Rozen v Macedon Ranges Shire Council (No 2)

[2010] VSC 591

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 263 of 2010

MAURICE ROZEN and ESTHER ROZEN	Appellants
v
MACEDON RANGES SHIRE COUNCIL	First Respondent
and
WESTERN WATER	Second Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2010
DATE OF JUDGMENT:	14 December 2010
CASE MAY BE CITED AS:	Rozen v Macedon Ranges Shire Council & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 591

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COSTS – Appeal from Victorian Civil and Administrative Tribunal – Public interest litigation – Limitation of costs to be recovered - Rozen v Macedon Ranges Shire Council & Anor [2010] VSC 583.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr N Tweedie	Best Hooper
For the First Respondent	Mr A Finanzio	Maddocks
For the Second Respondent	Mr P O’Farrell	Norton Rose Australia

HIS HONOUR:

1. This matter has had a difficult history.  I am now confronted with a debate as to the costs of the proceeding which I have determined. 

1. I have found that the appeal should be dismissed.  Mr Tweedie nevertheless submits that costs should not follow the event in accordance with the usual rule.  He submits first that the bringing of the appeal was justifiable having regard to the background to the matter and the terms of the Victorian Civil and Administrative Tribunal's (‘the Tribunal’) reasons. 

1. That background includes the fact that, on his client's initial application for review, the Tribunal directed the grant of a permit for four dwellings.  On the rehearing of the matter, after being remitted back to the Tribunal by this Court, it directed the grant of a permit for one dwelling only.  Between the two hearings and following the decision in the first appeal to this Court[1] the State Government published revised guidelines with respect to development in open potable water supply catchment areas.[2]  The Tribunal's subsequent decision was the first by it dealing with the revised Guidelines and I interpolate that the previous interim guidelines had been the subject of different approaches by different divisions of the Tribunal. 

   [1]See: Western Water v Rozen (2008) 24 VR 133.

   [2]See: Department of Planning and Community Development (May 2009) “Guidelines: planning permit applications in open, potable water supply catchment areas” (the Guidelines’).

1. Next, it is submitted that the interpretation of the Guidelines generally, and more particularly their applicability to this particular open potable water supply catchment, raised issues of public importance which fell to be resolved against evidence of substantial complexity. 

1. Lastly, Mr Tweedie submits that this Court has ultimately articulated reasons which in some respects go beyond those of the Tribunal.  I accept this is so and note that amongst other things, in order to achieve finality between the parties, I permitted evidence to be adduced which was not before the Tribunal before making my decision. 

1. When these matters are put together I accept that this is an appropriate matter in which to make some allowance in respect of its character as a public interest litigation.  Nevertheless, the nature of that allowance is not easy to resolve.

1. Mr Finanzio submitted for the first defendant that the issues relating to the Guidelines were only part of those upon which the appellants were unsuccessful and that the appellants failed in a wide ranging attack on the Tribunal's decision. 

1. He further submitted that the complexity of the case arose essentially from evidentiary matters upon which the Appellants were unsuccessful basically because of the nature of the appeal which is, of course, an appeal on questions of law only. 

1. Mr O'Farrell adopted Mr Finanzio's submissions on behalf of the second respondent and further submitted that this was not a test case in the same sense as the first appeal to this Court. 

1. I accept that Mr Finanzio is correct in submitting that the appeal raised a series of issues going beyond the interpretation and application of the Guidelines.  Nevertheless, it seems to me it was a test case and the issues agitated with respect to protection of water supply catchments were interrelated and hence may be regarded, to some degree, as bearing on the application of  the Guidelines.  I would add that it is also plain from the Tribunal's reasons that it regarded the application of the Guidelines as a central matter to its own reasoning. 

1. Looked at in the broad, I accept the case before me raised a core issue of public interest relating to the Guidelines but it seems to me that the issues relating to water catchment protection went beyond that issue.  In addition, the appellants failed totally on Grounds 5, 6 and 7 of the appeal and these were unrelated to the issue of the Guidelines. 

1. Putting the above matters together as best I can, I have come to the view that the just order in all the circumstances of the case is that the appellants should pay 50 per cent of the respondent's costs.  I have limited the liability of the appellants essentially for the reasons advanced by Mr Tweedie, but I have restricted that limitation to what I regard to be a fair allowance for the core issues of the public interest which I have identified.  I do not accept that the respondents should be kept totally out of their costs having regard to the manner in which the appeal was conducted and the time taken in respect of issues which were not directly concerned with the core issue of public interest relating to the Guidelines. 

1. Mr Finanzio has drawn to my attention that this was a matter in which the question of leave was left over for resolution in conjunction with the hearing of the appeal itself.  Having regard to the substantive conclusions I have reached in the matter, it seems to me that it would be nugatory to grant leave despite the public interest issues to which I have just referred and the arguability of a number of the matters raised by the appellants.  I am therefore of the view that the proper order for the Court to make is that leave to appeal be refused and that the appellants pay 50 per cent of the respondents' costs including reserved costs and costs of transcript.  If those costs cannot be agreed, they will have to be taxed.