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[2001] VCAT 1548
defendant. The proceedings were dismissed under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, and the Requestors were ordered to pay the Respondent/Permit Holders $1,897.50 within 30...
The Requestors asked the Tribunal to cancel a planning permit, arguing that information in the plans was materially misstated or missing and that the endorsed plans failed to meet permit conditions. The Tribunal found that the alleged omissions did not establish a material mis-statement relevant to the permit application and that the alleged compliance failures were not substantial. It considered the cancellation proceeding misconceived and lacking in substance, dismissed it, and ordered the Requestors to pay the permit holders $1,897.50 for expenses and loss, including town-planner advocacy fees.
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In Noonan David & Ors v Boroondara CC & Ors [2001] VCAT 1548, three Requestors, David Noonan, Colin Thomson and Peter Clifford, applied under s 87 of the (PE Act) to cancel a planning permit for land at 14 Suffolk Road, Surrey Hills. The responsible authority was Boroondara City Council. George and Stavroula Sotiropoulos were the permit holders.
No linked legislation citations have been extracted yet.
The permit, BOR/98/01143, had been issued on 13 July 2000 at the direction of the Tribunal in an earlier review proceeding. It allowed two double-storey dwellings and one single-storey dwelling, according to endorsed plans and subject to 13 conditions. Condition 1 required amended plans to be submitted before the use or development began. Those plans had to be to the Responsible Authority's satisfaction, and had to be generally in accordance with the plans considered at the earlier hearing, subject to specified modifications ([8]-[10]).
The Requestors relied on two statutory grounds. First, they alleged a material mis-statement in relation to the permit application under s 87(1)(a). Second, they alleged substantial failure to comply with permit conditions under s 87(1)(b). Their concerns focused particularly on details they considered absent or inadequate in the plans, including exact wall heights above existing ground level and information they said was relevant to drainage ([11]-[15]).
The permit holders argued that the proceeding was frivolous and vexatious, and sought summary dismissal under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). They also sought compensation for expenses and loss. At the hearing on 29 June 2001, they claimed $1,897.50. The Requestors opposed a compensation order but did not dispute that amount ([23]-[26]).
Senior Member Russell Byard dismissed the proceedings under s 75(1) and ordered the Requestors to pay the permit holders $1,897.50 within 30 days of the order dated 20 July 2001. The order described that sum as compensation for expenses and loss resulting from the proceeding.
The decision turned on the statutory grounds the Requestors had chosen and the relationship between the plans, the permit application and the permit condition requiring later endorsement.
For the s 87(1)(a) ground, the Tribunal emphasised that the relevant mis-statement had to be “in relation to the application for a permit”, not merely about the general procedure, a permit that might later be granted, or the subsequent endorsement of plans ([5]). That distinction mattered because the Requestors' material appeared to conflate alleged inaccuracies in the application plans with alleged deficiencies in the plans ultimately endorsed ([6]-[7]).
The Tribunal examined which plans had been before the member who determined the earlier permit proceeding. It noted that the plans were changed during that proceeding and that a further version was substituted as the application plans by an amendment made during the hearing ([7]). The permit decision then required further amended plans to be submitted to the Responsible Authority for approval under condition 1 ([8]). In assessing the alleged mis-statement, the Tribunal therefore distinguished the plans before the earlier Tribunal from the later endorsed plans.
The alleged missing dimensions did not persuade the Tribunal that material information had been withheld. The plans were drawn to scale, showed the building's position, proportions and height, and included various heights and dimensions. The Tribunal considered that other details could be worked out from the fixed points and information shown ([11]-[12]). It also noted that the earlier Tribunal had sought further information, had received it to its satisfaction, and had inspected the land ([12]). On that basis, the Tribunal was not satisfied that there had been a mis-statement. It added that even if there had been one, it was immaterial. The alleged information was not something the earlier Tribunal needed or wanted to know to determine the application ([12]-[14]).
The Requestors also raised a possible drainage concern linked to the boundary wall. The Tribunal characterised this as speculation and recorded that the drainage question had been raised and considered in the earlier proceeding ([13]). It did not accept that this concern established materiality for s 87(1)(a).
For s 87(1)(b), the Tribunal considered the alleged failure to comply with conditions unusual because the alleged failure was attributed not to the permit holders' actions but to the Responsible Authority's endorsement of the plans ([15]). The Tribunal considered that the identified matters were not “substantial”. It also read condition 1 as applying an overall satisfaction requirement to the plans and the specified modifications, including the requirement concerning exact wall heights in condition 1(e). The Responsible Authority's endorsement showed that it was satisfied with the plans ([15], [18]).
The Tribunal briefly addressed the possible limits on challenging an endorsement. It noted that s 149 of the PE Act supplied a mechanism for certain disputes about what the Responsible Authority should be satisfied with, but did not give objectors the same right to apply ([16]). It also said an interested person might be able to seek a declaration that an endorsement was invalid if the plans were so at variance with the condition that no reasonably acting Responsible Authority, correctly instructing itself, could consider them suitable. The Tribunal described this as a difficult test and considered it would not be met on the facts before it ([17]). This was a discussion of a possible route, not a finding that such a declaration was sought or required to decide the s 87 application.
Finally, the Tribunal considered the character of the proceeding. It found that the Requestors' concerns were trivial in context and that cancellation was not justified by the matters raised ([19]-[20]). It considered the explanation for seeking cancellation rather than amendment “flimsy and completely unconvincing”. The stated concern that another version of the plans would be confusing did not persuade it, particularly because cancellation could itself lead to a new application and another plan version ([20]). The Tribunal said the cancellation request was an abuse of process in the circumstances, while clarifying that it was not deciding that a request for amendment would have succeeded ([20]). It also stressed that the permit holders were the people most directly threatened by an application to cancel their permit, regardless of whether the Requestors' frustration was principally directed at the Council ([21]).
The judgment does not describe a change in the law or announce a new statutory provision. It applies the existing provisions of the PE Act and VCAT Act as presented in the proceeding. Accordingly, “before and after” is best understood here as the position under the relevant permit and proceeding, rather than as a legislative or doctrinal change.
Before the decision, the permit remained in place, and the Requestors had brought an application seeking its cancellation under s 87(1)(a) and (b). The permit required amended plans to satisfy the Responsible Authority before use or development began ([8]). The Requestors' case was that alleged defects in plan information and endorsement justified cancellation ([5]-[7], [11]-[15]).
After the decision, the cancellation proceeding was dismissed, and the permit was not cancelled by this order. The Requestors were ordered to pay $1,897.50 as compensation for expenses and loss resulting from the proceeding ([orders]). The judgment's stated interpretation of s 87(1)(a) confines the alleged mis-statement to one “in relation to the application for a permit”, and its discussion of materiality ties the question to information the decision-maker needed or wanted in determining the application ([5], [13]). For s 87(1)(b), the judgment treats substantiality as an express threshold and reads condition 1's satisfaction requirement as applying to the plans as a whole ([15]).
On costs and compensation, the judgment distinguishes the broad terms of s 75(2) from a narrower question about the meaning of “costs” under s 109. It did not decide the scope of s 109. Instead, it relied on s 75(2), which refers to an amount to compensate for “costs, expenses, loss, inconvenience and embarrassment”, and held that this wording was wide enough to include professional fees charged by a town planner appearing as an advocate ([25]).
These points should be understood as the reasoning in this particular VCAT decision. The judgment itself does not establish that every plan omission is immaterial, that every endorsement is unchallengeable, or that every unsuccessful planning proceeding warrants compensation. Its findings depended on its assessment of the plans, the information available in the earlier proceeding, the wording of condition 1, and the conduct and circumstances of this application ([11]-[22], [25]-[26]).
At [5], the Tribunal says the statutory ground concerns a mis-statement “in relation to the application for a permit”, rather than a problem arising generally in the procedure or at the later endorsement stage. In plain English, a complaint about later plan approval is not automatically the kind of mis-statement required by this particular cancellation ground.
At [12], the Tribunal says it was not satisfied that a mis-statement had occurred, but that any alleged mis-statement was immaterial in any event. In plain English, the Requestors failed at two points: the Tribunal did not find the required mis-statement, and it considered that any omission would not have mattered to the earlier decision.
At [13], the Tribunal explains that materiality means information the Tribunal would “need to, or want to know” when determining the matter. In plain English, the question was not simply whether more detail could have appeared on the plans. It was whether the asserted missing information mattered to deciding the permit application.
At [15], the Tribunal says the alleged compliance matters were not “substantial”, and that the condition's overall satisfaction requirement applied to the plan modifications. In plain English, the Tribunal did not treat every disagreement about plan detail as a substantial failure to comply with a permit condition.
At [17], the Tribunal describes a possible challenge to an endorsement where the plans are so far outside the condition that no reasonably acting, properly instructed Responsible Authority could approve them. It calls that a difficult test and says it would not be met here. In plain English, the Tribunal recognised a possible kind of challenge but did not consider the facts before it sufficient.
At [22], the Tribunal states that the proceedings were “misconceived and lacking in substance”. In plain English, it considered the case, assessed against the grounds relied on and the facts presented, insufficiently grounded to continue.
At [25], the Tribunal says professional fees are “expenses and loss” whether or not they technically count as “costs”. In plain English, the compensation power in s 75(2), as the Tribunal read it, was not restricted to conventional legal costs.
The decision is most relevant to a fact pattern involving an application to cancel a permit based on alleged errors or omissions in plans, where the applicable statutory ground requires a material mis-statement in relation to the permit application. The judgment highlights the importance of identifying which version of plans is said to contain the mis-statement and whether the alleged issue was part of the application considered by the original decision-maker ([5]-[8]).
It may also be relevant where an applicant argues that endorsed plans do not comply with a condition requiring amendments to the satisfaction of the Responsible Authority. The decision shows the Tribunal considering both the threshold word “substantial” in s 87(1)(b) and the effect of a condition that makes endorsement dependent on the Authority's satisfaction ([15], [18]). It does not establish that an endorsement always defeats an objection. The Tribunal itself discussed a possible declaration where plans are so at variance with a condition that no reasonably acting, correctly instructed Responsible Authority could approve them ([17]).
The decision is also relevant to summary dismissal where a proceeding seeks a remedy with serious consequences for another party, but the grounds advanced are found to have little substance. Here, the Tribunal took account of the practical effect of cancellation on the permit holders and the Requestors' explanation for seeking cancellation rather than amendment ([20]-[22]). That assessment was fact-specific and should not be converted into a general rule that a cancellation request is abusive whenever amendment is another possible remedy.
Finally, the costs discussion may be relevant where compensation is sought under s 75(2) for professional assistance provided by a non-lawyer advocate. The Tribunal treated the section's reference to expenses and loss as broad enough to include town-planner fees in this proceeding ([25]-[26]). It accepted the claimed amount because it was unchallenged and considered the professional assistance reasonable in the circumstances. The decision does not establish that all professional fees will necessarily be recoverable under s 75(2).
The supplied judgment contains no discussion of later decisions, and no later treatment is included in the material provided. It is therefore not possible, on this source alone, to say whether later courts or tribunals have followed, distinguished, limited or otherwise treated this decision.
The judgment does identify some legal provisions and discusses how they applied to the dispute: ss 87 and 149 of the PE Act, and ss 75 and 109 of the VCAT Act ([5], [16], [23], [25]). But it does not cite another case as precedent. Its observations about the possible declaration test at [17] are its own discussion of a possible remedy, not an account of a cited authority. Any assessment of the decision's later status would require additional legal sources not provided here.
The judgment leaves several matters unresolved on its own terms. First, it does not define materiality exhaustively. It says that, in this case, material information was something the decision-making Tribunal would need or want to know to determine the matter ([13]). It does not set out how that approach would apply to different kinds of omissions or to a different record of information.
Second, the decision does not determine the outcome of a challenge to endorsed plans under the possible declaration approach it discusses. It describes a difficult threshold and says it would not be met on the facts before it, but does not decide a declaration application ([17]). It also notes that s 149 provided a remedy for certain parties in disputes about what the Responsible Authority should be satisfied with, while not providing objectors the same right ([16]). The scope and application of those avenues are not resolved more broadly in this proceeding.
Third, the Tribunal did not decide whether an application to amend the permit would have succeeded. It said only that seeking amendment might have lent some credibility to the Requestors' approach, while expressly reserving the result of any amendment request ([20]). The decision therefore does not establish that amendment was legally available or appropriate on the particular facts.
Fourth, the judgment's discussion of compensation does not decide what “costs” means under s 109 of the VCAT Act. The Tribunal acknowledged room for an argument about that provision but made its order under the broader language of s 75(2) ([23], [25]). Nor does the judgment explain how the amount would be assessed in a contested claim. Here, the Requestors did not dispute the $1,897.50 claimed ([24]-[26]).
Finally, the judgment does not provide later authorities or subsequent treatment. Its reasoning can be described from the text, but its present standing within a wider body of later cases cannot be assessed from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Town planning, Planning List, permit cancellation, s 87 Planning and Environment Act, material mis-statement in relation to permit application, substantial failure to comply with conditions, summary dismissal, s 75 Victorian Civil and Administrative Tribunal Act, vexatious, misconceived, lacking in substance, abuse of process, costs,
s 75(2) wider than s 109 VCAT Act, costs, expenses, loss, inconvenience and embarrassment as opposed to merely "costs".
RESPONDENT/PERMIT HOLDERS: George Sotiropoulos and
Medium Neutral Citation [2001] VCAT 1548
The land in Certificate of Title Volume 1679 Folio 670
1. These proceedings are dismissed pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998.
2. The Requestors are ordered to pay the Respondent/Permit Holders the amount of $1,897.50 to compensate them for expenses and loss resulting from this proceeding, such amount to be paid within 30 days of the date of this document.
Mr Scott Taylor, planning advocate of the City of Melbourne, appeared for the Responsible Authority.
Mr Nick Hadjigeorgiou, town planner, appeared for the Respondent/Permit Holders.
Mr David Noonan, one of the Requestors, appeared in person for himself and for the other Requestors.
Application under S.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of a permit.
Cancellation of Planning Permit No. BOR/98/01143 issued by the Responsible Authority on the 13 July 2000 at the direction of the Victorian Civil and Administrative Tribunal in this determination of Application for Review No. 1999/93293 which permit allowed the development of the land for two double storey dwellings and a single storey dwelling in accordance with endorsed plans and subject to 13 conditions.
1. In the short statement of grounds filed on behalf of the Respondent/Permit Holders it was suggested that the Requestors' proceedings seeking cancellation of this permit are frivolous and vexatious. It was said that the grounds or facts relied upon were frivolous as well as causing inconvenience, stress and expense. It was alleged that every condition of the permit had been complied with and the Council had carried out an exhaustive examination of the plans prior to endorsing them. The Respondents claim to have done nothing wrong or inconsistent with the planning permit and they had sought a hearing to determine if the request had any substance.
2. In effect they were seeking an exercise of the powers given to the Tribunal by
s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). That section empowers the Tribunal, at any time, to make an order summarily dismissing or striking out all or any part of a proceeding if it is of the opinion that a proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. If the Tribunal makes such an order it may order that the applicant (in this case the Requestors) pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceedings. These powers can be exercised by the Tribunal constituted for the proceedings or by a presidential or senior member who is a legal practitioner. Such orders can be made on the application of a party or on the Tribunal's own initiative.
3. Mr Noonan, in the course of the hearing, produced a photocopy of the text of
s 71 of the VCAT Act. That is a different provision which enables the Principal Registrar to reject a proceeding in certain circumstances. That section is not the one relevant for present purposes. The parties presented submissions in the course of the hearing. In the case of Mr Noonan he also presented a written outline of his submissions, and Mr Hadjigeorgiou presented written, as well as oral submissions.
4. Having heard the parties I announced my decision and gave oral reasons. I will not repeat here all that was then said, but will content myself with a summary.
5. The Requestors sought to rely on the grounds in s 87(1)(a) and (b) PE Act. In relation to first of these the Tribunal must be satisfied that there has been a material mis-statement in relation to the application for the permit. Section 87(1)(a) also refers to concealment of fact, but it is mis-statement of fact that relied on in this case. It is a mis-statement of fact "in relation to the application for a permit", not in relation to the procedure generally or in relation to any permit that might be granted or to the endorsement of plans. This point was clarified during the hearing.
6. In fact some degree of clarification was called for. The request form lodged by the Requestors did not, in itself, clearly specify the grounds relied upon. However, they were referred to in an attached document. This also purported to contain the facts relied upon as establishing those grounds. This proved to be a rather confusing document. Amongst other things, it contained confusion between mis-statement of fact in relation to the application for a permit on the one hand and mis-statement of fact in relation to the endorsed plans on the other.
7. The aspect of the application in relation to which it was claimed that a material mis-statement had occurred was the application plans. Originally these were the plans lodged with the permit application. Subsequently amended plans were substituted, shortly before the day fixed for the hearing of the review (that ultimately gave rise to the grant of the permit) by the Tribunal. The result was that the hearing was adjourned with a direction from the Tribunal for the preparation of a third version specifying further information. This third version was substituted as the application plans, by way of an amendment to the planning permit application, by the Tribunal in the course of the hearing. If there was a relevant material mis-statement, it would have to be in relation to those plans.
8. The result of the earlier hearing before the Tribunal was that a permit was granted and issued pursuant to a direction contained in a document containing the Tribunal's decision and reasons. This document is 29 pages long and deals with the matters that were in issue before the Tribunal. It grants a permit subject to conditions and directs its issue. The first condition deals with the question of endorsed plans. It provides that before the use or development starts amended plans must be submitted to the satisfaction of the Responsible Authority. The wording here is slightly cumbersome, but what it means is clearly that plans to the satisfaction of the Responsible Authority are to be submitted for approval. The condition goes on that when the plans are to the satisfaction of the Responsible Authority they will be endorsed and will form part of the permit. It goes on to provide that such plans must be generally in accordance with the plans submitted at the hearing but modified to show certain things specified in paragraphs (a) to (h).
9. Some of these requirements contain further references to things needing to be to the satisfaction of the Responsible Authority, for example the choice of a tree required in condition 1(a). Others do not contain a repetition of the general requirement already made of things modified under condition 1 must be to the satisfaction of the Responsible Authority. For example, condition 1(e) says:-
"Exact wall heights above existing ground level nominated for any boundary walls."
10. The repetition of the phrase "to the satisfaction of the Responsible Authority" in these paragraphs is redundant, as the plans as a whole must be to the satisfaction of the Responsible Authority. The existence of such satisfaction is shown by the endorsement of the plans. That has occurred in this case. In fact construction work has commenced in accordance with the permit, although it has not progressed very far.
11. In seeking to establish the ground under s 87(1)(a) the Requestors have been pedantic. It is said that the distance between natural ground level and wall heights are not established and dimensioned on the endorsed plans as required. However, there is no doubt whatsoever as to the position, proportions and height of the building depicted in the endorsed plans and allowed by the permit. The plans are drawn to scale and display many heights and dimensions. Amongst other things heights are indicated in relation to ridge levels are specified in terms of Australian Height Datum. With the scale drawings and dimensions provided the position, shape and proportions of everything else can be worked out from those fixed points. There was nothing in the suggestion that the development, as it would be seen, would be varied by particulars said to have been omitted.
12. Various aspects were examined in this connection. For example, the heights were required by condition 1(e) in relation to "exact wall heights above existing ground level nominated for any boundary walls". There was in fact only one boundary wall. It belongs to a garage. As with other examples, the position could be ascertained by reference to the information provided. The Requestors seemed to have become a little carried away by the use of the word "exact" in relation to wall heights above existing ground level in this condition. However, the member constituting the Tribunal for the purpose of hearing the previous proceeding was not misled in relation to these things. The further information that he thought necessary to enable him to determine the case was provided to his satisfaction after he asked for it in the March hearing before it was adjourned. If there were further points needing clarification he could have, and in my opinion, would have sought that information. He made an inspection of the land. It was clearly a careful inspection. In this connection it must be remembered that it is the plans that were before him then, not the endorsed plans, in relation to which the material mis-statement must be established. I am not satisfied that there was a mis-statement, but if there was, it is plain that it was not a material one. On the contrary, it was an immaterial one.
13. Mr Noonan sought to establish that the alleged mis-statement in relation to the boundary wall (he was here again referring to the endorsed plans) was material because of the effect it may have on drainage. He speculated that it might not be possible to provide suitable drainage. His speculation was no more than that. That question was raised at the previous hearing, considered by the Tribunal, and dismissed. Whatever else "material" might mean, it means something that the Tribunal would need to, or want to know, in determining the matter before it. There is nothing that the Requestors have been able to point to that the Tribunal lacked for this purpose.
14. I thus found that the Requestors were unable to establish the ground of material mis-statement in relation to the application for a permit.
15. The other ground sought to be relied upon was substantial failure to comply with the conditions of the permit. It is rather unusual for this ground to be raised in a case like the present one. In my experience of the PE Act so far, I have found that this ground is relevant in only rather limited and special circumstances. In this case the alleged substantial failure to comply with conditions is said to be, not any action of the permit holders, but that of the Responsible Authority in endorsing the plans. Here again reference was made to the modifications required by condition 1. The Requestors considered that the plans endorsed did not sufficiently comply with the requirements of condition 1, and that the Responsible Authority erred in endorsing the plan in the circumstances. The matters referred to are not, in my opinion, "substantial" as required by the ground in s 87(1)(b). As I have said, I don't think they were even material. In any event, although the plans to be endorsed had to be modified, compared with the plans before the Tribunal at the previous hearing, in the ways specified; this was still subject to the overall qualification that they had to be modified "to the satisfaction of the Responsible Authority". That requirement, of the Responsible Authority's satisfaction, is required by condition 1 in relation to the plans as a whole, including the modifications specified. I consider that it qualifies even the, perhaps unnecessary, use of the word "exact" in condition 1(e).
16. Where the Responsible Authority has declared itself to be satisfied with plans, as it has in this case by endorsing them, there are only limited remedies. Section 149 PE Act provides a remedy, to those to whom it gives an opportunity to make an application, by clothing the Tribunal with authority to resolve a matter where there is a dispute as to what the Responsible Authority should be satisfied with. If there was a dispute between the permit holder and the Responsible Authority as to whether the plans should be endorsed, the permit holders could avail themselves of that section. It does not give a similar right to objectors.
17. It might well be open to objectors or others with an interest in the matter to apply to a court or the Tribunal for a declaration that an endorsement pursuant to condition 1 is invalid if the plans in fact endorsed were so at variance with the condition that no Responsible Authority, correctly instructing itself, and acting reasonably, could come to the view that the plans should be endorsed. That, however, is a difficult test which I do not think would be satisfied in this present case.
18. As Mr Hadjigeorgiou said, the evidence indicates that the Responsible Authority was satisfied with these plans and thus condition 1 has been complied with.
19. There was some other discussion of further minor matters in relation to trees and landscaping which could never, in my opinion, justify cancellation of the permit. The Requestors in this case cannot make out either the grounds under
s 87(1)(a) and (b) that they have relied upon and the request therefore must fail.
20. Not only that, the matters that they have raised are in fact trivial in the circumstances. They certainly do not warrant and could not possibly justify cancellation of the permit. Mr Hadjigeorgiou relies on the fact that the Requestors have sought cancellation, rather than amendment, as an indication that they have been vexatious and frivolous in bringing and maintaining these proceedings. It must be remembered that the Requestors had the Respondents' short statement of ground well before the hearing and yet the Requestors maintained, in the course of the hearing, that only cancellation would suffice. This was on the flimsy ground that if further alterations to the plans were required it would involve a fifth version of plans for this project. It was said that this would be confusing. If it might be mildly confusing, it is not so confusing as to be any sort of problem. In any event, cancellation would only result in a new application in relation to which a fifth version of the plans would be required. The explanation as to why cancellation rather than amendment was sought under s 87 is flimsy and completely unconvincing. The Requestors might have had some shade of creditability if they had sought amendment, but I think the request for cancellation was an abuse of process in the circumstances. I do not mean by this that an amendment request would have been successful.
It appears, from what was said on behalf of the Requestors, that their indignation is really directed to the Responsible Authority. They resent the Responsible Authority having endorsed these plans which do not, in their opinion, display the exactness they consider appropriate. Also, they are vexed by an alleged failure of the Responsible Authority to respond to their communications in relation to the matter. Mr Noonan gave this as the motivation for why proceedings were commenced. It might indeed be the motivation for the commencement of proceedings, but it is nevertheless incumbent on those who commence proceedings to have regard to whether the proceedings are appropriate and regard to who the proceedings threaten. This request seeks cancellation of the Respondents' permit. That result would have a severe adverse affect on them. Such proceedings should not be undertaken merely for the purpose of punishing or exposing the alleged shortcomings of another party, in this case the Responsible Authority.
21. Mr Noonan was mistaken when he said the Respondent/Permit Holders were not really parties. He may not have been intending to aim at them, but by commencing these proceedings he sought to destroy their permit upon which they were relying. They were certainly a party, indeed the party most threatened by the request. It is really unthinkable, when consideration is given to the matter, that they are not parties. They most certainly are.
22. In my opinion these proceedings were misconceived and lacking in substance. Furthermore I consider that an intelligent lay person, making a sensible appreciation of the proceedings, would at least realise that they lacked substance, notwithstanding the use of the word "exact" in condition 1(e) or the absence of a repeat of the expression "to the satisfaction of the Responsible Authority", in some of the other paragraphs of that condition.
23. Mr Hadjigeorgiou applied for an order for costs on the basis that the proceedings were unjustified. He referred particularly to s 109 VCAT Act, but attention was also directed to s 75(2). I notice that there was an order for costs for $5,000.00 against his clients in relation to the adjournment of the previous proceeding in March 2000. He mentioned this point as showing that the Requestors here, who were the beneficiaries of that order, were aware of the possibility of an order for costs in relation to unjustified proceedings.
24. Mr Noonan resisted the order for costs but did not dispute the quantum of $1,897.50.
25. I raised with Mr Hadjigeorgiou the question as to whether the term "costs" encompasses the fees of an advocate who is not a lawyer, or whether, on the other hand, it is confined to legal fees and disbursements. Whilst I recognise that there is room for such an argument, perhaps in relation to s 109, I see that s 75(2) is framed in wide terms. It does not talk of an order for "costs", but rather an order for an amount "to compensate" a party for "costs" but also for "expenses, loss, inconvenience and embarrassment" resulting from the proceedings. In my opinion, this expression is wide enough to include the fees of a town planner appearing as a professional advocate in proceedings such as these. Such fees are expenses and loss whether or not they are technically "costs". I think the Respondent/Permit Holders were justified in resisting these proceedings and in defending their permit. In doing so it was reasonable, and I think necessary, for them to obtain professional help. Mr Hadjigeorgiou said that the idea of his appearing, rather than lawyers being engaged, was to reduce expenses.
26. I am satisfied that this is an occasion appropriate for an order for costs. Mr Hadjigeorgiou pointed out that the hourly rate claimed is only three quarters of the hourly rate allowed by the Tribunal in relation to costs for work of an expert planning witness thrown away by the adjournment previously referred to which formed part of the previous order for $5,000.00. In the absence of any challenge to the quantum claimed I will accept the figure claimed.
Noonan David & Ors
Boroondara CC & Ors [2001] VCAT 1548
The proceedings were dismissed under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, and the Requestors were ordered to pay the Respondent/Permit Holders $1,897.50 within 30 days to compensate them for expenses and loss.