E & A Koutroubas, G & C Aquilina, A & L Abela, J Pace

3 Murray Road, Rockbank, 210 Paynes Road, Rockbank, 8 Irmmo Circuit, Rockbank, 768 Greigs Road, East Rockbank, 1256 Mt Cottrell Road, Melton South, 126-256 McCorkells Road, Toolern Vale

[2004] VCAT 464

1 The Respondent David Proctor is to pay to the Applicants A & A Straw the amount of $867.00 within one month of the date of this order.

2 The Respondent David Proctor is to pay to the Applicant T Strang the amount of $1361.25 within one month of the date of this order.

3 E & A Koutroubus are to pay to C & R Mifsud the amount of $137.50 within one month of the date of this order.

4 G & C Aquilina are to pay to C & R Mifsud the amount of $137.50 within one month of the date of this order.

5 The application for costs by Bailton Pty Ltd is disallowed.

Mr A Hooper QC of Counsel for D Proctor, C & R Mifsud and Bailton Pty Ltd

Mr Koutroubus on his own behalf and on behalf of G & C Aquilina

1 These applications for costs pursuant to Section 75(2) and Section 109 Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) arise as a result of a number of applications for review lodged by Mr D Proctor, as well as applications for review by C & R Mifsud and Bailton Pty Ltd against decisions by the Responsible Authority to grant Notices of Decision to allow for subdivision of various pieces of land into two lots.

2 On 27 October 2003 the Tribunal dismissed all the applications brought by Mr Proctor, pursuant to Section 75(1) VCAT Act, including applications P1907/2003 which related to the Strang's property and P2308/2003 which related to the Straw's property. The applications were dismissed on the basis that they were vexatious having been made for a collateral purpose.

3 The Tribunal on the 27 October 2003 also set down for hearing on 8 December 2003 applications P1811/2003 and P1822/2003 lodged by C & R Mifsud in relation to the Koutroubus and Aquilina properties and on 9 December 2003 applications P1900/2003 and P1908/2003 lodged by Bailton Pty Ltd in relation to the Abela and Pace properties.

4 On 8 December 2003 as a result of an amendment to the planning scheme which had the effect of prohibiting the proposed subdivisions, the Tribunal allowed the applications for review and directed no permits issue in P1811/2003, P1822/2003, P1900/2003 and P1908/2003.

5 The applications for costs are brought by Straw and Strang against Mr Proctor and by C & R Mifsud and Bailton Pty Ltd against Koutroubos, Aquilina, Pace and Abela.

6 In dealing with all the applications it is relevant to cite the two sections of the VCAT Act namely Section 75(2) and Section 109 which gives the Tribunal power to consider such applications:

75(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(1) Subject to this Division, each party is to bear their own costs in the proceeding

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding .

(3) The Tribunal may make and order under sub-section (2) only if satisfied that it is fair to do so, having regard to-

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as-

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

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

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

7 I will firstly deal with the applications for costs against Mr Proctor. Mr Strang is seeking an amount of $1361.25 and Mr Straw is seeking an amount of $ 867.00. Both amounts are based on hourly rates, as both Mr Strang and Mr Straw are self employed and have sought to obtain payment for the time they have spent in researching and preparing for the hearings as well as attending both the directions hearing and strike out application. Both submitted they had been inconvenienced, were required to contact planning consultants, to listen to Tribunal tapes and incurred loss as a result of not being able to work on the days of the hearings as well as expenses in having to attend the hearings.

8 Mr Hooper submitted that neither Mr Strang or Mr Straw were experts, they had not been engaged as he was, to represent a party at the hearing, they were both representing themselves and therefore, they should not be awarded costs in the circumstances.

9 Mr Hooper submitted that the awarding of costs to persons such as Mr Strang and Mr Straw, who were both self employed, then they were required to show an actual cost to the business, if either as an employee or representative of the business then they must show or demonstrate the actual loss to the business. It was his submission that what was being claimed was merely a fee charged for their own work. Mr Hooper questioned whether persons a party to an application for dismissal should be entitled to be remunerated in dealing with their own cases.

10 It was Mr Hooper's submission that Section 75 was not concerned with costs in a proceeding but rather an award of damages or compensation arising out of the proceeding. He referred to 'costs and expenses' which he stated should be interpreted in accordance with the section, which was to provide a form of compensation which flows from the proceeding as distinct from costs incurred in the conduct of the proceeding.

11 Section 75(2) VCAT Act allows for compensation for costs and expenses resulting from the proceeding. I consider the proceeding in this case to be, the application for review initiated by Mr Proctor which brought the issue before the Tribunal and as a result the consequential directions hearing and strike out hearing which resulted in the summary dismissal of the proceeding. Both Mr Strang and Mr Straw were put to costs and expenses as a result of the proceeding initiated by Mr Proctor.

12 The 'costs and expenses' were incurred in a proceeding found to have no basis, as the applicant was considered to have initiated the proceeding for a collateral purpose. This situation is I consider distinct from a proceeding properly initiated that is then considered on its merits.

13 I agree with Mr Hooper's contention that 'costs' are normally confined to legal fees and disbursements and this is extended to fees and disbursements of a professional representative in the Tribunal. It was his contention that costs however do not include remuneration for parties representing themselves. In this respect he referred to the majority judgement in the High Court decision Cachia v Hanes & Anor [1994] HCA 14; (1994) 179 CLR 403:

It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.1 c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or. More accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travel and losse of time"

14 Section 75(2) VCAT Act however specifically refers to compensation and I consider Section 75(2) VCAT Act enlivens a discretion to consider awarding costs in circumstances where, as in the present matter an application has been summarily dismissed: Jacobsen v Whitehorse City Council [2000] VCAT 400 (31 January 2000). There is no requirement that an order has to be made by the Tribunal allowing such an application nor is there a requirement that in making an application there must be specific reference to the provision of the Act.

15 It is clear that under Section 109 VCAT Act each party is to bear their own costs, unless the Tribunal is satisfied that it would be fair to award costs, having regard to the specified circumstances, as set out in sub-section (3). I agree with Mr Hooper that the circumstances referred to in Section 109 relate to the conduct of the proceedings and if the matters had proceeded in the normal course of events to a hearing on the merits then both Straw and Strang appearing on their own behalf in such circumstances would in my view be eligible for any award of costs.

16 Nor am I persuaded that any of the specified circumstances referred to in Section 109(3) have arisen in this particular situation that would justify my considering awarding costs under that section. Although the Applicants referred to 'vexatiously conducting the proceeding'. There was nothing vexatious in the way the proceedings were conducted rather it was concluded that the proceedings had been initiated vexatiously, that is for a collateral purpose, which is a different situation altogether.

17 The applications lodged by Mr Proctor were challenged as being vexatious, initiated for a collateral purpose and dismissal of the proceedings was sought pursuant to Section 75, which specifically contains a provision which relates to a consideration of costs, in such circumstances where the Tribunal makes an order.

18 In the circumstances where the Tribunal found that Mr Proctors' applications were vexatious Section 75(2) VCAT Act clearly indicates the Tribunal can consider an application for what amounts to compensation for costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding. I consider that both Strang and Straw should be award costs in the amounts they have specified. Both have been put to their own expense of understanding, researching and inconvenience of attending to a direction hearing as well as summary dismissal hearing. I do not consider that in such circumstances they should be refused their application for costs and expenses incurred, merely because they chose to represent themselves.

19 In relation to the application for costs by C& R Mifsud against Koutroubus and Aquilina, the amounts sought in each case total $1331.00 which includes Counsel and Consultant fees.

20 In relation to the application for costs by Bailton Pty Ltd against Abela and Pace, the amounts sought in each case total $1221.00 which includes Counsel and Consultant fees.

21 The Applicants in each instance rely upon Section 109(3)(b)and (c) VCAT Act, namely; that a party has been responsible for prolonging unreasonably the time taken to complete the proceeding and the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

22 Mr Hooper submitted there was no claim in relation to the directions hearing before Justice Morris on 5 September 2003, as that was considered to be part of the normal conduct of the proceeding. Mr Hooper noted that at the directions hearing, Mr Koutroubus claimed neither Mifsud of Bailton had standing and in relation to the grounds of review lodged on behalf of Pace there was a reference to and an allegation of 'not acting in good faith'.

23 In relation to these issue Mr Hooper indicated Justice Morris pointed out to the parties that these four proceedings were considered to be different from the numerous applications lodged by Mr Proctor. However, despite Justice Morris pointing this out to Mr Koutroubus, he nevertheless insisted on proceeding to have the matters, which related to himself and Aquilina considered on 15 October 2003.

24 At the hearing on 15 October 2003, Mr Townshend who appeared on behalf of a number of permit applicants including Abela and Pace indicated in relation to the matters related to Bailton that there was no issue with regard to standing. It was understood that this had already been conveyed to the relevant parties although Mr Hooper indicates this was not so, certainly not prior to that day.

25 It was Mr Hooper's submission that not only a failure to notify of the situation with Bailton, but the continued application by Koutroubus, despite the comments made by Justice Morris, resulted in preparation being required for the hearing on 15 October 2003.

26 Mr Koutroubus submitted, it was reasonable to object to the application by C & R Mifsud. It was his view that this was an issue that could be considered at the preliminary hearing. It was his view that as a result of the comments made by Justice Morris, he could make an application to have the matters dismissed. He noted that Mr Hooper was already in attendance in relation to the various other matters.

27 On 15 October 2003 the Tribunal indicated very clearly to Mr Koutroubus that his application for summary dismissal had no basis and the matters would proceed to be fixed for hearing on the merits. Mr Hooper was not asked to present a submission in this respect although he provided a copy of his submission for the file.

28 The Tribunal was also informed on the 15 October 2003 at the very outset of the proceedings that there was no application for summary dismissal of the Bailton applications for review. This was clearly expressed by Mr Townshend who represented Abela and Pace. Mr Hooper was not required to address the issue at any time.

29 There were numerous applications for review that had been lodged by Mr Proctor and whilst Mr Proctor was not an applicant for review in relation to the Mifsud and Bailton applications, he was however their Consultant and all parties were aware of his involvement. It seems to me that this may have led particularly in the case of Mr Koutroubas to some confusion in distinguishing the different applications that were dealt with at the Directions Hearing by Justice Morris and as a result were sent for Preliminary Hearing on 15 October 2003. although as there were numerous matters it was not inappropriate that they were all listed to be dealt with in some way at the time of the Preliminary Hearing.

30 In such circumstances, I do not consider that it would be just or fair to make an award of costs against Abela and Pace who were represented firstly by solicitors Kennedy Guy and latter by Mr Lonie of Clayton Utz and Mr Townshend as being part of a whole group of land owners who had received a Notice of Decision to grant a Permit from the Responsible Authority. They have relied upon and believed that their interests were properly taken care of by these representatives. Although Mr Hooper indicated no notice had been received that there would be no application against Bailton, I am unable to reach a conclusion one way or the other as to whether there had been any written or verbal notification prior to the hearing, I am however aware that there was no argument put in relation to the Bailton matter on 15 October merely a discussion regarding possible future hearing dates. I do not consider that at any time this contributed in any way to prolonging unreasonably the time taken to complete the proceeding.

31 In relation to the claim for costs against both Koutroubus and Aquilina, whom Mr Koutroubus at all times represented, I consider that it would be appropriate to apportion some costs, particularly as Mr Koutroubus was made well aware at the time of the Directions Hearing before Justice Morris that there was no tenable basis for seeking summary dismissal of the Mifsud applications. Whilst it was said that he had not taken heed of the comments made by Justice Morris, there was no requirement for him to do so, it is always open for a party to bring an application but there was clear notice given of the untenable nature of his claim. It is understandable that given that the issue regarding summary dismissal was to be considered by the Tribunal in numerous other matters, Mr Koutroubus believed he could also raise the issue but it had been clearly pointed out to him that the applications by the Mifsuds were different to the other cases brought by Mr Proctor.

32 The Tribunal at the Preliminary hearing came to the same view, without the need for any response by Mr Hooper who represented the Mifsuds. However as Mr Koutroubus had made his intentions clear, the Mifsuds were required to instruct Mr Hooper to prepare a response. In such circumstances on the basis that the claim had no tenable basis the amount of $275.00 being the amount indicated as costs incurred for Mr Hooper's preparation should be paid by both Koutroubus and Aquilina to C & R Mifsud. Although the claim by Mr Koutroubus was considered to have no foundation there was no resultant delay or prolonging to the actually proceedings in relation to the Mifsud matters Both matters were discussed at the Preliminary Hearing and as a consequence listed for hearing.

33 For the above reasons Mr Proctor is ordered to pay the amount of $1361.25 to T Strang and $867.00 to A & A Straw within one month of the date of the order. E & A Koutroubus are ordered to pay $137.50 to C & R Mifsud and G & C Aquilina are ordered to pay $137.50 to C & R Mifsud within one month of the date of the order. All other applications for costs are disallowed.