VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1390/2022
Permit Application no. 21/0019	
CATCHWORDS	
Section 109 of the Victorian Civil and Administrative Tribunal Act 1998; Application for costs; Preliminary Hearing; Strike out application. 	

Applicant	Helen Lesley O'Brien	

Responsible Authority	Surf Coast Shire Council	
Respondent	LC & J Adams Pty Ltd	
SUBJECT LAND	13 Anderson Street
LORNE  VIC  3232	
HEARING TYPE	On the Papers - Costs	
DATE OF HEARING	7 February 2023	
DATE OF ORDER	31 August 2023	
CITATION	O’Brien v Surf Coast SC [2023] VCAT 1012	

Order
Costs refused 
1	The application by Helen Lesley O’Brien for an award of costs pursuant to section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 is refused.    
2	No order as to costs.
3	Each party is to bear their own costs in the Preliminary Hearing. 

Karina Shpigel
Member	

Reasons
1	The applicant for review in this proceeding, Helen O’Brien (applicant) has made an application for legal costs against the respondent, LC & J Adams Pty Ltd (respondent).  The applicant is seeking an award of costs of $2,400 arising from the Preliminary Hearing, which was conducted on 7 February 2023 before me. 
2	The purpose of the Preliminary Hearing was to consider the respondent’s application for the proceeding to be dismissed or summarily struck out on the basis the application was lacking in substance.  The application was refused and the Order dated 7 February 2023 included remarks summarising my reasons for the decision. 
3	The applicant was represented by a barrister in the Preliminary Hearing, instructed by direct access brief.  The applicant states in the Application Form that she is seeking “costs thrown away” as a result of the Preliminary Hearing.   
4	The respondent has filed a written submission opposing the costs application.  
5	The hearing of the cost application was conducted ‘on the papers’.
6	Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides the legislative basis for an award of costs.  The general rule is that each party bears their own costs.  Section 109(2) empowers the Tribunal to order that a party pay all or a specified part of the costs of another party if it is satisfied that it is “fair to do so” having regard to the matters specified in section 109(3). 
7	The applicant’s costs application was comprised of the Application Form and a one page written submission.  The thrust of the applicant’s submission is that at an award of costs should be made because the respondent did not succeed with its application for the proceeding to be dismissed or summarily struck out.  The applicant submits:
6.	As a result of the incompetent application for a hearing by the respondent, the applicants had to brief (direct brief) counsel and incur costs that were in effect vexatious in conducting a proceeding that was unwarranted.
8	It is not clear from the applicant’s material on what basis an award of costs should be made having regard to the criteria set out in section 109(3) of the VCAT Act.  Given the general rule is that each party bears its own costs, the onus lies on the applicant to identify the basis on which the rule should be departed from, having regard to the matters specified in section 109(3) of the VCAT Act.  The applicant is legally represented and these matters were clearly identified in the Tribunal’s Orders of 7 February 2023. 
9	If it could be assumed that the applicant’s claim for costs relies on section 109(3)(c) ‘the relative strength of the claims made by each of the parties’, the fact that the respondent did not succeed with its application does not mean in itself, that there was no tenable basis for the application.  I endorse the comments of Deputy President Dwyer in unChain St Kilda Inc. v Port Phillip CC & Ano that:
… the fact that the Tribunal is (after hearing and analysis) able to reach a firm or comprehensive conclusion does not mean, of itself, that the unsuccessful party’s case had no tenable basis in fact or law such that costs should be awarded against it.  ‘Untenable’ means more than ‘weak’, and an award of costs should not ordinarily be made against an unsuccessful party just because it lost a relatively weak case. 
10	Even if I could be persuaded to depart from the general rule and that an award of costs is justified, the applicant has not provided any evidence of the costs she claims to have incurred in the Preliminary Hearing.  The applicant states in the Application Form that she is seeking: 
Legal counsel fees incurred for the sum of $2400 costs thrown away covering the work for preparation (2hours) $800, Tribunal hearing $1200 (3 hours) and submission preparation $400 (1 hour).
11	But the applicant did not provide copies of any invoices or receipts in support of the claimed amounts.  In the absence of itemised invoices, it is not possible for an assessment to be made of the quantum of these amounts or whether they actually arise from the Preliminary Hearing.  Furthermore, no explanation was provided for the basis on which the applicant was claiming its full legal costs and why a departure from the standard basis would be appropriate.  Again, these were all matters that were required to be addressed pursuant to the Tribunal’s Orders of 7 February 2023.
12	For all these reasons, I decline to exercise my discretion to make an order for costs.  The application for costs is refused and each party should bear its own costs.

Karina Shpigel
Member