There was no appearance by or on behalf of the applicant. The Tribunal was not satisfied that notice of the hearing of the costs application was served upon the applicant.

1. The issue in this costs application is whether the Tribunal can make an order for costs in circumstances where the Tribunal has found that it does not have jurisdiction to hear and determine the substantive application made to VCAT.

1. Mrs. Halantas entered into a costs agreement with Mr. Velos, a lawyer. More than a year later, she lodged an application to VCAT in which she sought an order cancelling the agreement. On 12 April 2007 I found that VCAT did not have jurisdiction to hear and determine her application.
2. Mr. Velos now seeks an order that Mrs. Halantas pay his costs of the application.
3. Galbally & O'Bryan acted for Mrs. Halantas in relation to the application until 30 March 2007, when it filed a notice informing VCAT that it had ceased to act for Mrs. Halantas. Despite the filing of the notice, on 8 May 2007 VCAT purported to give notice of this hearing to Mrs. Halantas by sending a notice of hearing to Mrs. Halantas at the address of Galbally & O'Bryan.
4. On 11 May 2007 Galbally & O'Bryan returned the notice of hearing to VCAT under cover of a letter which pointed out that it had given notice to VCAT that it had ceased to act for Mrs. Halantas. The covering letter concluded with the sentence "Please forward direct to the Applicant". Despite the request, the notice of hearing returned by Galbally & O'Bryan was simply placed upon the VCAT file and not sent to Mrs. Halantas.
5. It is apparent from the VCAT file that Mrs. Halantas was not given notice of the hearing of the costs application. I informed Mr. Hamlyn-Harris of counsel, who appeared for Mr. Velos, that I was concerned as to the power of VCAT to hear the costs application in the light of my finding that the Tribunal did not have jurisdiction to hear and determine the application for cancellation of the costs agreement. After some discussion with Mr. Hamlyn-Harris, I decided to hear his submissions concerning the costs application in the absence of Mrs. Halantas, on the basis that proper notice would need to be given to Mrs. Halantas if I was disposed to find that the Tribunal did have power to hear the costs application.

Does the Tribunal have power to make the order sought by Mr. Velos?

1. In the absence of a constitutional restriction or statutory provision to the contrary, every court and tribunal has power to decide whether it has jurisdiction to hear and determine a proceeding brought before it: Re Boulton; Ex parte CFMEU (1998) 73 ALJR 129 @ 133. If it were otherwise, any doubt on the part of the presiding judge or member concerning jurisdiction, or any submission by a party concerning jurisdiction, would need to be dealt with elsewhere before the proceeding could go ahead.
2. As I have mentioned, in the present proceeding I found that VCAT does not have jurisdiction to hear and determine the application to cancel a costs agreement. In the absence of a statutory provision giving the Tribunal power to make an order for costs incurred in making that finding, the absence of jurisdiction means that there is no power to make an order for costs.
3. A statutory provision of that kind does not need to recite in express terms that costs may be awarded despite the absence of jurisdiction. In In re Crittendon; Ex parte The Law Institute of Victoria [1958] VicRp 19; [1958] VR 101 the applicant conceded that there was no jurisdiction, and then contended that no costs order could be made against him for that reason. The Supreme Court Act 1928 gave the Supreme Court power to make orders as to "the costs of and incidental to all proceedings in the Court". The Full Court found that the application made by Mr. Crittendon was a "proceeding" and awarded costs against him.
4. Mrs. Halantas sought to make her application to cancel the costs agreement pursuant to s.103 of the Legal Practice Act 1996. The costs of such an application are dealt with by s.103(4), which commences by saying "The Tribunal may order the payment of the costs of and incidental to a hearing under this section..". A hearing "under this section" is the hearing of an application to cancel a costs agreement. It is not a hearing to ascertain whether the Tribunal has jurisdiction to hear and determine the application lodged by Mrs. Halantas. Consequently, I am unable to make the order sought by Mr. Velos under that sub-section.
5. In reliance upon In re Crittendon, Mr. Hamlyn-Harris then submitted that I should make an order for costs under s.109(2) of the Victorian Civil & Administrative Tribunal Act 1998 which authorises VCAT to make an "order that a party pay all or a specified part of the costs of another party in a proceeding".
6. I am not prepared to consider the making of an order under s.109(2) because of s.159 of the VCAT Act which provides that "If a provision of this Act ... is inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency". The Legal Practice Act 1996 is an enabling enactment. There are several provisions in that Act which authorise the making of orders concerning the costs of an application or hearing under the Act, including s.103(4) (application to cancel costs agreement), s.134 (hearing of dispute) and s.162 (hearing of disciplinary charge). Those provisions are not consistent with s.109(2) of the VCAT Act and therefore they prevail over s.109(2) of the VCAT Act. I am unable to find any provision in the Legal Practice Act 1996 that would authorise the making of the order sought by Mr. Velos.
7. I drew the attention of Mr. Hamlyn-Harris to the decision of VCAT in Nazligul & Hussein v AMP Investments Pty Ltd & Knox City Shopping Centre [1999] VCAT 1597. The reasoning applied in that case was that "having jurisdiction sufficient to consider the jurisdictional issues it must follow that I have power to award costs with respect to the matter", which led to an order for costs despite a finding that the Tribunal was without jurisdiction to hear and determine the substantive issue.
8. Mr. Hamlyn-Harris replied that he would not make a submission based upon the reasoning in the Nazligul case. If he had made a submission on that basis, it is most unlikely that it would have found favour with me. It is necessary in a practical sense for a court or tribunal to have power to determine whether it has jurisdiction, but it is not necessary in a practical sense for it to have power to make an order for costs associated with making the determination about jurisdiction.

1. I conclude that I do not have power to make an order concerning the costs associated with determining the jurisdictional issue, and I make a finding to that effect.
2. As the finding imposes no adverse consequence upon Mrs. Halantas, it is not necessary that she be given an opportunity to be heard.