1. This proceeding is reinstated, solely for the purpose of determining any fees and allowances payable to the First and Second Intervenors, pursuant to s 104 of the Victorian Civil and Administrative Tribunal Act 1998.
2. The date by which the First Intervenor and Second Intervenor may make an application for an order that they are paid fees and allowances associated with the production of documents in answer to summonses served on them is extended to 17 June 2013.
3. The First Respondent must pay the First Intervenor $1,102.
4. The First Respondent must pay the Second Intervenor $2,601.50.

1. This proceeding was originally commenced by the Applicants, who are the registered owners of land located in Toorak. The application made by them against the First Respondent ('the Builder') related to building work undertaken by the Builder at their property.
2. During the course of the litigation, the Builder requested the Principal Registrar to issue a number of summonses to various non-parties to produce documents relevant to the construction of the building works. Two of those non-parties were the First Intervenor ('McFarlane') and the Second Intervenor ('MGH'). The summonses were served upon the offices of McFarlane and MGH on about 4 April 2012 and were returnable on 10 April 2012. The documents sought to be produced were voluminous and as a consequence, both McFarlane and MGH expended considerable time, effort and expense in collating and copying the documents in order to answer the summonses prior to their return date.
3. On 10 April 2012, McFarlane and MGH appeared and produced a number of folders of documents in answer to the summons served upon them, following which they sought compensation as against the Builder associated with the cost in having to comply with the summons. Given the business of the Tribunal on that day, there was insufficient time to hear their claim and the matter was left to the parties to try to negotiate an outcome informally, with the proviso that each of them could make application to the Tribunal for an order that their fees and allowances be paid by the Builder, should those settlement discussions prove not to be fruitful.
4. Consequently, orders were made on that day giving each of them leave to intervene for the sole purpose of prosecuting a claim for the fees and allowances associated with the production of the documents, should either party be unable to resolve their claim on an informal basis. Despite efforts to do so, the parties were unable to agree as to what amount should be paid to McFarlane and MGH by the Builder. This is despite the fact that the proceeding itself settled in April 2013. Consequently, both McFarlane and MGH have issued this application. Although the orders made on 10 April 2012 specified that any application by the intervenors must be made by 25 May 2012, no objection to the late filing of this application has been raised by the Builder. Accordingly, it is appropriate to extend the time by which such an application can be made to the date of this hearing.

1. McFarlane claims $1,404.70 plus a further $825 relating to its appearance on 17 June 2013. The $1,404.70 is set out in a time sheet produced during the course of the hearing. It is made up as follows:

1. The amount claimed by MGH is $6,825.50, plus an additional $490 relating to its appearance on 17 June 2012. The $6,825.50 comprises:
   • (a) the labour time for three staff members over three days at $88 per hour to collate the documents and copy them from electronic files into hard copies, inclusive of all sundry expenses;
   • (b) the labour time for attending the Tribunal on 10 April 2012 of five hours (including travel time) by one staff member at $88 per hour; and
   • (c) car parking costs of $49.50.

1. It is not in contest that some amount should be paid to McFarlane and MGH. What is in dispute is the amount that ought reasonably be paid.
2. Section 104 of the Victorian Civil and Administrative Tribunal Act 1998 provides, in part:

(4) A person who attends in answer to a summons is entitled to be paid the prescribed fees and allowances or, if no fees and allowances are prescribed, the fees and allowances (if any) determined by the Tribunal.

(a) if the person was summoned at the request of the party, by that party; or ...

1. The Tribunal has previously determined that a person summoned to produce documents is entitled to be paid for their time in attending the Tribunal in answer to the summons. However, the situation is not as clear where the amount claimed relates to loss of time arising prior to the hearing at which the summons is returned. In Bank of NSW v Withers,[1] Sheppard J reviewed a number of authorities concerning this issue. His Honour stated:

(6) But it should be emphasised that unless the payment is provided for in the rules there can be no recovery. Collins v Codefroy remains the law. The citizens duty to aid the administration of the law by attending remains paramount and is the reason why there can be no recovery for loss of time as distinct from out-of-pocket expenses in the absence of specific provisions in rules of court. Furthermore, and this needs to be stressed, it is not possible, in the sense of it not being lawful, for a contract to be made between a party to litigation and a person upon whom a subpoena is served whereby that person is promised more than he would receive upon the basis of what is provided in the rules of court.

Those being the principles which have been established by the authorities, I can now come more directly than I have so far done to the question to be decided. The claim being copying documents and for the loss of time occurring prior to the bank's attendance in court, there is no provision in the Federal Court Rules or Schedules, nor in the Schedule to the Rules of the High Court which is incorporated by reference, expressly dealing with this situation...

Time occupied in searching out and collating documents is not referred to nor is the expense of copying documents required to be produced pursuant to a subpoena.

1. Therefore, the question arises whether s 104 (4) is to be construed to provide for the recovery of loss of time relating to the collating and copying of the documents required to be produced pursuant to the relevant summons.
2. In State of Victoria v Bradto,[2] Judge Bowman sitting as a Vice President of the Tribunal, heard an application by the summoned party for its legal costs incurred in setting aside the summons. His Honour determined that the Tribunal had no power to order that the legal costs incurred by the non-parties be paid by the party that requested the summons. In forming that view, his Honour compared the wording of s 104 with the wording of Rule 42.08 of the Supreme Court Rules. He stated:

[41] Thus, pursuant to the Rules of the Supreme Court, there would seem to be three levels of possible payment. Each has different terminology and each would seem to cover different situations. There are the "reasonable expenses" which constitute conduct money and without the receipt or tender of which a person is excused from complying with a subpoena - see Rule 42.05. There are the "fees and expenses" payable to a person (not a party) who attends before the Court as a witness - see Rule 42.0 8.1. This would seem to cover the additional expenses that may be incurred by a witness as a result of attendance before the Court - see, for example, the decision of McDonald J in Sheraton v Albeth Pty Ltd ( in liq.) (delivered 9 September 1993). In addition to witnesses' fees and expenses, there is the "expense or loss" reasonably incurred by a non-party in complying with a subpoena where that expense or loss substantially exceeds the amount of any conduct money given - see Rule 42.08. It was pursuant to this last-mentioned and most sweeping provision that Byrne J, in Pyramid Building Society, ordered the payment of legal costs.

[42] Of course, the wording contained in s.104(4) of the Act is "fees and allowances". To my mind, this falls a long way short of "expense or loss substantially exceeding the amount of any conduct money given". Therefore it also falls a long way short of empowering the Tribunal to order the payment of legal costs in the manner in which Byrne J determined he was so empowered in Pyramid Building Society.

[43] It is worth noting that the type of orders made by this Tribunal pursuant to s.104(4) in the past dealt with such "fees and allowances" as the cost of attending court, loss of private business time, and car parking... To my mind, it is expenditure of that type which is countenanced by s.104(4). Legal costs do not fall within it.

1. The question remains whether the loss of private business time incurred prior to the hearing falls within what is countenanced by 'fees and allowances'. As indicated above, the Federal Court Rules, as they existed at the time when Bank of NSW v Withers was decided in 1980, were not found to extend to include the payment of private business time incurred prior to the hearing. The relevant Federal Court Rule which existed at that time was O 27 r3 which stated:

A person named shall be excused from complying with a subpoena requiring him to attend or produce any document or thing on any day on which his attendance is required unless a sum sufficient to meet his reasonable expenses of complying with the subpoena in relation to that date is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day.

In my opinion the expenses referred to in r3 are the expenses required to enable the person served to come to court. In other words, the provision is one concerned with the payment of what is known as conduct money as distinct from expenses incurred before the person served actually comes to court.[3]

1. The wording of s 104 sits somewhere in between the all embracing provision of the Supreme Court Rules and the narrow ambit of the then Federal Court Rules. In my view, it is open to interpret s 104 in a wider sense so as to include the loss of private business time in having to comply with the summons, even if that loss of business time was incurred prior to the return date of the summons. In that regard, I note that the term 'fees' does not appear in either the Federal Court Rules (as they existed at the time when Bank of NSW v Withers was decided) or in the current Supreme Court Rules. In my view, the word 'fees' means the fees charged by the person who attends in answer to the summons; that is, the fees that that person charges in order to obey the summons.
2. Therefore, if a fee is charged by a person who attends in answer to a summons, the Tribunal has discretion to determine how much of that fee is to be paid by the party who requested the summons. There is nothing in the wording of s 104(4) which restricts the meaning of 'fees' to exclude loss of business time incurred in having to answer the summons, even if that loss of business time relates to the work of collating and copying documents, the subject of the summons.
3. Therefore, I interpret the term 'fees and allowances' to be of wider meaning than simply conduct money. Indeed, Ms Girgin of counsel, who appeared on behalf of the Builder, did not take issue with such an interpretation. To that end, she conceded that the intervening parties were entitled to be paid a reasonable sum for the payment of private business time incurred prior to the return of the summons.
4. Given that concession, I will proceed to assess the intervening parties' claims on the basis of what I consider to be a reasonable allowance or fee for having to answer the summons served upon them, including any time spent in collating and copying documents required to be produced in answer to the summons.

1. Mr McFarlane, director, appeared on behalf of McFarlane. He produced an invoice which set out the claim made by McFarlane. Having regard to that invoice and a time sheet produced during the course of the hearing on 17 June 2013, I consider the following amounts to be reasonable:
   • (a) Two hours for collating the documents at the $75 per hour, being the charge out rate of Mr McFarlane.
   • (b) Two hours for attending the Tribunal on 10 April 2012 by Mr McFarlane at $275 per hour, being the charge out rate of Mr McFarlane.
   • (c) Car park fees of $32.
   • (d) Less $30 conduct money received.
2. Therefore I will allow $1,102 in respect of McFarlane's claim for fees and allowances.
3. I do not regard Mr McFarlane's time on 17 June 2013 as an amount recoverable pursuant to s 104(4) because his attendance at the Tribunal was not in answer to the summons but rather, it was time spent in prosecuting McFarlane's claim for payment of its fees.[4]

1. Mr Thompson, director, appeared on behalf of MGH. No evidence was adduced by Mr Thompson to corroborate the fees charged to MGH by its employees. The only document produced by MGH was an invoice dated 9 April 2012 in the amount of $6,825.50 from MGH addressed to the Builder. That invoice comprised labour charges of $88 per hour for three people over three days at eight hours per day. In addition, it included a further five hours for attending the Tribunal on 10 April 2012, which included travel time from Gisborne to Melbourne and return.
2. Without any evidence to verify the amount of time reasonably spent in order to collate electronic files and transform them into hardcopies for production to the Tribunal, it is difficult to determine whether the amount claimed is reasonable. Ms Girgin submitted that the amount was not reasonable. Although she conceded that it was reasonable for MGH to have spent time to transform electronic versions of the documents into hardcopies,[5] she suggested that the amount of fees payable should be commensurate with the time taken for three people over one day, which would equate to $2,112.
3. Given that there is no evidence before me, I will adopt the concession made by Ms Girgin and allow $2,112 for the collation and copying of the documents. I also accept that the time spent by Mr Thomson in travelling to the Tribunal, attending the Tribunal, and returning to his place of business is likely to be five hours. Accordingly, I will allow its fees attributable to attending the Tribunal of $440. I will further allow the parking expense $49.50. Therefore, I determine that the reasonable fees to be charged by MGH is $2,601.50.
4. I do not allow any amount in respect of Mr Thomson's attendance on 17 June 2013 as I do not consider that the fees charged on this day relate to or are sufficiently connected to MGH having to answer the summons served on it but rather, are costs associated with prosecuting a claim for money owed to MGH by the Builder. It is well established that costs incurred by an unrepresented party in preparing and conducting its case are not costs that are generally recoverable in the Tribunal.[6]

[1] [1928] ArgusLawRp 98; (1980) 35 ALR 21 at 38.

[2] [2006] VCAT 685.

[3] [1928] ArgusLawRp 98; (1980) 35 ALR 21 at 26.

[5] This was because Mr Thompson asserted that the person serving the summons had told MGH that hard copies of the documents had to be produced, rather than production of the files in electronic format.

[6] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188; (2004) 22 VAR 212 (Morris J) at 215.