McSteen v Architects Registration Board of Victoria [2016] VCAT 841 | Case summary

Judgment (9 paragraphs)

[1]

The applicant did not demonstrate that the Board had breached its model litigant obligations in any way. Those allegations were a further example of the misguidedly aggressive approach taken by and on behalf of Mr McSteen on many occasions throughout this proceeding.
Many of the paragraphs in the Further Submissions filed on behalf of Mr McSteen on 18 January 2016 contended that 'the Respondent misleads the Tribunal when it submits ...' or words to similar effect. As stated above, the allegations in those Further Submissions of misleading the Tribunal (at least 17 in number) were not made out. They were generally submissions to the effect that the circumstances should be interpreted in a different way to that contended by Mr McSteen, or situations where the evidence was clear to the Tribunal and a failure to refer to particular matters was not liable to lead the Tribunal astray. Most of the contentions in Mr McSteen's Further Submissions were not accepted. (Not all needed to be dealt with explicitly in the decision.)
The Board responded to these allegations with commendable restraint and brevity. It had ultimately provided copies of the transcript pages it relied on, on 23 December 2015, despite the fact that Mr McSteen could have obtained the transcript himself through the usual channels described on the VCAT website, but had apparently not done so at that stage.
The Further Submissions and Reply to them in January 2016 did little if anything to assist the Tribunal in reaching its findings.
In my view, by the stage when the demands for transcript were made on 4 December 2015, Mr McSteen's case had well and truly reached the point where the Board was being unnecessarily disadvantaged within the meaning of s 109(3)(a) of the VCAT Act. Further, the criteria in s 109(3)(b) and (c) are also applicable to the conduct of the case from 4 December 2015 to the end of final submissions: for the reasons stated above Mr McSteen was responsible for prolonging unreasonably the time taken to complete the proceeding. Further, the serious claims of 'misleading' the Tribunal and breach of model litigant obligations were not sustainable.

I agree with the approach taken by VCAT in Cole Sinclair v Building Practitioners Board (No. 2) [2014] VCAT 122 and by its predecessor, the Administrative Appeals Tribunal in re Wilkinson and Crimes Compensation Tribunal (1995) 9 VAR 127 that on review, VCAT has the power to set aside or vary a costs order made by the first instance decision maker. In particular, where a different decision is arrived at on review, the question arises whether it is fair, or just, to uphold the initial decision on costs, or to vary it, or to set it aside altogether.
In relation to costs it is relevant that the eight allegations comprised four pairs. Allegations 2, 4, 6 and 8 are stated to be 'in the alternative' to Allegations 1, 3, 5 and 7 respectively, although the Board contended that findings of guilt should be made on all eight allegations (as occurred at first instance). The same conduct was relied upon by the Board as the basis for allegations 1 and 2. Similarly for the other three pairs of allegations. The difference in each case was the provisions it was alleged were breached.
Here, the alleged conduct was proved in relation to three of the four 'pairs' - only in relation to the third pair (allegations 5 and 6) was the alleged conduct not proved. In my view, it would not be fair to leave in place the costs order made by the tribunal at first instance in relation to allegations 5 and 6, given that the conduct the subject of that pair of allegations was not proved.
In these circumstances, a court or tribunal might often make an order that the applicant pay 75% of the respondent's costs of the original inquiry. This would be on the basis that one of the alternative allegations was proved in relation to three of the four pairs of allegations. Such an order would certainly simplify the process of determining the costs payable. However, given the fact that this matter has been so hard fought, I do not think it is appropriate to impose an order with that degree of imprecision here. I understand the Board has detailed information about its costs of the original inquiry, and I will leave it to the parties to seek to reach agreement in the first instance as to the amount of the Board's costs referrable to allegations 1, 2, 3 and 7 and if that is not able to be achieved, for an assessor appointed by the President of the Law Institute to determine the appropriate division and quantification of the Board's costs of the original inquiry.
For the guidance of the parties, and of any assessor appointed, however, I indicate that little if any time in the VCAT hearing was taken up with consideration of the distinction between allegations 3 and 4, and between allegations 7 and 8 - and the same appears to have been the case at the hearing at first instance. These matters were dealt with briefly at paragraphs [218-9] and [254-5] respectively, of the 1 March 2016 decision. In these paragraphs, it was stated in effect that allegations 4 and 8 were not found proved because allegations 3 and 7 respectively were considered to be the more appropriate way of characterising Mr McSteen's conduct: the concerns about the conduct related more to the way he treated his client, than technical failures in drawing plans and specifications etc. Hence in each case, the allegations relating to unprofessional conduct in dealing with his client were found proved, rather than those relating to careless or incompetent conduct in his practise as an architect.
It is clear that in broad terms, the Board has succeeded in relation to three of the four episodes of conduct it has alleged against Mr McSteen. The Board is entitled to its costs on the basis originally ordered in relation to those three episodes, given that the matter the subject of the contest between the parties was whether or not the alleged conduct occurred. However, to the extent the Board's costs of the original inquiry included any component relating to allegation 4 as distinct from allegation 3, and allegation 8 as distinct from allegation 7, there should be a (likely small) discount to the costs to be paid by Mr McSteen.
Similarly, it will be necessary to consider what component of the Board's costs of the initial hearing overall relates to allegations 5 and 6, and that amount will need to be deducted from the costs to be paid by Mr McSteen.

McSteen v Architects Registration Board of Victoria

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

McSteen v Architects Registration Board of Victoria (Review and Regulation) [2016] VCAT 841 (25 May 2016)