2 I turn first to the Plaintiff's application for the costs of the proceeding. Mr McMahon, solicitor for the Complainant, who appeared to hear judgment, sought an order for costs on County Court Scale "A". Mr Dann, counsel for the Respondent, opposed the making of any costs order, relying upon Section 109(1) of the Victorian Civil and Administrative Tribunal Act which is the general provision, and the legislative preference, relating to the costs of proceedings before the Tribunal.

3 The Complainant submitted that as the present case had been a fiercely contested matter, the hearing of which took four days, conducted in an adversarial fashion as a witness action, it was a case which called for the exercise of the discretion given by the Section to the Tribunal to make an order for costs, it being fair to do so.

4 The proceeding was one in which damages were sought, and obtained, by the Complainant. Although there were other prayers for relief set out in the Complainant's Particulars of Complaint, the effluxion of time as much as any other factor had led to relief being sought by way of damages only.

5 The proceeding was a strongly contested action. Very much like a civil claim in negligence, both liability and damages were in issue. In all, fourteen witnesses were called, and the majority of those were cross-examined in detail and at length. During the hearing, it became apparent to me that neither side was willing to make any concession to the other. In sporting terms, it was a bruising battle. It has been stated, correctly, that it ran for four days. Expedition, which is a cornerstone of the Tribunal, as opposed to the often cumbersome and protracted hearings in courts of law, was not in the minds of the parties or their legal representatives here.

6 As I have indicated earlier, despite the general rule, the Section gives the Tribunal a discretion, which I consider to be quite broad. It is a discretion expressed in Section 109(2) and (3) of the Act. Matters to be taken into account include the nature and complexity of the proceedings, and indeed the Tribunal may take account of any other matter it thinks relevant.

7 I have recited a number of factors which seem to me to make this proceeding one in which I am entitled to, and should, exercise my discretion in favour of the Complainant. Accordingly, I propose to order that the Respondent pay the Complainant's costs of and incidental to the proceedings. I am satisfied that Scale "A" of the County Court Costs Scale, which is the generally accepted scale in Tribunal matters, is the appropriate one. Mr McMahon told me that counsel's fees totalled $8,500.00, and sought an order that they be fixed above scale. Apart from not knowing how the total sum was made up, an inhibiting factor in acceding to the application, if those fees are meant to cover a four day hearing, then they would be well in excess of fees on Scale "D" the top costs scale in the County Court. On taxation on a party-party basis, I limit counsel to an order for fees on Scale "A".

8 I shall hear counsel on the question of appropriate certificates.

9 I turn then to the resolution of the competing claims for costs reserved by the order of 22 September 2003. There are on the Tribunal file affidavits in support of or opposing the application. I was also handed by Mr McMahon, without objection, correspondence between the solicitors concerning the application.

10 By order made on 8 July 2003, the proceeding was set down for trial on 23 September 2003. At that time, the Complainant was directed to file and serve witness' statements on or before 4 August 2003. Although the Complainant served and filed some witness statements on 4 August 2003, a number of them were not served and filed until 21 August. On 12 September, the Tribunal received two reports on behalf of the Complainant; one from the Complainant's general practitioner and the other from a psychologist.

11 It appears that, on 9 September, the Complainant asked the Respondent to delay the hearing by one day, so that it commenced on 24 September. The stated reason, apparently, was the unavailability of counsel on the trial date fixed.

12 By a letter, curiously dated 15 August, but obviously of 10 September, the Respondent refused the request. Facsimile transmission of that letter would appear to have taken place at about 5pm on 10 September.

13 I cannot say that I have all the ensuing correspondence between the parties before me. However, it is clear that the Respondent refused, and properly in my view, to regard the unavailability of counsel on the date of hearing, which date had been set two months before, as an acceptable reason to request an adjournment.

14 The Respondent received the reports of Dr Young and Mr Message on 15 September and, because the late delivery prevented the Respondents from arranging their own medical examinations, objection was taken to their use at trial. That objection led to a belated application by the Applicant seeking an order that the time for service of the reports be extended to 15 September (being the date of service).

15 With the trial due to commence on 23 September, this application, which was opposed, was heard on the afternoon of 22 September. The hearing date was vacated and further directions were given. The order recites merely "Costs reserved".

16 Whatever the Deputy President may have had in mind when reserving costs, I believe I need to make an order which, according to the materials before me, does justice to the parties.

17 The Applicant's solicitor swore an affidavit in support of the application. In it, he explains that he did not serve Dr Young's report until 15 September, although it is dated 14 July, because he deemed it preferable to serve the report and that of Mr Message at the same time. Further, he conceded that, although Mr Message sent a tax invoice to the Complainant's solicitors on 18 July, which would indicate his report was available, a cheque was not sent until 14 August in payment thereof. Thereafter it must have been clear that the cheque had not been presented for payment. Some weeks later, the letter containing the cheque was returned, I assume, endorsed "not known at address" and "return to sender". All this occurred in the face of the order that the Complainant's witness statements be served by 4 August. I am mindful further that these reports were the first, and only, reports dealing with the Complainant's psychological injury.

18 In that setting it seems to me to be clear that the Respondents were obliged to oppose the application. If it were granted on the day before trial, they would be obliged to go to trial without any medical evidence to rebut the Complainant's evidence.

19 This situation came about through a casual and dilatory approach on the part of the Complainant's solicitors. I am satisfied that the Respondents are entitled to their costs of the adjournment. The Complainant's application for costs is refused.

1. The appropriate certification pursuant to the overall costs order.

2. The appropriate orders in relation to the reserved costs.

21 I do not believe that any sum was agreed or fixed for interest and I shall hear counsel further on that question.