Following a decision of this Tribunal the parties were given leave to apply with respect to the issue of costs. The respondent brought this application seeking costs and relied upon section 109 (3)(d) and (e) of the Victorian Civil and Administrative Tribunals Act 1998 and requested costs on Scale D (of the County Court Scale) plus a certificate for senior counsel.

The original application was received by the Administrative Appeals Tribunal of Victoria on or about 11th June 1998. The Tribunals and Licensing Authorities (Miscellaneous Amendments Act) 1998 inter alia provides for the transitional arrangements relating to the hearing of cases before the Victorian Civil and Administrative Tribunal. Those provisions do not appear to have substantial impact upon the issue of costs except to say that it appears that section 50(2) of the Administrative Appeals Tribunals Act 1984 is the appropriate section by which to determine the issue of costs in these proceedings.

Section 50(2) of the Administrative Appeals Tribunals Act 1984 provides as follows:-

" ... each party is to bear its own costs but if the Tribunal is of opinion in a particular case that there are circumstances that justify it in doing so, the Tribunal may make such orders as to costs as the Tribunal thinks just".

Section 109 (1), (2) and (3)(d) and (e) of the Victorian Civil and Administrative Tribunals Act 1998 provide as follows:-

"(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 sub-section (2) only if satisfied that it is fair to do so, having regard to-

(e) any other matter the Tribunal considers relevant".

It might reasonably be said that although section 109 of the Victorian Civil and Administrative Tribunals Act 1998 spells out in some detail the matters to which the Tribunal shall have regard with respect to the question of costs, there is little difference in the major thrust of both that section and section 50(2) of the Administrative Appeals Tribunals Act 1984.

The respondent referred the Tribunal to an unreported decision of Deputy President Macnamara in the matter of Maltall Pty Ltd & J. & C. Iliopoulos v. Bevandale Pty Ltd. File R22A-98 in the Retail Tenancies List of the Victorian Civil and Administrative Tribunal. Mr Macnamara said:-

"...proceedings in (the Retail Tenancies)...list are in the nature of inter partes commercial litigation and having regard to the inherent complexity of the law of landlord and tenant, I believe that at least at the Tribunal level that proceeding in this list merit the description in general terms as complex. In my view these considerations lead to the conclusion that in this list the general presumption that parties bear their own costs should not apply and that subject always to the overall and very flexible discretion which attends all costs orders, a successful party should normally expect to receive in this list, a costs order in favour of that successful party absent any specific consideration to the contrary."

Proceedings in the General List arising out of claims against the Motor Car Traders Guarantee Fund are not in the nature of any substitute proceedings inter partes before the Courts. One might expect any provision relating to costs in a remedial statute which provides for compensation arising out of defaulting motor car traders, would (in the absence of fraud by, or male fides of, the applicant for relief) ensure that costs should lie with the fund on all occasions. The Motor Car Traders Act 1986 contains no specific provisions relating to costs, and the question of costs falls back to the requirements of the Act governing the jurisdiction of this Tribunal.

It is not controversial to state that unlike the applicants in this case, most claims against the Motor Cars Traders Guarantee Fund would be made by an individual rather than a corporation which carries on the business of trading in motor cars (as was the finding in this case). The fact that the applicants are carrying on the business of trading in motor cars does not change the nature of the case nor raise any issues as to whether this is a proceeding which should require variation from the normal considerations that apply to costs decisions under the legislation. However, success of an applicant in challenging a decision of a compensatory fund established under a remedial statute might bring forth arguments for considerations under section 109 (3)(e) of the Victorian Civil and Administrative Tribunals Act 1998 or section 50 (2) of the Administrative Appeals Tribunals Act 1984.

The applicants in this case failed due to lack of proof and not as a result of any failure to fall within the legislative framework of the Motor Car Traders Act 1986. As indicated in the original reasons a successful claim by the applicants in this case may have been an unintended consequence of the legislation, but nevertheless was a real possibility.

Parties should not expect the Tribunal to adopt any policy or guideline that rebuts the clear intent of section 50(2) of the Administrative Appeals Tribunals Act or section 109 of the Victorian Civil and Administrative Tribunals Act 1998 and each party should start from the position that the Tribunal will decline to make an order as to costs unless argument convinces the Tribunal that the particular circumstances warrant making such an order. No party should expect that costs will necessarily follow the event.

The Tribunal is of the view that in this case there is no complexity or special matter to which the Tribunal should have regard as being relevant that would render it necessary to exercise a discretion to vary from the general requirement that each party bear its own costs.

Accordingly, the application for costs is refused. For the same reasons the costs of the applicants to the original proceedings for costs of the day in relation to the argument relating to costs is also refused.

1. Application by the respondent to the original hearing for costs of the original hearing is refused.

2. Application by the applicants to the original proceedings for costs of the day of the costs hearing is refused.

I certify that these and the preceding 6 pages are a true and correct copy of the reasons for decision of Mr Michael Levine, Deputy President of the General List of the Administrative Division of VCAT.