Gray v State of Victoria (Department of Education and Training) (Human Rights) [2019] VCAT 1913 (4 December 2019)

1. At the hearing on 1 October 2019 this proceeding was heard together with file reference number A145/2005, the matter of Anja Turner obo Rebekah Turner v State of Victoria, Department of Education and Training (Anti-Discrimination) [2007] VCAT 873. This matter, a complaint of discrimination, was heard in 2006 by Deputy President McKenzie, who is no longer a serving member of the Tribunal. On 22 May 2007, Deputy President McKenzie found that the discrimination complaint was proven in part, and she otherwise dismissed the complaint. There was a further hearing as to quantum in 2007.
2. The file reference number A145/2005 has been destroyed and no copy of it exists.
3. On 28 August 2018 James Gray, who had been counsel for the applicant Ms Turner, sought orders certifying his fees in the proceeding. It was not possible in the circumstances for the Tribunal to make such an order. Mr Gray filed transcript of the proceeding, and on 14 June 2019 and 10 July 2019 I made orders simply recording that I had not been the presiding Member and the file was no longer in existence, however that it appeared on the basis of the material filed by Mr Gray that he had attended on the days he asserted he did, and that his assertion as to preparation appeared reasonable.
4. The respondent sought a rehearing under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). This was listed on 1 October 2019. At the hearing I set aside the orders dated 14 June 2019 and 10 July 2019. The respondent provided evidence at the hearing that a costs order had been made, by consent, on 11 November 2008. As the file had been destroyed, I had not been aware of this costs order, which obviously finalised any issue as to costs. Mr Gray had not filed a copy of this costs order. In any case, the orders I had made were not the orders Mr Gray was seeking. He was seeking orders certifying his fees.
5. At the hearing on 1 October 2019, Mr Gray set out his application. He sought orders certifying his fees in the proceeding file number A145/2005 at $197,300.00. With the consent of the parties I accepted this application, as application number H305/2019, with Mr Gray as the applicant and State of Victoria (Department of Education and Training) as the respondent.
6. Mr Gray had been counsel for Ms Turner. Ms Turner and her solicitors commenced a proceeding in the Costs Court to enforce the costs order made by Deputy President McKenzie. On 7 November 2012, the Costs Court ordered the respondent to pay the applicant's interim costs, though not including Mr Gray's fees, and otherwise adjourned the taxation to a date to be fixed. Mr Gray was joined to the taxation proceeding, on his application. As I understand it, Mr Gray did so because his instructing solicitors had not taken steps to recoup his fees in the Costs Court.
7. On 20 August 2018, Associate Justice Wood noted in orders that certain allowances were recoverable by Mr Gray, amounting to a "tentative total" of $37,948.68. This tentative total was not formalized in an order, at the request of Mr Gray, for reasons set out by Associate Justice Wood as follows: