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The merits hearing had been listed for 14 August 2008. The judgment says that it did not proceed because the permit and review applicant did not appear. In the order made that day, the Tribunal confirmed Council's decision to refuse the application, referring to s 51(5) of the Victorian Civil and Administrative Tribunal Act 1998 [1]. The judgment does not provide the text of that provision or further reasons for the refusal-related order.

At the August hearing, Council's representative foreshadowed an application for costs. Council's application was made by letter received by the Tribunal on 18 August 2008 [2]. Council submitted that its planning consultant had prepared reports, discussed procedure with the review applicant, visited the site, prepared a submission and attended ready to proceed. Council said its costs were $2,750 [4].

At the costs hearing, Mr Arian Motavalli appeared on behalf of Dr Al Motavalli. He said the designer, Simon Duvall, was no longer involved, and relied on Dr Motavalli's letter of 11 August 2008 to support changing the named party [3]. The Tribunal substituted Dr Motavalli for Mr Duvall as respondent. Its first order records the respondent as “Dr. Al Motavalli of 343 William Street, West Melbourne, 3003”.

Mr Motavalli opposed the scale of Council's claim. He said there was no reason for Council to engage a planning consultant, referred to a $750 quote for a town planner, and said his brother, the permit applicant, had incurred $5,000 in the matter up to the hearing date. He also said Mr Duvall's firm had gone into liquidation and could not continue with the project, and that he and his brother could not attend the August hearing because of work commitments [5].

The Tribunal ordered Dr Motavalli to pay Council $297 within 30 days of the order. It calculated that amount as $90 per hour for three hours of the consultant's attendance, plus GST [8; Order 2].

Why the court decided this way

The Tribunal began with the ordinary position that each party normally bears its own costs. It then identified s 109 of the Victorian Civil and Administrative Tribunal Act 1998 as the statutory guidance for deciding when a costs award is justified [6]. The reasons do not reproduce the provision or set out a general test in detail. The decision should therefore be read as applying the statutory guidance to the facts recorded, rather than as a complete account of s 109.

The central circumstance was non-attendance at a hearing for which others were prepared. The Tribunal said Council and Ms Basile had attended, prepared and were ready to proceed. It considered that the applicant's absence caused inconvenience and costs to those parties [7]. It described the permit applicant's behaviour as unreasonable and concluded that there was justification for an award under s 109 [7].

The reasons record the explanations put forward by Mr Motavalli, including work commitments and the designer's firm having gone into liquidation [5]. They do not explain in detail how the Tribunal weighed each explanation. The express reasoning is that the non-attendance caused inconvenience and costs, and that the conduct was unreasonable. It would go beyond the judgment to state that work commitments can never justify absence, or to extract a general rule about when a party must attend.

The amount was a separate question. Council claimed $2,750, but the Tribunal was not persuaded that the whole consultant charge was warranted [4, 8]. It referred to Melbourne CC v Upmark Pty Ltd [2008] VCAT 1232 as a case Council relied on for another successful costs application, and said it would calculate the award by reference to the consultant's appearance on the day [8]. The stated calculation was three hours at $90 per hour, plus GST, totalling $297. This calculation limited the award to the hearing-day attendance rather than allowing the broader amount Council claimed.

The result thus has two distinct parts: the Tribunal found that the circumstances justified awarding costs, but it assessed a substantially smaller amount than Council sought. The judgment does not say that Council's entire claimed expenditure was unreasonable or unrecoverable in every case. It says only that the Tribunal was not persuaded to award the whole amount on this record.

Before and after state of the law

The decision records the ordinary position as “each party normally bears its own costs” [6]. It also states that s 109 of the Victorian Civil and Administrative Tribunal Act 1998 provides guidance about circumstances in which costs may be justified [6]. Those are the legal propositions that can be attributed directly to this judgment.

Before the costs order, the merits hearing had not proceeded because of non-attendance. The Tribunal had made an order confirming Council's refusal decision on 14 August 2008 [1]. The later costs hearing addressed the consequences of the non-attendance for Council's costs, not the merits of the planning proposal.

After the costs hearing, the order required payment of $297 within 30 days and amended the respondent's identity [Order 1; Order 2]. The decision does not purport to alter the ordinary costs position generally. Its stated reasoning links the award to the particular attendance, preparation, inconvenience and expense described in the record [7–8].

The decision provides only a limited account of the statutory framework. It refers to s 109 but does not quote its terms or analyse its subsections. No broader before-and-after account of the law can safely be drawn from this judgment alone. In particular, it does not establish that every non-attendance warrants costs, specify a comprehensive list of relevant factors, or prescribe a standard method for calculating costs in other proceedings.

There is also a date issue in the source text. Paragraph 1 says Council's refusal decision was issued on 15 October 2008, although it describes an order made on 14 August 2008 and the costs order itself is dated 24 September 2008. The judgment does not explain this apparent chronological inconsistency. It should be treated as an unresolved discrepancy in the supplied text, not corrected by assumption.

Key passages with plain-English translation

At paragraph 6, the Tribunal says “each party normally bears its own costs” and refers to s 109 as guidance. In plain English, the starting point identified in this decision is that parties usually pay their own expenses, but the Tribunal may consider a costs award under the statutory provision. The decision does not set out the full statutory wording.

At paragraph 7, the Tribunal says the non-attendance “has caused inconvenience and incurred costs” for Council and Ms Basile, who attended and were ready to proceed. It then calls the permit applicant's behaviour unreasonable. In plain English, the Tribunal considered the consequences of the missed hearing for those who had prepared and attended, and treated those circumstances as sufficient to justify costs in this matter.

At paragraph 8, the Tribunal says it was “not persuaded” that Council's entire consultant amount was warranted. It calculated costs based on the consultant's appearance on the hearing day, at $90 per hour for three hours plus GST. In plain English, the award covered the hearing attendance calculation, not Council's full claim of $2,750.

The operative wording is in Order 2: payment of $297 was required within 30 days of the date of the order. That gives both the amount and the time stated in the order. The separate first order changed the respondent to Dr Al Motavalli.

What fact patterns trigger this precedent

The decision is most directly relevant to a costs application following a listed hearing where the applicant did not appear, while the responsible authority and another party attended prepared to proceed. Those circumstances are expressly recorded at paragraphs 1 and 7. The Tribunal treated the resulting inconvenience and costs as relevant to whether an award was justified.

It may also be relevant where the costs applicant seeks more than the expense associated with the hearing-day appearance. Here, Council claimed $2,750, but the Tribunal assessed the award by reference to three hours of the consultant's attendance at $90 per hour plus GST [4, 8]. The decision illustrates that a finding that costs are justified does not necessarily mean the full claimed amount will be awarded.

The judgment does not establish that non-attendance alone automatically triggers costs. It refers to attendance, preparation, readiness to proceed, inconvenience and costs, as well as the Tribunal's finding that the conduct was unreasonable [7]. It records explanations based on work commitments and the designer's firm's liquidation, but gives no detailed analysis of those explanations [5]. Accordingly, it should not be treated as deciding how different reasons for absence must be assessed.

The decision also concerns a planning review before VCAT and an application under the costs framework it identifies as s 109. Whether the same reasoning applies in another tribunal, court, proceeding type or statutory setting is not addressed in the judgment.

How later courts have treated it

The judgment itself cites Melbourne CC v Upmark Pty Ltd [2008] VCAT 1232 at paragraph 8. It describes that case as one Council relied on for another successful costs application and refers to it when explaining the method of calculating the award. On the face of this decision, Upmark was used as a comparator for assessing the hearing-day appearance.

The supplied judgment contains no later decisions citing or applying Melbourne CC v Dr. Motavalli. It therefore does not allow an account of how subsequent courts or tribunals have treated this decision. No conclusion about whether later decisions followed, distinguished, limited or questioned it can be drawn from the supplied material.

For research purposes, the relationship established by this text is narrow: Dr. Motavalli cites Upmark in its own reasons. It does not establish a wider chain of precedent or describe the subsequent history of either case.

Still-open questions

The judgment does not reproduce s 109. It therefore leaves open, on the supplied text, the provision's full wording, the complete statutory factors, and how those factors interact with the ordinary position that each party normally bears its own costs. The reasons identify s 109 as guidance and state the Tribunal's conclusion, but do not set out a detailed statutory analysis [6–7].

The reasons do not explain precisely how the Tribunal assessed the work undertaken before the hearing, such as the site visit, reports, procedural discussions and submission preparation. They record Council's claim and its description of the consultant's work, then state that the amount awarded would be based on the hearing-day appearance [4, 8]. The judgment does not give a broader assessment of whether any pre-hearing expense could have been included.

The source also leaves unexplained the different figures raised by the parties: Council's $2,750 claim, the $750 town-planner quote mentioned by Mr Motavalli, and the $5,000 said to have been incurred by the permit applicant [4–5]. The Tribunal's calculation uses the consultant's $90 hourly rate and three hours of attendance, plus GST [8]. The reasons do not indicate that the other figures formed part of that calculation.

Finally, the judgment provides no account of later treatment and includes an apparent inconsistency in the date of Council's refusal decision. Those matters cannot be resolved from the supplied text. The decision's safest use is confined to its stated finding that the particular non-attendance justified some costs, and its assessment of those costs by reference to three hours of hearing-day attendance.

This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, get a qualified Australian lawyer to check it.