1. On 23 January 2020 the OC's solicitors lodged with the Tribunal an application for costs against Mr George. The costs application seeks an order for costs of $5,171.10 against Mr George. The costs application was accompanied by a 3 page written submission on behalf of the OC.
2. On 3 February 2020 Mr George sent an email to the Tribunal with a 5 page document attached which was described by Mr George as "my response to respondent's claim".
3. Noting that Mr George is a self-represented litigant, and to ensure procedural fairness for both parties, on 6 March 2020 I made an order that allowed each party until 26 March 2020 to file and serve any additional material they may wish to, with the Tribunal to take it into account in determining the OC's costs application. Furthermore, unless by 31 March 2020 either party objected in writing, the Tribunal would proceed to determine the OC's costs application on the papers without any further hearing taking place.
4. No further submissions nor written objection to determining the costs application on the papers was received from either party.
5. Unfortunately, due to an administrative oversight, there was a considerable delay before the file was referred back to me for consideration of the OC's costs application.
6. In accordance with the orders made on 6 March 2020 I am now determining the application for costs on the papers based on the written submissions of each party.

1. The Tribunal's order made on 22 January 2020 granting Mr George permission to withdraw his claim was made pursuant to section 74 of the VCAT Act. The application for costs made by the OC is made pursuant to sections 74(2)(b) and 109 of the VCAT Act.
2. Section 74, insofar as it is relevant, reads as follows:

(1) If the Tribunal gives leave, an applicant may withdraw an application or referral before it is determined by the Tribunal.

(2) If an applicant withdraws an application or referral -

(b) the Tribunal may make an order that the applicant pay all, or any part of, the costs of the other parties to the proceeding;..."

1. The power to award costs pursuant to s 74 is a separate and distinct power to that contained in s 109 of the VCAT Act.[1]
2. Whilst there does not appear to be a clear line of authority as to whether the factors set out in s 109(3) of the VCAT Act are relevant in considering an application for costs under s 74, there are several reported decisions of this Tribunal where the presiding member has proceeded on that basis.[2]
3. I also note the learned author in Pizer's "Annotated VCAT Act" expresses the opinion that the power to award costs in s 74(2)(b) is a separate power to that in s 109, and that it confers a broad and unfettered discretion on the Tribunal and would enable the Tribunal to consider the various factors contained in s 109(3)[3] in determining an application under s 74.
4. Under s 109(1) of the Act the presumption is that costs lie where they fall, that is, that each party to a proceeding pays their own costs. In Decleah Investments Pty Ltd v. Cardinia SC[4] Deputy President McNamara (as his Honour then was) said that the discretion to order costs under s 74(2)(b) should be exercised against the background of the applicable costs regime.
5. Accordingly, there can be no presumption that the OC is entitled to an order for costs under s 74(2)(b) or s 109 simply because Mr George withdrew the Proceeding. The OC must therefore satisfy the Tribunal that it would be fair to award costs in its favour after having regard to the factors set out in s 109(3) of the VCAT Act.
6. Section 109(3) reads as follows:

"(3) The Tribunal may make an order under subsection (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."

(i) that Mr George's claim was frivolous, vexatious, misconceived and lacking any substance;

(ii) it was not clear what the claim was at law, what, if any statutory basis there was for the claim nor what relief was sought by Mr George;

(iii) the claim by Mr George amounted to an abuse of process;

(iv) Mr George failed to comply with the Tribunal's orders made at the directions hearing on 2 October 2019 in that Mr George failed to file and serve Points of Claim;

(v) the OC made an application for summary dismissal pursuant to s 75 of the VCAT Act on 4 November 2019;

(vi) the document sent to the Tribunal by Mr George on 20 November 2019, to the extent it could be relied upon as Points of Claim was "unsatisfactory" and that the claim remained frivolous, vexatious, misconceived and lacking any substance;

(vii) Mr George sought leave of the Tribunal to withdraw his claim on 21 January 2020; and

(viii) prior to Mr George applying to withdraw his claim the OC's solicitors had written to him advising that unless he withdrew his claim the OC would claim costs against him.

(i) not only was Mr George's claim vexatious, but that he had commenced it vexatiously. This is a reference to s 109(3)(a) of the VCAT Act;

(ii) failure by Mr George to withdraw his claim earlier than he did resulted in him being responsible for prolonging unreasonably the time taken to complete the proceeding. This is a reference to s 109(3)(b) of the VCAT Act.

(iii) Mr George's claim had no tenable basis in law which is evidenced by his failure to file and serve Points of Claim as required by the Tribunal's orders made on 2 October 2019 and the subsequent withdrawal of the proceeding on 21 January 2020. This is a reference to s 109(3)(c) of the VCAT Act.

(iv) at the directions hearing on 2 October 2019 the Tribunal suggested to Mr George that he seek legal advice as the issues he sought to raise could be complex. This is a reference to s 109(3)(d) of the VCAT Act.

1. The OC claims costs of $5,171.10 plus the costs of making this costs application. The amount of costs claimed in relation to this costs application has not been quantified. No breakdown of the sum of $5,171.10 has been provided in support of the OC's claim for costs.

1. The commencement of the Proceeding by Mr George arose out of his concern for matters at the OC he believed raised safety issues, and also concerns surrounding the imposition by the OC of a "tow away" parking zone.
2. Mr George further submits that he decided to withdraw the Proceeding as he had vacated the lot he was living in[5] and as such the issues of concern to him which prompted the commencement of the Proceeding were no longer of concern to him.
3. He strenuously denies that the Proceeding was without legal basis, nor that it was frivolous or vexatious.

1. The OC submits that Mr George should be ordered to pay its costs as he failed to comply with the Tribunal's orders made at the directions hearing on 2 October 2019. Mr George was directed to file and serve his Points of Claim by 30 October 2019.
2. In his written submissions in response to the costs application, Mr George states that he intentionally failed to submit his Points of Claim as he sought to "trigger" an order from the Tribunal that the Proceeding be struck out. He further submits that the Tribunal did not strike the Proceeding out but scheduled a second hearing for 24 January 2020 and that he filed and served the documents assumed by the Tribunal to be his Points of Claim in response to that hearing.
3. This submission by Mr George reveals a fundamental misunderstanding by him of the Tribunal's orders made on 2 October 2019.
4. Order number 4 made on 2 October 2019 referred the Proceeding to an administrative mention on 15 January 2020. As stated in the order, if Mr George failed to advise the Tribunal by 15 January 2020 as to whether he wished to proceed with the Proceeding or not then the Tribunal would on 15 January 2020 strike the Proceeding out.
5. Order 4 did not have the effect of requiring the Tribunal to strike out the Proceeding as a result of the failure of Mr George to file and serve his Points of Claim by 30 October 2019.
6. The listing of the further hearing scheduled for 24 January 2020 was not related to his failure to file and serve his Points of Claim as ordered. The hearing scheduled for 24 January 2020 was as a result of the s 75 application made by the OC.
7. The question that I must now answer is whether this conduct by Mr George was a misunderstanding by a self-represented litigant as to the meaning and effect of the Tribunal's orders or a carefully thought out strategy by him that resulted in him conducting the Proceeding in a way that unnecessarily disadvantaged the OC.
8. If the OC had not made its s 75 application the Proceeding would have been struck out by the Tribunal on 15 January 2020 as a result of Mr George's failure to file and serve his Points of Claim. Mr George was not to know that the OC intended to make an application under s 75 of the VCAT Act.
9. The OC was not bound to make its s 75 application when it did.[6] At the time of the lodging of the s 75 application there was no further Points of Claim filed and served by Mr George. It may have transpired that the OC's s 75 application was premature and did not need to be made at the time it was made.
10. Whilst being satisfied that Mr George intentionally failed to comply with the Tribunal's orders made on 2 October 2019, I am not satisfied that in all of the circumstances that it would be fair to order Mr George to pay some or all of the OC's costs by reason of s 109(3)(a)(i) of the VCAT Act.

1. The OC also submitted that Mr George had conducted the Proceeding vexatiously and that he should be ordered to pay the OC's costs.
2. The Proceeding was commenced by Mr George in July 2019 and withdrawn by him in January 2020. He failed to file and serve Points of Claim in accordance with the Tribunal's orders made on 2 October 2019. Taking into account that Mr George was a self-represented litigant, the manner in which the Proceeding was conducted by Mr George would not in my opinion be sufficient to warrant a finding that the Proceeding had been conducted in a vexatious manner such as to enliven s 109(3)(a)(vi) of the Act.

1. The OC seeks to enliven s109(3)(b) of the VCAT Act by submitting that Mr George unreasonably prolonged the time taken to complete the Proceeding. It submits that Mr George should have withdrawn the Proceeding earlier than the date he did.

1. Whilst it was approximately two months between the date that the Tribunal notified the parties of the hearing scheduled for 24 January 2020 and the date Mr George withdrew the Proceeding, I am not satisfied in all of the circumstances that this was an extraordinarily long period of time[7] that would amount to Mr George unreasonably prolonging the Proceeding.

1. The OC submits that Mr George's claim had no tenable basis in law which is evidenced by his failure to file and serve Points of Claim as required by the Tribunal's orders made on 2 October 2019 and the subsequent withdrawal of the proceeding on 21 January 2020.
2. Section 109(3)(c) is intended to identify circumstances in which one party "has pressed a clearly implausible, manifestly weak or incredible case".[8] Reported decisions infer that there has to have been a hearing and an outcome on the merits before s 109(3)(c) is enlivened.[9]
3. 44 The phrase "no tenable basis in fact or law" in s109(3)(c) has been held to refer to cases where, inter alia, one party had an extremely weak or even an untenable case but persisted in putting it when it had no reasonable prospect of success[10].
4. In the circumstances of the Proceeding, it was withdrawn by Mr George prior to there having been any opportunity for the Tribunal to make any assessment as to its merits or whether it was untenable in fact or in law. Accordingly, I am of the opinion that s 109(3)(c) is not relevant.

1. At the directions hearing on 2 October 2019 the Tribunal suggested to Mr George that he seek legal advice as the issues he sought to raise could be complex. This the OC submits is sufficient to enliven s109(3)(d).
2. Again, as there has been no determination of the Proceeding on the merits, it is not possible for the me in the context of a costs application to determine whether the nature and complexity of the allegations by Mr George in the Proceeding would warrant an award of costs in favour of the OC. Whilst an assessment of the nature of the allegations may be able to be made based on the Claim Details completed by Mr George in the application form completed to commence the Proceeding, in the absence of a hearing having taken place it is difficult if not impossible to determine whether the allegations were also complex. I am not satisfied that s109(3)(d) has been enlivened by the OC.

1. The OC submitted that Mr George should be ordered to pay its costs as prior to Mr George applying to withdraw his claim the OC's solicitors had written to him advising that unless he withdrew his claim the OC would claim costs against him. Whilst not specifically referred to in its written submissions, this submission by the OC could be seen to be seeking to engage s 109(3)(e).
2. Section 109(3)(e) allows the Tribunal to consider any other matter it thinks relevant in deciding whether to order costs against a party or not. Section 109(3)(e) has been described as a "catch-all consideration" and that it has to be left to the Tribunal to consider on a case by case basis as to what might be considered relevant.[11]
3. Mr George submitted that he did not file and serve his Points of Claim as ordered "to let the case be struck out of court".[12] When this submission is considered in isolation, it would have been preferable for Mr George to have made his decision known to both the Tribunal and the OC and to have applied to withdraw the Proceeding as soon as he had reached this decision.
4. However, Mr George does not state in his written submission when he decided not to file and serve his Points of Claim and as such "to let the case be struck out". He may have reached this decision soon after the directions hearing on 2 October 2019, or soon after notification by the Tribunal of the hearing of the OC's s 75 application listed for 24 January 2020, or immediately prior to the date that he formally applied to withdraw the Proceeding. If it were the former, then it is conceivable that it would be fair to order Mr George to pay at least some of the OC's costs. If it were the latter, then I would not think it fair to order Mr George to pay any costs.
5. However, there is no basis upon which I can determine when Mr George determined "to let the case be struck out". In the absence of being able to determine when Mr George reached this decision, I cannot reach a decision that it would be fair in all of the circumstances to order Mr George to pay cost to the OC.
6. In my opinion it is again relevant to record that Mr George was a self -represented litigant in this proceeding. Self-represented litigants are generally entitled to some degree of latitude in the manner that a proceeding is conducted. However, the status of a self-represented litigant does not of itself automatically absolve a self-represented litigant of any potential liability for costs. It is a factor that the Tribunal should take in to account in considering s109(3)(e).

1. Having considered the submissions of both parties, the circumstances surrounding the conduct of the Proceeding and the various factors set out in s109(3) of the VCAT Act sought to be enlivened by the OC, I am not satisfied that it would be fair in all of the circumstances to order Mr George to pay some or all of the costs of the OC. There will accordingly be an order that the OC's application for costs is dismissed.

[1] Transport Accident Commission v. Coyle [2001] VSCA 236; [2001] 3 VR 589.

[2] See Wharington v. Vero Insurance No.3 [2006] VCAT 639 per Senior Member Lothian; Juresko v. Watts & Ors [2007] VCAT 2462 per Deputy President Steele (as she then was); La Rocca v. Daniele [2017] VCAT 117 per Deputy President Lulham.

[3] Pizer's Annotated VCAT Act, 6th Edition at paragraph 74.120.

[4] [2011] VCAT 1292 at [6] and [9].

[5] Mr George was not a lot owner in the OC but based on his written submissions received in response to the costs application, was renting the lot.

[6] This statement is not a criticism of the OC or its solicitors.

[7] The Christmas-New Year period fell within this two month period between notification of the hearing listed for 24 January 2020 and the withdrawal of the Proceeding.

[8] Hickey v. Port Phillip CC [2001] VCAT 231 at [15].

[9] See for example Dennis Family Corporation Pty Ltd v. Casey CC [2008] VCAT 691.

[10] Thirty Fourth Enterprise Pty Ltd v. Leggetts Tennis and Squash Centre Pty Ltd (No 2) [1999] VCAT 27.

[11] Martin v. Fasham Johnson Pty Ltd [2007] VSC 54 per Justice Bell.

[12] Written submissions of Mr George, paragraph 1(a).