(a) in a proceeding in the Tribunal's original jurisdiction -

(i) the person who applied to the Tribunal, or who requests or requires a matter to be referred to the Tribunal; and

(ii) in the case of inquiry by the Tribunal, the person who is the subject of the inquiry;

(iii) any person joined as a party to the proceeding by the Tribunal; and

(iv) any other person specified by or under this Act or the enabling enactment as a party;

1. Consequently, the applicant submits that Kyrou should not be followed. In support of that contention, the applicant relies upon a passage cited in Pizer's Annotated VCAT Act (Third Edition) wherein the learned author states at [3138]:

... There are three matters in the VCAT Act itself that point in the opposite direction. First, the express inclusion of s73(2B) lends some support to the view that a person other than the Small Business Commissioner does not become a party to the proceedings by virtue of their intervention. Second, s 59 of the VCAT Act, which identifies the parties to a proceeding, does not state that any person who intervenes in the proceeding is thereby a party to the proceeding. And third, s 110(1) of the VCAT Act - which empowers the VCAT to order that a person given leave to intervene in a proceeding pay an amount specified by the VCAT to a party as compensation for all or part of the costs reasonably incurred by the party as a result of the intervention - also supports that conclusion (at the least insofar as persons given leave to intervene are concerned). That is because s 110(1) would appear to be otiose if a person given leave to intervene became a party to the proceeding. And that is because the general power in s 109 - to order a party to pay all or a specified part of another party's costs - would empower the VCAT to order the person given leave to intervene to pay all or a specified part of an existing parties costs reasonably incurred as a result of the intervention.

1. In essence, the applicant contends that applying orthodox principles of statutory construction to the text of the VCAT Act indicates that the status of an intervenor is not to be elevated to that of a party.
2. In the alternative, the applicant contends that even if the intervenors were parties, costs cannot be ordered because the position would then be governed by s.92 of the Retail Leases Act 2003. That provision states, in part:

Despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998, each party to a proceeding before the Tribunal under this Part is to bear its own costs in the proceeding.

... if the analysis in Kyrou is to be applied in this case so as to make Coles and Woolworths "parties" to the proceeding, within the meaning of ss 59 (1) and 109 of the Act, then they are also "parties" to the proceeding within the meaning of s 92 of the RT [Retail Leases] Act.

1. Consequently, it argues that s.109 of the VCAT Act is not enlivened and each party must bear their own costs.
2. Finally, the applicant argues that even if s.109 of the VCAT Act was enlivened, the circumstances of the proceeding do not justify the Tribunal exercising its discretion in any event. In particular, the applicant submits that the Application for Production of Documents could not be said to have had no tenable basis in fact or law and that the nature and complexity of the Application militate against any award of costs. Moreover, the applicant contends that Coles or Woolworths have not identified any other matter which the Tribunal could take into account in exercising its discretion.
3. Further, the applicant submits that under s.110(1) of the VCAT Act, its costs of this costs application should be paid by the Intervenors. In its submission, it states:

In the exercise of that discretion the costs order should be made against Coles and Woolworths because Foundry's arguments in respect of the costs application was set out in prior correspondence between the solicitors, and Coles and Woolworths made the costs application and persisted with it in the face of those cogent arguments.

Are the Intervenors parties under s.59 of the VCAT Act?

1. The applicant has raised a number of arguments in support of its contention that I should not follow the Tribunal's early decision in Kyrou. First, it relies on the decision of Judge Bowman in Bradto.
2. In my view, Bradto can be distinguished on its facts. In particular, that case concerned a costs application made by persons who were required to answer a summons for production of documents, issued by the Tribunal pursuant to the s.104 of the VCAT Act. His Honour stated:

[18] The power to order costs is not a matter of practice or procedure. It is a matter of jurisdiction or substantive law.

[19] The power to order costs is a question of jurisdiction. In the absence of an express statutory power to order costs, a court has no such power.

[23] Similarly, the power of a Tribunal to award costs depends on statute, and there is no common law jurisdiction in a Tribunal to order costs - see Walton v McBride. In relation to the last mentioned proposition, it is to be recalled that, in any event, this Tribunal is a creature of statute. Its powers and jurisdiction are to be found in the Act and in enabling enactments. ... The power of the Tribunal to order costs is to be found in s.109. Whilst the discretion contained in an s.109 is quite broad, it is not of the breadth to be found in s.24(1) of the Supreme Court Act.

[24] Pursuant to s.109(2) of the Act, "... The Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding." The word "party" is used throughout s.109, and the only exception specified where costs can be ordered against someone other than a party is to be found in s.109(4), which gives the Tribunal power to make a costs order against the representative of a party.

1. Accordingly, his Honour focused on whether a person answering a summons to produce documents falls within the definition of a party, for the purposes of s.109 of the VCAT Act. His Honour held that such a person did not fall within the definition of a party. He stated:

[26] In short, for the purposes of the present case, the parties within the meaning of s.59 are the State of Victoria, Bradto Pty Ltd and Tymbook Pty Ltd. The definition contained in s.59 does not extend to other persons. The definition of "parties to a proceeding" contained in s.89 of the Retail Leases Act 1993 could be viewed as being even more narrow, although its effect in the present case did not seem to me to differ from that of s59 of the Act. In both instances, neither Doherty nor COPP have been joined as parties by reason of receipt of the subpoenas or for any other reason. Had application be made pursuant to s.60 of the Act that they be joined, the situation may well have been different.

[27] In any event, it was determined by Byrne J in Pyramid Building Society (in liq) & Ors v Farrow Finance Corporation (in liq) & Ors; ex parte Farrow, Clarke and Lawson [1995] VicRp 30; 1995 1 VR 464 that a person attending a proceeding in response to a subpoena, at least for the purposes of Order 42.08 (1), is not a party within the meaning of the statutory definition. If such a person is not a party for the purposes of the broader statutory definition contained in the Supreme Court Act, a fortioro such a person would not be a party for the purposes of s.59 of the Act.

1. In my view, different considerations apply to the facts in the present case. In particular, here the Intervenors were given leave to intervene pursuant to s.73 of the VCAT Act. That did not occur in Bradto. Consequently, the issue in the present case is not whether a person answering a subpoena or summons to produce is a "party" for the purposes of s.59 of the VCAT Act, but rather whether a person who has been given leave to intervene is a "party", for the purposes of s.59 of the VCAT Act. This point was specifically raised by His Honour in the following passage of his judgement:

[45] As previously mentioned, the situation may have been different had Doherty and COPP applied, upon receipt of the subpoenas and prior to the costs in relation to the hearing of this application been incurred, and such application was successful. I am far from saying that such application would have been successful, but, as I have previously observed in other matters, the discretion contained in s.60 of the Act is a broad one. In any event, no such application was made in the present case. Nor was any application made that Doherty and COPP intervene pursuant to 73(3) of the Act - see the decision of Senior Member Walker in Kyrou v Contractor Bonding Limited (delivered 27 March 2006).

1. In summary, his Honour determined that there was no statutory or common law jurisprudence in support of the position that a person answering a subpoena was a "party" to the proceeding. However, in my view, he left open the question whether a party who is given leave to intervene is or is not a "party".
2. The applicant submits that the language found in the VCAT Act indicates that intervenor is not to be seen as a party for the purposes of s.59 of the VCAT Act. Reliance was placed on the reasoning set out in the extract of Pizer referred to above. In essence, there are three factors which are said to weigh against a finding that an intervenor is a party. First, the presence of s.73(2B) of the VCAT Act, which states:

If the Small Business Commissioner intervenes in proceedings referred to in subsection (2A), he or she becomes a party to the proceedings and has all the rights (including rights of appeal) of such a party.

1. The applicant submitted that the subsection would be otiose if an intervenor was a party. I do not agree. In particular, subsection (2A) refers to three specific types of proceedings where the Small Business Commissioner may intervene. The first proceeding relates to a retail tenancy dispute. In my view, the provision maintains its utility despite an intervenor becoming a party under s.59 of the VCAT Act because it gives the Small Business Commissioner a right to intervene in a retail tenancy dispute, even though Small Business Commissioner does not fall within the definition of a landlord or tenant. Similarly, subsection (2A) allows the Small Business Commissioner to intervene in proceedings relating to unconscionable conduct in business transactions, even though the Small Business Commissioner may not have played any part in the relevant transaction. The same may be said of proceedings under the Owner Drivers and Forestry Contractors Act 2005.
2. In other words, subsection (2A) is necessary to give the Small Business Commissioner a statutory right to intervene in certain proceedings even if that right might not otherwise exist at common law.
3. Second, the applicant submits s.73(3) does not expressly state that an intervenor automatically becomes a party to the proceeding. In my view, the absence of express words stating that an intervenor becomes a party to the proceeding is not determinative. Indeed, the words of the subsection are expressed widely, subject only to giving the Tribunal power to impose conditions on the right to intervene. In my view, the words of subsection (3) do not obviate the position at common law. In that respect, I consider that in the absence of clear words abrogating what would otherwise be the position at common law, the provision is not to be interpreted in a manner suggested by the applicant. Indeed, that approach would be inconsistent with the legal assumption that there is a presumption against alteration of common law doctrines. In Potter v Minahan, O'Connor J quoted with approval from the Fourth Edition of Maxwell on Statutes:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such affect the general words, simply because they had that meaning in their widest, or unusual, or natural sense, would be to give them a meaning in which they were not really used.[4]

1. Third, the applicant submits that if an intervenor were automatically to become a party in a proceeding, the existence of s.110(1) of the VCAT Act would become otiose. That provision states:

(1) The Tribunal may order that a person given leave to intervene in a proceeding pay an amount specified by the Tribunal to a party as compensation for all or part of the costs reasonably incurred by the party as a result of the intervention.

1. The applicant submits that there would be no need for a provision allowing a costs order being made against the intervenor if the intervenor was a party to the proceeding because that power to award costs would be covered by s.109 of the VCAT Act.
2. I do not accept that proposition. In my view, s.110 goes further than s109 of the VCAT Act because it is not expressed to be subject to the presumption against making an order for costs or subject to the Tribunal having to have regard to the matters set out in subsection s.109(3). In other words, it is another source of power given to the Tribunal to award costs in very limited circumstances, which is different to the general power given to the Tribunal under s.109.
3. My view is reinforced by the express words of s.109 (1) which state that it is Subject to this Division. Section 110 of the VCAT Act is found in the same Division of the VCAT Act. Accordingly, s 109, being the general power to order costs in a proceeding must be subject to s.110. Consequently, s.110 is not restricted in the same way that the general power to order costs under s.109 of the VCAT Act is.
4. Consequently, I do not regard s.110 of the VCAT Act as being rendered otiose by the operation of s.109 of the VCAT Act. Each provision has its own function within the VCAT Act, irrespective of whether an intervenor is a party.
5. What then is the position at common law? In my view, the Tribunal's analysis of the status of an intervenor in Kyrou is the correct approach to adopt. That case concerned an application for costs made by an intervenor who successfully defended an application to join him. In Kyrou, the intervenor was given leave nunc pro tunc to intervene in order to resist the joinder application. The Tribunal carefully analysed the status of an intervenor by reference to passages in William's Civil Procedure and by reference to the judgement of Brennan CJ in Levy v Victoria.[5] The Tribunal concluded:

[18] Since we are dealing here with the Tribunal's original jurisdiction the rest of the section is not relevant. Mr Lentini has not been joined as a party to the proceeding under s.60 but if, as appears to be the case, the consequence of granting him leave to intervene is to make him a party, the grant of the leave amounts to joinder, albeit temporarily and only for a limited purpose. I think therefore think he comes within s.59(1)(iii). There is no basis for giving him leave to intervene to any other extent than to resist the joinder application but to this extent I think he is a party.

1. A similar approach was adopted by the Full Court of the Federal Court of Australia in Cheesman v Waters:[6]

In United States Tobacco Co v Minister to Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520 at 534; 83 ALR 79 at 94, Davies, Wilcox and Gummow JJ said that:

An intervenor, whether pursuant to s12 of the ADJR Act, O 6, r 8 (1) of the Federal Court Rules, s 78A of the Judiciary Act 1903 (Cth) or otherwise, becomes a party to the proceedings with the benefits and burdens of that status.

Their Honours then quoted with approval the following passage from the judgement of Hutley JA in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396:

A person accepted as an intervenor becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument...

1. In my view, once leave to intervene was given, the Intervenors were for all intents and purposes parties, within the meaning of that term as described in s.59 of the VCAT Act, albeit for a limited purpose; namely to resist the Application for Production of Documents only.

(1) Despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998, each party to a proceeding before the Tribunal under this Part is to bear its own costs in the proceeding.

(2) However, at any time the Tribunal may make an order that a party pay all or a specified part of the costs of another party in the proceeding but only if the Tribunal is satisfied that it is fair to do so because -

(a) the party conducted the proceeding in a vexatious way that necessarily disadvantaged the other party to the proceeding; or...

1. Neither Woolworths nor Coles contend that the applicant conducted the proceeding in a vexatious way that necessarily disadvantaged either of them. Nevertheless, Woolworths submits that it should not be precluded from obtaining its costs by virtue of the provisions of the RLA. It argues that in the circumstances where Woolworths have been brought into a proceeding for the limited purpose only of providing documents as a non-party and otherwise having no interest in the outcome at all, it is a proper circumstance where the Tribunal should exercise its discretion in favour of Woolworths and make an order for costs in its favour.
2. In my view, the issue is not whether the Tribunal should exercise its discretion but rather, whether it has power to order costs, having regard to s.92 of the RLA. That raises the question whether the Intervenors can be said to be a party to a proceeding before the Tribunal under Part 10 of the RLA. In other words, do the words each party to a proceeding before the Tribunal under this Part mean the proceeding limited to the resolution of the retail tenancy dispute or is the reference to the word proceeding, a reference to the initiating application and all interlocutory matters brought within it, even if they do not directly relate to resolution of the retail tenancy dispute? The answer to this question depends on my interpretation of the word proceeding, as found in s.92 of the RLA.
3. Section 90 of the RLA defines the parties to a proceeding as:

The parties to a proceeding before the Tribunal on an application under section 89 (1) are -

(c) any person the Tribunal considers it appropriate to join as a party to the proceeding.

1. Section 89(1) of the RLA identifies a proceeding before the Tribunal on an application under section 89 (1) as:

(1) The Tribunal has jurisdiction to hear and determine an application by a landlord or tenant under a retail premises lease, or by the specialist retail valuer, seeking resolution of a retail tenancy dispute.

1. It is arguable that the parties for the purpose of s 90 of the RLA are only the parties to the proceeding limited to the resolution of the retail tenancy dispute (and any other person joined as a party to the resolution of that retail tenancy dispute). If that were the case, it could be argued that the Intervenors are not to be identified as a party seeking resolution of the retail tenancy dispute and therefore not a party to the proceeding for the purpose of s 90 of the RLA. Indeed, Woolworths categorises itself and Coles as entities that have no interest in the resolution of the retail tenancy dispute. Their only interest in the proceeding is to resist the production of documents sought from them.
2. However, such an interpretation of the RLA would require me to construe the word proceeding differently as it appears in s.92 of the RLA to its meaning in s.109 of the VCAT Act. In other words, I would need to determine that the Intervenors are 'parties to the proceeding' for the purpose of awarding costs under s.109 of the VCAT Act but are not 'parties to the proceeding' for the purpose of s.92 of the RLA. That would mean that the reference to proceeding in s.92 of the RLA is limited to the proceeding as it concerns the resolution of the retail tenancy dispute but not the proceeding as a whole.
3. I do not accept that s.92 of the RLA is to be interpreted in that manner. Section 92 of the RLA is an adjunct to s.109 of the VCAT Act. Its purpose is to limit the operation of s.109 in proceedings brought under s.89 (1) of the RLA. In the present case, the proceeding before the Tribunal is a proceeding brought under s.89 (1) of the RLA. The RLA is the enabling legislation that gives power to the Tribunal to determine the issues that comprise that proceeding. The Application for Production of Documents, although covering issues which are peripheral to the resolution of the retail tenancy dispute the subject of that proceeding, is still an application brought within the proceeding. It is not a separate and independent proceeding.
4. Indeed, the Tribunal would not have jurisdiction to hear and consider the Application for Production of Documents without there being some form of originating application on foot. Section 81 of the VCAT Act does not empower the Tribunal to order production of documents that are not relevant to an existing proceeding. Hence, the provision does not exist independently of an existing proceeding.
5. Therefore, it follows that the reference to each party to a proceeding before the Tribunal under this Part in s.92 of the RLA must mean the entire proceeding including any interlocutory applications brought within the auspices of that proceeding. There is no basis to give the word proceeding two different meanings - one being the resolution of the retail tenancy dispute and the other being the determination of the interlocutory dispute.
6. Regrettably, I am left with no option but to refuse the Intervenor's application for costs, notwithstanding the injustice of that outcome; there being no power for me to make an order for costs in favour of the Intervenors. In that regard, I adopt the words of Judge Bowman in Bradto that:

The power to order costs is not a matter of practice or procedure. It is a matter of jurisdiction or substantive law.[7]

1. Consequently, I dismiss the Intervenor's application for costs.

1. It follows from my reasons set out above, that I also have no power to order costs in favour of the applicant in respect of this costs application, notwithstanding the existence of s.110 of the VCAT Act. Section 110 of the VCAT Act, like s.109, is found in Division 8 of Part 4 of the VCAT Act and is therefore subject to the operation of s.92 of the RLA.
2. Therefore, I also dismiss the applicant's application for costs.

[1] [2006] VCAT 597

[2] [2006] VCAT 177

[3] [2006] VCAT 685

[4] [1908] HCA 63; (1908) 7 CLR 277 at 304. See also Bropho v State of Western Australia [1990] HCA 24; (1990) 93 ALR 207 at 215; Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317 at 329

[5] [1997] HCA 31; (1997) 189 CLR 579

[6] [1997] FCA 90; (1997) 148 ALR 21

[7] [2006] VCAT 685 at paragraph [18].