[6] The complaint and his other grievances were referred to at length in Mr Tucker's affidavit. They formed in part the subject of a decision of the Supreme Court on 16 July 2019 in Tucker v State of Victoria[2019] VSC 420, referred to by the SRO in further submissions.
[7]
[7] I have disregarded both parties' submissions as to what occurred in the course of the Compulsory Conference.
Parties
Applicant/Plaintiff:
Commissioner of State Revenue
Respondent/Defendant:
Tucker
Legislation Cited (2)
Information Act 1982
Civil and Administrative Tribunal Act 1998
Cases Cited (8)
Commissioner of State Revenue v Tucker (Review and Regulation) [2019] VCAT 1840 (4 December 2019)
In his application dated 17 May 2019, Mr Tucker applied for orders for costs under section 109 of the VCAT Act in respect of the following:
(a) the respondent's costs in respect of his application[1] lodged with the applicant on 6 October 2017;
(b) the respondent's costs incurred in requesting documents from the applicant from the date documents were first provided by the SRO pursuant to the request, namely 16 November 2017, to the date of the SRO's requested its proceeding to be withdrawn, namely 15 April 2019 including:
(i) the respondent's costs of the Directions Hearing of 31 January 2019; and
(ii) the respondent's costs of the Compulsory Conference dated 20 March 2019; and
(c) the respondent's costs of, and incidental to, his application for costs lodged today.
Mr Tucker also seeks that costs be awarded on an indemnity basis pursuant to section 111 of the VCAT Act.
In support of the application for costs, Mr Tucker relied on his affidavit affirmed on 15 May 2019 (Mr Tucker's Affidavit).
Mr Tucker stated that he advanced seven propositions under s 109(3) of the VCAT Act in support of the application:
(a) the SRO disregarded various orders made by the Tribunal on 31 January 2019 and 20 March 2019 without reasonable excuse (s 109(3)(a)(i));
(b) the SRO failed to comply with provisions of the FOI Act (s 109(3)(a)(ii));
(c) the SRO conducted its proceeding against him vexatiously (s 109(3)(a)(vi));
(d) there was no tenable basis in fact or law for the SRO to exempt any material the subject of the proceeding (s 109(3)(c));
(e) the SRO breached its obligations under the Model Litigant Guidelines in its conduct of the proceeding (s 109(3)(e));
(f) the respondent gave repeated notice of his intention to seeks costs (s 109(3)(e)); and
(g) there is public interest in discouraging the SRO from bringing misconceived claims challenging the independent decisions of OVIC (s 109(3)(e)).
Because Mr Tucker, who is a lawyer, represented himself at the Directions Hearing and the Compulsory Conference, and his claim included his time costs, on 8 October 2019, I invited the parties to file further short written submissions on the relevance and effect of the intervening High Court decision in Bell Lawyers Pty Ltd v Pentelow[2019] HCA 29 (Bell v Pentelow).
In Bell v Pentelow, the High Court considered the so-called 'Chorley' exemption, from London Scottish Benefit Society v Chorley(1884) 13 QBD 872 per Brett MR at 875, and confirmed that a solicitor representing him or herself cannot recover their costs of doing so, nor can a barrister.
The SRO responded that in the light of Bell v Pentelow, the Tribunal could not order that the SRO pay Mr Tucker's costs as a self-represented litigant. That is the correct position, in my view.
Mr Tucker responded that he withdrew the aspect of his costs claim relating to his own time costs as a practising lawyer, but maintained all other aspects of his claim for costs as set out in his submissions, including claims relating to:
'Disbursements and out-of-pocket expenses incurred by him including legal fees, administrative fees and filing fees'; and
'The public interest in discouraging the applicant from bringing misconceived claims challenging decisions of the Victorian Information Commissioner.'
I note here that it does not appear that Mr Tucker incurred any recoverable costs in this proceeding. He did not have legal representation on the record and represented himself at the Directions Hearing and the Compulsory Conference, attending by telephone in each case. He was not the applicant and so did not pay the application fee. Nor did he incur filing fees.
As the cases discussed below make clear, an applicant for costs cannot claim costs or expenses incurred prior to the commencement of the proceeding; any claim must relate to the costs of the proceeding itself, not other proceedings or disputes in other jurisdictions; and the conduct relied on must be the other party's conduct of the proceedings.
Much of Mr Tucker's costs application document and affidavit in support related to other disputes and grievances he has had with the SRO, which was his former employer. He appeared to want to ventilate wide-ranging issues, well beyond the scope of the conduct in this proceeding, and any decision on the costs of the proceeding.
I have confined my decision to those matters which relate to the way in which these proceedings were conducted or are otherwise relevant to a decision under s 109 of the VCAT Act to depart from the general rule, which is that each party is to bear their own costs. Nevertheless, Mr Tucker's extensive submissions required careful consideration.
For the reasons below, however, I have dismissed Mr Tucker's application.
As submitted by the SRO:
The general rule in VCAT is that each party bears their own costs.
VCAT may make an order under s 109(2) of the VCAT Act that a party pay all or a specified part of the costs of another party only if satisfied that it is fair to do so (sub-section (3)).
The power to make a costs order is discretionary (see 'may' in sub-sections (2) and (3)).
The power is not unfettered and there must be some specific conduct or an 'extraordinary event or action' causing unnecessary disadvantage or 'something specific about the nature or complexity of the proceeding that would warrant an award of compensatory costs' (see Marple v Indigo SC[2016] VCAT 1681 at [44]).
The 'costs' referred to are a party's costs 'of the proceeding'. As such:
VCAT may not award costs for expenses incurred before a proceeding was commenced;[4] and
other costs that may be incurred are not covered.[5]
The power to make any order for costs relates only to a party's conduct of a proceeding in VCAT (see Schutz DSL (Australia) Pty Ltd v Victorian Workcover Authority[2011] VCAT 2401 (Schutz DSL) at [13], where Deputy President Aird noted that factors such as the time taken to commence an internal review process and steps taken in 'related' Federal Court proceedings were not a relevant consideration).
The term 'costs' is not defined in the VCAT Act. There is a conflict in the authorities as to whether 'costs' are confined to legal costs (that is, money paid or liabilities incurred for professional legal services) but the Tribunal has often held that they are so limited (following the High Court decision in Cachia v Hanes(1994) 179 CLR 403).
A costs order may be made to reimburse expenses where a party has been put to expense over and above the expenses expected to be incurred in a proceeding (see Johnstone v Mansfield SC[2009] VCAT 287).
Similarly, I am of the view, that it is appropriate that in considering the matters set out in s109(3) the tribunal should also have regard to the provisions of s109(1) and (2).
Under s109(1) each party pays their own costs of a proceeding unless the tribunal exercises its discretion under s109(2) to make an order for costs if it is satisfied it is fair to do so having regard to the matters set out in s109(3).
The exercise of the discretion to award costs upon a withdrawal 'should commence with the underlying view that if the proceeding had not been withdrawn and the matter had proceeded to a hearing, no underlying principle applies in the tribunal as in the courts that costs will follow the event' (see Ballarto Pastoral Pty Ltd v Department of Primary Industries[2006] VCAT 478 at [16]).
As submitted by the SRO, the position in s 109(1) of the VCAT Act differs from the usual costs rule in the courts, where the latter proceeds from the basis that the successful party is entitled to its costs.
However, even the courts have adopted the position that where a proceeding has settled at an early stage and there has been no hearing on the merits, the general rule is that there will be no order as to costs unless one party has not acted reasonably. The SRO referred to Buller Ski Lifts Limited & Anor v Commissioner of State Revenue[2002] VCAT 259) (Buller Ski Lifts).
Buller Ski Lifts is of some relevance and assistance here, where no decision has been made on the merits, and the matter was withdrawn before either party filed any materials, but where Mr Tucker seeks that I make findings on the various exemptions under the FOI Act claimed by the SRO in its original decision.
In Buller Ski Lifts, the Tribunal made some observations about proceedings in which it was required to determine a costs application in circumstances where it had not conducted a hearing in relation to the issues in the proceeding. In that case, final orders on a land valuation dispute were made by consent without a hearing.
The Tribunal observed at [59] that such an outcome introduced difficulties when considering an application for costs:
"4. Both parties agreed that in relation to a proceeding which has not received a hearing on the merits, the normal rule is that stated by McHugh, J. in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 [Qin] -
He submitted that the following matters were relevant:
The SRO caused delay and failed to make an early (if any) assessment as to the prospects of its claim.
The SRO repeatedly required him to do things he was not required to do. In essence he says that the 12-month review process undertaken by OVIC and these proceedings were entirely unnecessary because the type of documents he sought were not exempt under the FOI Act. He submitted that the SRO required him to attend the Compulsory Conference by not negotiating beforehand and required him to monitor its compliance with the Tribunal's orders of 31 January 2019 and 20 March 2019.
The SRO disregarded his email dated 2 January 2019 prior to commencing this proceeding, and rejected his offer to resolve the costs application.
It has failed to apologise for any of its conduct to date.
Some matters relied on or referred to in his affidavit related to alleged conduct of the SRO prior to the commencement of the proceeding in January 2019:
the SRO's alleged conduct in relation to an incident in the course of his employment with the SRO that he describes in his affidavit;
the SRO's alleged conduct in relation to a complaint he made following the incident; and
media releases to do with unrelated matters.
While the content of Mr Tucker's affidavit makes it clear he has wide-ranging grievances against the SRO as his former employer, and he may wish to ventilate them here, they go well beyond the scope of this proceeding and are not relevant, in my view, to this costs application. Further, as submitted by the SRO, some of those employment-related issues have been heard and determined by the Supreme Court in Tucker v State of Victoria and Anor[2019] VSC 420 (16 July 2019).
Mr Tucker also submitted that the Tribunal can infer from other cases he refers to in his submissions, decided in the Victorian Supreme Court, that 'the SRO has a propensity to breach the Guidelines including by bringing proceedings it knows, or ought to know have no prospect of success'.
The inference is not open, in my view, and would be an inappropriate inference to draw in this proceeding.
In my view, the SRO acted fairly in bringing and conducting this proceeding and the application for review was not misconceived.
The original decision the SRO made, on whether the documents Mr Tucker requested were exempt, was in part vindicated by OVIC, which found 13 documents exempt either in part or in full.
(1994) 179 CLR 403
(1997) 186 CLR 622
Before the Compulsory Conference, the SRO decided to release two documents which OVIC had decided should be released. It participated in the alternative dispute processes of VCAT, as a result of which its original decision on 14 documents was substituted for OVIC's decision and the dispute narrowed to six.
It took additional steps to resolve the dispute including by deciding to release five documents OVIC had found were exempt in full.
The proceeding was on foot for less than four months, save for Mr Tucker's costs application.
Mr Tucker's email dated 2 January 2019 did offer to resolve the dispute, by asking the SRO to provide copies of the unredacted information and documents as decided by OVIC by close of business on 3 January 2019. The SRO were entitled, in my view, to file the application for review instead of providing the documents requested.
Mr Tucker did give notice of his intention to seek costs on several occasions, but it is not a breach of the Model Litigant Guidelines, in my view, not to agree to pay the other party's costs of a VCAT proceeding, where the general rule is that each party will bear its own costs.
And this was an application for merits review, which either party had a right to make under the FOI Act. It is different in character to a civil dispute where an open offer of settlement and notice of intention to seek costs can have more direct relevance.
While Mr Tucker made what he described as a Calderbank offer in respect of his costs, he has not been successful in his application, much of which was, in my view, misconceived and bordering on vexatious.