1. The hearing on 25 October 2024[1] related to an application for costs made by the Moorabool Shire Council ('council') in relation to its application for enforcement order.
2. On 16 August 2024, I made an enforcement order with respect to land at 4 Love Close, Maddingly ('land'). I found the land was used for a store in breach of cl 32.08-2 of the Moorabool Planning Scheme ('scheme'). During the hearing of that application for enforcement order, council made an application for its costs against Godwin Thomas Aquilina ('respondent').
3. I do not repeat the history of that application and the reasons for the enforcement order as they are contained in Moorabool SC v Aquilina[2] (Aquilina). However, I do consider it necessary to set out some of the procedural history as it is relevant to my determination of the application for costs. At paragraph 8 and following in Aquilina I stated as follows:
   1. The hearing of this application was originally listed for 3 August 2023. However, the Tribunal was advised that the respondent could not attend, and the hearing was relisted for 9 October 2023.
   2. The hearing proceeded on 9 October 2023, with the respondent in attendance. However, during the afternoon it was necessary to adjourn the hearing to 4 December 2023. The hearing was adjourned during the respondent's cross examination of Andy Gaze.
   3. The hearing listed for 4 December 2023 was adjourned and ultimately relisted for three days in August 2024. My previous orders in this proceeding set out the reasons for the adjournment of the hearing and I do not repeat those reasons here.
   4. The respondent did not appear at the resumption of the hearing on 5 August 2024. I heard evidence from Katherine Taylor regarding her attempts to bring the resumed hearing date to the attention of the respondent. Katherine Taylor's affidavit affirmed 19 July 2024 sets out in some detail the attempts made to serve the respondent and to make him aware of the resumed hearing date.
4. I also highlight the hearing on 3 August 2023 was adjourned because the respondent was admitted to hospital on that same day.
5. I provided a process for the provision of submissions in support of council's application for costs. I also provided the respondent, Godwin Thomas Aquilina, an opportunity to respond to the application for costs. The respondent has not provided any response to council's application for costs.
6. In preparing for the hearing on the application for costs, I required a summary of council's overall costs and the amount it said should be awarded.
7. Having considered the relevant application and supporting material, I refuse to make an award of costs against the respondent. My reasons follow.

1. Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act)' provides the legislative basis for an award of costs.
2. Section 109 of the VCAT Act provides:

(1) Subject to this Division, each party is to bear their own costs in the proceeding. > > (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. > > (3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to - > > > (a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another 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 an enabling enactment; > > > > > > (iii) asking for an adjournment as a result of (i) or (ii); > > > > > > (iv) causing an adjournment; > > > > > > (v) attempting to deceive another party or the Tribunal; > > > > > > (vi) vexatiously conducting the proceeding; > > > > (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 that has no tenable basis in fact or law; > > > > (d) the nature and complexity of the proceeding; > > > > (e) any other matter the Tribunal considers relevant. > > ...

3. It is important to note the general rule set out in section 109(1) of the VCAT Act is clear, each party is to bear its own costs in a proceeding.
4. The general rule has been departed from in certain circumstances, for example:
   1. where the proceeding is in VCAT's original jurisdiction;
   2. whether a proceeding is brought by way of a statutory obligation; and
   3. where a practice has evolved that an award of costs is to be expected.
5. However, a practice of departure from the general rule does not derogate from that general rule. Each case must turn on its particular facts and circumstances. Otherwise, the general rule in s 109(1) of the VCAT Act would be redundant in the circumstances described in the preceding paragraph.
6. An application for enforcement order satisfies paragraphs a and b above, in that it is an application in VCAT's original jurisdiction and that councils often bring enforcement proceedings in satisfaction of s 14 of the Planning and Environment Act 1987 (Vic) ('PE Act') which provides:

What are the duties of a responsible authority?

The duties of a responsible authority are -

(a) to efficiently administer and enforce the planning scheme; and

(aa) to enforce any enforcement order or interim enforcement order relating to land covered by a planning scheme for which it is the responsible authority; and

(b) ...

1. In terms of the amount of costs, s 111 of the VCAT Act allows for the fixing of costs and states:

Amount of costs

If the Tribunal makes an order for costs, the Tribunal -

(a) may fix the amount of costs itself; or

(b) may order that costs be assessed, settled, taxed or reviewed by the Costs Court.

1. The applicant claims various fees including the filing fee for the application and daily hearing fees. The applicant has requested these fees under s 109 of the VCAT Act rather than s 115C. I note that s 115C of the VCAT Act provides:

Presumption of order for reimbursement of fees to successful party in certain proceedings

(1) This section applies to the following proceedings -

(a) ...

(d) a proceeding under section 114, 120 or 149A of the Planning and Environment Act 1987 ;

(e) ...

(2) Subject to subsection (3), a party who has substantially succeeded against another party in a proceeding to which this section applies is entitled to an order under section 115B that the other party reimburse the successful party the whole of any fees paid by the successful party in the proceeding.

(3) Subsection (2) does not apply if the Tribunal orders otherwise, having regard to -

(a) the nature of, and issues involved in, the proceeding; and

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse.

(4) In this section -

"successful party", in relation to a proceeding, means a party who has substantially succeeded against another party in the proceeding.

Orders as to reimbursement or payment of fees

(1) At any time, the Tribunal may make any of the following orders -

(a) an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that other party in the proceeding, within a specified time;

(b) an order as to which party must pay the whole or any part of a fee in future in the proceeding;

(c) an order that a party to a proceeding pay, on behalf of another party, the whole or any part of any fee that may be required to be paid in the future by that other party in the proceeding;

(d) an order that a party to a proceeding reimburse another party the whole or any part of any fee that may be paid in the future by that other party in the proceeding, within a specified time after the fee is paid.

(2) Subsection (1)(b) does not apply if this Act, the rules, the regulations or an enabling enactment requires the fee to be paid by a particular party.

(3) In making an order under this section, other than in a proceeding to which section 115C or 115CA applies, the Tribunal must have regard to -

(a) the nature of, and issues involved in, the proceeding; and

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether a party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse; and

(c) the result of the proceeding, if it has been reached.

(4) If the Tribunal makes an order under this section before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

1. For completeness, s 115A of the VCAT Act provides:

"fee" means a fee payable in a proceeding under this Act, the rules, the regulations or an enabling enactment

...

1. Thus, a fee includes an application fee and the daily hearing fee incurred in a proceeding.
2. Given my decision in this application for costs, I do not need to analyse in any detail the difference between costs and fees. However, if it had been necessary, I would have considered council's claim as separate claims, that is, a claim for an award of costs under s 109 of the VCAT Act and a claim for a reimbursement of fees under s 115C of the VCAT Act. That would have required further submissions from council.

WHY DOES COUNCIL SAY IT SHOULD BE AWARDED COSTS?

1. In support of an award of costs under s 109(2) of the VCAT Act, council says that:
   1. the statement of grounds relied upon by the respondent did not dispute the land was being used as a store;
   2. the respondent's claim that he was prevented by an Intervention Order ('IVO') or by an order of the County Court of Victoria ('CCV') from entering his land was untenable. The respondent did not rely on any evidence or document to support his defence. Instead, council provided material to VCAT that confirmed the respondent was not prevented from entering his land. Further evidence was adduced by two witnesses[3] to refute that claim;
   3. the respondent's claim with respect to the dates on which various photographs were taken by witnesses prolonged unnecessarily the time to complete the proceeding. This is because there was no basis for asserting the photographs of the land were 'illegitimate'. The production of further evidence of the metadata of the photographs was unnecessary and the respondent's claim was untenable;
   4. the respondent failed to comply with VCAT orders requiring the provision of an email address or a postal address. Further, the respondent specified that his address for service was land but also asserted that he could not attend the land because of an IVO. This failure and the defence raised by the respondent resulted in unnecessary additional effort and cost to serve various documents and material on the respondent; and
   5. the respondent knew the land was being used as a store without the requisite permission as council had issued notices and directions to compel the removal of the items under separate legislative regimes.
2. Thus, in summary council relies upon the following sub paragraphs in s 109(3) of the VCAT Act:
   1. Section 109(3)(c) because it is said the respondent raised defences that were untenable;
   2. Section 109(3)(c) because it is claimed the request for further information regarding evidence in particular with respect to the photographs prolonged the hearing;
   3. Section 109(3)(a)(i) and (b) because council says there was no reasonable excuse for the respondent's failure to provide VCAT with an address for service; and
   4. Section 109(3)(e) because of previous efforts by council to clear the respondent's land.

1. In short, I am not satisfied that it is fair to make an award of costs in this proceeding under s 109(2) of the VCAT Act. I accept the respondent did not assert that the application for enforcement order should not be made because a permit was not required to use the land as a store. Rather, through his statement of grounds and in questions of the witnesses the respondent variously asserted that:
   • council had previously removed items from the land without permission; and
   • he could not attend the land and remove items because he was prevented by the IVO and/or by proceedings in the CCV.
2. It could be thought that the respondent's claims had no tenable basis in fact or law. However, the proviso in s 109(3) of the VCAT Act is that an order for an award of costs be made only if I am satisfied that it is fair to do so. Having regard to the particular facts in this proceeding, I am not satisfied that it would be fair to do so. I say this because in my view having regard to the behaviour I observed during the hearing on 9 October 2023 the respondent's mental health appeared to contribute to the inability to state that a breach of the scheme had occurred. Further, the respondent's mental health made this proceeding more difficult to manage but it did not make it more complex per se. An order for an award of costs is not to punish a party, it is to compensate a party for costs that have been incurred if VCAT is satisfied that it is fair to award such costs.
3. I make no comments regarding the removal of items from the land by council as that was not relevant to the application for enforcement order. Further, I make no comments about whether the IVO and the CCV proceeding prevented the respondent from entering his land to comply with the scheme. I am cognisant that council relies on its witnesses to assert that the IVO and the CCV proceeding did not prevent the respondent from entering his land. I simply record that these issues are complex and often benefit from legal advice. However, I acknowledge that the respondent's mental health may have prevented him from seeking such advice. It was also clear from the statement of grounds and the hearing that the respondent had little trust in council. In those circumstances, it would not be fair to make an award of costs against the respondent.
4. For completeness, I do not agree with council that difficulty with service of material or questions regarding the provenance of the photographs prolonged the hearing unnecessarily. I first deal with the length of the hearing more generally. The first hearing day on 3 August 2023 was adjourned because of the respondent's health ('first adjournment'). Further, the hearing proceeded on 9 October 2023 but was adjourned because the respondent was not well and thus, the hearing was part heard. Several VCAT orders followed the part heard hearing and ultimately the hearing was to resume on 5 August 2024 for three days. Council's case involved detailed evidence that could not have been completed in one day, even if, the respondent was well enough to proceed on 9 October 2023. The whole hearing took one and half days to complete and thus, the hearing was not unreasonably prolonged by the respondent. Having said that, I acknowledge the respondent did not attend the hearing on 5 August 2024.
5. The conclusion of the proceeding itself may have been prolonged but the number of hearing days scheduled for the proceeding remained substantially the same. In those circumstances I cannot find that the respondent unreasonably prolonged the time taken to complete the hearing.
6. I do not agree that any difficulty regarding service of material prolonged the hearing unnecessarily. On the material before me, I am unable to conclude that the respondent acted in any deliberate manner to contribute to the difficulty of service. Thus, it would not be fair to make an award of costs against the respondent.
7. I also note that it was reasonable for the respondent to raise questions about the dates on which the photographs were taken and the identity of the photographer. Such questions ensure transparency and rigour in the process and the evidence which in turn provides confidence in the decision maker when granting an enforcement order. Thus, I do not consider it would be fair to make an award of costs against the respondent.
8. Council relies on previous attempts it has made to clear the land in support of the application for costs. It is difficult to understand how those attempts at clearing the land are costs in a proceeding as provided for in s 109(2) of the VCAT Act. I accept as a general proposition that the proceeding would not have been commenced if the land was not further used in breach of the scheme but that is true of any application for enforcement order. Again, the particular facts and circumstances in this proceeding as they relate to the respondent, do not favour an order for an award of costs.
9. Lastly, it is true that the respondent did not comply with VCAT's order, in that he did not provide an email address or postal address for service. However, it was readily apparent that the respondent struggled with details and instructions and in such circumstances, it would not be fair to award costs.
10. It follows that I do not need to address whether costs should be fixed.

1. For the reasons given above, the applicant's application for costs is refused.

[2] [2024] VCAT 775.

[3] Andy Gaze and Katherine Maree Taylor.