Couttie v Bayside City Council - [2017] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2015 06495

ANTHONY COUTTIE and DORA COUTTIE	Applicants
v
BAYSIDE CITY COUNCIL & ORS	Respondents

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2017
DATE OF JUDGMENT:	12 April 2017
CASE MAY BE CITED AS:	Couttie v Bayside City Council
MEDIUM NEUTRAL CITATION:	[2017] VSC 181 (Revised 16 June 2017)

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COSTS – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal – Applicants successful – Application for orders that the named respondents pay the applicants’ costs of the appeal – Respondents did not participate in the appeal – Whether costs order should be made against non-participating party – Practice Note SC CL 8 in the Valuation, Compensation and Planning List - Appeal Costs Act 1998 (Vic) s 4 – Application for costs dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Applicants

Mr David R J O’Brien

DSA Lawyers

For the First Respondent

For the Second Respondent

Mr Jason Kane

Mr Paul Chiappi

HWL Ebsworth Lawyers

Prior Law

HER HONOUR:

On 14 December 2016, the Court delivered judgment in this proceeding. The Court granted leave to appeal and allowed the appeal, holding that some of the grounds of appeal had been made out. The order of the Victorian Civil and Administrative Tribunal made on 30 November 2015, that a permit to develop land should be issued, was set aside and the proceeding was remitted to the Tribunal differently constituted to be determined according to law.

There were a number of respondents to the application for leave to appeal and the appeal (‘appeal’). They included the developer, Mr Marko Pintar, Bayside City Council and a number of persons who had opposed the development as objectors and been parties to the application for review in the Tribunal. However, none of the respondents took an active part in the appeal. Each of them informed the Court that they did not propose to participate in the appeal and would abide the decision of the Court, other than on the question of costs.

This stance was in accordance with paragraphs 6.2 and 6.3 of Practice Note SC No. 8 of 2015 (‘Practice Note’), which concern the conduct of appeals from the Tribunal in planning matters. The Practice Note provides for respondents in appeals in planning matters to inform the Court that they do not wish to participate in the appeal. Non-participating parties will be excused from attendance at the hearing of the appeal and that, as a result of their non-participation, ‘non-participating parties will not usually be the subject of any costs orders at the conclusion of the appeal’.

By this procedure, the Practice Note recognises that parties to Tribunal proceedings, especially objectors, may not wish to be involved in an appeal to the Supreme Court from the Tribunal’s decision. However, they are made respondents to the appeal by operation of the Rules rather than by choice.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 181
Decision Date: 12 April 2017

CaseChat Overview and Summary

The applicants, Couttie, sought leave to appeal and then appealed a decision of the Victorian Civil and Administrative Tribunal. The dispute centred on a challenge to a decision by Bayside City Council regarding land valuation and compensation. The applicants argued that the Council's decision was flawed and sought an order for costs to be paid by the respondents. Bayside City Council did not participate in the appeal process, raising questions about the applicability of costs orders against non-participating parties.

The primary legal issue before the court was whether an order for costs could be made against a party that did not participate in the appeal, especially given the provisions of Practice Note SC CL 8 in the Valuation, Compensation and Planning List and section 4 of the Appeal Costs Act 1998 (Vic). The applicants argued that the respondents' failure to participate warranted a costs order against them, while the respondents contended that such an order should not be made in the absence of participation. The court had to balance the statutory provisions with the principle of fairness in judicial proceedings.

The court determined that the statutory provisions and the practice note did not support making a costs order against non-participating parties. It held that such an order would not be appropriate unless there were exceptional circumstances that warranted it. In this case, the court found no such exceptional circumstances and dismissed the application for costs against the respondents. The reasoning was grounded in the statutory framework and the need to ensure that costs orders were not made arbitrarily against parties who chose not to participate in the appeal process.

The court's decision underscored the importance of adhering to statutory provisions and practice notes in determining costs orders. It concluded that the applicants' application for costs against the non-participating respondents was dismissed, with no orders for costs made against the Bayside City Council.

Orders