2 The background is set out in the reasons for my decision dated 19 December 2003. Essentially the circumstances are set out in the following paragraphs.

3 The premises operated as a nightclub pursuant to a permit which contained a condition that 285 car parking spaces be provided. The permit also provided that if the car parking spaces be not provided the permit would have no force or effect; and the activities permitted must cease after 14 days, unless alternative car parking was provided.

4 It would appear that Blue Emporium Pty Ltd purchased the business in about September or October 2003. At that time there had been a number of incidents at the nightclub which had attracted police attention. Further, following Blue Emporium Pty Ltd purchasing the business, there appears to have been a further incident that attracted police attention. Whether or not these matters have any linkage with the provision of car parking is a matter of speculation.

5 Sufficient to say that some time in November 2003 the operator of the Daly Street car park, which is nearby to the nightclub, withdrew an arrangement in relation to the provision of car parking spaces. That occurred on 20 November 2003 and was notified to the council on that day. A week later the council wrote to the operations manager of the nightclub raising the car parking issue and requesting the nightclub owner to indicate its intentions in relation to the provision of car parking.

6 Blue Emporium Pty Ltd employed solicitors who sought to negotiate some form of satisfactory outcome, but this had not been achieved by 12 December 2003 when the council wrote, once again, this time seeking a written undertaking by 15 December that the premises would not reopen until the car parking provision of the planning permit was fully complied with. A request was made to extend this deadline to Friday 19 December 2003, but that was not agreed to by the council, which commenced proceedings on 16 December 2003.

7 When the proceeding came before me on 19 December, the principal argument put by Mr Scally, who appeared on behalf of Blue Emporium Pty Ltd, was that an application had been made to the tribunal pursuant to section 87 of the Planning and Environment Act to amend the permit by altering the car parking condition. This was supported by evidence to the effect that there was a good prospect that the condition would be altered. On 19 December 2003 I thought, on that evidence, that there were good prospects of the permit being amended but, ultimately, held that it was more important that the law be complied with and that the nightclub close during the period in which the car parking condition was sorted out, rather than to exercise my discretion in a way that provided no remedy for the obvious breach of the law that was occurring. As matters transpired the tribunal, constituted by other members and on the basis of evidence that was not before me on 19 December 2004, decided not to vary the permit conditions by altering the car parking provisions. As a consequence of this the enforcement order was then made a permanent enforcement order by consent; and, further, a liquor licence in relation to the premises was cancelled without opposition.

8 I think it is appropriate that I consider the present application for costs, not only in the context of the interim enforcement order itself, but in the context of the whole of the proceedings concerning the nightclub, including the permanent enforcement order, the liquor matter and, for that matter, the application to amend the permit. That is not to say that the primary focus should be other than on the application for interim order.

9 Section 109 of the Victorian Civil and Administrative Tribunal Act provides that, as a general rule, each party is to bear their own costs in a proceeding. However the tribunal does have the power to order that a party pay costs if it is satisfied that it is fair to do so. In this respect the tribunal is directed to a number of specific criteria. The first of those criteria is whether a party has conducted the proceeding in a way that unnecessarily disadvantages another party to the proceeding. Examples are failing to comply with directions, failing to comply with provisions of Acts, asking for unnecessary adjournments, being vexatious and the like. Apart from the fact that the respondent, Blue Emporium Pty Ltd, was failing to comply with the Planning and Environment Act by not complying with the planning permit, there is no other evidence that persuades me that Blue Emporium Pty Ltd was conducting the proceeding in a way that unnecessarily disadvantaged the council. It might be said that it did not agree to give the undertaking that was sought, but it had a legitimate argument as to why that undertaking should not be given, namely that, as a matter of discretion, interim relief should not be given because there was pending a section 87 application to amend the permit which had reasonable prospects of success.

10 Other matters which the tribunal is directed to are things such as prolonging the proceeding, the relative strength of the claims made, the nature and complexity of the proceeding and so on. Looked at overall I would regard the conduct of Blue Emporium Pty Ltd in relation to matters before the tribunal, as opposed to conduct before the matter came to the tribunal, as reasonable. Its conduct in relation to the liquor matter and the permanent order was prudent and resulted in a minimisation of costs; and its conduct in relation to the hearing on 19 December 2003 was efficient and raised an issue that could legitimately be raised in the context of a discretionary remedy. It is, after all, quite common where developments are constructed illegally, and then enforcement action is taken to remedy the illegality, for a landowner to respond by applying for a permit to retrospectively validate the illegal development and to then persuade the tribunal to postpone enforcement action until that planning permit application is resolved. What happened in this case is not dissimilar. Of course I did not allow that course in this case. But the fact that I did not permit it does not mean that the argument put by Blue Emporium was hopeless or extremely weak. On the contrary, as I remember the case on 19 December 2003, I was hesitant before granting the remedy I granted. I did not approach the decision in the case as if it was blindingly obvious. Hence the relative strengths of the claims made by each of the parties do not justify an order as to costs.

11 That leaves the issue of the nature of the proceeding and the fact that the proceeding was one that followed a breach of the law, that is the Planning and Environment Act, by Blue Emporium Pty Ltd. There is authority to the effect that the approach of the tribunal in enforcement order applications ought be different than in applications for review. As a general rule I think there is merit in the distinction between the types of proceedings. But it does not follow that costs should be regarded as automatic or likely in enforcement order applications. Rather it is necessary to look at the circumstances of the application, particularly matters which occurred after the proceeding was brought before the tribunal.

12 When it comes to costs the primary focus should generally be on the circumstances that occur after the matter is commenced in the tribunal. If we look at the conduct that occurred after the proceeding was commenced on 16 December 2003, I do not regard the conduct of Blue Emporium Pty Ltd as being such as to warrant any order as to costs. I am not satisfied that that conduct satisfies any of the matters in paragraphs (a) to (d) of section 109(3) of the Act, so as to then make it fair to make an order as to costs having regard to those considerations. Nor do I identify any other matter that is relevant that would justify such an outcome.

13 A failure to award costs in a matter like this does result in an outcome that is, to some extent, unjust. But I am conscious that the scheme of section 109 is to lay down a general rule that this tribunal be one where costs are paid by the person incurring them; and that that general rule is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable. Conscious as I am of these broader goals, I think that some injustice in particular cases is inevitable in order to achieve a wider objective in promoting access to justice.