[2006] VCAT 10

Pursuant to s109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders:

That the Respondents in these matters must pay the Complainants' costs, fixed at $3334.58.

1 I am now in a position to deliver my decision and it is that the Respondents are to pay the Complainants' costs, which I fix at $3334.58. Those costs are to be paid forthwith. I now give my reasons.

2 On 27 October 2005, I made orders against the Respondents in relation to two complaints by Mr Khalil and two complainants by his wife, Dr Khalil. I found the complaints proven and ordered the Respondents to apologise for their conduct to the Complainants by publishing in the Herald Sun newspaper an apology in form agreed by the parties, or failing agreement, approved by the Tribunal. I also ordered various amounts by way of compensation.

3 The Complainants now apply for costs. I have written submissions in support of that Application from their counsel. I gave the Respondents an opportunity to file and serve submissions in reply. None have been filed and served.

4 The effect of s109(1), (2) and (3) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") is this. Parties must bear their own costs unless the Tribunal, having regard to a number of listed factors, considers it fair to order otherwise. The factors are listed in s109(3). Relevantly to this case, they include whether a party has conducted the proceeding in a way which unnecessarily disadvantaged another party, by conduct such as failing to comply with a direction or order of the Tribunal without reasonable excuse, failing to comply with the Victorian Civil and Administrative Tribunal Rules 1998 ("the VCAT Rules"), causing an adjournment, prolonging unreasonably the time taken to complete the proceeding and any other factor which the Tribunal considers relevant.

5 It is argued for the Complainants that the Respondents have done all of these things and that therefore it is fair to order them to pay the Complainants' costs. I agree.

6 Briefly, this is the history of the proceedings. The complaints were referred to this Tribunal in April 2004. A directions hearing was held on 17 May 2004. The Complainants and the Respondent, Sturgess, were present. Mr Wallace, the other Respondent, was not. Addresses for service of documents were given in respect of all parties. Mediation occurred shortly after this, attended by all parties. It was unsuccessful.

7 The Complainants' then solicitor required another directions hearing to be held after this, because the Respondents, without informing the Tribunal or the Complainants' solicitor, had moved from the address given as their address for service and could not be located. The matters were then adjourned twice to administrative mentions, to allow the Complainants' solicitor to attempt to locate the Respondents. Eventually the matters were listed for a directions hearing on 7 March 2005.

8 All parties attended this directions hearing. The Tribunal set a new timetable for particulars of complaint and defence and witness statements and listed the matter for hearing on 2 August 2005. The Complainants have filed all documents required by the timetable. The Respondents filed none.

9 The hearing occurred on 2 August 2005. The Complainants attended, but not the Respondents.

10 On about 8 August 2005, after the hearing had concluded, but before the decision was handed down, the Respondents sent certain documents to the Tribunal. As I said in my decision on the complaints, it appears from the file that the serious nature of these documents led the Tribunal member who had heard the matter to vacate that hearing and list the matter for re-hearing. As I said in my decision, it transpired at the second hearing that the documents sent were documents primarily relating the Respondents' defence to an application by the Complainants to the Magistrates' Court for intervention orders against the Respondents. That application was made in about November 2003 and was granted.

11 A directions hearing occurred on 2 September 2005. Before this, a senior registrar of the Tribunal wrote to all the parties by letter dated 15 August 2005, advising them that they must attend the directions hearing either in person or by their representatives. It appears that one of the Respondents attended the directions hearing on 2 September 2005 but it is not clear which one. The Complainants attended by their representative.

12 Again, the Tribunal set a timetable for particulars of defence and Respondents' witness statements and listed the matter for re-hearing on 26 October 2005. The Respondents filed no particulars or witness statements and did not attend the hearing.

13 The Tribunal directions of 2 September 2005 made it clear that the Tribunal may determine the matter in the Respondents' absence and may order them to pay compensation or costs. The directions reserved the Complainants' costs of the aborted hearing on 2 August 2005.

14 The files show some difficulties in located a correct address for service for the Respondents. Some addresses appear to have been given to the Tribunal's registry by telephone but were not confirmed in writing.

Should the Respondents pay the Complainants' costs?

15 In my view it is fair that they should. They have not filed or served particulars of defence or advised the Tribunal of changes to addresses for service, as the VCAT Rules require. They have failed to comply with Tribunal directions without any explanation. Their conduct resulted in an aborted first hearing and thereafter they continued to disobey the Tribunal's directions. Their conduct has unnecessarily disadvantaged the Complainants and has prolonged unreasonably the time taken to complete this case.

16 The Complainants seek $3334.58 by way of costs. Their submission includes documentation to support this claim. In my view, this amount is appropriate and reasonable. I fix the costs accordingly.