Maple v Derino Pty Ltd
[2002] VSC 499
•20 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 7873 of 2001
| JOHN MAPLE |
| Plaintiff |
| v |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL |
| First Defendant |
| and |
| DERINO PTY LTD (ACN 060 727 362) and IMPACT SHOP FITTING PTY LTD (ACN 061 939 240) |
| Second Defendants |
| and |
| MONASH CITY COUNCIL |
| Third Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2002 | |
DATE OF JUDGMENT: | 20 November 2002 | |
CASE MAY BE CITED AS: | Maple v Derino and Impact Shop Fitting | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 499 | |
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COSTS – planning permit – appeal from the Victorian Civil and Administrative Tribunal – leave to appeal unopposed – proceeding adjourned pending new permit application – appeal withdrawn – defendants not entitled to an indemnity certificate under the Appeal Costs Act 1998 – the application for leave to appeal not inappropriate – the defendants pay the plaintiff’s costs of the application for leave to appeal – inappropriate for the plaintiff to contest the adjournment application – plaintiff to pay the defendants’ costs of the application for an adjournment
Appeal Costs Act 1998 – sections 3, 4
Appeal Costs Funds Act 1964 – sections 2, 13(1)
Supreme Court Act 1986 – section 24(1)
Supreme Court (General Civil Procedures) Rule 1996 – Rule 63.15
Pickford v Incorporated Nominal Defendant [1981] VR 583
Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Taylor | Russell Kennedy |
| For the Second Defendants | Mr A Finanzio | Jerrard and Stuk |
HER HONOUR:
Introduction
The background to these proceedings may be briefly set out. The second defendants (“the defendants”) constructed two units (“the development”) at 10 Lemana Crescent, Mount Waverley, next door to the residence of the plaintiff. A planning permit for the construction of the development had been granted by the first defendant (“the Tribunal”) on 18 February 2000. However, when construction was completed it transpired that there were various minor inconsistencies between the plans approved by the Tribunal, the plans endorsed by the third defendant (“the Council”) as responsible authority on the grant of the planning permit, the plans attached to the building permit, and the development as built. The plaintiff deposed that the development overlooked parts of his property and that he had brought proceedings before the Tribunal for an enforcement order under section 114 of the Planning and Environment Act 1987 (“the P & E Act”), requiring the development to be constructed in accordance with the plan approved by the Tribunal. He further deposed that he had done this because the Council had not taken steps to enforce the terms of the planning permit which he considered it should have done; no doubt having in mind the obligation imposed on the Council by section 14 of the P & E Act to administer and enforce the relevant planning scheme.
On 7 September 2001 the Tribunal made an order (“the Tribunal order”) dismissing the plaintiff’s application for an enforcement order and an associated application for costs.
On 26 October 2001 I heard and determined an application by the plaintiff under section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) for leave to appeal against the Tribunal order. The defendants neither opposed nor consented to that application. There was no appearance before me on that or any later occasion by either of the first and third defendants, the Tribunal having advised the Court that it did not intend to take an active role in the proceeding, and the Council having earlier filed a notice of appearance.
I granted leave to appeal to the plaintiff, conditional on an amended notice of appeal being lodged within ten days, with liberty to apply, and set the proceeding down for hearing on 27 November 2001, on an estimate of a duration of two days. No order was made as to costs. The amended notice of appeal was duly filed on 2 November 2001.
The submissions made to the Tribunal on behalf of the Council as responsible authority had included the following paragraph, under the heading “Council’s assessment of the development”:
Council’s preliminary assessment of the development “as built” is that should an application to “regularise” the Plans in accordance with the development as built be made it is likely that Council would approve such application subject to conditions. The principal issue concerning the proposal is the impact on the Applicant’s land. It is considered that the reasonable planning outcome in the circumstances would be to ensure that landscaping is properly carried out and that additional privacy screening measures be taken (for example, lattice with maximum 25% openings affixed to the common boundary fence).
Consistent with that assessment by the Council, the defendants, by their solicitor, made application on 8 November 2001 (“the fresh application”) for a planning permit in accordance with the development as built, save that there were to be changes described in the following notations on the plans accompanying the application:
·Rear east boundary fence to be raised to agreed height (12m approx length).
·Landscaping/trees along this fence to be in accordance with Council’s approved plan.
On 13 November 2001 the solicitors for the defendants wrote to the solicitors for the respondents, referring to a telephone conversation of 7 November, informing them that they had filed the fresh application with the Council, describing it as an application for a planning permit “to reflect the ‘as built’ situation” of the dual occupancy development”, and enclosing a copy of that application. They indicated that they proposed to seek an adjournment of the appeal to this Court pending the outcome of the fresh application and pointed out that on the plans attached to the fresh application it was proposed “that the rear east boundary fence be raised to an agreed height, namely, 2,400 mm and the land along the fence be landscaped in a way as to eliminate any perception of overlooking”. The letter concluded:
If we receive your consent to adjourn the Supreme Court proceedings together with the section 87 application in VCAT, we undertake not to take any further steps in either proceeding pending the outcome of the planning permit application before the Monash City Council
We should be pleased to receive your response as a matter of urgency. [1]
[1]The application under section 87 of the P & E Act for amendment of the permit was withdrawn soon afterwards and is not relevant to the present issue.
No reply was received to that letter. On 16 November 2001, on the application of the defendants, which was opposed by the plaintiff, I made an order adjourning the hearing of the appeal to this Court pending the outcome of the fresh application. Liberty was granted to either party to apply to restore the matter to the list and costs were reserved. Those orders were made in response to the submission of Mr Finanzio, for the defendants, that if the fresh application succeeded, it would not be necessary for either party to proceed with the expense of proceedings in this Court.
In response to the fresh application, the Council issued a notice of decision to grant a permit on 19 December 2001. On 9 January 2002 the plaintiff, by his town planners, lodged with the Tribunal an application to review that decision under section 82 of the P & E Act. That application was withdrawn by consent on 15 May 2002, the date upon which it had been listed for hearing.
Costs
The matter came before me for the third time on 6 November 2002, when both parties sought the costs of the hearings on 26 October and 16 November 2001. It was common ground that by that time a permit had issued in accordance with the fresh application, that is, including the notations described in [6] above, those notations being intended, as explained in the letter cited in [7] above, to eliminate the overlooking of the plaintiff’s property. The grant of that permit removed the ground for the application for an enforcement order, as the development now accorded with the terms of the permit. However, the plaintiff’s appeal to this Court against the Tribunal order dismissing the application for an enforcement order was still on foot. After some consideration of the effect of Rule 63.15 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) [2] Mr Taylor, for the plaintiff, withdrew that appeal, with the consent of Mr Finanzio, thus leaving for determination only the matter of the costs of all three hearings.
[2] See [12] below
Section 24(1) of the Supreme Court Act 1986 provides:
Costs to be in the discretion of Court
(1)Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
Thus the Court has an absolute discretion as to the award of costs, but the practice is that, generally speaking, costs will follow the event. Some relevant matters are governed by the provisions of Chapter 63 of the Rules. Rule 63.15 reads:
Discontinuance or withdrawal
63.15 Unless the Court otherwise orders, a party who discontinues or withdraws a proceeding . . . shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.
Costs of the application for leave to appeal
Mr Taylor submitted that his client should have the costs of the application for leave to appeal up to the date of the adjournment, namely 16 November 2001. His client had been successful on that application, and costs should follow the event. He submitted that it was a matter to be taken into account in the exercise of the Court’s discretion that the defendants would be entitled to an indemnity certificate under section 4 of the Appeal Costs Act 1998 (“the 1998 Act”).
Sections 3 and 4 of that Act read, so far as relevant:
3.Definitions
(1)In this Act¾
“appeal” includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated;
.. .
“court” includes any tribunal or other body from whose decision there is an appeal to a superior court on a question of law.
4.Application by respondent for indemnity certificate in respect of appeal
(1)If an appeal against a decision of a court in a civil proceeding¾
(a)to the Trial Division of the Supreme Court; or
(b)to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or
(c)to the High Court of Australia from a decision of the Supreme Court¾
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
By virtue of section 148 of the VCAT Act, the Tribunal falls within the definition of “court” in section 3.
Thus a certificate may be granted under section 4 in this matter if I find that in the grant of the application for leave to appeal it can be said that an appeal as defined in section 3 of the 1988 Act has succeeded.
In Pickford v Incorporated Nominal Defendant[3] the Full Court held that an appeal could not be said to “succeed” under section 13(1) of the Appeal Costs Funds Act 1964 (“the 1964 Act”) unless it had been resolved by adjudication, and accordingly that where the appeal was allowed by consent no order could be made under that provision. The 1964 Act is not entirely on all fours with the 1998 Act, and it is necessary to set out a lengthy passage from the judgment of Brooking J, with whom Starke and Anderson JJ agreed. His Honour does not cite the definition of “appeal” in the 1964 Act, which at the time of decision in Pickford was expressed more widely than in the 1988 Act, reading as it did:
2.Definitions
In this Act unless inconsistent with the context or subject-matter¾
“appeal” includes an order to review, a case stated for the opinion or determination of a superior court on a question of law and a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial and any other proceeding in the nature of an appeal;
[3][1981] VR 583
His Honour said [4] :
[4]at 584-5
Section 13 of the Appeal Costs Fund Act 1964 is as follows:--
"13.(1) Where an appeal against the decision of a court—
(a)to the Supreme Court;
(b)to the High Court of Australia from a decision of the Supreme Court;
(c)to the Queen in Council from a decision of the High Court of Australia given in an appeal from a decision of the Supreme Court;
(d)to the Queen in Council from a decision of the Supreme Court—
on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.
(2)Where an appeal is determined by the Queen in Council or the High Court of Australia the power conferred upon the Supreme Court by the last preceding sub-section may be exercised by a judge of the Supreme Court sitting in chambers.
..."
The expression "succeeds" in section 13(1) is ambiguous. It may denote no more than a successful outcome; or it may signify a successful outcome by virtue of an adjudication by the appellate court. Section 13(2) seems to proceed upon the basis that all successful appeals will have been "determined". That expression is itself ambiguous: it may mean simply "brought to an end", or it may mean "resolved by an adjudication". The latter meaning seems to me to be the more natural one in section 13(2), and it is to be noted that Dixon, CJ appears to have considered that the determination of an appeal within the meaning of similar legislation in force in New South Wales would always be by way of "a decision given inter partes": Gurnett v Macquarie Stevedoring Co. Pty. Ltd. (No. 2) (1956) 95 CLR 106, at pp. 112--3. Reference may also be made to Muir v Inland Revenue Commissioners, [1966] 1 WLR 1269, at pp. 1286--7; [1966] 3 All ER 38.
The consideration of policy which underlies s13(1) is that an error of law occurring in a court may ordinarily be attributed to a fault in the administration of justice rather than of the parties, so that the costs of having the error rectified ought ordinarily not to be borne by the unsuccessful respondent to the appeal but to be paid from a public fund established for that purpose: Gurnett v Macquarie Stevedoring Co. Pty. Ltd. (No.2), supra, at p. 113; Acquilina v Dairy Farmers Co-operative Milk Co. Ltd. (No. 2) [1965] NSWR 772, at p. 773; Pataky v Utah Construction and Engineering Pty. Ltd. (1966) 84 WN (pt 1) (NSW) 201, at p. 208; Jansen v Dewhurst, [1969] VR 421, at pp. 429-30; Richards v Faulls Pty. Ltd., [1971] WAR 129, at p. 138. To give effect to this policy it is necessary that the Court should be able to say whether an error of law has occurred in the decision under appeal. The Court should not grant a certificate under s13(1) unless it is of opinion that there was error of law in that decision. If an appeal on a question of law is heard and then determined by way of being allowed, this requirement is of course satisfied, and the Court may if it sees fit proceed to grant a certificate. The requirement is not satisfied if, the appeal having been called on, it is simply allowed by consent of the parties. The respondent's consent to the allowing of the appeal may well not flow from a view formed by him or his advisers that the appeal will probably succeed, and in any event the view formed by the respondent or his advisers concerning the prospect of success of the appeal may not be sound. An appeal on a question of law cannot be said to succeed within the meaning of s13(1) if all that occurs is that the appeal is allowed by consent.
The position is more doubtful in cases which lie somewhere between the two extremes of an appeal which runs its course to a successful conclusion and an appeal which is simply called on and allowed by consent. Between these two extremes all sorts of position are possible. Counsel may do no more than expose the question of law to the court, and it may then be manifest that the lower court has erred; on the other hand, it may be by no means clear upon the mere exposure of the point that the lower court was wrong. The appeal may be compromised after the hearing has begun and proceeded for a distance great or small; the compromise may be arrived at when the court is about to give judgment. If the court allows the appeal by consent at a time when it has not formed even a tentative view on whether the appeal should succeed, then in my opinion the allowance of the appeal does not mean that the appeal has succeeded with the meaning of s13(1), for the court is unable to say whether the case falls within the scope of the section, having regard to the policy underlying the section, as a case in which the lower court erred as to the law. The question of more difficulty is occasioned by cases in which the court has formed a provisional or concluded view that the appeal should succeed but does not give effect to that view by way of judicial determination. The question is whether it is possible for the court, having allowed an appeal by way merely of consent order, without adjudicating upon it, to say that the view which the court formed on the prospects of success of the appeal enables the court to regard the allowance of the appeal as resulting from error of law in the court below.
In my opinion this approach is not permissible. I can see no satisfactory half-way house between the absence of any adjudication (where all that occurs is that the appeal is allowed by consent) and the adjudication which does occur where the court decides the appeal by determining it in the usual sense.
Although the word “determined” does not appear in the 1998 Act, His Honour’s reasoning necessarily leads me to the conclusion that the granting of an application for leave to appeal does not confer on the respondent a right to a certificate under the 1998 Act. It should be noted that the application for leave was not consented to, although it was unopposed; in that situation, the Court is required to adjudicate on the application for leave.
Mr Taylor submitted that a court which has granted leave to appeal could be said to have formed a provisional view that the appeal should succeed. However, the principles on which such applications are to be determined were set out by the Full Court in Secretary to the Department of Premier and Cabinet vHulls[5] in the judgment of JD Phillips JA with whom Tadgell and Batt JJA agreed. His Honour summarised [6] his earlier consideration of the question in the following terms, from which it can be seen that a court granting leave to appeal is not required to form such a view, and it is not possible to conclude from the grant of leave that the court has done so:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s.148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
The relevant considerations are the same when, as in this case, the application for leave is unopposed.
[5][1999] 3 VR 331
[6]at [16]
Several decisions arising under the Federal Proceedings (Costs) Act 1961 were cited to me, but there are significant differences between that legislation and the 1988 Act, which render it inappropriate that I rely on them in the present context.
I note, however, the a passage from the judgment of Gibbs CJ and Stephen and Mason JJ in Sanofi v Parke Davis Pty Ltd [No 1][7] where their Honours were concerned with the question of whether an order of the Full Court of the Federal Court granting leave to appeal from a decision of a single judge of this Court was a “final judgment” within the meaning of section 33(4) of the Federal Court of Australia Act 1976. Their Honours said:
The Federal Court did no more than grant leave to file and serve a notice of appeal. It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted. That course has been taken by this Court in appropriate cases. The order of the Federal Court therefore did not finally dispose of the right of Parke Davis to appeal, or of the right of Sanofi to hold its judgment free of any possibility of appeal, because the Federal Court might, on reconsideration, rescind the grant of leave. It is irrelevant whether or not it is likely that the Federal Court would make an order rescinding the grant of leave, since it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one . . .
[7](1982) 149 CLR 147 at 153
That passage makes clear the distinction between an application for leave to appeal and an appeal, or a “proceeding in the nature of an appeal” in terms of the definition in the 1998 Act, consistently with the consideration of the policy behind the Act as explained by Brooking J in the passage cited above from Pickford. I note also the narrowing of the definition of “appeal” between the 1964 Act and the 1998 Act. At the time of the repeal of the 1964 Act, the definition was as quoted in [16] above, with the addition of the phrase “an appeal on a question of law” [8] .
[8]by Act No 57 of 1989
Thus it cannot be said that, on the grant of an application for leave to appeal under section 148 of the VCAT Act, an appeal as defined in section 3 of the 1988 Act has succeeded, so as to entitle the respondent to the application to a certificate under that Act. Accordingly, a certificate is not available to the defendants in the present proceeding. Had the appeal proceeded to hearing and been determined against the defendants, they would, of course, have been entitled to a certificate.
Mr Finanzio submitted that Rule 63.15 created in effect a rebuttable presumption that a party withdrawing a proceeding should pay the costs of the other party up to the time of the withdrawal. There were no circumstances in the present case to justify the rebuttal of the presumption. The appeal had necessarily been withdrawn because by withdrawing his application for review of the Council’s decision to grant a permit the plaintiff had in effect consented to the grant of that permit; and that permit removed the subject matter of the appeal – that is, the inconsistency between the permit which had earlier been granted and the building as built. In any case, the appeal had always been futile because the best way to solve the problem as between the parties was to adopt the solution suggested by the Council in its submissions to the Tribunal [9] , which was what had been done in the fresh application as demonstrated by the additional notations to the plans. It was important that the application for leave had been unopposed rather than granted by consent.
[9]see [5] above
I agree that it was the making and granting of the fresh application which resolved the issue between the parties, and that in the end the appeal to the Court proved otiose. However, despite the view of the Council as expressed in its submissions to the Tribunal, to which Mr Finanzio referred, the action of the plaintiff in seeking to appeal against the Tribunal order cannot be said to have been inappropriate at the time which it was made. The withdrawal of the appeal was justified later by the success of the fresh application, to which the plaintff, in effect, consented by the withdrawal of his application to review the decision to grant the permit. Accordingly, I consider it appropriate that in accordance with the usual practice, the defendants should, in all the circumstances, pay the plaintiff’s costs of the application for leave to appeal, in which he was successful. There will be an order to that effect.
Costs of the adjournment
The plaintiff’s advisers had ample notice that the application for an adjournment was to be brought, and of the reasons for that application, as appears from [6] and [7] above. The adjournment hearing should not have been necessary. It should have been apparent that the lodging of the fresh application was likely to result, as it did, in a resolution of the issues between the parties without the expense of litigation in this Court, and that it was appropriate for the plaintiff to consent to the adjournment without a hearing. There will be an order that the plaintiff pay to the defendants their costs of the application for an adjournment which was heard on 16 November 2001.
Costs of the hearing as to costs
I should be grateful for brief submissions from counsel as to the costs of the hearing as to costs.
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