Posted 28/8/06

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

Order

The application that the tribunal make an order that the Minister pay the costs of the applicant in respect of part of the proceeding is declined.

Stuart Morris

President

Reasons
 

In 14 September 2005 I made a declaration that the direction made by the Minister for Planning in her letter to the Principal Registrar dated 18 November 2004 did not have legal effect pursuant to clause 58(2)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.  The applicant in that proceeding now seeks an order that the Minister pay costs in relation to that part of the proceeding whereby the Minister’s call-in was (effectively) challenged and the tribunal determined that it had jurisdiction.

1. The background to the present application is set out in my ruling dated 28 November 2005.
2. Section 109(1) of the Victorian Civil and Administrative Tribunal Act establishes the general rule that each party is to bear their own costs in a proceeding.  It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that it is “fair to do so” will influence the manner in which a particular jurisdiction operates.  Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal.
3. The tribunal rarely makes orders as to costs in the Planning and Environment List of the tribunal.  This practice tends to promote the accessibility of the tribunal to the ordinary person; as well as tending to minimise the overall extent of costs that are incurred.  Both of these outcomes are in the public interest.
4. The applicant placed particular reliance on the fact that the issue in dispute was complex.  It is apparent from both the reasons for my decision, and the time which it took to prepare those reasons, that the matter was of considerable complexity and novelty.  However I do not accept that the complexity of the matter provides a universal or sure indicator that it is fair to award costs.  Sometimes the complexity of a matter and the manner in which the parties proceed might give a proceeding a “court like” character; which, in turn, could make an order as to costs fair.  On other occasions a proceeding may be complex – for example, because it is novel – yet the parties may have acted in good faith and, also, efficiently.  In the latter case complexity will not be a sufficient justification for making an order as to costs.  I think this case falls into the latter category.  There is no evidence that the call-in was exercised in bad faith; and I would not make such an inference.
5. Further, in my opinion, it is relevant that the arguments advanced by the parties in respect of this proceeding (or, more accurately, this part of the proceeding) were efficiently and reasonably advanced.  This is particularly true of the Minister’s arguments.  In my opinion this is a powerful and important consideration in deciding whether it is fair to make an order for costs.
6. I am conscious that the financial and other resources of the parties are not even:  clearly the Minister occupies a favoured position.  However I do not accept that this is a sound basis upon which to found an order as to costs.  This is particularly so when the Minister has acted responsibly in the conduct of the proceeding before the tribunal.  In my opinion, it is the conduct of the Minister before the tribunal which is the key consideration, rather than the quality or lawfulness of the decision that was made by the Minister.  The latter may be relevant in extreme circumstances, but the system is based upon a capacity to challenge everyday decisions without costs implications.
7. The success of the Planning and Environment List relies on its accessibility.  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.  Thus in determining what is fair in a particular case it will be necessary to have regard to the general practice that is followed by the tribunal in a particular list and the objective sought to be advanced by that practice.  This is because fairness is linked with consistency.
8.  

In all the circumstances, therefore, and in the exercise of the discretion open to me, I decline to make any order as to costs.  When a person makes an application for permit and then pursues that application before the tribunal they must expect that costs are likely to be incurred.  Moreover they must accept that in some cases these costs will be greater than others, depending upon the quality of the application, the attitude of authorities and the extent of opposition from objectors.  Thus when costs are incurred by reason of a ministerial call-in which is subsequently found to be legally ineffective these costs should be regarded as being part of the rub of the green.

Stuart Morris

President