1. Section 109 Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that 'each party is to bear their own costs in the proceeding'. This general rule is designed to promote access to justice generally and to minimise the overall level of costs in Tribunal proceedings as far as practicable[1].
2. Section 109 however does provide the Tribunal with power to award costs in certain circumstances, if it is satisfied that it is fair to do so, having regard to the matters set out in subsection (3). Mr Johnstone seeks to rely specifically on subsection (3)(a) (vi) 'vexatiously conducting the proceeding'; (3)(b) 'whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding'; and (3)(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'.
3. Subsection 3(a)(vi) relates to the manner in which the proceedings were conducted. A proceeding is conducted in a vexatious way 'if it is conducted in a way productive of serious and unjustified trouble or harassment, or conduct which is seriously and unfairly burdensome, prejudicial or damaging'[2]. I find there is nothing to substantiate the claim that the Council in any way vexatiously conducted the proceedings. They appeared at the listed days and partook in the mediation discussions.
4. Subsection (3)(b) relates to the time between the commencement and the completion of the proceeding and as to whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding. The issues raised resulted in discussions between, in particular the Council and the owner of the land Goulburn Murray Water, as to the best outcome in a situation where Goulburn Murray Water was unlikely to permit compliance with a condition on the permit regarding fencing. It is evident that there were a number of issues that needed clarification and resolution, hence the need for a further mediation on 20 June 2008. This was not as a result of the Council prolonging the proceedings.
5. The application brought by Mr Johnstone raised a number of issues that needed clarification and resolution and although there was no order given or amendment to the permit this does not substantiate a claim that the Council put forward such a weak defence that their case was untenable as referred to in subsection (3)(c). In circumstances where a matter is settled, as in this case, it is difficult to determine the relative strengths of the claims made by each of the parties, including Mr Johnstone's claims.
6. The awarding of costs is not a form of punishment but rather a reimbursement of expenses that a party may have been put to over and above the expenses expected to be incurred when one commences a proceeding in the Tribunal[3].
7. The power to award costs only relates to the proceedings before the Tribunal therefore any costs incurred before the proceedings are not considered part of the costs of a proceeding. Therefore any time spent by Mr Johnstone in discussions with the Council prior to his lodging of the enforcement application are not considered to be part of the proceeding. Nor in this instance is the time referred to by Mr Johnstone of travel and attendance at Mansfield Council for a mediation in May, as this was not part of the VCAT proceedings.
8. Mr Johnstone has also sought costs for obtaining advice from a Planning Consultant. Whilst this person may have attended the proceedings on some occasions with Mr Johnstone, there was no indication that he gave specific expert evidence during the proceedings. His engagement was therefore a matter for Mr Johnstone and did not arise out of the proceedings.
9. The expense and effort indicated by Mr Johnstone appears to be his time preparing for and attending the proceedings. Certainly his time was taken up in preparing for and attending the proceedings, when he could no doubt have been doing other things, but he instigated the proceedings and there is an expectation that when one commences proceedings a certain amount of time and preparation will be required. The other parties to the proceeding also spent time preparing and attending the proceedings and equally incurred costs on their own behalf.
10. The effort Mr Johnstone put into preparation was a matter for him and cannot be judged in monetary terms.
11. Costs are generally considered to be legal costs incurred by a party, although costs have been awarded to non-lawyer professional advocates[4]. It must be noted that Mr Johnstone has instigated the proceedings and appeared on his own behalf at the proceedings. He did not engage a lawyer or advocate to represent him at the proceedings. The Tribunal encourages persons to appear on their own behalf, hence the underlying principle that 'each party bears their own costs'.
12. It is well established that 'costs' do not include the time taken by an unrepresented person (who is not a lawyer) in preparing and conducting his or her case[5].

... the Tribunal has taken a consistent position that it would be inappropriate and [un]reasonable for the Tribunal to grant a costs claim where the costs being claimed relate to the private time of a private individual pursuing an appeal before the Tribunal. The obvious dilemma here is that it is very arbitrary as to what value should be put upon a private individual's time.

17 In addition, I consider it to be a fact of life that for the Tribunal to operate in a workable fashion, any person who is a party to an appeal before the Tribunal is expected to invest potentially a significant amount of time into running their case (despite this presumably often being inconvenient and/or annoying for each person involved). If the Tribunal started making costs orders to persons for their individual time, the obvious risk is that this would encourage speculative litigation in a manner that would be a bad planning and community outcome.[6]

1. I find there is no basis on which the Tribunal should award Mr Johnstone costs as claimed.

[1] Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]

[2] Wharington v Vero Insurance Ltd [2007] VCAT 124

[3] Al-Hakim v Monash University [2000] VCAT 818

[4] Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188; (2004) 22 VAR 212

[5] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188; (2004) 22 VAR 212; Greenhill Homes Pty Ltd v Allianz Australia Insurance Ltd [2006] VCAT 184; The Gombac Group Pty Ltd v Vero Insurance Ltd [2006] VCAT 238;

[6] Stewart v South Gippsland SC [2007] VCAT 108