1. The respondent is to pay the applicant's costs of the applicant's application for discovery dated 8 December 2008 on a party party basis on the Supreme Court scale, including the costs of written submissions.
2. Certify for two counsel including Senior Counsel.
3. Subject to paragraph 1, the applicant is to pay the respondent's costs of the proceedings on a party party basis on the Supreme Court scale including:
   • (a) the costs incurred in discovery and inspection pursuant to my order of 13 February 2009;
   • (b) the costs occasioned or thrown away by reason of the amended points of claim dated 14 August 2009;
   • (c) the costs of written submissions;
   • (d) the costs of engaging Ms Hansen as an expert; and
   • (e) the costs of the application for costs;
4. The costs are to be taxed in default of agreement.

Mr George Golvan, QC with Mr Adrian Finanzio, Barrister

1. This proceeding was heard over five sitting days in August last year. I published a decision on 4 November last year dismissing the application brought by the applicant, Sixty-Fifth Eternity Pty Ltd for relief under Section 184 of the Planning and Environment Act 1987. The facts and circumstances pertaining to the dispute between the parties are complex and extensive. Today I am hearing a costs application arising out of the substantive determination. It is unnecessary and inappropriate for me to say too much about the facts and complex circumstances, I content myself therefore with, for present purposes, incorporating by reference what I said as to the background of the matter and the nature of the dispute in my written determination published on 5 December. It is necessary however to say something.
2. Sixty-Fifth Eternity Pty Ltd is the owner in succession to a company known as Fabcot Pty Ltd, there having been a number of intermediate owners between. Fabcot purchased an important slab of the Camberwell Junction Activity Centre from the then City of Camberwell subject, inter alia, to an agreement under Section 173 of the Planning and Environment Act 1987 restricting the use which could be made of the relevant land. The effect of the restriction was to permit a supermarket and a discount department store and those developments alone on the relevant land. In addition the agreement stipulated limits on floor space. Sixty-Fifth Eternity Pty Ltd sought relief in effect on adjudication that it was free from those restrictions. Its case initially was based upon the contention that in the events which had occurred, Camberwell and its successor, the respondent Boroondara City Council, had so conducted themselves as to repudiate the agreement and therefore Sixty-Fifth Eternity Pty Ltd as owner of the land was no longer bound. Later by amendment further arguments based upon planning considerations relative to other sites in the precinct and permits which had been issued with respect to the use and development of those other sites were relied upon. For the reasons which I gave I dismissed the application.
3. Mr Garde QC on behalf of Boroondara now seeks an order for costs in his client's favour. He concedes that costs in a proceeding such as the present are regulated by Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. That section creates a presumption in sub-section (1) that costs lie where they fall. Sub-sections (2) and (3) however, grant the Tribunal a wide ranging discretion to order that a party pay all or a specified part of the costs of another party to a proceeding if the Tribunal is satisfied that it is fair to do so. Sub-section (3) sets out some five factors which may be considered in the exercise of that discretion numbered (a) to (e). The last of those paragraphs refers to 'any other matter the Tribunal considers relevant'. The discretion therefore is a very wide one indeed.
4. Paragraph (a) deals with the mode of the conduct of the proceeding and invites attention to conduct by the one party causing disadvantage to the other. These proceedings were conducted with expedition and efficiency hence that paragraph can be put to one side as can the following paragraph which refers to the unreasonable prolongation of a proceeding.
5. The two paragraphs on which Mr Garde placed reliance in his application were paragraphs (c) and (d) which quote:

(c) The relative strengths of the claims made by each of the parties including whether a party has made a claim has no tenable basis in fact or law.

1. Turning first to the consideration set out at paragraph (c), the relevant strengths of the claims made by each of the parties, Senior Member Byard in Dennis Family Corporation Pty Ltd v Casey City Council [2008] VCAT 691 observed at paragraph [14]:

The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side.

1. Without reiterating what I said in my principal determination, I should say that I regard this as a case which was both fairly brought and fairly defended. Mr Garde submitted that there were substantial authorities standing in the way of success on the grant of the relief sought both in the Supreme Court and at the Tribunal level. Ultimately I accepted that contention but every case has a winner and loser. I do not believe that a provision such as the one here in question was intended to look at matters retrospectively and say 'since you lost, you had a relatively weak case'. If the matter were approached in that manner, the award of costs in the Tribunal would be the rule rather than the exception. We know that is not the case. Having regard to the view that I have of this matter as one fairly brought and fairly defended, I do not believe that there is any disproportion in the relative strengths of the cases of the two parties which would enliven the discretion to award costs in light of the general presumption which we find standing against the award of costs as between party and party by vest of Section 109(1).
2. This leaves Council's application dependent solely upon a consideration of the nature and complexity of the proceeding. Here Mr Garde drew attention to the manner in which the proceeding was conducted. He noted first that the application as initially propounded, even although brought under the terms of a section of the Planning and Environment Act 1987, entailed pleadings which might easily be filed in an orthodox contractual proceeding in the Supreme or County Courts alleging repudiation. He noted further that extensive discovery was directed by the Tribunal in circumstances where this was contrary to the ordinarily established practice in the Planning and Environment List. These matters, he submitted, indicated that the nature of the proceeding was a commercial dispute and that it and its conduct bore a court like aspect. Reference to the lengthy history of the matter going back some 17 years involving the investigation of some complex contractual relations between developers and Council he said indicated the complexity of the proceeding, hence the discretion to award costs was enlivened and a costs order should be made accordingly.
3. In response Mr Golvan QC, who appeared with Mr Finanzio of Counsel for Sixty-Fifth Eternity Pty Ltd, to resist the making of a costs order drew my attention to the summary which I gave of contentions put by Mr Garde QC, who then appeared with Mr Jackson of Counsel on behalf of Boroondara, resisting an application that Boroondara pay Sixty-Fifth Eternity's costs of the application for discovery. According to paragraph [31] of my ruling on that matter given 13 February 2009, Mr Garde said, in summary:

Even although the present proceeding he concedes raises some factual and general property law issues for consideration, ultimately the dispute arises in the context he says of a classic Planning and Environment List dispute where the applicant developer seeks to obtain a particular development approval and Council as Responsible Authority is either refusing the consent or permit altogether or refusing it on the terms sought by the developer, therefore all the considerations and all the practices of the Tribunal which regard these matters as matters where costs should lie where they fall are applicable.

1. As a fallback position he submitted that the costs should be reserved. Ultimately I adopted Mr Garde's fallback position. Mr Golvan says that Mr Garde's first thoughts on the nature of the proceeding were his better thoughts and should be given effect to here.
2. Mr Golvan stresses that these contentions were put on behalf of Boroondara at a time before the more general planning issues which were ultimately pressed at hearing had been raised on the pleadings, hence it is even a stronger case. Mr Golvan also referred to a decision of Morris J in Solid Investments Australia Pty Ltd v Greater Geelong City Council [2005] VCAT 244, a costs ruling which pertains to a matter which His Honour determined under Section 184 of the Planning and Environment Act and which is the subject of extensive commentary and discussion in the course of my principal decision. In the Solid Investments case His Honour considered that even although the matter was brought under Section 184 the same approach should be adopted to costs as was adopted in the Planning and Environment List in ordinary permit review matters and that the fact that the proceeding was not brought under one of those provisions but rather under Section 184 and therefore in the Tribunal's original and non-review jurisdiction made no difference. Mr Golvan drew particular attention to a statement at paragraph [8] of His Honour's costs ruling where His Honour said:

It is true that the proceeding was complex but that will rarely be enough in itself to justify an order for costs.

1. Later in the same paragraph His Honour continued:

The proceeding pursuant to Section 184 of the Act was essentially a merits review proceeding and the practice is that costs are rarely awarded in this type of proceeding and for good reason. As to the declaration proceeding it may sometimes justify an order as to costs but it is not automatic.

1. Mr Golvan also referred to another costs ruling of Morris J in Buttigieg v Melton Shire Council [2006] VCAT 1058 where His Honour was ruling on whether a costs order should be made in proceedings where he had determined that an attempted Ministerial 'call in' of the development application, was in the circumstances, too late because the matter had commenced to be heard in the Tribunal.
2. Again His Honour stressed the importance of the Planning and Environment List being accessible. He said:

Ordinary people feel comfortable to bring high level disputes to the tribunal and to have them resolved expeditiously. The changes to planning legislation following the infamous Doug Wade case reflect a desire on the part of the Parliament that there be an accessible and low cost method of determining planning disputes, including those that involve judicial review of administrative decisions. Part of the success of the system is that applicants have a high degree of confidence that they will not be the recipient of a huge bill of costs incurred by other parties. If costs orders become common in the Planning and Environment List it will inevitably have an adverse impact upon the accessibility of the system to ordinary persons. Although it is true that the tribunal could adopt the practice of only awarding costs against the powerful and rich, with the consequence that the poor would still feel that the system was accessible to them, this is not an approach which is acceptable from an intellectual, philosophical or even moral point of view.

1. It is common in the Planning and Environment List to draw a distinction between permit review applications on the one hand and proceedings of other types such as by way of declaration, enforcement and so forth which by their nature are in the Tribunal's original jurisdiction. Except in cases where it is possible to fault a party for its mode of conducting a proceeding, such as unreasonable delay causing disadvantage to other parties, costs are almost never awarded in permit review applications. In other types of matters in the List they are awarded sometimes, though merely to demonstrate the proceedings are not of a permit review type is far from conclusive. Reference may be made to Naroghid Wind Farm Pty Ltd v Corangamite Shire Council, a decision of Deputy President Gibson, and my own decision of McMillan v Port Phillip City Council [2005] VCAT 1946 where even although matters were not in the Tribunal's review jurisdiction no costs award was made. Buttigieg's case and the Solid Investments' case to which I made reference earlier and quoted from are similar.
2. It seems in those cases that Morris J has taken a further step. It will be recalled his statement that in itself complexity will rarely be a ground for the award of costs. In a decision in which he did make an award of costs as between party and party and on the Supreme Court scale, namely Sweetvale Pty Ltd v Minister of Planning [2004] VCAT 2000 at paragraph [19] he stated a number of circumstances in which:

It is more likely that the nature and complexity of a proceeding will make it fair to make an order for costs if:

• the proceeding failed and was a type where a party had asserted a right which it knew or ought to have known was tenuous.

1. I am conscious that all Tribunal members are enjoined as a matter of comity and predictability to follow the approach adopted by their fellow Tribunal members and that such duty is especially rigorous where the decisions in question are of judicial members. However the passages from which I have quoted seem to have His Honour saying that the nature and complexity of a proceeding is not in itself and on its own a ground for considering making a costs award. Complexity is rarely a ground for making a costs award and costs awards can only be made on the ground of the nature and complexity of a proceeding if this consideration is allied with another consideration such as a particularly weak or untenable case, presumably referring then to Section 109(3)(c). I have searched Section 109 in vain to find any such principle enunciated. It may be that His Honour was drawing attention to a consideration merely of the complexity of the proceeding as distinct from a consideration of its nature and complexity. The two are not the same thing and as His Honour rightly observes there are many very complex proceedings in the Planning and Environment List which on no basis are made the subject of any costs order. If he is going beyond that I have difficulty seeing how the text of the section really supports that approach.
2. In my view the effect of Section 109 read as a whole is that a consideration of the nature and complexity of a proceeding in itself and without more is a ground for considering making a costs order. I accept that ultimately what is at stake here is whether Sixty-Fifth Eternity Pty Ltd can carry out the more intensive development on the subject site which it desires to carry out and which it says orthodox rules as to planning and development for this precinct would allow it, or on the other hand is it to be obstructed by Council and a Section 173 agreement which in the circumstances it says is out of tune and out of sync with current planning doctrine. That is a planning issue. However, the arguments deployed in support of this are not by any means exclusively planning arguments. They are contractual arguments at least as to part. Moreover the proceeding here was conducted like a proceeding in Court with a very extensive discovery order. In my view therefore the nature and complexity of this proceeding does create a discretion to award costs. In the Sweetvale case at paragraphs [14] to [16] Morris J with his customary conciseness and felicity said it all. Speaking of the Sweetvale case he said:

[14] The nature of the proceeding was out of the ordinary for the Planning and Environment List. It was a proceeding in the nature of judicial review; not merits review. Further, because it was brought pursuant to section 149B of the Planning and Environment Act 1987, it was necessary that the proceeding be heard by a presidential member of the tribunal.

[15] The proceeding was complex. The arguments presented by counsel for the applicant were, as has been indicated, carefully crafted. And they involved subtle contentions as to the niceties of planning law and practice.

[16] Thus I am satisfied that the nature and the complexity of the proceeding was quite different to the run of the mill planning case before the tribunal. In character the proceeding was closer to a proceeding commonly brought and determined in the Supreme Court of Victoria, not only by reason of the amount at stake (the project involved a multi-million dollar building), but also by reference to the type of issues involved.

1. Virtually all of what His Honour there says could be applied to this case. This is not a matter of in substance judicial review under Section 149(b). It is however a piece of commercial litigation involving very complex contractual arguments and very heavy discovery obligations which are not commonly part of the deal in the Planning and Environment List. In my view those considerations in themselves justify the making of the costs order which Mr Garde QC seeks and I propose making that order and, based upon the formulation of Morris J, that order should be on the Supreme Court Scale.
2. I accept, as Mr Garde has submitted, that that should carry with it certificates for senior and junior counsel and should be expressed to extend to the costs of complying with the discovery order. The costs that were reserved relative to the discovery application however stand in a different case. The contention put by Mr Golvan QC and his then junior Mr Borsky at the time was that a costs order should be made on the discovery argument in favour of his client. I reserved the costs but the logic of what I have said in ruling on the substantive costs here indicates I think that the spoils should go to the victor on that issue. I am not sure if Mr Golvan is making a costs application or rather renewing the costs application as to those reserved costs today. If he is, I would make an order in his client's favour. Certainly as far as those costs were reserved they should not be part of the costs to be awarded in favour of Council.