As per paragraph 1 of the attached Reasons for Decision.

Mr Aizen of counsel, instructed by Paul Egan & Associates.

1 Pursuant to s.117 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"), the Applicant Maryvell Investments Pty Ltd ("Maryvell") is seeking written reasons for the orders made by me on 8th March last. Those orders were as follows:-

1. Application adjourned for further Directions Hearing before His Honour Judge Bowman on Friday, 7 April, 2006 at 10:00am.

2. Any explanation relating to subpoenaed documents that are missing is to be provided on Affidavit.

3. Any argument regarding the relevance of documents sought will be heard on that day, but the documents must be available on that day for production and inspection if so ordered.

4. Any proposed draft Amended Points of Claim to be filed and served on or before 5 April 2006.

5. Applicant to pay Respondents' costs thrown away by reason of adjournment fixed at $2,500.00.

6. Stay in relation to payment of such costs until 7 April 2006.

In particular, written reasons are sought for the order that Maryvell pay to the Respondents, whom I shall describe collectively as "Sigma", costs fixed in the sum of $2,500.00, being costs thrown away by reason of the adjournment ordered that day. I might add that Maryvell's request for written reasons was in fact made outside the time limit prescribed by s.117(2) of the Act. However, as this fact was not detected by me for some time, and as, pursuant to s.148(4) of the Act, the time for seeking leave to appeal runs from the day on which written reasons are given, it seems to me that any such application for leave by Maryvell could be unfairly prejudiced if s.117(2) were strictly applied and the request for written reasons refused. Thus, these written reasons are provided. As it is the costs order which seems most to concern Maryvell, it is to that order that I shall first turn.

2 Some history of the background of the matter is warranted. For the purposes of this history and for these reasons, I make no comment or finding of fact in relation to the merits of the matter. The dispute arises from a licence entered into between the parties pursuant to which Maryvell permitted Sigma to use a portion of its land in Sydney Road, Brunswick, whilst Sigma was building a residential development on adjoining land. In addition to being the owner of the land the subject of the licence, Maryvell also operated a restaurant on that land. The dispute between the parties has taken various turns, but essentially Maryvell is now seeking substantial damages for losses allegedly suffered as a result of Sigma's occupation of the land during the currency of the licence. Apart from any actual physical damage, there is a claim for loss of business profits and loss of goodwill. The amounts currently claimed exceed $700,000.00. I use the terminology "currently claimed" because the possibility of further amendments to the Points of Claim exists, and larger figures have been mentioned.

3 The history of the litigation of the matter is something concerning which I do make findings for the purposes of these reasons. Whilst the more recent history of the matter, and particularly that involving a subpoena to produce documents directed to and served upon Maryvell and Mr Velissaris, may be of more immediate significance, it is also useful to recall the overall history of the litigation.

4 An application was first issued out of this Tribunal by Maryvell on 15th May 2003 (No. R79/2003). The relief sought in that application was "an injunction to evict the tenant (licensee) (sic)", and seeking indemnity in relation to "costs and expenses and damages". Maryvell issued a second application out of this Tribunal on 29th July 2003 (No. R108/2003). That effectively sought a declaration that the licence agreement had lapsed, with there also being reference to the removal of a caveat. Save for the period prior to the issuing of the second application, the applications have effectively travelled in tandem, and in these reasons I shall refer to them as if they were the one matter or proceeding.

5 In the early history of the matter, Maryvell was represented by its director, George Velissaris ("Mr Velissaris"). Maryvell then appears to have appointed Gadens as its solicitors. On 2nd June 2003, the matter was listed by way of directions hearing before me, and a timetable for various steps, including mutual discovery to be made by 20th June 2003, was set. Counsel appeared on behalf of Maryvell on 2nd June 2003.

6 On 6th June 2003, Points of Claim on behalf of Maryvell were filed. By this time, Mingos Kotsifas were the solicitors for the Plaintiff, there having been some brief confusion as to whether Tisher Liner & Co were the solicitors. At a mediation on 27th May 2003, counsel acting on behalf of Maryvell stated that he was instructed and retained by that firm. I accept that, at the hearing before me on 2nd June 2003, counsel again advised his opponent that he was instructed by Tisher Liner and Co. In any event, that firm wrote to the Tribunal and stated that it was not so acting.

7 Affidavits of documents appeared to have been filed in accordance with the timetable. On 24th June 2003, Mingos Kotsifas indicated that it no longer acted on behalf of Maryvell.

8 On 25th June 2003, Eales and McKenzie filed a Notice of Change of Solicitor indicating that such firm was now acting on behalf of Maryvell. On 9th July 2003, Eales and McKenzie filed a notice stating that it had ceased to act for Maryvell. At this time, Mr Velissaris wrote to the solicitors for Sigma, stating that "... we have dismissed Eales and McKenzie solicitors on the record for Maryvell ...". The solicitors for Sigma were now to deal directly with Maryvell.

9 By 11th July 2003, the solicitors for Maryvell, as indicated by documents filed, were Efron & Associates. In an affidavit apparently prepared by that firm and sworn by Mr Velissaris, and in relation to an extension of a stay, Mr Velissaris complained that he had had little opportunity to prepare material in opposition because of a delay in receiving material, this delay apparently being in some way caused by the change in solicitors.

10 The proceedings before this Tribunal then came to a halt for some time whilst an appeal was pursued by Sigma. The matter effectively came back before the Tribunal in March, 2005. By this time, Mr Velissaris was again acting for Maryvell. A series of faxes, in handwriting which is at times extremely difficult to read, were sent to this Tribunal. These appeared to foreshadow amendments and applications to join other parties. In one of them, Mr Velissaris claimed that he had not engaged any solicitors on behalf of Maryvell.

11 It would also appear that, as at April 2005, the solicitors for Maryvell were Rickards Legal. Certainly the solicitors for Sigma seem to have been of that belief.

12 On 2nd May 2005, I ordered that Maryvell file and serve an affidavit supporting the joinder of parties, with reasons, on or before 14th June 2005 and to attach thereto draft Amended Points of Claim including details of loss and damage. By a handwritten fax dated 16th June 2005, Mr Velissaris sought an extension of this time on the basis that he had an appointment at the Royal Melbourne Hospital on 22nd June 2005. As a result, a directions hearing which had been fixed for 28th June 2005 was adjourned.

13 The matter was back before me on 9th August 2005. On that occasion, Maryvell was ordered to file and serve a typed affidavit (given the difficulty of reading Mr Velissaris' handwriting) supporting the proposed joinder, with reasons, on or before 23rd September 2005, and to attach thereto draft Amended Points of Claim including details of loss and damage claimed, and including particulars as to how the claim was to be put against the proposed joined parties. The matter was listed for a further directions hearing on 4th November 2005. On this occasion, Maryvell was ordered to pay Sigma's costs fixed at $500.00. On 26th October 2005, Mr Velissaris wrote to this Tribunal stating that Maryvell had not complied with the order to file and serve the material by 23rd September 2005 "... because of health reasons and because I was unable to obtain legal assistance". Mr Velissaris indicated that, at the directions hearing on 4th November 2005, the company would be seeking a further extension of time. It is interesting that one of the reasons given by Mr Velissaris for seeking such an extension was his inability, on behalf of Maryvell, to obtain legal advice, when, in a fax sent to the solicitors for Sigma on 22nd September 2005, he requested them to deal directly with Maryvell "... as we do not want to waiste (sic) our time with the solicitors".

14 On 4th November 2005, the matter was again before me. On this occasion Mr Velissaris again appeared as director on behalf of Maryvell. An extension of time was sought. Upon that occasion Mr Velissaris told me that it was his intention, on behalf of Maryvell, to engage further solicitors, and specifically he nominated a Mr Leonidas of Comlaw, although leaving open the option of perhaps engaging some other solicitor. However, it is my clear recollection that Mr Leonidas was named as Maryvell's probable solicitor, and the impression given was that discussions had already taken place. The matter was adjourned again for a further directions hearing on 28th November 2005 with costs being reserved. The time for filing any draft Amended Points of Claim, including details of loss and damage, and any further affidavits and the like was again extended to 23rd November 2005. I specifically recorded in the orders that no further adjournment of the matter would be tolerated or granted in the absence of extraordinary circumstances. I also recorded that Mr Velissaris accepted and agreed with that proposition.

15 On 22nd November 2005, Michael Mackinnon, solicitor, filed a notice of appointment on behalf of Maryvell.

16 On 28th November 2005, the matter was again before me. By this time an affidavit of Mr Velissaris in support of the application to amend the Points of Claim and in support of the joinder of parties had been prepared, ostensibly by Mr Mackinnon. Legal arguments were advanced. In addition, on that day Mr Aizen, on behalf of Sigma, called upon Maryvell to answer a subpoena to produce documents, the nominated documents being of a financial nature and with at least fairly obvious prima facie relevance to Maryvell's claim for loss and damage. Mr Velissaris, on behalf of Maryvell, was unable to do this and, a subpoena having been issued on 24th November and served shortly thereafter, claimed that there had been not sufficient time to assemble the material subpoenaed.

17 I ruled in relation to the joinder application on 3rd February 2006, and also set a new timetable in relation to Amended Points of Claim, Points of Defence and the like. On 3rd February 2006, Maryvell was again called upon to answer the subpoena, but was still not in a position so to do. The question of the subpoenaed documents was specifically adjourned until 8th March 2006. The significance and urgency of these documents were emphasised, particularly in light of Maryvell proposing to claim large amounts for loss of operating profits and loss of goodwill. Furthermore, by an affidavit dated 4th November 2005, an employee solicitor from the firm representing Sigma attested that she had attended at the County Court on 4th May 2005 in order to listen to an appeal by Maryvell concerning a summons issued by the City of Moreland and relating to health offences allegedly perpetrated at the restaurant conducted by Maryvell on the relevant land and at a time relevant to Maryvell's present claim. It is attested to in this affidavit that Mr Velissaris submitted to His Honour Judge Campbell, who was presiding, that Maryvell was not the owner of the business at the relevant time. A question had also arisen as to whether the restaurant was even operating at that time. Given the claims made in this proceeding on behalf of Maryvell concerning loss of operating profits and goodwill, it is understandable that inspection of certain documentation was seen by those advising Sigma as being of importance.

18 Thus, on 3rd February 2006, I adjourned the matter for further directions hearing on 8th March 2006, when questions arising from service upon Maryvell of the subpoena to attend and produce documents would be argued. I recorded that Maryvell should be in a position to answer the subpoena on that day if it was ordered so to do. A day was allocated for the hearing of this aspect of the dispute. It should be pointed out that, on 3rd February 2006, Mr Mackinnon was present representing Maryvell.

19 On 23rd February, and lest there be any confusion as to what was to happen on 8th March, and in answer to a query, my Associate forwarded to Mr Mackinnon by way of email another copy of my orders of 3rd February. The accompanying message specifically drew attention to order 6, which read as follows:-

"The matter is adjourned for further Directions Hearing on 8th March 2006 at 10:00am, when questions arising from service upon the Applicant of the subpoena to attend and produce documents shall be argued. The Applicant should be in a position to answer the subpoena on that day if it is so ordered."

The email to Mr Mackinnon also stated the following:-

"That is the Applicant must comply with previous orders and be in a position to supply documents on 8 March, if so ordered after the matter of the subpoena is argued at the Directions Hearing on 8 Mar 06."

This email, whilst composed by my Associate, was sent with my knowledge and authority.

20 Also on 23rd February, this Tribunal received a notice from Mr McKinnon stating that he had ceased to act on behalf of Maryvell.

21 On 3rd March 2006, my Associate received an email from Mr Mackinnon stating that he had ceased to act for Maryvell but, as a matter of courtesy, had forwarded to Mr Velissaris the email of my Associate referred to in paragraph 19, and Mr Velissaris had acknowledged receipt thereof. Subsequently Mr Velissaris made it quite clear that he had terminated the services of that solicitor.

22 Thus, depending upon whether or not Tisher Liner and Co had in fact been retained as alleged by counsel, by this time Maryvell had engaged either six or seven different firms of solicitors, with Mr Velissaris purporting to act on behalf of Maryvell on some of the occasions in between the engagement of such solicitors. The termination of the services of Mr Mackinnon came at a time when a day had been specifically allocated to deal with the whole question of subpoenaed documents and their production. It is also to be borne in mind that Maryvell had previously failed or been unable to answer the subpoena when called upon so to do.

23 On 5th March 2006 (which was a Sunday), Mr Velissaris on behalf of Maryvell sent to this Tribunal a fax stating that he would be attending on the 8th March to represent the company and, in essence, seeking another extension of time for compliance with the summons and the production of documents. The material sent by way of fax included a letter to the Registrar, somewhat surprisingly dated 6th March, foreshadowing what would appear to be wholesale amendments to the Points of Claim, including claims pursuant to the Fair Trading Act 1999 against the directors of Sigma (of whom I had not permitted joinder in my ruling of 3rd February 2006) and Mr Paul Egan, the solicitor for Sigma. The letter also confirmed the departure of Mr Mackinnon - "I have dismissed him" - and asserted that Mr Velissaris had received legal opinion from other barristers and that "... I am in the process of engaging the right solicitor and barrister to act for my company and to strictly follow my instructions but until then I want to handle this matter on my own for and on behalf of my company". Given the history of the matter and the fact that the 8th March had been specifically designated as the day upon which the issue of the subpoena and the documents would be argued, the letter also contained the following interesting statement:-

"Further and as there is an application under s.77 of VCAT's Act by Sigma to transfer the proceedings to the Supreme Court and to be dealt with 1st of May 2006, I do not see any reason whatsoever to produce documents under the summons at this point of time ...".

24 On 8th March 2006, Mr Velissaris appeared to represent Maryvell. Mr Aizen of counsel appeared on behalf of Sigma. The subpoena was called upon. Mr Velissaris stated that Maryvell was not in a position to answer the subpoena. Apart from stating that the subpoena was a fishing exercise, Mr Velissaris said that Maryvell would not be in a position to answer the subpoena for two to three months. The first reason put forward was that Maryvell wished to engage solicitors. The second reason advanced for the failure to comply with the subpoena was, in essence, that Maryvell should not have to produce the documents until it had amended its Points of Claim so as to add additional parties including the directors of Sigma, a proposed joinder in relation to which Maryvell had previously been unsuccessful on the basis of the material then available and the arguments then advanced. Mr Velissaris claimed to have advice from two barristers in this regard. One of these remained nameless. The other was said to be Mr Bleechmore of counsel, and a faxed letter from Mr Bleechmore to Mr Velissaris and dated 2nd March 2006 was placed before me. This reads as follows:-

"I confirm my advice that in order to join additional parties to this proceeding it will be necessary to prepare a proposed Amended Points of Claim.

In relation to the Summons and Notice to Produce, I suggest that, if you are not able to produce to the Tribunal a proposed amended pleading disclosing Fair Trading Act causes of action against the proposed further defendants, that you indicate to the Tribunal that that is your intention, and the production of documents should await completion of the pleadings.

I confirm that I am not prepared to do further work in this or any other proceeding for you until the arrangements outlined by me during our recent telephone conversation have been met."

25 Whether Mr Bleechmore was aware of the history of the matter or of the terms of my order of 3rd March is not clear. Indeed, the circumstances of his involvement, other than that there had been a telephone conversation, are not entirely clear. Certainly he was not present on the day.

26 The next reason put forward by Mr Velissaris for the failure of Maryvell to answer the subpoena was, as I understand it, that a lot of documents had been destroyed in a flood. He also referred to his ex-wife having been in some sort of accident, and the family being in turmoil.

27 Mr Velissaris then stated:-

"I refuse to answer this subpoena. It's as simple as that. That's all."

He then said words to the effect that his company would answer the subpoena when it was ready so to do. He also repeated that he would be seeking proper legal advice and referred to the two barristers.

28 When I asked Mr Velissaris why, if the matter was to be adjourned yet again because Maryvell needed an extension of time to answer the subpoena, it should not pay costs incurred by reason of the adjournment, basically there was some confusion, if not vacillation, concerning whether documents did or did not exist and about the time it would take to produce them. Secondly, there was a return to the argument about joinder of other parties, together with further reference to the engagement of new legal advisers.

29 When asked concerning his views of the matter, Mr Aizen argued that there should be a self-executing discovery order made against Maryvell. In so arguing, he anticipated that yet another adjournment would probably be granted, although he raised the possibility of a summary dismissal on the basis of wilful non-compliance with orders. He pointed to the history of the matter and the amount of time on which the subpoena had been on foot. However, in the event that a further adjournment was granted, he sought a self-executing discovery order together with costs. He also emphasised the length of time for which this proceeding had been "hanging over the head of Sigma".

30 In response, Mr Velissaris claimed that Mr Aizen was putting "the cart before the horse" and that the amendment to the proceedings and the application to join other parties should be dealt with before Maryvell was required to answer the subpoena. He resisted the application that the claim should be struck out or dismissed, or that there should be a costs order against Maryvell. He repeated a previous assertion that Sigma had earlier been in no hurry to litigate the matter, and therefore time limits should not be now enforced. He again stated "why should we answer the subpoena for those documents now when they are not ready and we haven't got all of them or at least some of them ...".

He then said "We don't have to produce them. We are not ready". He then returned to the issue of joining other parties.

31 I might add that, in the face of objection by Mr Aizen as to relevance, I directed that Mr Velissaris could continue with his submissions.

32 His next submission, as I understand it, was that there was no prejudice caused by any delay. Mr Velissaris' further submissions were somewhat hard to follow, and seemed to relate to another entity which stood behind Sigma. In relation to costs, it seemed that Mr Velissaris' application was that costs should be costs in the cause. He then returned, again, to the question of joinder of other parties. However, there was no proposed Amended Points of Claim available.

33 My ruling was, and remains, as follows. The matter had been adjourned to 8th March 2006 for the specific purpose of dealing with the issues relating to the subpoena and the documents. Despite this, and the history of the matter, I was prepared to grant an application for an adjournment. I was not, and am not, prepared to make a self-executing order in relation to discovery. I would regard that as a last resort. Section 134 of the Act provides that there are quite onerous penalties which may be imposed upon those who fail to comply with a summons. In other words, there are quite effective, if rarely used, enforcement provisions within the Act which may obviate the necessity of making self-executing orders. I adjourned the matter until 7th April 2006, despite an interjection by Mr Velissaris that the company would not be able to respond to the subpoena by that date. As I then stated, Maryvell had had ample time to respond to the subpoena. I further ordered that any explanation as to missing documents should be supplied on affidavit, and that any argument as to the relevance of documents would be heard on that day. Documents should be available on that day for production and inspection if so ordered.

34 In relation to costs, I was not, and am not, persuaded that costs should be costs in the cause.

35 Whilst the starting position in relation to costs pursuant to the Act is that, in accordance with s.109, each party bear its own costs, the Act does provide that, pursuant to s.109(3)(a)(iv), the Tribunal may order a party to pay costs if it is fair to do so, having regard to whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as causing an adjournment.

36 In my view, Maryvell caused such an adjournment to be ordered, and by so doing unnecessarily disadvantaged Sigma. The matter had been specifically fixed for argument concerning the subpoena and the documents, and a day had been allocated to it. It was quite clear why the matter was listed for hearing, and Maryvell caused the adjournment by being not in a position to proceed. The previous conduct of Maryvell in this proceeding, and particularly in relation to the subpoena, is also to be borne in mind, as is Maryvell's stated attitude as to answering the subpoena - see paragraphs 17, 23 and 27 above.

37 Mr Aizen was then asked what his costs were. He indicated that his brief was marked at $3,500. He pointed to the quantum of damages that were being sought by Maryvell. I am also aware that he is a barrister of many years experience. The fact that his brief was marked at such a figure, and in a case such as this and in which he has been involved for a lengthy period, does not surprise me. However, he frankly admitted that he had an involvement elsewhere. The nature of that commitment was not entirely clear, but it could well have arisen as a result of Mr Mackinnon, before his services were terminated, informing Mr Aizen's instructors by a letter dated 15th February 2006 that Maryvell would not be producing some documents because they did not exist and objected to the production of the remainder on the grounds that they were irrelevant. Accordingly, whilst the matter had been allocated a day, its expected duration may not have been anticipated to exceed half a day. It is also to be recalled that a fax dated 5th March 2006 sent to Mr Aizen's instructors by Mr Velissaris on behalf of Maryvell confirmed that there would be an objection to the production of documents. Attached to that fax was the letter to the Registrar referring to the application for an extension of time. This may have again confirmed that, whilst the matter had been allocated a full day, an assessment of half a day could have been foreshadowed to be a more accurate estimate.

38 In any event, because of the shortened nature of the hearing, Mr Aizen sought half his brief fee - that is, $1,750.00 - together with $1,500.00 to cover his instructing solicitor's costs on preparation of brief and the like. Thus, he sought a total of $3,250.00. Mr Velissaris objected to costs in such an amount and sought that costs be taxed.

39 I was not, and am not, of the view that it is preferable to order that costs be taxed in a such a situation. It seems to me far simpler, and in a situation where lengthy and itemised bills of costs are not involved, to fix costs.

40 Mr Velissaris also objected to the quantum of the costs sought. He pointed out that the hearing was a directions hearing. Be that as it may, it had been allocated a day, and it had been foreshadowed that there might be quite extensive arguments advanced. Ultimately I fixed costs thrown away by reason of the adjournment in the sum of $2,500.00. Section 109(2) of the Act gives to the Tribunal the discretion to order a party to pay all or a specified part of the costs of another party. Mr Velissaris stated more than once that the amount of damages sought by Maryvell would exceed $1 million. Even without the further amendments foreshadowed, the damages sought in the draft Amended Points of Claim exceed $700,000.00. When dealing with costs, it seems to me to be appropriate to treat the matter as if it were a matter issued out of the Supreme Court. In those circumstances, a figure of $2,500.00 for the costs of retaining experienced counsel and preparing the matter for hearing does not seem to me to be excessive, and it is the amount which I ordered. A stay in relation to the payment of such costs until 7th April 2006 was also ordered.

41 As I understand it, it is primarily written reasons in relation to the costs order that are being sought. In relation to the other orders made, as stated, I refused to accede to a submission of Mr Aizen's that I should order discovery and that such order should be a self-executing order so that, in the event of non-compliance, the proceeding would be summarily dismissed. Apart from the fact that s.134 of the Act contains a mechanism for enforcing non-compliance, I am also reluctant to shut out a party from litigation except as a last resort, and, for similar reasons, I am reluctant to accede to a submission seeking summary dismissal on the basis of s.78 of the Act. However, I would warn Maryvell that the patience of the Tribunal is wearing thin, and I would again refer to the detailed history of the conduct of the proceeding which I have set out above. Apart from its relevance to this particular argument, I have set out this history so that it need not be repeated in any future rulings that may be required.

42 The other orders made by me on 8th March were essentially "timetable orders" and orders relating to the future conduct of the proceeding. They scarcely require reasons, other than to say that to give Maryvell another month in which to attempt to get its house in order, and despite the submissions of Mr Aizen, seemed a reasonable, if not generous, step to take.

43 Accordingly, the orders of 8th March 2006 were made for the above reasons.