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Cited legislation

No linked legislation citations have been extracted yet.

The application was specifically for costs under s 109 of the Victorian Civil and Administrative Tribunal Act 1998, and was brought only against the Council [1]. The Member recorded that Mr Spencer had succeeded in the underlying case. The underlying dispute concerned the appropriate planning-scheme characterisation of a proposed use on land at Water Tank Road, Mount Egerton. The possible characterisations canvassed included industry, rural industry, warehouse, freezing and cool storage, agriculture, and aquaculture [5]. The Tribunal had determined that the proposed use was prohibited [8].

The costs decision did not revisit that substantive planning determination. Its focus was whether the Council should pay Mr Spencer's costs. Mr Spencer's solicitor said his costs exceeded $2,000 [4]. The Member declined to award costs and ordered that there be no order as to costs. The practical result was that the ordinary position, each party bearing its own costs, remained in place [2, 9, final paragraph].

The reasons are focused on the statutory costs discretion rather than the merits of the proposed development. The Member explained that a successful party does not receive costs automatically. The Tribunal's power depended on whether an award was fair under s 109 and the criteria it identified [4]. In applying those criteria, the Member placed weight on the arguable and complex nature of the planning issue, and on the absence of additional expense caused by the Council's conduct [5-6, 9].

Why the court decided this way

The Member's reasoning has three connected parts.

First, she rejected the idea that winning the underlying case itself justified a costs award. She stated that the Tribunal “does not award costs to a party merely because he has won” [4]. Instead, it could award costs only if doing so was fair under s 109. The decision identifies two relevant statutory considerations: the relative strength of the parties' claims, including whether a claim had no tenable basis in fact or law, and the nature and complexity of the proceeding [4-5].

Second, the Member considered the substantive planning question complex and genuinely arguable. The parties had to assess how the proposed use fitted within the Section 2 Table in the Township Zone, with several potential land-use categories in play [5]. She reasoned that multiple possible characterisations supported the conclusion that the Council's case was arguable, not untenable [6]. The Tribunal's conclusion that the use was prohibited did not, in itself, mean the Council's contrary position lacked a tenable legal basis.

The Zone's structure contributed to that complexity. The Member contrasted the Township Zone with other residential zones where industry was a prohibited Section 3 use. In the Township Zone, industry was described as a permit-required Section 2 use subject to a Clause 52.10 condition [7]. The Council's explanation, quoted in the reasons, was that it did not treat the Township Zone as equivalent to residential zones that exclude industrial uses from their purpose [7]. The Member also noted that Clause 52.10 was a new VPP-format provision, had not been translated across from the earlier Moorabool Planning Scheme, and had not previously been considered by the Tribunal on review [8]. She accepted that deciding the use was prohibited required detailed analysis and interpretations of land-use definitions that differed from the Council's assessment [8].

Third, the Member assessed the Council's conduct and its consequences. She acknowledged that the Council had appeared casual in handling the application, and expressed sympathy for Mr Spencer's expense [4, 9]. But she referred to a distinction between a merely casual attitude and “contumelious or really careless behaviour” [9]. She also recorded that Mr Pridgeon accepted the Council's casual attitude had not caused Mr Spencer to incur additional costs that could be recompensed, and that Mr Spencer had been able to maintain and exercise his rights [10, numbered as “9” in the supplied text]. The absence of additional costs causally linked to the conduct was therefore a further reason not to make an order.

Read together, the reasons do not establish that Council conduct can never justify costs. They explain why this particular combination of arguable legal positions, complexity, and no additional expense did not justify departing from the ordinary costs position.

Before and after state of the law

The decision states the relevant starting point as a general costs position: each party should bear their own costs [2]. It then explains that s 109 provides a basis for an award where it is fair to do so, taking into account specific criteria. The Member expressly mentions the relative strength and tenability of the parties' claims, and the nature and complexity of the proceeding [4-5].

The decision also records the Member's view that a particular criterion in s 109(3)(a)(ii) was directed to failures to meet what she called a mandatory “checklist” of obligations. Her examples were proper notification and observance of the time allowed for objectors to lodge objections before a decision [3]. She distinguished those matters from the complaint in this case, which was about the Council's interpretation of its planning scheme [3]. This is the Member's interpretation in this costs decision; the text supplied does not provide a broader statutory analysis or establish how the interpretation was applied in other cases.

On the conduct issue, the Member referred to Lowther Hall Anglican Grammar School v City of Moonee Valley & Ors (1999) 1 VPR 140 at 154, describing the approach as requiring contumelious or really careless behaviour rather than a casual attitude [9]. She also cited Cernobrivec v City of Williamstown and Bourakis (1993) 12 AATR 54 for the proposition that an arguable case had not been burdened with costs merely because it lost [6]. The supplied decision does not set out the facts or full reasoning of either cited case, so their broader rules cannot be reliably reconstructed from this text alone.

The decision is a case-specific application, not a reported alteration to the statutory scheme. It applies the factors the Member identifies to the circumstances before her and refuses costs. The judgment text does not establish any later change in the law or provide a later doctrinal account.

Key passages with plain-English translation

“The Tribunal does not award costs to a party merely because he has won.” [4]

In plain English, a win in the underlying proceeding did not automatically shift the winner's legal expenses to the other side. The Member treated the costs question as a separate issue requiring consideration under s 109.

The legal arguments were “of a complex nature” and were not “of a character for which there was no tenable basis in law.” [5]

The Member did not treat the Council's loss as proof that its legal interpretation was indefensible. The dispute involved several plausible planning categories and the interaction of the Township Zone with Clause 52.10 [5-8].

“The fact that there were a number of ways in which the use could be considered or characterised leads to the unavoidable conclusion that there was an arguable case.” [6]

This is the central application of the tenability criterion. The range of possible land-use classifications supported the Member's conclusion that the Council's position was arguable, even though the Tribunal ultimately determined that the use was prohibited.

“The Tribunal has only been minded to award costs against responsible authorities if they have been guilty of contumelious or really careless behaviour rather than a casual attitude to its obligations.” [9]

The Member distinguished conduct she considered sufficiently serious from conduct that was merely casual. The text does not define those terms more fully, and the passage should be understood as the Member's explanation in this case, read with the cited Lowther Hall decision.

The Council's casual attitude “did not cause Mr Spencer to incur any additional costs.” [10 as numbered in the supplied text, shown as the second paragraph 9]

This links the conduct assessment to the claimed loss. The Member recorded that the applicant's counsel accepted there was no additional expense caused by the Council's casual approach and that Mr Spencer had been able to exercise his rights.

What fact patterns trigger this precedent

The decision is most directly relevant to costs applications where a party has succeeded in a planning matter but seeks costs against a responsible authority under s 109 of the Victorian Civil and Administrative Tribunal Act 1998. It illustrates that the outcome of the substantive dispute is only one part of the analysis, not a sufficient basis on its own [4].

Its reasoning is particularly connected to matters where the responsible authority's planning interpretation was wrong but had a tenable basis, and where the underlying issue required complex analysis of land-use definitions or planning-scheme provisions [5-8]. The specific features here were uncertainty over which of several use categories applied, the Township Zone's different treatment of industry, and the new and unusual Clause 52.10 condition [5-8]. The judgment does not say that these same features must exist for costs to be refused in other cases.

The decision also addresses a complaint about a Council's casual handling of an application. It indicates that, in the Member's assessment, casual conduct was not enough in this instance, especially where it caused no additional costs and did not prevent the applicant exercising his rights [9-10]. The Member contrasted that with conduct described as contumelious or really careless [9].

A separate point may be relevant where the alleged failure concerns statutory process, such as notice or time limits for objections, rather than interpretation of the planning scheme. The Member distinguished those types of checklist obligations from the complaint before her [3]. The text does not determine what costs outcome would follow from a proven notification or timing failure, so that question remains outside the decision's actual holding.

How later courts have treated it

The supplied judgment gives no information about later judicial or tribunal treatment of Spencer K v Moorabool SC. It cannot establish whether later decisions followed, distinguished, explained, or questioned its reasoning.

The decision itself cites two earlier authorities. It cites Cernobrivec v City of Williamstown and Bourakis in support of the observation that a party with an arguable case had not been burdened with costs merely because it lost [6]. It cites Lowther Hall Anglican Grammar School v City of Moonee Valley & Ors in relation to the distinction between contumelious or really careless conduct and a casual attitude [9]. The judgment supplies no analysis of those cases beyond those references.

Accordingly, the later-treatment position cannot be described from this source alone. Any account of subsequent treatment would require later decisions not included in the supplied material. The case should not be presented, on the basis of this text alone, as having been affirmed, reversed, or adopted by later courts.

Still-open questions

The judgment leaves several matters unresolved in the text provided. It does not give a detailed construction of all the s 109 criteria, or explain the interaction between the criteria beyond applying those it identifies to the facts [3-5]. In particular, it does not provide a comprehensive test for when a failure to comply with a procedural obligation qualifies under s 109(3)(a)(ii), or establish whether the Member's “mandatory checklist” description applies beyond the examples she gives [3].

The meaning and limits of “contumelious or really careless behaviour” are not developed in the decision. The Member cites Lowther Hall, but does not reproduce that authority's reasoning or explain how the expressions should be applied across different types of responsible-authority conduct [9]. Likewise, the decision does not specify how a tribunal should assess the causal connection between administrative conduct and additional legal costs in cases where expenses are disputed. Here, the point was recorded as an admission by Mr Pridgeon [10].

The planning questions that made the underlying proceeding complex are not resolved in detail in these costs reasons. The Member lists potential use classifications and notes the significance of the Township Zone and Clause 52.10, but the full substantive planning analysis is not reproduced [5-8]. The decision therefore supports an understanding of why the costs application failed, not a complete account of the underlying land-use ruling.

Finally, the supplied material does not reveal whether later decisions adopted or qualified this costs reasoning. It also contains a numbering irregularity: after paragraph 9, the final paragraph is numbered “9” again. The references above identify that final passage as the second paragraph labelled 9, rather than treating the supplied text as if it contained a numbered paragraph 10.

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