Victorian Civil and Administrative Tribunal|2005-04-19

Maher v Greater Bendigo CC [2005] VCAT 712 (19 April 2005)

1 In accordance with Section 109 of the VCAT Act the applicant for review, Ms Maher, is ordered to pay the following costs of the proceeding to each of the following parties:

Such payment must be made within 60 days of the date of this order.

1 This order is in relation to a request for costs to be awarded against the applicant for review by both the Responsible Authority and the Applicant for Permit.

2 I do not intend to recite all the material that has been submitted to me in respect of the costs application other than to summarise the quantum of each request is as follows:

•

Responsible Authority seek:

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$1000.00 for costs thrown away in relation to hearing dated 20 January 2005.

-

$1000.00 for costs of attending Directions hearing 24 February 2005.

•

The Permit Applicant seeks:

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$3960.00 being planning advocates costs thrown away in respect of hearing 20 January 2005.

-

$1500.00 costs associated with the Directions hearing 24 February 2005.

3 Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 sets out the power for the Tribunal to award costs commencing with the presumption that each party is to bear their own costs in the proceeding.

4 Section 109(3) provides that the Tribunal may make an order to award costs only if it is fair to do so having regard to (inter alia):

(a) Whether a party has conducted proceeding in a way that that unnecessarily disadvantaged any 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 enabling Enactment.

(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 but has no tenable basis in fact or law.

5 In the failure to attend the hearing of 20 January 2005 Ms Maher failed to comply with the direction of the Tribunal to attend the hearing. It should be noted this was her Application for Review against the Responsible Authority's decision to grant a permit to the Permit Applicant.

6 Having failed to attend the hearing the Tribunal had no option pursuant to Section 51 of the VCAT Act but to confirm the decision of the Responsible Authority.

7 To that extent Ms Maher had lost her opportunity to review the decision of the Responsible Authority and perhaps importantly the Applicant for Review together with the Responsible Authority had the original decision confirmed without the necessity to defend or demonstrate it was the correct decision.

8 Thus even though funds were expended by the Applicant for Review and the Responsible Authority, the outcome was the same as had the proceeding being contested and the Applicant for Review being unsuccessful. Whilst to some extent it may be true that costs were incurred unnecessarily given Ms Maher failure to attend the hearing however the outcome would have been the same and those costs would have been incurred had she attended. In fact it is Ms Mahers loss of the opportunity to have the decision reviewed that lead to the permit decision being confirmed. I am satisfied on the material forwarded prior to the hearing date that it was an oversight not to attend the hearing.

9 Thus in respect of the costs sought for the original hearing on 20 January I propose to adopt the 'standard' position that each party bear their own costs to the proceeding with respect to the hearing of 20 January.

10 Following that hearing date the Applicant for Review Ms Maher claimed she forgot to attend on that day and sought to have the proceedings reopened pursuant to Section 120 of the VCAT Act.

11 This led to a Directions hearing being conducted on 24 February 2005 to determine whether the matter should be reopened. At the Directions hearing Ms Maher essentially conceded to withdraw the review application although my order dismissed her request to 'have the matter reopened on substantial grounds'.

12 In my view the opportunity provided to participate in the planning process goes hand in hand with the responsibility to act in good faith and undertake the responsibilities of an applicant review, without acting in any way vexatious or unnecessarily prolonging the proceedings.

13 Once having failed to attend the scheduled merits hearing Ms Maher sought to have the order reopened on substantive grounds. Ms Maher stated at the Directions hearing, as mentioned previously, that she simply forgot about the hearing date. That excuse is far from establishing a substantial ground upon which to reopen the proceedings. In my view the same circumstances do not apply to this hearing as applied to the merits hearing.

14 Whilst it is acknowledge that Section 120 of the VCAT Act should be interpreted liberally in the interest of natural justice, in this instance Ms Maher acknowledged her concerns were with the interpretation of Council's planning scheme by Council officers and not specifically about the particular proposal the subject of these proceedings.

15 In my view the fact that Ms Maher did not have any substantive grounds upon which to request the reopening of the order and the unlikely chances of her success based on her remoteness to the review site and her stated concerns in relation to the Council's application of its own policies, resulted in the proceeding being unnecessarily prolonged by the conduct of Mrs Maher and that Ms Maher had no tenable basis in respect of her request to reopen the order on substantive grounds.

16 In my view it is fair that the reasonable for costs of the Directions hearing to be awarded against her.

17 The Directions hearing was only set for a short time although I acknowledge each of the parties needed to prepare for an appropriate response to Mrs Maher's request.

18 Having regard to the costs claim I propose to make an order against Ms Maher to reimburse the Responsible Authority in an amount of $1000.00 and similarly for the Permit Applicant also in an amount of $1000.00. I also order that such costs should be paid within 60 days of this order.

Maher v Greater Bendigo CC [2005] VCAT 712

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Maher v Greater Bendigo CC [2005] VCAT 712 (19 April 2005)

Parties