4 Section 62 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") provides that in any proceeding a party may be represented by a person (including a professional advocate) permitted or specified by the tribunal. Section 62(8) of the Act provides:

(a) a person who is or has been a legal practitioner; or

(b) a person who is or has been an articled clerk or law clerk in Australia; or

(c) a person who holds a degree, diploma or other qualification in law granted or conferred in Australia; or

(d) a person who, in the opinion of the Tribunal, has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal

other than a person who is in a class of persons disqualified by the rules from being a professional advocate.

Section 62(9) of the Act makes provision for rules disqualifying a class of persons from being professional advocates when a person of that class has been the subject of disciplinary proceedings. Although the Rules Committee of the tribunal has now resolved to make such rules, no such rules were in operation at the time of this proceeding.

5 It is apparent from the definition of "professional advocate" and the absence of any rules to the contrary that the tribunal was entitled to permit Mr Woods to represent the respondent. I set to one side the question of whether, in deciding to give such permission, the tribunal was misled by an incomplete statement as to Mr Woods' qualifications and background.

6 A preliminary question which arises is whether the procedure for assessing costs should be an assessment by the Principal Registrar on County Court Scale D. In my view, this is an inappropriate procedure. Although the use of the County Court scales can be appropriate in some tribunal proceedings, it will generally be inappropriate where the party awarded costs was not represented by a practising lawyer. Hence it is desirable that the reference to County Court Scale D be deleted from the order. It would be possible for the matter to then be left to an assessment by the Principal Registrar; but, having regard to the novel and important issues raised by the case, it is better if the assessment be done by the tribunal itself.

7 Any member of the tribunal is empowered to vary an order as to the procedure to be followed in a proceeding.[2] The manner in which costs are to be assessed is an order as to the procedure to be followed in the proceeding. Hence it is open for me to vary the order insofar as it applies to procedural issues. I have concluded that I should do so, as this is an appropriate and practical means of ensuring that the costs order made by the tribunal is the subject of proper assessment.

Costs of a party not represented by a practising lawyer.

8 In Cardinia Shire Council v Stoiljkovic (No 2)[3] the tribunal, comprising Judge Strong and Senior Member Monk, saw no reason why the reference to "costs" in the VCAT Act should not be construed to reflect the difference between VCAT and the courts. As a result an order was made that the applicant pay costs incurred by the respondent in engaging a non-lawyer professional, calculated by reference to a professional fee of $140 per hour.

9 Subsequently in Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council[4] I formed the opinion that the tribunal has power to make an order for costs in favour of an unrepresented person to compensate the person for wages lost and travelling expenses incurred in attending a hearing of a proceeding. Significantly, in the latter case I held that the decision of the High Court of Australia in Cachia v Hanes[5] did not prevent such an order. Nothing was advanced in the present proceeding to warrant a departure from the conclusions set out in the Aussie Invest case.[6]

10 At the time of the hearing of this proceeding Mr Woods was not entitled to engage in legal practice. Nor was Mr Woods entitled to recover any amount in respect of anything done in carrying out legal practice. At the time of the hearing before Mr Vassie the relevant provisions were ss 314(1)(a)(i) and (ii), 314(6) and 315(1)(c) of the Legal Practice Act 1996.[7] It follows that it would be incongruous if the respondent was reimbursed for the cost of work of this character.

11 The concept of "legal practice" is ephemeral, but it would include intellectual work performed in drawing pleadings, legal advice in respect of civil litigation, and advocacy in a proceeding of the present character when performed by an admitted legal practitioner professionally for a fee. However the provision of secretarial (and like) services in relation to litigation ought not be regarded as engaging in legal practice.

12 At a hearing on 28 March 2006 I indicated that the respondent could not recover costs in respect of professional services performed by Mr Woods as, having regard to Mr Woods' qualifications and circumstances, such services could only be regarded as legal services. As a consequence the respondent withdrew the claim for costs which had previously been filed - a claim based upon County Court Scale D - and indicated that a fresh claim would be lodged. Hence it is unnecessary to say anything further about the issue of the recovery of legal costs.

13 The respondent now seeks to claim the sum of $1,915 in respect of costs incurred by the respondent to a company operated by Mr Woods - Woodsman Consultants Group Pty Ltd - which costs relate to secretarial services, parking fees, photocopying and disbursements. I find that this claim is fair and reasonable.[8] To make matters clear, I find that none of the expenses incurred by the respondent to the Woodsman Consulting Group Pty Ltd ought be characterised as legal expenses or expenses that relate to legal practice.

14 The respondent has also now claimed costs it says it has incurred to Mr Kevin Moran (or CB & Co Pty Ltd) in the sum of $15,342.50. Mr Moran is a director of the respondent. He is also a director of CB & Co Pty Ltd, a company which practises as a chartered accountant. CB & Co Pty Ltd has overlapping interests with the respondent, but the companies are separate and the controlling interests are not identical. Mr Moran was closely involved with Mr Woods in resisting the claim and performed services for the respondent such as preparing witness statements and attending at the hearing to provide instructions. In providing this service, Mr Moran was engaged by CB & Co Pty Ltd which provided the service to the respondent.

15 The respondent's claim in respect of Mr Moran is based upon six minute units of time. The total number of units claimed is 542 units (which represents 54.2 hours). The charge out rate was said to be $275 per hour. But in his oral evidence Mr Moran said that his charge out rate for a client such as the respondent was $225 per hour. Further items 15 to 17 of the revised bill were not pressed; and item 12 was only pressed in relation to half the time. This reduced the time claimed by 5 hours. Thus the amount claimed by the respondent in respect of Mr Moran's time is $11,070.

16 Although the respondent has not yet paid any money in respect of Mr Moran's time to CB & Co Pty Ltd or Mr Moran, I am satisfied, on the evidence given by Mr Moran, that such an amount is payable. Further I am satisfied that the time in respect of which the claim is made is reasonable; and that the rate in respect of which the claim is made is reasonable.

17 A claim was also made for airfares and accommodation for a witness to attend the hearing. This claim was for $442. I find this to be reasonable and to be a cost incurred by the respondent.

18 On 21 August 2004 the respondent made an offer to the applicant in the sum of $5,000 in full and final settlement of the proceeding. This offer was made in accordance with Division 8 of Part 4 of the VCAT Act. The offer was not accepted. Clearly the outcome of the proceeding before Mr Vassie was not more favourable to the applicant than the offer. Section 112(2) of the VCAT Act provides that in such circumstances (unless the tribunal considers otherwise) a party who has made such an offer is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made. This is a matter which may be relevant in the assessment of costs, even in circumstances where the order made by the tribunal is simply that one party pay the other party's "costs" of the proceeding. However, in the circumstances of this case I do not need to rely upon this provision.

19 I conclude with two comments that are not directly relevant to the issue before the tribunal. First, in the two hearings before me I observed that Mr Woods was competent and co-operative. Mr Vassie has informed me that, in the proceeding before him, he made similar observations. Notwithstanding these observations, it is important that persons, who have been legal practitioners but are no longer permitted to engage in legal practice be prevented from circumventing any order made preventing them from engaging in legal practice. To that end, the Rules Committee of the tribunal has recently resolved to make rules which would prevent such persons from being able to be recognised as a "professional advocate" in tribunal proceedings.

[1] On 16 August 2002 the Legal Profession Tribunal ordered that the Mr Woods' practising certificate be cancelled and that he not be permitted to apply for such a certificate for eight years.

[2] Section 131 of the VCAT Act.

[3] (2002) 12 VPR 61 at 78 [95] to [99].

[4] [2004] VCAT 2188.

[5] [1994] HCA 14; (1994) 179 CLR 403.

[6] See also Robinson v Development Consent Authority [2002] NTLMT 51 and Matt Black, Recovering the Costs of Non-Lawyer Advocates (2006) 13 AJ Admin L 80.

[7] The current provision, which is in slightly different terms, is section 2.2.2 of the Legal Profession Act 2004.

[8] In making this finding I find that the expense of $27.50 claimed for 18 May 2004 is an expense for car parking.