Al-Hakim v Monash University

Consideration 8Section 88(1A) is in almost identical terms to the corresponding Victorian provision, s 109 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Victorian provision has been described as conferring "a broad, sweeping" discretionary power that enables the tribunal to do its best to provide a just outcome, subject to the basic principle that each party will usually bear its own costs: Solid Investments Australia Pty Ltd v Greater Geelong CC [2005] VCAT 244 at [4]; Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 2000 at [17]. The scope of the power includes ordering a party to pay the costs of another party's unsuccessful costs application: Al-Hakim v Monash University [2000] VCAT 818, or ordering costs in circumstances where there was no jurisdiction to entertain the proceeding: Nazligul v AMP Investments Pty Ltd [1999] VCAT 469 at [11]. 9The power is not unlimited, however, and the tribunal has no inherent jurisdiction to award costs. The power must be found in the ADT Act or in an enabling enactment (cf Victoria v Bradto Pty Ltd [2006] VCAT 685 at [23]), and tribunal may deal only with the costs of the "proceedings before it", not awarding costs for expenses incurred before the proceeding was commenced, for example: Murray v Bayside CC [1999] VCAT 1327 at [49]. 10As Gillard J. explained in Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [18] -- [20], the correct approach to the construction of the power involves a three-step process: (i) The prima facie rule is that each party should bear their own costs of the proceeding. (ii) The tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order. (iii) In determining whether it is fair to do so, that is, to award costs, the tribunal must have regard to the matters stated in s 109(3). The tribunal must have regard to the specified matters in determining that question, and by reason of para. (e) the tribunal may also take into account any other matter that it considers relevant to the question. 11The parties agree that the considerations in s 88(1A)(a) to (d) have no application in the present case. If the tribunal is to make the order sought, the power to do so must be found in para. (e). 12Paragraph (e) is an independent consideration that operates to extend the range of matters to which the tribunal may have regard. It is not to be read down by reason of its position at the end of a list of more specific matters: see Vero, supra; Vitalis Group Pty Ltd v Yarra CC [2000] VCAT 1691 at [48]. As Byard SM pointed out in the latter case, "It would be contrary to the policy of empowering the Tribunal to do what is fair and just to read down such a general provision in such a way as to exclude unspecified considerations that are nevertheless relevant to that purpose": at [48]. 13In the present case there are several matters that are relevant to the costs issue within the meaning of s 88(1A)(e). One is that both parties are represented by counsel: Styles v Murray Meats Pty Ltd [2005] VCAT 2142 at [17]. 14Next, as Mr Young submitted, the cost arrangement was agreed to between two experienced litigants, each advancing its own interests in contested adversarial processes, as the conclusion of a "hard-headed bargaining process". A reliable guide to what is "fair" within s 88(1A), Mr Young added, is the parties' informed consent to an agreement arrived at in those circumstances. It may also be noted that the "forcefulness" with which proceedings have been conducted has been held relevant for the purposes of the paragraph: Prolisko v Knight [2006] VCAT 2046 at [18]. 15Further, the parties have agreed that the evidence filed in the tribunal proceedings, and the documents obtained under summons in the tribunal proceedings, shall be evidence in the Supreme Court matter. The tribunal has released the parties from implied undertakings in relation to such materials so as to give effect to the parties' agreement. As those materials will form part of the Supreme Court proceedings, it is fair that the costs associated with obtaining and preparing those materials also carry through to follow the ultimate costs order made by the Supreme Court. 16Finally, it may be doubted whether the Supreme Court has the power to order costs in ADT proceedings. The Civil Procedure Act 2005 s 98 defines "costs" to include, "in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed". But under s 97(2) of the TA Act, ADT proceedings such as the present ones are neither removed or transferred to the court, but rather "withdrawn" and commenced anew in the Supreme Court. Consequently, if the tribunal were not to make the order sought by the parties and the definition of "costs" in the Supreme Court does not extend to proceedings withdrawn and recommenced afresh, those costs could never be recovered. As Santow J. pointed out in Wentworth v Wentworth, that would be "a powerful argumentum ab inconvenienti": (1999) 4 NSWLR 300 at [23]. 17In those circumstances it is proper for the tribunal to conclude that it is "fair" to depart from the usual prima facie position that each party should bear its own costs. 18As was noted above, the costs power in s 88(1A) is a broad and sweeping one. Nothing in that provision or elsewhere in the ADT Act appears to present any impediment to making an order that operates on a nunc pro tunc or contingent basis. 19The substantive application it is thus withdrawn and dismissed and a costs order is made in the terms set out in paragraph 6 above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2013