Australia, Nov. 30 -- Victorian Civil and Administrative Tribunal issued text of the following judgement on Nov. 27:
1. On 27 August 2024, following a practice day hearing on 23 August 2024, the Tribunal in Clarke v Macedon Ranges SC[2] ordered that application P772/2024 to cancel or amend permit PLN/2022/454 was summarily dismissed on the basis that the application is misconceived.
2. The respondent to the application, Simon Guthridge, has made an application to the Tribunal seeking payment by the Andrew Clarke and Sally Kinnaird, of the costs incurred by the respondent in responding to the application, in the sum of $5,115.00.
3. Costs are sought pursuant to sections 75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), which provide as follows:
75. Summary dismissal of unjustified proceedings
(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion-
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.
(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by-
(a) the Tribunal as constituted for the proceeding; or
(b) a presidential member; or
(c) a member who is an Australian lawyer.
(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
Power to award costs
(1) Subject to this Division, each party is to bear their own costs in the proceeding.
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to-
(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as-
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the Tribunal;
(vi) vexatiously conducting the proceeding;
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d) the nature and complexity of the proceeding;
(e) any other matter the Tribunal considers relevant
*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2024/1124.html)
Disclaimer: Curated by HT Syndication.
