1 On 2 June 2004, I handed down my reasons for decision in favour of the applicant, setting aside the decision of the respondent, the Psychologists Registration Board of Victoria, and substituting for it a decision granting the applicant registration as a probationary psychologist. I reserved the question of costs. Subsequently on the same date, the applicant applied to the tribunal for an order for costs namely, that the respondent pay the applicant's legal costs of the proceeding heard on 20 and 21 May 2004. The application was supported by written submissions. The respondent filed written submissions in reply on 23 June 2004. It was agreed that the question of costs would be determined on the papers.

2 The application for costs is made pursuant to s.109(3) of the Victorian Civil & Administrative Tribunal Act 1998 ("the Act"). Section 109 of the Act provides:

(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--

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as--

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

3 The submissions made in support of the costs application were to the following effect:

* the Tribunal should apply s.109 to the respondent as it would to any other party;

* the respondent conducted the proceeding in a way that caused the applicant unnecessary disadvantage by: providing lengthy witness statements for two officers of the respondent who were not ultimately called; and by not providing witness statements of the evidence it proposed to adduce in support of its case but calling instead two witnesses on subpoena;

* the respondent's case was weak because the evidence of its two main witnesses, Ms Gridley and Dr Wills did not address the issue in dispute, namely, substantial equivalence of the qualifications and experience of applicant;

* the failure of the respondent to adduce evidence by way of witness statement in support of its decision, and then to adduce oral evidence on subpoena that did not really address the central issue in dispute, demonstrates that the respondent acted perversely such as to warrant an award of costs against it;

* the respondent's decision resulted in considerable delay and expense to the applicant.

4 The submissions filed on behalf of the respondent may be summarised as follows:

* Costs ought not to be awarded against statutory tribunals unless it has been demonstrated that the tribunal has been guilty of serious misconduct or has acted perversely: see Magistrates' Court of Victoria at Heidelberg v Robinson [2000] VSCA 198; [2000] 2 VR 233;

* There is no such evidence of misconduct in this case;

* The fact that the summonsed witnesses refused the respondent's request to provide witness statements is no fault of the respondent; and the order of witnesses was by agreement altered to enable the applicant to know in advance the case of the respondent;

* The purpose of an award of costs is compensatory and not to punish the party against whom costs are ordered: Re Yarra CC and Rattray-Wood [1999] VCAT 1935;

5 Having considered the written submissions filed on behalf of the parties, I consider it fair, in the circumstances of this case, to order the respondent to pay a part of the applicant's costs of the proceeding, for a number of reasons.

6 No special provision is made within s.109 of the Act for the power to award costs against statutory tribunals as opposed to other respondents or parties. Accordingly, the principle to apply in this case is that each party is to bear its own costs unless I am satisfied that it is fair to make an order that the respondent bear all or a specified part of the applicant's costs in the instant case, having regard to the matters set out in sub-s.109(3) of the Act.

7 The respondent filed 2 lengthy witness statements from two of its officers, which required the applicant to respond in detail. The bulk of the 18-page further witness statement filed by the applicant was a response to the matters raised in those witness statements. The respondent did not call those witnesses. I accept that the applicant thereby wasted time and money on the preparation of her case in this regard.

8 Secondly, the respondent did not call evidence about the standards required of probationary psychologists and the comparison between the applicant's qualifications and experience and those standards. The claim by the respondent that it was not to blame for the refusal of Ms Gridley or Ms Gordon to provide witness statements is not to the point, in my opinion, in light of the fact that the respondent could have supplied an outline of proposed evidence it sought to adduce from those witnesses, so as to give the applicant the knowledge, in advance of the hearing, of the case it was expected to meet. I found that those witnesses did not address the central issues in dispute. I also found that the evidence of Dr Wills upon which the respondent sought to rely was that adduced by viva voce evidence which went beyond his witness statement. That witness statement did not touch on the issue of substantial equivalence. The respondent therefore produced no evidence to substantiate or support the decision made in terms of the central issue of substantial equivalence.

9 Thirdly, as a result of the matters raised in the previous paragraph, it appears that the respondent's case was therefore weak at the outset, and relied, at the end of the day, on an attempt to establish that the evidence of the applicant's witnesses ought not be accepted. I consider that on the evidence finally adduced the respondent had little or no prospect of successfully arguing that the applicant's qualifications and experience did not entitle her to the grant of probationary registration. I note, however, that on a hearing de novo, it is a matter for the applicant to make out her case afresh.

10 Given the respondent's failure to call evidence on the issue of substantial equivalence; the manner in which it conducted the proceeding: by filing witness statements and not calling the witnesses, thereby causing unnecessary expense to the applicant; by failing to provide witness statements in accordance with the directions of the tribunal on the matters in issue in the proceeding; and failing to provide outlines of proposed evidence from the witnesses under subpoena, I am satisfied that in the circumstances of this case it is fair to order the respondent to pay part of the applicant's costs of the application before the tribunal, on Scale A of the County Court Scale.

11 I consider it fair in all the circumstances for the respondent to pay the applicant's costs of the hearing on 20 and 21 May 2004, as well as the cost of preparation of the applicant's further witness statement dated 25 August 2003, such costs to be on County Court Scale A and to be taxed in default of agreement.