1. Section 109(1) of the VCAT Act provides the default position is that each party is to bear their own costs in a proceeding at the Tribunal.
2. Section 109(2) provides the Tribunal may order that a party pay all or a specified part of the costs of another party subject to section 109(3).
3. Section 109(3) provides:

(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); (iv) causing an adjournment;

(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.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

(7) A power of the Tribunal under this section is exercisable by any member.

1. When costs are awarded, section 111 of the VCAT provides that the Tribunal can fix the amount of costs itself or award costs be assessed.
2. As the enabling legislation, the Children Youth and Families Act 2005 (Vic) (CYF Act) is silent on costs in Tribunal proceedings, section 109 of the VCAT Act is applicable regarding costs orders in the proceeding.

1. The written and oral submissions from the applicant and second respondent, the SSR are summarised as follows:[1]
2. The applicant seeks costs against the SSR and rejected the submission the SSR merely acted as a contradictor in the proceeding.

1. The applicant submitted the framework of the VCAT Act and principle of access to justice supported the award of costs.
2. Section 109(1) is designed to promote access to justice. The Tribunal hears a wide range of matters and some matters are complex and require legal representation and in others, such as the small claims and residential tenancies lists, no legal representation is required. In this proceeding the applicant required legal representation and proper access to justice spans this range of proceedings, making it more likely to warrant an award of costs.
3. The SSR submitted the prima facie position is that each party bear their own costs and proceedings in the Review and Regulation list are historically dealt with without a costs order. The SSR submitted there was nothing in this case which justified a departure from this position, and consistency with like cases is an element of fairness to the SSR.
4. The SSR submitted the applicant brought the proceeding to review the Suitability Panel's decision, the SSR had no onus of proof to prove the allegations and led evidence and made submissions to assist the Tribunal make it's decision in accordance with sections 105 and 106 of the CYF Act.
5. The statutory framework of the CYF Act concerns the protection of vulnerable children in care which weighs against an award of costs as the SSR was assisting the Tribunal to perform its statutory task.

Section 109(3)(d) - Nature and complexity of the proceeding

1. The applicant submitted the nature of the proceedings were very particular with unusual characteristics whereby the applicant was accused of the repeated rape of a foster child in his care. The subject matter was extremely serious and had a long history of investigation.
2. The Victoria Police investigation concluded in 2019 following a decision not to authorise the criminal brief. The applicant was then required to clear his name through a civil process, namely the Berry Street investigation by Sari Kimpton (Kimpton investigation), the Sure fact investigation by Mary Mansell (Mansell investigation) and the Suitability Panel hearing in 2022. The applicant submitted he has been required to defend himself against 'life-defining' allegations that could not be more serious and had no alternative but to review the Suitability Panel decision at the Tribunal.
3. The applicant submitted the proceedings were complex, evidenced by a two-week hearing, 20 witnesses, a Tribunal book and supplementary Tribunal book of over 1,200 pages, and that this favours an award of costs in his favour.
4. Prior to the Tribunal hearing the applicant represented himself. The applicant then had economical legal representation at the Tribunal, paid for an expert risk report and paid for special counsel to cross examine the complainant to minimise trauma for her.[2] There was a power differential and unequal resources between the applicant and the SSR.
5. The SSR submitted the nature and complexity of the proceedings tended against a costs order. In its written submissions the SSR conceded the complexity of the proceeding, in that it was a complex merits review in the heightened context of a case concerning serious sexual abuse allegations made by a child complainant.[3] That said, it submitted the case turned on an assessment of witness' evidence in a 'he said, she said' case. The nature of the allegations and the issues raised required were tested by the evidence for the Tribunal to assess on the merits.
6. The SSR submitted it assisted the Tribunal by pressing the issues, providing factual analysis and testing the evidence. The nature of the proceeding was not so rare that it warranted a departure from the default situation. It was a case where the conflict in the evidence was a question for the Tribunal and the Tribunal had to consider the evidence and submissions to form its view about the credibility of witnesses.

1. Whilst acknowledging the SSR's statutory role required investigation of the allegations, the applicant submitted the way the proceedings have been conducted since 2019 prolonged the process.
2. The applicant has consistently maintained his position that the allegations were without basis during all investigations and processes, given consistent evidence and fully co-operated with all investigations. He has given evidence and or been cross examined now in five forums, namely during the Victoria Police investigation, the Kimpton investigation, the Mansell investigation, the Suitability Panel hearing and the Tribunal hearing (where he was cross examined for over a day).
3. There was no explanation for the SSR's late filing of further materials, at 12:57pm on Friday 18 October 2024, the Friday before the commencement of the hearing at 10:00am on Monday 21 October 2024. In response to this new material, on Saturday 19 October 2024 the applicant made a without prejudice offer to resolve the proceedings. The SSR declined this offer at 9:30am on Monday 21 October 2024.
4. The applicant submits the offer was a realistic attempt to settle the proceedings, which would be acceptable to the SSR in light of its public interest statutory role. The applicant offered to discontinue proceedings and he and his wife enter a legally enforceable undertaking not to apply to be foster parents if required to ensure the SSR discharged its statutory function to protect children. Each party was to bear their own costs.
5. The applicant also referred to a second without prejudice offer, made on 27 June 2025, which was also rejected.
6. The applicant relied on section 109(3)(e) that the earlier investigations preceding the Tribunal hearing could be relied on as relevant context and the offers to settle could also be considered as relevant matters under section 109(3)(e).
7. With respect to not accepting the applicant's offer to settle, the SSR submitted it was not the regulator's role to make the decision as to whether the applicant constituted a risk; the public interest was met by the Tribunal's merits review.
8. Further, the SSR submitted that while the non-acceptance of the offer made on 21 October 2024 can be considered as a relevant factor under section 109(e), it was not unreasonable for the SSR to reject it taking into account Calderbank principles (noting the principles set out in Calderbank are of limited assistance in the Tribunal's review jurisdiction). The SSR submitted the Tribunal should give weight to the public interest aspect of the regulator's role and the statutory function of the regulator to participate in the review process and to assist the Tribunal in its determination of the substantial matters in dispute.
9. In support of its statutory function, the SSR referred to Donahue v Building Practitioners Board[4] which stated: '...the Board has a statutory function to participate in the review process and assist in its determination of the substantial matters in dispute.'[5]
10. The SSR submitted it did not prolong the matter.
11. The SSR submitted it assisted the Tribunal by leading evidence and making submissions and made concessions when appropriate. It had no onus of proof in respect to the matters the Tribunal was required to be satisfied of under section 105 of the CYF Act.
12. Finally, the SSR submitted the offer made on 21 October 2024 was not capable of acceptance. The SSR submitted the offer contained no real compromise because the remedy sought (an order that the Suitability Panel's decision contained an error of law) was not available in a merits review proceeding.
13. In Xu v Minister for Immigration and Citizenship (No 2)[6] the Federal Circuit and Family Court considered and applied French J's reasons in Kovalev v Minister for Immigration and Multicultural Affairs.[7] The court considered that where a proposed settlement seeks consent orders relating to a matter of public law involving the setting aside of a decision, it was inappropriate for the court to accede to them simply because they were sought by consent. The Tribunal could not by consent of the parties decide the Panel's decision was in error as this is not available in a merits review.
14. The SSR submitted a further factor in accordance with section 109(3)(e) is that its position was consistent with, and in pursuit of, the protective nature of the proceedings and relevant legislation.[8] To award costs to the applicant would be contrary to the public interest and may hinder the SSR from maintaining legitimate action in pursuit of its statutory objectives for fear of adverse costs orders. The SSR submitted an order for costs would undermine the statutory objectives of its role in accordance with the CYF Act.
15. The SSR must take allegations of harm against children in out of home care seriously and was justified in maintaining a position that such allegations and evidence should be properly tested and determined by the Tribunal. A costs order would not be fair to the SSR because it would be inconsistent with the protective framework for children in care.[9]
16. It submitted the main purposes and principles of the CYF Act are to protect children and those principles include that the best interests of the child must always be paramount in accordance with section 10(1) of the CYF Act. The need to protect the child from harm, to protect their rights, and to promote their development, must always be considered in accordance with section 10(2).

Section 109(3)(c) - Relative strengths of claims

1. The applicant submits that the relative strengths of the claims favour an award of costs.
2. The respondents case relied principally on the evidence of LNX. Her account was not accepted by the Tribunal. From 22 February 2019 police noted significant issues with LNX's evidence.
3. The applicant submitted particulars had been selectively picked from LNX's evidence, with the most serious allegations disregarded without explanation.
4. LNX's allegations were vague and not particularised by time or detail and were evolving in nature.
5. There was no sexual abuse disclosure in LNX's earliest reports resulting in her being removed improperly from the applicant's care. The leading questions from her family and support workers entrenched her narrative, as did the positive feedback. Not only were some witnesses inaccurate, confused and unreliable, they 'were clearly motivated by feelings against the applicant.'[10]
6. The applicant submitted that there was significant doubt about LNX's allegations from the outset, and that doubt was enhanced by the late disclosure material which further weakened the SSR's position.
7. The applicant and his wife's evidence were found to be credible and consistent.
8. The SSR submitted the photo evidence which arose before the Suitability Panel was subject to a consideration by the Tribunal regarding its use and as such the prospects of success were not clear to either party.

1. The general rule is that each party bears their own costs.
2. The Tribunal may make any order that a party pay the costs of another party if satisfied it is 'fair to do so.'
3. Vero Insurance Ltd v The Gombac Group Pty Ltd[11] (Vero Insurance) set out the approach the Tribunal should take on the question of costs on a step by step' basis as follows:

(i) The prima facie rule is that each party should bear their own costs of the proceeding.

(ii) The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.

(iii) In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s 109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.[12]

1. The power to award costs is discretionary and the power has been described as very broad.
2. One of the SSR's grounds of objection to a costs order was that '...the prima facie rule is that each party bear their own costs ... Matters in the Review and Regulation List are historically dealt with without a costs order.'[13]
3. In Vero Insurance, Gillard J stated:

The question of whether a costs order should be made under section 109 of the VCAT Act in my opinion does not depend upon the characterisation of the proceeding being an administrative review or an original jurisdiction proceeding. The nature of the proceeding is relevant and that will depend upon the nature of the particular proceeding. In my view, nothing is gained by seeking to divide it between an administrative review and an original jurisdiction proceeding.[14]

1. In review proceedings the question of costs would ordinarily be dealt with under section 109 unless the provision is modified or excluded by the enabling enactment. In this case the CYF Act is silent on costs.
2. The terms of section 109 and Vero Insurance confirm there is no impediment to costs being ordered in a review proceeding. Whilst there may be less orders for costs made in review proceedings, I do not accept the submission by the SSR that historically costs orders are not made in the Review and Regulation List.[15] Whether it is fair to make an order for costs under section 109(2) must be determined on a case-by-case basis.
3. The general rule that each party bear its own costs is designed to promote access to justice. The purpose of costs has been described by the Tribunal to compensate a party for expense incurred in conducting the proceeding where, under section 109, the Tribunal decides it is fair to make such an order.[16] The costs discretion must be exercised in the interests of fairness, as the section dictates, and in the circumstances of each individual case. In Mornington Peninsula SC v Mattieson[17] the Tribunal noted the purpose of the award of costs is to compensate a person who has incurred costs 'in circumstances where it would be unfair to require them to be liable for those costs.'[18] Each case is different and must be considered on its own merits.
4. The SSR submitted as costs are not historically awarded in the Review and Regulation List it was fair in terms of certainty and predictability that costs not be awarded. Whilst I have indicated I am not satisfied the premise of the submission is correct, in any event, consistency is difficult to achieve when the test is fairness, as this will vary significantly on the facts of each case.
5. The SSR sought to distinguish its role from the role of the Secretary of the DFFH. As noted in the Tribunal's decision, on 1 July 2024, the SSR commenced as the new independent statutory body responsible for regulating social services in Victoria under the Social Services Regulation Act 2021 (Vic). As part of its functions, the SSR is to regulate workers and carers in foster care, out of home care and secure welfare services and maintain a list of excluded workers and carers. Prior to this amendment, the regulatory framework for foster carers and out of home carers was administered by the Secretary of the DFFH under Part 3.4 of the CYF Act. This section was repealed by the Social Services Regulation Act 2021 (Vic), however, per the Act's transitional provisions the Secretary's powers and responsibilities under Part 3.4 were transferred to the SSR for the purposes of completing pending investigations and facilitating continued operation of the Suitability Panel during the transition period, being a period of 3 years beginning the day of commencement. Given this, I am not of the view the SSR can distinguish its role from the Secretary of the DFFH.
6. When considering each of the specified matters in section 109(3) of the VCAT Act Gillard J stated:

When dealt with in isolation, each of the matters may lead to the conclusion that it is not fair to make an order for costs, but when taken together, the Tribunal may be satisfied it is fair to do so. It is the totality of all relevant matters under section 109(3) that must be considered in the context of the prima facie rule.[19]

1. The requirement is fairness, not whether one of the particular grounds in section 109(3) has been made out.

Section 109(3)(d) - The nature and complexity of proceedings

1. In Vero Insurance Gillard J stated the particular characteristics of the particular proceeding must be considered.
2. When considering the nature of the proceedings, VCAT may have regard to how that type of proceeding has been dealt with historically and whether costs have been awarded. Two other published cases concerning reviews of decisions of the Suitability Panel do not appear to have involved applications for costs.[20]
3. When considering the nature of the proceeding, the Tribunal may also consider the nature and objectives of the enabling legislation under which the proceeding is brought. In Sharp v The Canonical Administrators of St Monica's College the proceeding was brought under the Equal Opportunity Act. Deputy President Mackenzie stated, it is '...an Act with social rather than commercial objectives, that is concerned, among other things, with the elimination of discrimination and the provision of redress to its victims. I must consider whether any cost order might undermine that objective.'[21] In that case the Deputy President considered it fair to make the costs order against the complainant despite the remedial nature of the enabling legislation.
4. The SSR has submitted an adverse costs order would be contrary to the aims of the enabling legislation, the CYF Act, which provides a statutory regime for the safety and protection of children in foster care through the registration of foster carers and provisions that reports are made to the Secretary, for investigation, upon receiving or becoming aware of any allegation of physical or sexual abuse of a child placed under care.[22]
5. The statutory process is administered by a Secretary of a Government Department. The CYF Act mandates the consideration of the guiding principles in the decision making that the bests interests of children must always be paramount.[23] It is difficult to see how an adverse costs order would operate to override or undermine the mandatory nature of the protective statutory framework for vulnerable children in care, as submitted by the SSR. Further, as each costs application is considered on the particular facts of each case, those particular facts are unlikely to form a precedent which would have the potential chilling effect foreshadowed.
6. The nature of this proceeding was a review of the decision of the Suitability Panel. The review of a decision is not unusual, however the nature of the allegations and findings made against the applicant by the Suitability Panel were of a most serious nature.
7. I turn to consider the complexity of the hearing which is one of the matters to be considered in exercising the discretion whether to award costs. The complexity of this proceeding had several aspects.
8. Firstly, it was not in dispute the complainant had a significant degree of vulnerability as a result of her intellectual disability. The applicant had not previously been able to test the complainant's evidence, and made an application to cross examine the complainant at the Tribunal proceeding which was opposed by the second respondent. The application was granted by the Tribunal and special arrangements were made for her cross examination.[24]
9. The applicant arranged and paid for a different counsel (a female barrister with specialisation in cross examination of vulnerable witnesses) to do so in order to minimise trauma for the complainant.
10. Secondly the nature of the evidence as presented was complex. The SSR presented as the 'evidence in chief' for almost all of its witnesses' transcripts of their previous evidence to the Suitability Panel and/or Ms Mansell, and for some witnesses, multiple transcripts were tendered as their evidence in chief.[25] This included the complainant, whose evidence was recorded on four occasions namely in summary form by Victoria Police and Ms Kimpton, and in transcripts before Ms Mansell and the Suitability Panel.
11. The late service of the complainant's medical and school records also added to the complexity of the proceeding, as these were served on the Friday prior to the Monday hearing date. The reason for the late service, when the documents should have been provided as part of the section 49 materials filed 21 months earlier, was not explained either at the review hearing or costs hearing.

Section 109(3)(e) - Other factors relevant to the award of costs

1. The applicant submitted the number of investigations had prolonged the proceedings, and conceded as these had occurred prior to the commencement of the Tribunal proceedings, section 109(3)(e) was the relevant section, as another 'relevant matter'.
2. Section 109(3)(e) provides when considering costs the Tribunal may consider 'any other matter the Tribunal considers relevant.'
3. The applicant relied on the evidence of Dr Tiffany Vague at the hearing that it was 'unusual' for the Secretary to direct a further investigation and full audit of the applicant's history, following the Police and Kimpton investigations. No other evidence was called on this point.
4. As the Secretary has the legislative authority to undertake formal investigations into allegations made against foster carers, in the absence of evidence that it was acting contrary to those powers I am not of the view it can be said it was inappropriate to order the Mansell investigation and that it unnecessarily prolonged proceedings. Certainly, there is no allegation by the applicant the Tribunal proceeding was unnecessarily prolonged.
5. The applicant further submitted the proceeding was unreasonably prolonged by the SSR not accepting its offer of settlement made on 19 October 2024 and relied on section 109(3)(b).
6. Section 109(3)(b) provides 'whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.' The applicant also submitted the relative strengths of the claims by each of the parties in accordance with section 109(3)(c) supported its application for costs.
7. I am not of the view that the SSR's declining to accept an offer to settle proceedings can be relied on as unreasonably prolonging the proceeding. The acceptance or rejection of an offer to settle is a forensic decision by a party in the conduct of the proceeding.
8. The issues raised by the applicant in the offer regarding the strength of the complainant's evidence were tempered by the photo evidence which arose from the Suitability Panel hearing. This added a new complexity to the weight of the evidence.
9. Further, the applicant's offer to settle was problematic as its terms sought the parties consent to orders that the Tribunal did not have the power to make, namely that the Suitability Panel's decision was subject to an error of law.

1. I take into account the broad discretion in section 109(2).
2. In my view it is fair to make an award of costs in favour of the applicant given the nature and complexity of the proceedings, as well as the history and outcome of the proceeding.
3. The applicant has been subject to police and the Kimpton investigations which exonerated him to the extent the evidence was found to be of insufficient weight. He was found to have committed sexual abuse against LNX by the Mansell investigation and the Suitability Panel. The Tribunal decision on the merits review found the correct or preferable decision was to set aside the Suitability Panel's finding. The history of this proceeding is unusual given the number of investigations.
4. The applicant's conduct and evidence has been consistent through the previous investigations (which I find to be relevant context under section 109(3)(e)) and he has kept his legal costs to a minimum by only having legal representation at the Tribunal proceeding.
5. He has been sensitive to the vulnerability of the complainant and made special arrangements of his own volition and at his own cost with respect to LNX's cross examination.
6. The allegations against the applicant were of the utmost seriousness.
7. Although the review hearing was a factual context of word against word, the complexity of the proceeding was a labyrinthine examination of multiple witnesses' prior transcripts of evidence spanning for some, including the complainant, the four previous investigations and hearings.
8. There were other relevant matters under section 109(3)(e). The vulnerability of the complainant did not just extend to the conduct of the Tribunal hearing, but required an examination of the questions asked and evidence she had given to previous investigations.
9. The history of the investigations, other than the police investigation, did not ensure compliance with best practice regarding the questioning of the vulnerable child witness, leading to significant issues with the way in which evidence had been elicited from LNX.
10. The late provision of 87 pages of vital evidence from LNX's school records, revealing her prior history of allegations, was also unexplained. This material was provided the day prior to the hearing despite the section 49 material being provided 21 months prior, and multiple directions hearings being held prior to the ten day hearing. I regard this as relevant to the nature and complexity of the proceeding rather than conduct under section 109(3)(a) namely conduct unnecessarily disadvantaging another party.
11. Overall, it is not just the nature and complexity of the proceeding but the whole of the history of the allegations, including all the investigations and the applicant's response and conduct that leads me to be satisfied in accordance with section 109(3) that to award costs is fair to do so having regard to the factors in section 109(3)(a)-(e). In accordance with section 109(2) I make an order that the second respondent pay the applicant's costs.
12. The applicant filed an affidavit dated 14 July 2025 with his submissions regarding the costs incurred and paid by him, which was not in dispute. The application seeks costs be fixed in the sum of $90,000, or costs on the County Court scale, on the standard scale up to 21 October 2024 and on an indemnity basis after that date. Given my findings above regarding the offer the settle, I will fix the amount of costs.
13. In accordance with section 111(a) of the VCAT Act I order costs for the applicant, fixed in the amount of $90,000 against the second respondent, the SSR.

[1] For the costs hearing the Suitability Panel filed written submissions dated 25 July 2025 and was represented by Mr Bayly of Counsel. From the written and oral submissions, it was clear there was no real application by the applicant for costs against the Suitability Panel, therefore it did not make further submissions at the hearing. The Suitability Panel opposed a costs order against it and took no position regarding the application for costs against the SSR.

[2] Ms Diana Price was briefed for the cross-examination of LNX for her specialisation in dealing with vulnerable witnesses.

[3] Regulator's submissions opposing a costs order dated 25 July 2025 (SSR Submissions), [13].

[4] [2016] VCAT 1593 (Donahue).

[6] [2025] FedCFamC2G 1049 (Xu).

[7] [1999] FCA 557; (1999) 100 FCR 323.

[8] See, Sharp v Canonical Administrators of St Monica's College Ltd [2003] VCAT 42 (Sharp v Canonical Administrators of St Monica's College).

[10] Applicant's submissions on costs dated 11 July 2025, [17].

[11] [2007] VSC 117 (Vero Insurance).

[12] Vero Insurance, [20] (emphasis in original).

[15] See generally, Emrys Nekvapil SC, Pizer's Annotated VCAT Act (7th ed, 2022, Thomson Reuters) 712 -715.

[16] Al-Hakim v Monash University [2000] VCAT 818, 10.

[17] [2011] VCAT 1169 (Mornington Peninsula v Mattieson).

[18] Mornington Peninsula v Mattieson, [6].

[20] MES v The Suitability Panel (Review and Regulation) [2022] VCAT 274; MEV v The Suitability Panel (Review and Regulation) [2019] VCAT 770.

[21] Sharp v The Canonical Administrators of St Monica's College, [24].

[24] See, KZH v Suitability Panel (Review and Regulation) [2025] VCAT 551, [153].

[25] Some witnesses also tendered further evidence in chief, such as LNX's Aunt who relied on her statement to Victoria Police dated 11 March 2019 in addition to her evidence before the Suitability Panel and Ms Mansell.