1 The tribunal gives leave to the applicant to withdraw the proceeding and the proceeding is marked "withdrawn".

2 The respondents must pay to the applicant the sum of $13,131.25 in respect of the costs of the application.

(given orally at the hearing and subsequently revised)

1 On 25 January 2005 the tribunal made an enforcement order requiring certain tyres and related materials to be removed from land at Mt Cottrell. The land, which has an area of about 28 acres, is owned by the respondents. Elvis Shabani and Edmund Shabani, who are brothers, Kujteme Shabani who is the wife of Edmund Shabani and Shefket Shabani who is the mother of Elvis and Edmund Shabani.

2 The order made by the tribunal was not complied with. As a consequence the Melton Shire Council initiated a contempt proceeding against the respondents on 6 December 2005. This hearing was subject to a number of directions hearings and administrative mentions during 2006 and early 2007.

3 At a hearing in July 2006 Mr Edmund Shabani explained to the tribunal that there remained upon the Mt Cottrell property a few thousand tyres and some shredded rubber. He explained that various proposals were being explored to facilitate a tyre shredding business elsewhere and that tyres were being trucked from the site to another location.

4 Essentially the practice I adopted at the various directions hearings was to ascertain the extent of compliance with the tribunal's enforcement order and to adjourn the matter in order to promote compliance. Although this achieved partial compliance, in that the tyres were removed from the Mt Cottrell land, it created a new issue, namely whether the tyres were being satisfactorily disposed of. It is unnecessary that I ventilate the detail of these matters in these reasons, as they are covered in the reasons that I gave at the various directions hearings which occurred in this matter.

5 More recently the Environment Protection Authority has served a clean-up notice upon Edmund Shabani in relation to shredded tyres and fire remains of shredded tyres at a property in Ravenhall. This was the property from which some of the tyres at Mt Cottrell were taken. As a consequence, the council now takes the view that there is little point in pursuing the contempt proceeding in that it has largely achieved its objective, namely to mandate compliance with the enforcement order. I agree. For this reason it is appropriate that the tribunal gives leave to the council to withdraw the application in relation to contempt.

6 Council has also applied for its costs in relation to the proceeding.

7 I see that Mr Shabani and his brother have just arrived. I will cease completing these reasons and I will now hear from them.

[After hearing from the Shabanis.]

8 In relation to costs I had formed the view, based upon hearing the council, that an appropriate order was that the respondents be required to pay the council's costs on a solicitor/client basis of $13,131.25. As I was giving my reasons Mr Elvis Shabani and Mr Edmund Shabani entered the hearing room. I then indicated to them that I would hear from them before deciding to confirm that order or reverse it. I have now heard from them and I still believe it is fair that the respondents be required to pay the council's costs.

9 There have been a number of directions hearings in this matter and at those directions hearings the Shabanis have, in effect, acknowledged that they have not complied with the enforcement order made by the tribunal; and have indicated that they will be seeking to comply with it in the future. However some ten months elapsed between the time when the enforcement order was required to be complied with and the bringing of the contempt proceeding; then, after the contempt proceeding was brought, there were a number of directions hearings which were adjourned with the intention of achieving compliance. Yet compliance was slow, or, as the council has it, unsatisfactory.

10 I think when it comes to who is responsible for the costs that have been incurred by the council, there is really only one answer: and that is the Shabanis, because it was their conduct in not complying with the order and being slow in complying after the contempt proceedings were initiated, that is the true and fundamental cause of those costs being incurred.

11 I indicated in Port Phillip City Council v Ironcroft Pty Ltd[1] that it is usual, or at least common, for a contemnor found guilty of contempt to pay the costs of the prosecutor, often on a solicitor/client basis. Although this matter has not continued to the stage of a finding of guilt of contempt, I think the same principle should apply if proceedings have been withdrawn as a result of the alleged contempt being addressed. This is especially so if the costs that had been incurred have as the fundamental root cause the conduct of the respondents in the proceeding.

12 Mr Edmund Shabani told me this morning that he never intended to leave any mess on the site and he was well intentioned. Even though I might be prepared to accept that the non-compliance in this case was not intentional, but was due to other factors, it remains true that an order, which was required to be complied with, was not complied with; and, after many preliminary hearings in the contempt proceeding continued to be not complied with, or at least slowly complied with. Hence the fact that there might have been an intention to leave the site clean does not count for much, unless that intention was actually carried into effect. Good intentions are one thing, but ultimately it is actions that count.

13 Mr Edmund Shabani also told me that if I make the order sought by the council, this might result in the end of his partnership with his brother, Elvis, in relation to this tyre recycling business. If that is the case, I do not believe it has any consequence in relation to whether the order should be made. It is really a side issue in relation to whether the order should be made.

14 Mr Edmund Shabani also told me that if the order was made it might result in him becoming bankrupt. I doubt that, because the sum that I am proposing to award is unlikely to have that consequence. But if I am wrong and it does have that consequence, I still regard it as an irrelevant consideration. Ultimately whether the order is fair or not turns on who has been the root cause of the incurring of the costs, and on the nature and character of the conduct which has resulted in the cost being incurred. The nature and character of that conduct in this case is non-compliance with an order made by the tribunal, and slow compliance when the matter came on before me as a contempt matter. I think therefore that it is fair that costs be awarded. I also think it is fair that those costs be calculated on a solicitor/client basis. In my view this better reflects the nature of the proceeding, the nature of the conduct which has led to the proceeding and the elongation of the proceeding by continuing non-compliance.

[1] [2003] VCAT 1582.