Moyne SC v Stokes [2026] VCAT 224 (31 March 2026)

1. As a result of the Respondent's lack of response to Council's communications until this date, Council undertook additional measures to investigate and contact the Respondent via any alternative contact email and residential addresses that Council had on record.
2. Further to this, the Tribunal required further action by the Council to effect personal service upon the Respondent in its orders dated 7 August 2025 out of an abundance of caution to ensure the Respondent was aware of the Proceeding. The Council engaged a process server and Council officers took additional time to attend the Land to attempt personal service in accordance with the Tribunal's order.
3. The Respondent's actions caused Council to undertake extensive measures to encourage the Respondent to engage with the Proceeding and, ultimately, caused the Proceeding to progress to a hearing and put Council to the cost of legal representation in the Proceeding.
4. Section 109(3)(d) of the VCAT Act concerns the nature and complexity of the proceeding. The applicant submitted that, having regard to the factors outlined in Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 2000, costs should be awarded - that the application is in the Tribunal's original jurisdiction; it is of a type in which it is common for there to be an award of costs; and it was an application that was required to be brought, due to the council's duty to enforce the Scheme under section 14 of the PE Act. The applicant submitted that:
   1. The Council was required in the Proceeding to establish to the Tribunal that the Respondent's use of the Land was in fact unlawful and in breach of the Planning Scheme. It was required to do so in circumstances where the Respondent ultimately refused to co-operate with Council and the Tribunal.
   2. Given the nature of the Proceeding, it was reasonable for Council to engage legal representation.
5. Section 109(3)(e) of the VCAT Act refers to any other matter the Tribunal considers relevant in considering whether it is fair to award costs. The applicant submitted that this case warrants an award of costs for the following reasons:

1. Kingston City Council v Marchese and Ors [2009] VCAT 1435 at [13]. 2. [2005] VCAT 2092. 3. (Costs) [2024] VCAT 917. 4. (Costs) [2024] VCAT 917 at [65]. 5. [2009] VCAT 1435 at [11]- [13]

1. As submitted by the council, the function of a costs order is not to punish the unsuccessful party. Rather, the purpose of such an order is to compensate a party who has incurred costs in circumstances where it is unfair for them to be liable for such costs.
2. The council has a statutory duty to administer and enforce the requirements of the Scheme. After attempting on many occasions to effect compliance with the Scheme without recourse to the Tribunal, the council filed the enforcement application. The council engaged legal representation to appear at the practice day hearing and the hearing of this application. Following the non-attendance of the respondent at the practice day hearing, the compulsory conference was vacated, and the matter progressed directly to hearing, with additional requirements for the council to ensure the respondent was served with the application.
3. Compliance with the Scheme was unable to be achieved without the council going through the Tribunal process. The council's submissions clearly set out the elements of section 109(3) of the VCAT Act which are relevant to the council's submission that costs should be awarded to the council in this application, despite the presumption that each party bears its own costs.
4. In terms of the council's submissions concerning the respondent's failure to comply with Tribunal's orders, I echo the Tribunal's comments in Mildura RCC v Brown (Costs) [2024] VCAT 917 ('Mildura v Brown'), as follows:
   1. For the purposes of section 109(3)(a) of the VCAT Act, I acknowledge that the Respondent has not participated in this proceeding given the Respondent did not provide a statement of grounds in response to the application for enforcement order, did not respond to the administrative mention, did not lodge written submissions and did not attend the practice day hearing or the final hearing.
   2. Strictly, the Tribunal's orders only require a respondent to file a statement of grounds if the respondent wishes to object to or state their position on the application for enforcement order. As such, through the Respondent not lodging a statement of grounds, the Respondent has not failed to comply with the Tribunal's order. Further, as stated in the May Reasons, given the nature of this application, I would have still needed to ask questions of the Council and satisfy myself of the facts relied on by the Council and whether the alleged breaches of the Scheme were made out, even if the Respondent had participated in the proceeding in some way. Accordingly, I am not persuaded that these actions in and of themselves result in the Respondent having conducted the proceeding in a way that unnecessarily disadvantaged the Council.