We refer to the orders of Senior Member E Riegler made 23 February 2016 (copy of which are attached).

After consideration of the matter Fairweather Legal wishes to withdraw its application in this proceeding on the basis that it wishes to (and expressly does) reserve its right to bring its application or claim against the applicant in another forum.

Accordingly, unless the applicant has any objection, we as the intervener simply seek an order that this proceeding be struck out with no order as to costs on the bases that:

1. the intervener does not press its application in this list; and

1. the applicant and the respondent-insurer settled earlier by written terms dated 5 October 2015.
2. In response to that correspondence, I made the following orders:

Having regard to the Intervenor's correspondence dated 4 April 2016, stating that it wishes to withdraw its application, the Tribunal orders:

1. The Intervenor's application for declaratory and other relief is withdrawn pursuant to s 74 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act').
2. The Applicant's costs thrown away by reason of the withdrawal (if any) are reserved.
3. Any application for costs pursuant to s 74(2)(b) of the VCAT Act must be made in writing and served on the Intervenor no later than 22 April 2016.
4. By correspondence dated 19 April 2016, the Applicant applied for an order that the Intervenor pay her costs amounting to $8,580. Consequently, a costs hearing was listed for 10 June 2016. On that day, the Applicant's brother, Mr Bean appeared on behalf of the Applicant. Ms Gibbs, solicitor, appeared on behalf of the Intervenor.
5. The amount claimed by the Applicant is described in an invoice from Basement Construction Services Co Pty Ltd. Basement Construction Services Co Pty Ltd is a company owned and controlled by the Applicant's brother, Mr Bean. According to Mr Bean, Basement Construction Services Co Pty Ltd operates as an engineering company. Nevertheless, Mr Bean submitted that the invoice in the amount of $8,580 relates to 39 hours of his time, at $220 per hour, for the preparation and submissions of a response to directions orders dated 23/02/2016. Mr Bean is not a legal practitioner, nor did he purport to provide legal services to the Applicant. His role was to assist his sister in the preparation of her defence of the claim made against her by the Intervenor.
6. The application for costs raises a threshold issue. In particular, it is common ground that the amount claimed by the Applicant represents the costs of her being assisted by a non-legal person. Therefore, the question arises whether 'costs' under s 74(2)(b) of the Act includes the costs charged by a non-legal advocate.

(1) If the Tribunal gives leave, an applicant may withdraw an application or referral before it is determined by the Tribunal.

(2) If an applicant withdraws an application or referral -

(a) the applicant must notify all other parties in writing of the withdrawal; and

(b) the Tribunal may make an order that the applicant pay all, or any part of, the costs of the other parties to the proceeding; and ...

1. The word 'costs' is not defined in the Act. Nevertheless there is considerable jurisprudence dealing with this subject, albeit that the case law is confined to the word 'costs' as it appears in s 109 of the Act and in various State Court Rules. In my view, the word 'costs' as it appears in s 74 of the Act has the same meaning as 'costs' as it appears in s 109 of the Act. Neither Mr Bean nor Ms Gibbs suggested otherwise. Indeed, it would be illogical for the legislature to have given the same word different meanings within the same Act, without expressly stating that to be the case.
2. Therefore, I am guided by the authorities which have considered this issue in respect of the word 'costs' under s 109 of the Act and to a lesser extent, under the various State Court Rules. A useful starting point is the High Court of Australia decision in Cachia v Hanes,[1] where the majority judgment stated:

To use the Rules to compensate a litigant in person for time lost would cut across the clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time or litigant in person cannot be said to constitute costs within the meaning of the Rules.[2]

1. In Fasham Johnson Pty Ltd v Ware,[3] the Tribunal stated:

As regards the latter, I could not contemplate, in any event, ordering the Applicant to pay the costs of the Respondents except for their legal costs: see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. For costs under s 109 means, in my view, legal costs - that is, costs of a lawyer.[4]

1. Similarly, in Gelman v Kenny,[5] the Tribunal observed:

The term "costs" is not defined in the VCAT Act. It is usually understood in the Tribunal to mean legal costs. Legal dictionary definitions of costs referred to costs including fees, charges, disbursements, expenses, remuneration and reimbursement allowed to a litigant in respect of legal matters.[6]

1. However, there are other decisions of the Tribunal where the costs of a non-legal advocate have been allowed. In Aussie Invest Corporation Pty Ltd v Hobson's Bay CC,[7] Morris J, sitting as the President of the Tribunal, stated:

[11] In Re Cardinia Shire Council v Stoilkovic (2002) 12 VPR 61, the Tribunal concluded, albeit without the benefit of argument, that "costs" in s 109 extended to the costs of non-lawyers who were "professional advocates" under s 62 of the Act. In my opinion, this conclusion must be regarded as correct having regard to the constitution, purpose and practices of the Tribunal.

[12] It has been held in other cases that "costs" includes disbursements incurred for the purpose of the proceeding. Thus VCAT has made orders for "costs" in relation to: an unrepresented party's typing, copying and transport fees and the VCAT application fee (Re Murray and Bayside City Council [1999] VCAT 1327); the costs to an unrepresented litigant of taking a day's annual leave (Re Kubis Constructions Pty Ltd and Yarra City Council [2002] VCAT 558); and the costs of the preparation of the traffic report (Re Lai and Manningham City Council [1999] VCAT 1765). In my opinion, these decisions are also clearly correct having regard to the constitution, purpose and practices of the Tribunal.

[13] The decision of the High Court of Australia in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 has sometimes been regarded as an obstacle to the Tribunal awarding costs to an unrepresented party. However, in my opinion, this decision has been applied without proper understanding of the facts upon which the decision was made, which are fundamentally different than those which apply to this Tribunal. Certainly, for the reasons which follow, I do not regard the decision of the High Court in Cachia as preventing the Tribunal making an order that a party pay the costs of an unrepresented party in respect of lost wages and travelling costs incurred in attending a hearing of a proceeding. This is so even if the unrepresented party is not a witness in the proceeding ...

[14] In Cachia the High Court was concerned with circumstances where the appellant had been awarded costs in proceedings in the Supreme Court of New South Wales in which the appellant had not been legally represented. On the taxation of the appellant's bill of costs he claimed compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses. These claims were disallowed. Ultimately the High Court confirmed the decision disallowing these costs...

[15] In Cachia the High Court observed that since the introduction of the Statute of Gloucester in 1278 the notion of cost was intended to apply to only professional legal costs actually incurred in the conduct of litigation. The High Court noted that Coke had observed of the Statute of Gloucester that the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expenses of his travell and losse of time".

[16] But costs are ultimately a matter that turns on the interpretation of the statute. And it might be thought that things have moved on since 1278.

[17] Whatever may be the case in the Supreme Court of New South Wales, it does not automatically apply to proceedings before the Victorian Civil and Administrative Tribunal. The circumstances of the Tribunal are clearly much different. Hence it is necessary to consider the matter by reference to the Constitution, purpose and practices of the Tribunal. Applying this method, the decision of the High Court in Cachia is inapplicable.

[18] It remains true that an order as to costs is an order in the nature of an indemnity (or partial indemnity). Hence there is no power for the Tribunal to make an award of costs in favour of an unrepresented person in relation to expenses which would have been incurred if the person engaged professional services, but were not in fact incurred. Further, there is no power for the Tribunal to make an order as to costs in favour of an unrepresented person based upon the time spent by that person in relation to the proceeding. However where an unrepresented person loses wages or incurs travelling expenses in order to attend the hearing of the proceeding, this is an outgoing directly related to the proceeding which can be indemnified. [Underlining added]

1. It appears from the above judgment that a distinction is drawn between time spent occasioning actual loss (loss of earnings to attend a hearing) and time spent which does not occasion actual loss; for example, time spent outside of work hours to prepare for a hearing. This conclusion is reinforced by the following extract of reasons in Linton v Creighton-Brown & Co Pty Ltd,[8] where Morris J, again sitting as the President of the Tribunal, stated:
   1. Subsequently in Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council[9] I formed the opinion that the tribunal has power to make an order for costs in favour of an unrepresented person to compensate the person for wages lost and travelling expenses incurred in attending a hearing of a proceeding. Significantly, in the latter case I held that the decision of the High Court of Australia in Cachia v Hanes[10] did not prevent such an order. Nothing was advanced in the present proceeding to warrant a departure from the conclusions set out in the Aussie Invest case.[11] [Underlining added]
2. However, in the present case the Applicant does not claim any costs associated with her own time, either in preparing or attending the hearing. Rather, she claims the costs charged by her brother (or his associated company) in preparing for and attending the hearing. As indicated above, there is authority supporting the proposition that the costs charged by a professional advocate, even if not a lawyer advocate, may be recoverable under s 109 of the Act.
3. In Cardinia SC v Stoiljkovoc,[12] the Tribunal discussed this issue as follows:
   1. The next head of damage claimed is "cost of retaining consultant" which is explained as "costs of consultant to advise, assist and obtain effect to be given to the permit during period when Council was 'stalling' the permit holders." Our understanding is that Mr Hooper is not proceeding with this head of damage. There are difficulties with it in any event, because it does not distinguish between the period when the Council was "stalling" and the period when the proceedings were on foot.
   2. Section 150(4) empowers the Tribunal to order the payment of "an amount for costs". The permit holders were represented at the hearing by Mr Proctor, who is not a lawyer. We have no hesitation in saying that Mr Proctor provided excellent service to his clients. His preparation was meticulous and his presentation comprehensive.
   3. Section 150 is in a Division of the Planning and Environment Act 1987 headed "Applications to Tribunal". We therefore think it likely that "costs" has the same meaning in s.150(4) as it does in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act").
   4. A reference to "costs" in Rules of Court means legal professional costs: Cachia v Hanes & Anor [1994] HCA 14; (1994) 179 CLR 403. Mr Canavan did not present a corresponding argument in this case, but it is not an issue we can ignore.
   5. Section 62 of the VCAT Act permits a party to be represented by a professional advocate if "another party to the proceeding is a professional advocate". The definition of "professional advocate" includes "a person who, in the opinion of the Tribunal, has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal". Although the matter was not argued, we are of the opinion that Mr Proctor is a professional advocate, inasmuch as he has had substantial experience as an advocate in proceedings before the Tribunal concerning broiler farms.
   6. Section 62 of the VCAT Act has no counterpart in the statutes or statutory rules governing the Courts. Certainly, the only "professional advocate" recognised in the Courts is a legal practitioner. At VCAT, parties are frequently represented by professional advocates, especially in the Planning and Environment List. We see no reason why the reference to "costs" in Division 8 of the VCAT Act should not be construed so as to reflect this difference. Curiously we could find little in the way of authority on the point. There are a number of cases in which the costs of non-lawyers have been allowed (eg Omar Chacon v City of Glen Iris [1999] VCAT 1671; Mastrameteo v Boroondara City Council [1999] VCAT 1714) but we could find no analysis of the issue.
4. Cardinia SC v Stoiljkovoc was subsequently referred to by Morris J in Linton v Creighton-Brown & Co Pty Ltd [13] with approval:
   1. In Cardinia Shire Council v Stoiljkovic (No 2)[14] the tribunal, comprising Judge Strong and Senior Member Monk, saw no reason why the reference to "costs" in the VCAT Act should not be construed to reflect the difference between VCAT and the courts. As a result an order was made that the applicant pay costs incurred by the respondent in engaging a non-lawyer professional, calculated by reference to a professional fee of $140 per hour.
5. However, the cases where orders for costs have been made in favour of a party to compensate that party for engaging a non-lawyer advocate, indicate that the non-lawyer advocate was a professional advocate, in the sense that the advocate was in the business of providing professional advocacy services, usually coupled with technical advice relevant to the matters under consideration, such as a planning expert in a planning dispute. The difficulty in the present case is that although Mr Bean says that he is an engineer, his expertise as an engineer did not provide the background to why he advocated on behalf of the Applicant. The background to his advocacy was his relationship with his sister. The fact that he was or is an engineer is, in this case, immaterial.
6. Moreover, there is no evidence explaining the relationship between Basement Construction Services Co Pty Ltd and the Applicant. This is problematic because Mr Bean submitted that the charge of $8,580 represents his time in assisting his sister in the litigation. That submission is consistent with all of the documentation filed on behalf of the Applicant purportedly being written by Mr Bean. There is no documentation on the Tribunal file referring to Basement Construction Services Co Pty Ltd.
7. Even if I was to assume that Basement Construction Services Pty Ltd and Mr Bean were one and the same, the difficulty remains that the assistance provided to the Applicant was not provided by a professional advocate but rather by a loving brother.[15] In my view, the word "costs" in s 74 of the Act does not extend to include charges imposed by non-professional advocates, such as family members, to assist litigants in preparation for hearing. None of the authorities referred to above go that far.
8. Moreover, there is nothing in the Act which would reinforce such an extended meaning to the word "costs". Indeed the contrary would appear to be the case. In particular, there are other provisions within the Act which deal with expenses associated with litigation. For example, s 104 of the Act, which deals with witness summonses, states, in part:

(4) A person who attends in answer to a summons is entitled to be paid the prescribed fees and allowances or, if no fees and allowances are prescribed, the fees and allowances (if any) determined by the Tribunal.

(1) At any time, the Tribunal may make any of the following orders:

(a) an order that a party to a proceeding reimburse another party the whole or any part of any fee paid by that other party in the proceeding, within a specified time;...

fee means a fee payable in a proceeding under this Act, the rules, the regulations or an enabling enactment;

1. In my view, had Parliament intended to extend the meaning of "costs" beyond that of the meaning identified in numerous decisions of superior courts, including the High Court of Australia, it could have easily done so by defining that word to include, for example, the reasonable time of a self-represented litigant to prepare for a hearing. However that is not the case.
2. The situation might be different if Mr Bean was engaged as an expert engineer to provide expert opinion in his field of expertise to be used in the litigation. In my view, that would constitute a legitimate disbursement incurred by the applicant. However, that situation does not arise here. Mr Bean or his associated company are not professional advocates.
3. In the absence of that jurisdictional power, I am of the opinion that notwithstanding the merits of the Applicant's claim for costs, there is no power for me to order those costs. This is a regrettable situation. However it is a situation that can only be remedied by legislative change. Consequently, I have little option but to dismiss the Applicant's claim.

[1] [1994] HCA 14; (1994) 179 CLR 403.

[3] [2004] VCAT 1708.

[5] [2013] VCAT 117.

[7] [2004] VCAT 2188; (2004) 22 VAR 212.

[8] [2006] VCAT 864.

[9] [2004] VCAT 2188.

[10][1994] HCA 14; (1994) 179 CLR 403.

[11] See also Robinson v Development Consent Authority [2002] NTLMT 51 and Matt Black, Recovering the Costs of Non-Lawyer Advocates (2006) 13 AJ Admin L 80.

[12] [2002] VCAT 918

[13] [2002] VCAT 918

[14] (2002) 12 VPR 61 at 78 [95] to [99].

[15] This was the expression used by Mr Bean.