This decision concerns an application for costs made by the respondent, Lateral Building Design, against the applicants, Janet Jeffrey and others.
This application for costs was made following a hearing of an Application for Review by Mrs Jeffrey and Ms Martina Neville against the council's Notice of Decision to Grant a Permit for two additional dwellings on the review site. It transpired that neither Mrs Jeffrey nor Ms Neville attended the hearing nor did they send a representative on their behalf.
I ordered that the council issue the permit and reserved costs, pending an indication from the permit applicant and council if costs were being pursued and, if they were, a response to such a claim from Mrs Jeffrey's and Ms Neville.
Mr Neofitou, a town planner who regularly appears at the Tribunal and who represented the permit applicant, subsequently lodged a claim for $4950, being costs associated with preparing a submission and appearing at the hearing, on the basis that Mrs Jeffry's non-appearance at the hearing was vexatious.
Mrs Jeffrey responded by advising that she suffered a serious illness in the week before the hearing and, preoccupied by her illness, forgot to advise the Tribunal that she could not attend. She states she was 'horribly embarrassed' when rung on the day of the hearing to enquire of her non-attendance.
An award of costs in the Tribunal is governed by section 109 of the Victorian Civil & Administrative Tribunal Act 1998. Relevantly, it provides as follows:
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(1) Subject to this Division, each party is to bear their own costs in the proceeding.
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(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.
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(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -
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(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -
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(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
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(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
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(iii) asking for an adjournment as a result of (i) or (ii);
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(v) attempting to deceive another party or the Tribunal;
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(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
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(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;
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(e) any other matter the Tribunal considers relevant.
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In the present case, I accept Mrs Jeffrey's explanation and consider that section 109(1) is applicable. I find it would not be fair to order her to pay all or part of Mr Neofitou preparation or appearance costs given her illness preoccupied her at the critical time. As such, there is no indication that she intended to be vexatious.
I also accept that Mrs Jeffrey was the lead objector in the joint application and that Ms Neville's lack of response is not determinative. I say Mrs Jeffrey was the lead objector as she completed and signed the Application for Review and nominated herself as the authorised representative.
The basis of my decision is the general rule that each party bear its own costs of a proceeding, as this rule promotes access to the Tribunal rather than deterring parties from seeking a review of decision they consider affect them.
In this instance, it is most likely that Mrs Jeffrey would have attended the hearing and agitated her case had she not fallen seriously ill and Mr Neofitou's submissions and attendance would have been required.