1. No order for costs of the inquiry before the Board.
2. No order for costs of the review hearing.

1. On 3 and 5 September 2015, I heard an application by the Applicant, in which he sought a review of a decision made by the Building Practitioners Board ('the Board'). The decision under review was made by the Board following an inquiry conducted by it into the Applicant's professional conduct as a builder, in the class of domestic builder.
2. On 18 September 2015, I made the following orders:
   1. The decision of the Building Practitioners Board dated 4 December 2014 is set aside and substituted with the following decision:

(a) Allegation 1 is dismissed.

(b) Allegation 2 is dismissed.

(c) Allegation 3 is withdrawn.

1. The decision of the Building Practitioners Board dated 13 February 2015 is set aside.

1. Pursuant to the liberty given by Order 3 of those orders, the Applicant now seeks an order that the Board pay his costs of the initial inquiry and of the review hearing.

1. The background to this proceeding is set out in detail in my written Reasons dated 18 September 2015.
2. In summary, the proceeding related to building work undertaken by Lipska Pty Ltd, which trades under the name Coldon Homes ('the Builder'). The applicant was, at the relevant time, the sole director of the Builder and the nominated registered building practitioner.
3. In February 2011, the Builder entered into a contract with Beth Corbic for the construction of a residential home on land owned by Ms Corbic and located on Phillip Island ('the Property'). The Property is known as Lot 2 and forms part of a two lot 'battle-axe' subdivision. An existing residence is located on the front allotment with common property running down the northern boundary of Lot 1 to Lot 2. An easement in favour of Westernport Water runs along the southern boundary of both allotments ('the Easement'). It is two metres wide and was created to accommodate a private sewer line which drained effluent from Lot 1 to a main sewer running east-west across the rear of the Property ('the Private Sewer'). The building works under the Contract were to be constructed up to and along the northern boundary of the Easement, such that the proposed dwelling would be positioned two metres from the southern title boundary.
4. In order to locate the exact position of the Easement, the Builder relied upon documentation given to it by Ms Corbic's husband, Mr Jemille Corbic. That documentation included a Revised Site Plan, which had been prepared by Mr Corbic, following his review of relevant documentation and after consulting with the water authority.
5. However, during construction it was discovered that the Revised Site Plan did not accurately depict the location of a Private Sewer, which should have been located within the Easement. As a result, the Private Sewer was damaged and ultimately had to be replaced and repositioned to facilitate construction of the building works. A dispute arose between the Builder and Ms Corbic as to the cost of that work.
6. Following a complaint made to the Board, an investigation was carried out, ultimately leading to an inquiry being conducted by it. The Board initially raised three Allegations against the Applicant, although one of the Allegations was withdrawn prior to the hearing of the inquiry. The Board determined that one of the two remaining Allegations was proven. This was the subject of the review hearing before me. As indicated above, I set aside the Board's finding and dismissed the remaining Allegation. The net result was that none of the Allegations initially raised against the Applicant were found to be proven.
7. The Allegation which was the subject of the review hearing stated that the Applicant had breached the implied warranties under s 8(d) of the Domestic Building Contracts Act 1995 to carry out work with reasonable care and skill. In the particulars to that Allegation, the Board alleged that the Applicant had failed to satisfy yourself as to the accuracy of the information in the As Constructed Plan of Drainage supplied by the relevant water authority prior to commencing the building work.
8. As indicated above, I did not ultimately accept that the Applicant or the Builder had failed to take reasonable steps to be satisfied as to the accuracy of the information provided to the Builder concerning the location of the Private Sewer. In my Reasons, I stated:

Having regard to my observations and findings set out above, I find that it was reasonable for the Builder to rely upon the Revised Site Plan. My findings are reinforced by Mr Donohue's evidence that the Builder's reliance upon the Revised Site Plan was not confined to simply reading the plan but was supported by a number of other factors, such as:

(a) The document had been prepared by a registered building practitioner, in the class of draftsperson, who had knowledge of the building site, having previously prepared the plan of subdivision.

(b) None of the other documents provided to the Builder were inconsistent with the figured dimensions set out in the Revised Site Plan.

(c) It was reasonable to assume that the Private Sewer would be contained within the Easement, given that the Easement was created solely for the purpose of accommodating the Private Sewer.

(d) Westernport Water had reviewed the Revised Site Plan and had seen fit to give permission to encroach into the Easement. Accordingly, it was reasonable to assume that Westernport Water was satisfied that the location of the Private Sewer was in the position as depicted in the Revised Site Plan.

1. As was the case in the review hearing, the Applicant was represented by Mr Black of counsel and the Board was represented by Ms Weston-Scheuber of counsel. Both counsel prepared comprehensive written submissions to which I have had regard. In addition, both counsel made oral submissions in reply.
2. It is beyond doubt that the Board is empowered to pay a practitioner's reasonable costs of and incidental to an inquiry where the Board makes a finding favourable to that practitioner. That power is derived under s 181 of the Building Act 1993 which states:

181 Costs

If on an inquiry the Building Practitioners Board makes a finding favourable to a registered building practitioner, it may pay that practitioners reasonable costs of and incidental to the inquiry.

1. In Cole-Sinclair v Building Practitioners Board (No 2),[1] I observed that that a finding favourable to a registered building practitioner usually meant a situation where all allegations are dismissed or withdrawn. I stated:
   1. The words if on an inquiry the Building Practitioners Board makes a finding [favourable to a registered building practitioner] gives the section narrow application. It covers a situation, for example, where all allegations, the subject of an inquiry before the BPB, are dismissed. In that sort of case, the section permits the BPB to pay the building practitioner's costs of and incidental to the initial inquiry.
2. In the present case, both Mr Black and Ms Weston-Scheuber submitted that as a result of my orders dated 18 September 2015, the Applicant now enjoys a finding favourable to him. According to Mr Black, this enlivens the Board's and the Tribunal's jurisdiction to make an order that the Board pay the Applicant's reasonable costs of the initial inquiry.
3. In my view, it does not necessarily follow that where a subsequent review hearing exonerates a building practitioner, the Tribunal on review is then vested with power to order that the Board pay the building practitioner's reasonable costs of the initial inquiry. In particular, it is not clear whether the power given under s 181 of the Act confers a discretionary power to the Tribunal or whether that provision is limited in its operation to the discretionary powers bestowed upon the Board.
4. Therefore, it seems that there are two questions which arise for consideration; namely:
   • (a) Does the Tribunal have power to order that the Board pay the building practitioner's reasonable costs of the initial inquiry?
   • (b) If so, should the Tribunal exercise its discretion to make such an order?

Is there a power to order costs of the initial inquiry?

1. As indicated above, the Applicant contends that the Tribunal essentially 'stands in the shoes' of the Board when determining whether or not to order that his reasonable costs of the inquiry be paid by the Board. In that regard, Mr Black drew my attention to s 51 of the Victorian Civil and Administrative Tribunal Act 1998, which states, in part:
   1. Functions of Tribunal on review

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

1. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998, of itself, does not empower the Tribunal to order that the Board pay the Applicant's reasonable costs of the inquiry. If that power exists, it is derived from the enabling enactment; namely, the relevant provisions of the Act. Further, even if the Act bestows such a power upon the Board, the exercise of that discretionary power must be a 'decision' in order to fall within the review jurisdiction of the Tribunal. This is because the opening words in s 51 of the Victorian Civil and Administrative Tribunal Act 1998 are premised on there being a 'decision'. Having said that, I accept that the failure to make a decision may sometimes constitute a 'decision'. For example, if a tribunal is moved to order costs but refuses to do so, then the failure to exercise that discretion may constitute a decision of itself. Similarly, s 182A of the Act provides that the failure of the Board to make a 'decision' within a reasonable time is also reviewable by the Tribunal. That then raises the question: what is a 'decision' for the purpose of s 182A of the Act?
2. Section 182A of the Act states, in part:

182A Review by VCAT

(1) A person to whom a decision of the Building Practitioners Board under Division 1 or 2 applies may apply to the Victorian Civil and Administrative Tribunal for a review of -

(a) that decision; or

(b) a failure of the Board to make that decision within a reasonable time.

[underlining added]

1. It is not clear whether the Tribunal's review jurisdiction under s 182A of the Act extends to empower the Tribunal to order that the Board pay the costs of a building practitioner associated with the initial inquiry. This is because the failure to exercise the discretion under s 181 of the Act may not be a 'decision' of the Board, for the purpose of s 182A of the Act.
2. The uncertainty arises because 'decisions' of the Board are listed under s 179 of the Act. However, the power to pay a building practitioner's costs is found in s 181 of the Act, which is a separate stand-a-lone provision. There is nothing in that provision which expressly ties it to s 182A of the Act.
3. Section 179 of the Act sets out the types of findings that are open to the Board (and the Tribunal on review) and the types of decisions which may follow. It states, in part:

179 Inquiry into conduct

(1) On an inquiry into the conduct of a registered building practitioner, the Building Practitioners Board may make any one or more of the decisions mentioned in subsection (2) if it finds that the registered building practitioner -

(a) is guilty of unprofessional conduct; or

...

(2) The following are the decisions which the Board may make -

(a) to reprimand the person;

(b) to require the person to pay the costs of or incidental to the inquiry;

...

[underlining added]

1. As noted above, s 179(2) of the Act permits the Board, and the Tribunal on review, to decide that the building practitioner pay the Board's costs of and incidental to the inquiry. However, s 179(2) does not empower the Board or the Tribunal on review to decide or order that the Board pay the building practitioner's costs of and incidental to the inquiry.[2]
2. Section 181 of the Act is not expressed to be a decision of the Board. The word 'decision' is not used in that provision. In my view, s 181 simply gives the Board a discretionary power and, although in one sense, the refusal to exercise that discretion may constitute a decision, it does not necessarily follow that is a decision of the Board for the purpose of s 182A. I have formed this view based on a number of factors.
3. First, and for the reasons outlined above, there is no mention of the word 'decision' in s 181 of the Act, which would tie it to s 182A of the Act. By contrast, the word 'decision' or 'decisions' is used in both s 179(2) and s 182A of the Act.
4. Second, there are practical difficulties in bestowing jurisdiction to the Tribunal to make an order under s 181 of the Act. In particular, if s 181 of the Act were capable of review by the Tribunal, then the Tribunal would have to 'stand in the shoes' of the Board, in circumstances where what was before the Board may have been very different to what was before the Tribunal on review. This is precisely what has occurred in the present case. There was substantially more material before the Tribunal on review than what was before the Board at first instance. In the review proceeding, the Applicant adduced and relied upon expert opinion evidence from Mr Croucher, the building consultant engaged by him. Much of that expert opinion evidence was ultimately accepted by the Tribunal.
5. By contrast, the Board heard no expert evidence when deciding the matter at first instance. Therefore, how can the Tribunal exercise a discretion as to whether costs should or should not have been ordered in a hearing in which it had no involvement and where the outcome of that hearing was dependent on what was before the Board, rather than what was advanced by the parties in a subsequent review hearing?
6. In that respect, one must distinguish a merits review from an appeal. What is before the Tribunal on review is not an examination of whether the Board at first instance 'got it wrong'. The review hearing is a hearing de novo, and what occurred at first instance bears little relevance to what is before the Tribunal on review. The mere fact that the Tribunal found unproven the Allegations made against the Applicant, does not necessarily mean that the decision of the Board at first instance was erroneous. It may be, having regard to the evidence that was before the Board at first instance, that its decision was entirely reasonable. However, as I have already indicated, that is not a question which the Tribunal needs to consider on review.
7. Third, if the Board has not exercised the power given to it under s 181, then no decision has been made. That scenario is to be contrasted with a situation where costs are sought but refused. Therefore, if no decision has been made, then how can the absence of exercising a discretion be the subject of review?
8. Although s 182A(1)(b) of the Act enables a person to seek a review of a failure of the Board to make that decision within a reasonable time, I am of the opinion that this subsection is limited to a situation where the Board fails to make a decision under s 179(2) of the Act within a reasonable time. For example, if an inquiry was conducted but the Board made no decision after hearing that inquiry, then that fact would enliven the Tribunal's jurisdiction to review. However, I do not consider that the absence of exercising a discretion to pay a building practitioner's costs of an inquiry, constitutes a failure to make that decision within a reasonable time. If that were the case, then any instance where the Board did not exercise its discretion to do something, which it was empowered to do under either Division 1 or 2 of the Act, would be reviewable. For example, under s 169A of the Act, the Board, in considering an application for registration, may arrange for the conduct of a police record check on the applicant. If all discretionary matters under Division 1 and Division 2 were reviewable, then that discretionary power would also be reviewable. In my view, that was not the intention of the legislature.
9. Fourth, Mr Black relied upon my decision in Cole-Sinclair v Building Practitioners Board (No 2), which he contended stood for the proposition that the Tribunal was empowered to 'stand in the shoes' of the Board for the purpose of making a decision under s 181 of the Act. However, In Cole-Sinclair the reference to s 181 of the Act concerned the Board's power under that provision. The decision did not go so far as to say that that the Tribunal, on review, is vested with the same power. In Cole-Sinclair the matters before the Tribunal concerned its power to review a decision made by the Board under s 179(2)(b) of the Act, that its costs be paid by the building practitioner, rather than the opposite scenario, which is being prosecuted by the Applicant in this proceeding.
10. Fifth, Mr Black submitted that s 51 of the Victorian Civil and Administrative Tribunal Act 1998 bestowed wide powers on the Tribunal by providing that the Tribunal had all the functions of the decision-maker. In my view, s 51 of the Victorian Civil and Administrative Tribunal Act 1998 limits the Tribunal's jurisdiction by the words in exercising its review jurisdiction in respect of a decision. In this case, the review jurisdiction is limited by s 182A of the Act. Therefore, if a failure to exercise a discretion under s 181 of the Act is not reviewable under s 182A of the Act, s 51 of the Victorian Civil and Administrative Tribunal Act 1998 will not, of itself, extend jurisdiction.
11. For the reasons set out above, I consider decisions (or a failure to make a decision) which are capable of review are those listed under s 179(2) of the Act. Therefore, it is likely that in order to 'stand in the shoes' of the Board, the decision must be one that was made by the Board under that provision.
12. That being the case, it seems to me that in the present case, the discretion given to the Board under s 181 may not be reviewable under s 182A of the Act.
13. In forming that view, I note that neither party has specifically addressed me on this jurisdictional issue. Therefore, I leave that question open, to be considered further on another occasion. In the present case, it is unnecessary for me to form a concluded view on this issue because even if there was such a power, I am not persuaded that the discretion should be exercised in any event. What follows are my reasons as to why the discretion should not be exercised in this particular case.

1. Mr Black submitted that the Board's inquiry is similar to a criminal prosecution and on that basis, the Applicant should be entitled to his costs of successfully defending the matter.
2. Mr Black submitted that the allegations made against the Applicant were serious and could have resulted in an order for suspension of his registration. He argued this was analogous to a criminal prosecution. Mr Black further submitted that s 181 of the Building Act 1993 carries with it a presumption that costs will follow the event if the Board makes a finding favourable to the registered building practitioner. Mr Black contended that the presumption arises by reason of the precondition that the finding must be favourable to the building practitioner before the power to award costs is enlivened. In support of that proposition, he relied upon the decisions of the High Court in Latoudis v Casey[3] and New South Wales Court of Appeal in Ohn v Walton.[4]
3. I do not accept this submission. In my view, s 181 of the Building Act 1993 does not expressly or implicitly create a presumption that costs will follow the event. Had Parliament intended that to be the case, the words of the provision would have been expressed very differently. In my view, the provision merely creates a discretionary power to pay costs and no more.
4. Mr Black placed great emphasis on what was said by the New South Wales Court of Appeal in Ohn v Walton. That case focused on the criteria to be applied by the New South Wales Medical Tribunal in exercising its discretion to make an order for costs where an inquiry dismissed allegations made against a medical practitioner. Gleeson CJ stated:

The regulations give no further guidance as to the manner in which this discretion is to be exercised. It is a wide discretion, but, being conferred upon a tribunal invested with disciplinary powers to be used in the public interest, it must be exercised in accordance with proper principles. Those principles are flexible but, as Dawson J observed when dealing with a cognate question in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 558, they need to be identified so that, as far as possible, like cases will be decided in a like manner.[5]

...

Although a complaint before the Medical Tribunal is different in a number of respects from civil litigation, and from a summary prosecution for an offence, they are both examples of proceedings in which orders for costs may be made, and what has been said about costs in such proceedings offers guidance in the present context.

The decision of the High Court in Latoudis v Casey, concerning the power to award costs to a successful defendant in a summary prosecution, does not directly apply to the present problem and, in any event, has been overtaken by the legislation in this State. What is of importance, however, is the fundamental proposition upon which that decision rests. It concerns the nature of an order for costs. That proposition is of equal validity in the context of civil litigation, summary proceedings, and disciplinary proceedings. This does not mean that the discretionary considerations relevant to those proceedings are identical. However, the subject of the discretion, that is, an order for costs, has the same nature, and that guides the exercise of the discretion.

...

The point of Latoudis v Casey is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not punish the person against whom it is made.

When legislation confers power to order costs it is, in the absence of any contrary indication, to be understood as conferring a power to be exercised for that purpose.

Two things follow:

1. The usual rationale for making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement.

2. The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated.

The majority also held that these principles are equally applicable to a case where a complainant or informant is acting under a public duty to lay a complaint or information.[6]

Although the Tribunal is not a court in the conventional sense, and although an inquiry conducted by the Tribunal may differ from civil proceedings and from summary proceedings for an alleged offence, in both of which types of proceedings orders for costs may be made, the facts remain, first, that the Tribunal is subject to a duty to act judicially in the conduct of any inquiry, and, secondly, that the powers of the Tribunal in the event of a complaint being established, include powers to order deregistration of a practitioner or to impose a fine, facts which place the Tribunal in a position which is strongly analogous to that of a court in the conventional sense. This being so, it seems to me appropriate that the principles which are to guide the Tribunal in the exercise of its discretion to award costs should be akin to those applied by a court in similar cases, it following that, in ordinary circumstances where a complaint against a medical practitioner has failed, the Tribunal should make an order for costs in the practitioner's favour: Latoudis v Casey (1990) 170 CLR 534.[7]

1. Ms Weston-Scheuber submitted that the 'general rule' - that costs should follow the event, has limited application in cases such as what is presently before the Tribunal. She contended that an inquiry before the Board is not a criminal prosecution, nor is there a separate authority independent of the Board that brings the allegations, such as what occurred in Ohn v Walton. Rather, the Board itself decides to conduct an inquiry pursuant to s 178 of the Building Act 1993, and it is only once the inquiry has been conducted that the Board can determine whether or not the allegation is made out on the evidence before it.
2. Ms Weston-Scheuber referred me to the Victorian Court of Appeal decision in Transport Accident Commission v O'Reilly,[8] where Tadgell JA stated:
   1. It is, with respect, entirely understandable that the general principle for which Latoudis v Casey stands - that in general an award of costs is to be seen as compensatory of a successful party, not punitive of an unsuccessful party - was held to apply in Ohn v Walton and to govern the decision in that case. Moreover, the analogy between the position of the Medical Tribunal and that of a conventional court to which Powell JA referred, and which each of the other judges by implication acknowledged, is readily discernible. It is less evident, however, that the principles applied in Ohn v Walton are necessarily of general application to any and all proceedings "in which orders for costs may be made". I should not understand the judgment of Gleeson C.J., despite his Honour's use of that formulation, as intending to embrace a rule of such amplitude. In any event it was unnecessary to lay down any such rule in order to decide the case at hand. It is one thing to say that the principles enunciated in the case of Latoudis v Casey are of general application to analogous cases, but it is another altogether to say that all cases requiring the exercise of a discretionary power to award costs are analogous to that case. Manifestly they are not, as the High Court recently had occasion to recognise in Oshlack v Richmond River Council (1998) 193 CLR 72.[9]

1. A reference to the reasons of the majority in Oshlack, and especially to the portions I have quoted, demonstrates that the general statements in Ohn v Walton on which the applicant relied require qualification. In particular, a broad and unqualified statutory power to award costs may be exercised in a particular case by reference to the nature of the proceeding and without any necessary presumption that a successful party should receive or that an unsuccessful party should suffer an order for costs.[10]
2. In the extract of Tadgell JA's judgment above, reference was made to Oshlack v Richmond River Council,[11] a decision of the High Court. Oshlack concerned a matter where the appellant had unsuccessfully initiated proceedings against the respondent in the Land and Environment Court of New South Wales. The primary judge refused to make a costs order against the unsuccessful appellant on the grounds that the matter had been commenced in the public interest. The respondent contended that the 'general rule' as to costs should apply. Kirby J stated:
   1. When this background of special, and in some ways peculiar, legislation is recognised, it will be appreciated that the provision in the Land and Environment Court Act as to costs appears in a statutory context which alters, to some extent, the assumptions upon which civil litigation in this country has hitherto, ordinarily, taken place. Instead of a purely adversarial contest between two parties having individuals, and typically financial, interests to advance, Parliament has envisaged that, in some cases at least, the contestants will be arranged as they were in these proceedings: on the one side an individual representative body seeking to uphold one perception of the public interest and the requirements of environmental law; on the other side, a local government authority seeking to uphold another.[12]
3. Commenting on Latoudis, his Honour stated further:
   1. Stein J did not refer to Latoudis. Nor did several appellate courts in post-Latoudis "public interest" cases where costs have been considered. This does not necessarily betoken oversight. It is simply a recognition of the comparatively narrow and special point which Latoudis decides. The decision in that case does not, and could not, lay down a general rule that the only consideration to be taken into account in the exercise of a statutory costs discretion is the compensation of the unsuccessful party for the recoverable expense to which it has been put by the litigation. With respect to the learned judges of the Court of Appeal, this reads too much into Latoudis. Such a rule was required neither by the matter which was before this court for decision in that case nor by the majority's reasons.[13]
4. In my view, inquiries under the Building Act 1993 are to be distinguished from criminal prosecutions and the type of disciplinary matters which were the subject of consideration in Ohn v Walton. The regulatory functions of the Board have two distinct aspects to them. First, under s 177 of the Building Act 1993, the Board may appoint a person to report and make recommendations to it on whether or not an inquiry should be held. Second, under s 178 of the Building Act 1993, the Board may then conduct the inquiry. In that sense, the Building Act 1993 prescribes to the Board investigative and determinative functions. It does so because under the Building Act 1993, it is charged with functions which include:
   • (a) the administration of a registration system for building practitioners; and
   • (b) the supervision and monitoring of the conduct and the ability to practise of building practitioners.[14]
5. In that sense, the Board's functions extend well beyond simply policing or enforcing non-compliance with the Building Act 1993 and the regulations made under that Act. Its functions are an integral part of the scheme established under the Building Act 1993. That distinguishes inquiries conducted by the Board to the type of inquiry heard by the Medical Tribunal in Ong v Walton. In that type of case, the proceeding against the medical practitioner was prosecuted by an independent complainant; namely Ms Walton, an authorised delegate of the Director-General, New South Wales Department of Health. In my view. Ong v Walton bears closer resemblance to a summary prosecution type of proceeding, such as was the case in Latoudis v Casey. Hence, it is understandable that the Court of Appeal drew references to that case in support of the conclusion reached by it.
6. In Board of Examiners v XY,[15] Chernov JA also considered this point, in the context of a review of a decision made by the Board of Examiners to refuse to certify an applicant under the Legal Practice Act 1996. He stated:

[25] ... But in my view Latoudis does not assist counsel on this point because the position of the Board is relevantly different to that of a police prosecutor. Unlike the latter, the Board is a statutory body that performs a quasi judicial function in the public interest and appears at appeals brought against its decision not as a protagonist but only for the purpose of assisting the court.

1. Therefore, I am of the view that the 'general rule as to costs' is of limited application with respect to inquiries conducted by the Board under s 179 of the Building Act 1993. The mere fact that a building practitioner is successful in having all allegations dismissed against him or her does not, in my view, create a presumption that costs will follow the event. The power to award costs under s 181 of the Building Act 1993 is simply that - a power. Without that section the Board would have no statutory authorisation to pay a practitioner's reasonable costs of and incidental to an inquiry, should it choose to do so. As I have already indicated, it would have been easy for the legislature to have drafted s 181 of the Building Act 1993 in such a way to create a presumption that costs would follow the event. However, Parliament has chosen not to do so.
2. With that in mind, I do not consider that the discretion under s 181 of the Act should be exercised in the present case. As indicated above, the premise of Mr Black's submission rests on the finding made by the Tribunal on review, which ultimately vindicated the Builder's conduct. However, as I have already indicated, the review hearing was very different to what was before the Board at first instance. Expert opinion evidence was at the forefront of the review hearing. However, the Applicant chose not to adduce any expert evidence before the Board at first instance. That was a choice which the Applicant made. Consequently, the Board's findings and its subsequent decision was based on the material before it.
3. In those circumstances, I see no reason why the discretion to order costs under s 181 of the Act should be exercised. On one view, the situation is similar to what occurs in summary criminal prosecutions in the Magistrates Court of Victoria. Defendants have a right of appeal or review to the County Court of Victoria, in which case the proceeding is heard de novo. However, whatever costs were incurred by the defendant at first instance lie where they fall. In my view, the same situation applies in the present case.
4. Therefore, even if the Tribunal had jurisdiction to order that the building practitioner's reasonable costs of the inquiry be paid by the Board, I would decline to exercise my discretion and make such an order in the present case.

1. It is common ground that the Tribunal's power to award costs of the review hearing is found in s 109 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). As I made clear in Cole Sinclair v Building Practitioners Board (No 2),[16] s 181 of the Act has no application to a review hearing.
2. Orders for costs in the Tribunal are regulated by Division 8 of Part 4 of the VCAT Act. Section 109 of the VCAT Act states:

(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.

1. In Vero Insurance Ltd v The Gombac Group Ltd,[17] Gillard J stated:

[20] In approaching the question of any application for costs pursuant to s.109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis as follows:

(i) The prima facie rule is that each party should bear their own costs of the proceeding.

(ii) The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.

(iii) In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s.109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.

1. Mr Black relied on s 109(3)(d) and (e) of the VCAT Act. He submitted that the nature and complexity of the proceeding made it fair to order that the Board should pay the Applicant's costs of the review hearing. In addition, Mr Black argued that had the Board reached the correct decision in the first place, there would have been no need for the Applicant to make the application for review. He argued that the fact that the Board has put the Applicant in a position where it was necessary for him to clear his professional name, by making the application, is a further factor in favour of an award of costs.
2. Mr Black drew my attention to a letter dated 30 April 2015, in which the Applicant offered to the Board that it would agree to have the decision set aside. The letter put the Board on notice that the Applicant would seek costs from the Board if it did not agree to do so. In my view, the letter, which is said to be in the form of a Calderbank offer, is of limited relevance to the exercise of my discretion. In particular, this proceeding, like so many other review proceedings, is very different to interparty litigation, where the presence of a Calderbank offer may impact on the discretion of the Tribunal in awarding costs.
3. Here, the Board has a statutory function to participate in the review process and to assist the Tribunal in its determination of the substantial matters in dispute.[18] Obviously, there may be occasions where the Board receives further information and then forms the view that Allegations raised at first instance should be withdrawn, usually with the approval of the Tribunal. However, this is not such a case. Here, the Applicant, on its own admission, concedes that there are complex matters which require consideration and adjudication. In my view, the mere fact that the Board has chosen not to withdraw the remaining Allegation under review is of limited if any significance.
4. Similarly, the mere fact that the review hearing ultimately found the Applicant vindicated does not, of itself, lead to the conclusion that costs should follow the event. In that respect, it must not be overlooked that what was advanced by the Applicant at the inquiry is very different to the type of case it presented on review. In particular, the Applicant relied heavily on the expert opinion evidence of Mr Croucher, building consultant, in arguing that the conduct of the Builder was reasonable. However, no expert opinion evidence was adduced during the course of the initial inquiry. Had that been the case, the result may well have been different.
5. Finally, I do not consider that the mere fact that each party adduced expert opinion evidence or that the subject matter of the review hearing included technical aspects, necessarily means that hearing was so complex so as to justify an award for costs. By its nature, these types of proceedings will inevitably include technical matters, which may necessitate the need for expert opinion evidence. However, that fact alone does not elevate this type of proceeding to one where the presumption against awarding costs should be displaced.
6. Consequently, I decline to order costs in this review proceeding.

SENIOR MEMBER E RIEGLER

[2] This is understandable given that the 'decisions' that may be made under s 179 of the Act can only be made if an allegation is found to be proven. Therefore, it is unlikely to be a finding favourable to the building practitioner.

[3] [1990] HCA 59; (1990) 170 CLR 534.

[4] (1997) 36 NSWLR 77.

[8] [1998] VSCA 106; [1999] 2 VR 436.

[11] [1998] HCA 11; (1998) 152 ALR 83.

[14] Section 183(2) of the Building Act 1993.

[15] [2006] VSCA 190.

[16] [2014] VCAT 1212 at [63-67].

[17] [2007] VSC 117.

[18] See also extract of Board of Examiners v XY [2006] VSCA 190 at [25], cited in paragraph 48 above.