an order of dismissal is sufficient and it is not appropriate to order that this applicant pay the Council's costs. The fact is that this matter has been heard and determined at the very outset and at the first directions hearing and so whilst there has been a difficulty and no doubt cost involved in the preparation of the arguments which I have accepted as put by Mr Townsend, there has not been the degree of heavy preparation which a matter which proceeded beyond this very preliminary stage would have entailed. Further, I am conscious of the fact that this applicant is not legally represented and it would appear is a person of relatively modest means. In those circumstances I do not believe that it would be just or proper to visit her with the additional penalty of a costs order beyond the penalty she already suffers arising out of the summary dismissal for want of jurisdiction which I have determined should be made.

19. Accordingly, I will simply direct and order that this proceeding is dismissed for want of jurisdiction and make no order as to costs.

Civil and Administrative Tribunal Act 1998

Jacobsen v Whitehorse City Council [2000] VCAT 400

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Jacobsen v Whitehorse City Council [2000] VCAT 400 (31 January 2000)

Parties

Legislation Cited (2)