Costs are sought under s.109 of the Victorian Civil and Administrative Tribunal Act 1998 which in these reasons I will call the VCAT Act. In summary that provision has the effect that each party bears his or her own costs unless the Tribunal considers it fair to order that a party bears all or part of the other party's costs in the proceeding having regard to a number of factors specified in the section. Those specified factors include the ones on which this application is based.

To explain the conduct of the part of the proceeding in respect of which the application is made, I need to say something about the history of the proceeding. By orders and reasons for decision dated 28 July 1999, Member Kaufman of this Tribunal stayed the hearing of this complaint, referring the matter to a directions hearing to be held on 25 February 2000. He also set a timetable for particulars of defence and for mutual discovery.

On 18 August 1999, with the parties' consent, the Tribunal set a new timetable for the future course of the proceeding. That timetable covered the filing and service of particulars of complaint, particulars of defence, witness statements and also covered discovery. The final interlocutory step in that timetable was to be completed on 30 November 1999.

Particulars of complaint and particulars of defence were then filed and served. The particulars of defence contained bare denials. Mr Bartlett's solicitors then ceased to act for him. He sought new legal representation. On 3 November 1999, the Tribunal vacated the remainder of its earlier timetable and listed the matter for administrative mention so that the question of legal representation could be made the matter of advice to the Tribunal.

The matter was clarified in late November 1999 when Mr Bartlett advised the Tribunal that new legal representation for him had been obtained. The complainant then sought directions requiring Mr Bartlett to file and serve further and better particulars of defence and for a new timetable dealing with the other interlocutory steps in the proceeding.

Mr Bartlett resisted this application for directions on the basis that to prepare particulars of defence, to make discovery and to file and serve witness statements, might prejudice him in the forthcoming criminal proceeding against him in the County Court, a proceeding which, it is clear from Member Kaufman's decision on the stay application, was directly related to this complaint.

Mr Bartlett argued that a new timetable should not be set until the directions hearing of 25 February 2000, or if the criminal trial in the County Court was completed earlier than that, at least when that trial had been completed.

The Tribunal treated this as an application for a stay of further interlocutory steps in this proceeding and required the parties to make written submissions on the matter. The complainant's written submissions were filed somewhat later than the time set in the timetable and the time within which Mr Bartlett was required to file submissions in reply was accordingly extended.

Ultimately, the matter was not the subject of final written submissions and a final resolution by the time of the directions hearing on 25 February 2000, that is the hearing originally provided for in Member Kaufman's order. At that directions hearing, the Tribunal directed further particulars of defence and set a timetable for discovery and witness statements. The hearing of this matter is now to take place on 1 May 2000.

In the respondent's submissions arguing that the interlocutory timetable should only be set after the end of Mr Bartlett's trial, Mr Bartlett raises the same matters that were raised before Member Kaufman on the stay application. These were broadly the burden on Mr Bartlett of preparing for this proceeding and for the concurrent criminal trial, the risk that during the interlocutory steps, Mr Bartlett would have to disclose matters relevant to his defence at the criminal trial and the evidence that he and his witnesses would give there and that Mr Bartlett's right to a fair trial might be interfered with because the evidence of Crown witnesses at the trial may be coloured, consciously or unconsciously, by what would then be known of the contents of Mr Bartlett's defence to this proceeding.

Ms Meenks first says that Mr Bartlett, by his conduct in resisting her application for a new timetable, made a claim with no tenable basis. She says that Mr Bartlett is estopped from relitigating the matter already before and determined by Member Kaufman and that the doctrine of issue estoppel applies. I do not agree.

Whatever may be the status of Member Kaufman's decision in relation to the stay of the hearing of this complaint, and assuming for this purpose that that might be capable of creating an issue estoppel, the directions for interlocutory steps were not necessary or an indispensable part of that decision. They were procedural directions. They were not a final determination. As to this see In Re Martin & Anor (1996) 141 A.L.R. at p.117.

In addition, s.131 of the VCAT Act itself gives the Tribunal power to vary or revoke procedural directions of this kind. The statute itself makes it clear that these directions do not constitute a final determination. There is therefore no issue estoppel arising here.

Ms Meenks then argues that Mr Bartlett conducted this part of the proceeding vexatiously when he resisted the application for a new interlocutory timetable. Again I do not agree. I am not satisfied on the material before me that Mr Bartlett conducted this part of the proceeding for some collateral or ulterior purpose.

However, in my view to resist the application for a fresh timetable on the grounds that Mr Bartlett did unnecessarily prolonged the time taken to complete this proceeding. It appears that the arguments that prejudice would occur to Mr Bartlett if he were required to carry out interlocutory steps before his criminal trial could have been raised before Member Kaufman on the stay application. They were not raised.

Member Kaufman set a timetable for interlocutory steps so that when the criminal trial ended, this proceeding would be ready to come on for hearing and the hearing could be given priority. The failure by Mr Bartlett to raise these arguments about these interlocutory steps at the time of the hearing of the stay application and the raising of these matters at a later stage had the effect of delaying completion of those interlocutory steps. It meant that on 25 February 2000 when the directions hearing took place, the matter was not ready to be finally heard and a new timetable for interlocutory steps had to be set. The hearing was delayed for approximately two months.

On this basis I consider it fair to award costs in Ms Meenks' favour and against Mr Bartlett. Those costs relate to the costs incurred by the complainant in answering the respondent's request to, in effect, stay further interlocutory steps until the criminal trial's completion.

Those costs will also relate to costs thrown away because the hearing of the complaint will now take place approximately two months after it had been originally scheduled and after it could have taken place, had the interlocutory steps been completed. The relevant scale will be Scale A because there are as yet no particulars of loss. That completes my reasons for decision.