1. This is a costs application brought by the respondent, Sovereign PCH Melbourne Pty Ltd, against the applicants, Gary and Genevieve Morgan, in relation to procedural hearings before the Tribunal on 24 February 2014, 20 March 2014 and 23 April 2014. No costs relate to the hearing of the proceeding on its merits, which took place on 28 - 30 April 2014. The application for costs was made at the conclusion of this hearing and an opportunity was provided to the applicants to respond to the respondent's submission on costs.[1]
2. On 25 June 2014, Senior Member Rickards ordered the applicants to pay the costs of the respondent for the adjournment of the hearing listed on 16 December 2013 fixed in the sum of $17,600.
3. A history of the proceeding and the various hearings is set out in Appendix A.[2]
4. As noted in the reasons in Senior Member Rickards order dated 25 June 2014 and as detailed in the respondent's submission on costs, this matter, which was included in the Major Cases List, was on foot for 8 months. This contrasts with the usual time taken to complete a proceeding in the Major Cases List of 14 weeks from date of lodgement to a commencement of final hearing plus a maximum of six weeks from the last day of hearing to decision.
5. I find that the delay and the additional practice day hearings on 24 February, 20 March and 23 April 2014 were due to actions by the applicants in lodging two Freedom of Information (FOI) requests to obtain documents from the responsible authority and seeking to issue witness summonses to council officers, members of parliament and a councillor after the time specified by the Tribunal in its order dated 20 March 2014 by which any such summonses must be issued and served.
6. Two separate practice day hearings were conducted by Deputy President Dwyer to consider the FOI requests and production of documents requested.[3] A history of the FOI requests is included in Appendix B.[4] Ultimately, over 900 pages of documents were provided to the applicants. It was not apparent from the applicants' submissions or evidence produced at the hearing commencing 28 April 2014 that any of the documents or material were used in the presentation of the applicants' case.

Should costs be awarded against the applicants?

1. The general rule at the Tribunal is that each party bears its own costs in the proceeding.[5] 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.[6] The Tribunal may make an order to award costs if it is satisfied it is fair to do so having regard to the matters set out in section 109(3) Victorian Civil & Administrative Tribunal Act 1998. These matters include:

(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);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

1. In the present case, I am satisfied it is fair to award costs against the applicants for the following reasons:
   1. The applicants have been responsible for prolonging unreasonably the time taken to complete the proceeding; and
   2. The applicants have conducted this proceeding in a way that unnecessarily disadvantaged the respondent by:
      • Requiring preparation for and attendance at three practice day hearings on 24 February, 20 March and 23 April 2014;
      • Undertaking extensive work in addressing the two FOI requests and the applicants' requests generally for voluminous documents.
2. Once an application is made to the Tribunal, sections 80 and 81 of the Victorian Civil & Administrative Tribunal Act 1998 enable the Tribunal to give directions about the production of documents by either a party or a third party. These provisions provide as follows:

(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

(2) The Tribunal's power to give directions is exercisable by any member.

(3) The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.

(1) On the application of a party to a proceeding, the Tribunal may order that a person -

(b) who has, or is likely to have, in the person's possession a document that is relevant to the proceeding -

produce the document to the Tribunal or the party within the time specified in the order.

(2) The Tribunal's power to make an order under subsection (1) is exercisable by any member.

1. Instead of simply inspecting the council's file or the Tribunal's file, which contained material supplied by the council under Practice Note PNPE2 Information from Decision-Makers, or seeking appropriate procedural orders from the Tribunal for the council to produce relevant documents, the applicants chose to make two requests for documents under FOI.
2. At no time did the applicants seek directions under sections 80 or 81 of the Victorian Civil and Administrative Act 1998. If they had made such request before the hearing scheduled on 16 December 2013, the Tribunal could have determined the relevance of the documents sought and made appropriate directions thereby avoiding the need for an adjournment of the hearing on 16 December 2013 until 28 April 2014 and the two subsequent practice day hearings before Deputy President Dwyer. By making an application for the documents under FOI, rather than seeking to inspect the council's file and, if necessary, seeking directions from the Tribunal in this proceeding, the applicants sent their requests for documents down a protracted path unrelated to the planning proceeding they were contesting.
3. A possible motivation is revealed in the applicants' submissions on costs where they say:
   1. In relation to its FOI application, the applicants acted at all times expediently. The delays in obtaining documents from the responsible authority (and those delays were substantial) were due to the responsible authority failing to provide documents in reasonable accordance with the FOI legislation.
   2. The respondents also seek to make an issue of the relevance of the documents sought by the applicants from the responsible authority. In doing so, the respondents appear to have lost sight of the fact that the applicants are private citizens with no specialised knowledge of, or expertise in, access to the responsible authority's documents. The applicants have prima facie information that the responsible authority had been knowingly and deliberately dishonest with them in terms of information provided to them in correspondence, and therefore were not prepared to accept at face value documentation identified on the public record by the responsible authority.
4. It is unclear from these allegations about the honesty of the responsible authority exactly what the applicants are alluding to. There was nothing arising in this proceeding that would lend any substance to these allegations. It may be possible that the applicants were referring to an earlier case, Morgan v Melbourne CC & Ors[7], where the applicants unsuccessfully contested a permit concerning use and development of the Hilton Hotel and adjoining land in Wellington Parade for dwellings and in which there was an issue about the accuracy of the reporting of a council heritage adviser's comments in the council officer's report. If this is the genesis of these comments, then it is irrelevant to the present proceeding and I consider it was unfair to subject the present respondent to delays stemming from a past battle.[8]
5. I find that the applicants unreasonably prolonged the time taken to complete the proceeding by pursuing their quest for access to documents held by the council by lodging FOI requests rather than simply seeking directions from the Tribunal in the course of this proceeding. Their course of conduct resulted in two additional practice day hearings on 24 February and 20 March 2014 to manage the requests for documents and the applicants' proposal to potentially call more than 19 witnesses, including council officers, members of parliament and a councillor. This is a relevant factor pursuant to section 109(3)(b) in deciding whether it is fair to make an award of costs.
6. With respect to the practice day hearing on 23 April 2014 regarding the issue of witness summonses, Deputy President Dwyer's order dated 20 March 2014 was explicit about the need for the applicants to arrange for issue through the principal registrar and to have served any witness summonses by not later than 4.00pm on 14 April 2014. The applicants failed to comply with this direction and other directions regarding the service of witness material and a synopsis of the evidence sought to be adduced and/or documents produced from any witness the subject of a witness summons.
7. In oral reasons given at the conclusion of the practice day hearing, I found that the applicant had given no plausible explanation of the relevance of any evidence any of the proposed witnesses might adduce and I found unconvincing the vague assertions that they may have "views" about this particular project that were contrary to the views of the responsible authority, which made the decision. I found any such views were not relevant having regard to the role of the Tribunal to review the merits of the particular permit application. Nor did the applicants have any reasonable excuse for not complying with the Tribunal's order of 20 March 2014. For these and other reasons I found that no order should be made to direct the principal registrar to issue any witness summonses under section 104 of the Victorian Civil & Administrative Tribunal Act 1998.
8. I therefore find with respect to the practice day hearing on 23 April 2014 that it was only necessary because of the applicants' failure to comply with earlier directions of the Tribunal. This is a relevant factor pursuant to section 109(3)(a)(i) in deciding whether it is fair to make an award of costs.
9. I further find that the respondent was unnecessarily disadvantaged by having to attend these various practice day hearings and by additional work to arrange for the production of unredacted documents to satisfy the applicants' requests made under FOI in order to ensure that the hearing was not further delayed.
10. The award of costs for these practice day hearings and for dealing with the FOI applications and complying with the Tribunal's directions in its order dated 24 February 2014 is made on the basis that the procedures followed by the applicants were unnecessary and largely irrelevant to the proceeding. These are matters which I consider relevant having regard to section 109(3)(e) of the Act.
11. In all these circumstances and when taken together, I am satisfied that it would be fair to make an order for the applicants to pay the respondent's costs in connection with these practice day hearings and the work undertaken with respect to the production of the FOI documents.
12. I am unpersuaded by the applicants' submission that I should refrain from an award of costs because the applicants are "private citizens with no specialised knowledge of, or expertise in, access to the responsible authority's documents." The applicants have been active participants in the planning process regarding various matters concerning the Hilton Hotel and associated land over many years, as noted in Morgan v Melbourne CC & Ors. At all times and at all hearings they have had access to and the benefit of legal advice and representation. I find that there was no excuse for them to delay this proceeding by pursuing documents through FOI when a more direct approach would have sufficed and nor was there any reason for their failure to comply with the Tribunal's directions. Rather, I find that the applicants have deliberately sought to frustrate and delay the proper consideration of this proceeding on its merits.

1. The respondents have claimed the following costs:

1. These are costs on a solicitor/client basis. I consider that some reduction in this amount should be made and propose to award a sum fixed in the amount of $20,000.

[2] This history was prepared by the respondent as part of its application for costs.

[4] This history was prepared by the respondent as part of its application for costs.

[5] Section 109(1) Victorian Civil & Administrative Tribunal Act 1998

[6] Section 109(2) Victorian Civil & Administrative Tribunal Act 1998

[7] [2011] VCAT 317

[8] The Tribunal in Morgan v Melbourne CC & Ors details the long held opposition by the applicants to the development of the Hilton Hotel and associated land - see [2011] VCAT 317 at [12] and footnote 5. See also comments at [23 - 26] regarding Mr Morgan's conduct in the hearing of that proceeding.