Cases considered: Beaconsfield Parade Pty Ltd v Commissioner of State Revenue (Review and Regulation)

[2020] VCAT 820; Galway v Envision Homes Pty Ltd (Building and Property) [2020]

VCAT 220; Hoang Tran Investments Pty Ltd v 2MS Constructions Pty Ltd (Domestic Building) [2006]

VCAT 1210; Ong v Quickbuild Pty Ltd (Domestic Building) [2013] VCAT 1335; Merunovich v Melbourne CC [2015] VCAT 609; MBC Shotcrete Pty Ltd v Bullion Building and Construction Pty Ltd (Domestic Building) [2006] VCAT 2024; Owners Corporation Plan No PS 438902Q v Suncorp Metway

Insurance Ltd (Domestic Building) [2010] VCAT 1316; Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; Preena v Pryda Developments Pty Ltd (Domestic Building) [2010] VCAT 434; Sowiha v Owners Corporation PS621796Q [2016] VCAT 269; Quach v RU (No1) [2017] ACTSC 233

Optimus Developments Group Pty Ltd (ACN 613 797 238)

Owners Corporation Plan No. PS 735715 v Alexon Pty Ltd (Building and Property) [2026] VCAT 32

1. The claimant, Tesko Fire Protection ('Tesko'), submitted an application to seek payment of fees and allowances under s 104(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)[1] ('VCAT Act' or 'Act') as a non-party in answer to a summons dated 21 November 2025 ('Summons').
2. The return of five summonses came on before me to hear any objections prior to contemplating an order for the release of documents provided. Each summons had been issued at the request of the respondent on 21 November 2025. Only one was served on Tesko, and it is that summons which gives rise to the present application.
3. Tesko appeared by its solicitor, Mr Lance Guymer. Its general manager Mr Caruana gave evidence. The respondent was represented by Mr Graham, solicitor. No appearance was entered for any of the applicants.
4. Tesko seeks an order that the respondent pay the sum of $2,992.00, said to represent time spent to answer the Summons. The amount claimed is particularised in an invoice, dated 11 December 2025, addressed to Wotton Kearney, solicitors for the respondent ('Invoice').
5. Although the Invoice was not yet due and payable at the date of hearing, and not addressed to the responding party itself, the application was appropriately heard and determined. The respondent denied liability in principle. In those circumstances, it was neither necessary nor efficient to defer the determination of the issue.[2]
6. At the conclusion of the hearing, there being no objection to the release of documents, I ordered the documents produced by the Tesko be released and determined Tesko's entitlement to payment under s 104(4) of the VCAT Act, however, in an amount less than that claimed.
7. I now provide my written reasons that reflect those given orally at the hearing, with some editing for clarification and context. In some instances, I have expanded upon my description of relevant legislation, the content of documents and or evidence given, which formed the basis of my decision, for context and background.

1. Is the Tribunal seized of jurisdiction to make a monetary award to a non-party answering a summons?
2. Whether Tesko is entitled to fees and allowances for attending to answer the Summons?
3. If the preceding aforementioned question is answered in the affirmative, what is the reasonable quantum of fees and allowances to be awarded?

1. The general background of the proceeding concerns an application by an owners corporation, including various individual lot owners, in respect of a twelve-storey residential apartment complex. They allege an unreasonable flow of water contrary to the Water Act 1989 (Vic). The flow of water is said to have occurred due to tests being performed by the respondent at the property.
2. At the first directions hearing on 23 September 2025, the Tribunal ordered the respondent to file and serve Points of Defence by specifying material facts relied upon.[3] In order to meet the case, the respondent applied for, and obtained, five summonses to produce documents.

1. The Summons served on Tesko, under s 104 of the VCAT Act, required production of documents identified in an Annexure ('Annexure A'). The Summons also stated that certain fees and allowances were payable to a witness and warned of adverse consequences of non-compliance.
2. Annexure A required production of a broad class of technical, contractual and correspondence documents, including design documents, reports, calculations, certificates, specifications, and correspondence with a range of project participants and authorities. For convenience, the Summons is set out below, noting there is no requirement to give evidence:

Victorian Civil and Administrative Tribunal Rules 2018 Rule 4.19

To: The Proper Officer, TESKO FIRE PTY LTD (ACN 605 145 391)

Address: UNIT 411 300 PLUMMER STREET PORT MELBOURNE VIC 3207

You are summoned pursuant to s 104 of the Victorian Civil and Administrative Tribunal Act 1998 to appear before the Victorian Civil and Administrative Tribunal at 55 King Street, Melbourne VIC 3000 at 9:15am on 16 December 2025 ....

X to produce the following documents: See Annexure A

1. Certain fees and allowances are payable to a witness.
2. Failure to attend at the time and place specified above without reasonable excuse may render you liable to imprisonment, a fine, or both, as well as a daily penalty until you attend or produce the document as required, under section 134 of the Victorian Civil and Administrative Tribunal Act 1998.
3. The Tribunal may direct your apprehension if you fail to attend.

1. Mr Guymer submitted, for Tesko, that it had complied with the Summons and was therefore entitled under s 104 of the VCAT Act, to fees and allowances determined by the Tribunal. Further, that the claim did not include Tesko's legal costs. It was confined to administrative time spent by Tesko's general manager, Mr Caruana, in locating and collating the documents.

1. Mr Caruana gave evidence that no other person within his organisation could comply with the Summons because his email account is not accessible to others. He said the usual charge out rate for his administrative work is $170.00 per hour (GST exclusive).
2. He explained that he spent approximately six hours reviewing his Outlook inbox and a further four hours reviewing his sent box to collate the relevant emails. In doing so, he downloaded between 1,000 and 1,200 emails individually because he did not know how to copy multiple emails into a single folder.
3. Mr Caruana was unable to explain the claimed costs by reference to any financial loss to the business. He relied instead upon the asserted hourly charge out rate at the appropriate measure of value.

1. In response to Tesko's claim, Mr Graham submitted, for the respondent, that the Tribunal has no power to award any sums to Tesko to answer the Summons.
2. He relied upon a 2010 decision of Deputy President Aird in the matter of Owners Corporation Plan No PS 438902Q v Suncorp Metway Insurance Ltd,[4] ('Suncorp').
3. Mr Graham also confirmed that, although conduct money had been discussed between the parties, none was ever paid to Tesko.

1. The material provision of s 104 of the VCAT Act, relevantly provides:

(a) may; and

(b) if directed by the Tribunal, must -

issue a summons to a person to attend the Tribunal to give evidence and produce any documents that are referred to in the summons.

(3A) A person who receives a summons to produce documents may produce the documents by filing them with the Tribunal by electronic means or by post.

(3B) A person who receives a summons to physically attend the Tribunal under subsection (1) may instead appear before the Tribunal by audio link or audio visual link.

(4) A person 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 a party, by that party; or

(b) ....

1. Furthermore, the material provision of r 4.20 of the Victorian Civil and Administrative Tribunal Regulations 2018 (Vic) ('Rules'), which provides for how a summons should be served:

(a) by the issuing party, unless the Tribunal directs otherwise; or

(b) ...

(3) When a summons is served, a sufficient sum is to be provided as conduct money.

Issuing party means the party at whose request a witness

Preliminary issue - Whether a sufficient sum of conduct money was provided upon service of the Summons being effected on Tesko in accordance with r 4.20(3) of the Rules?

1. Conduct money is not a fixed or notional amount. It depends upon the circumstances of the witness, whether attendance is required, the need for travel or accommodation, and or the reasonable expenses of compliance, including copying or printing. The question is one of practical fairness, assessed case by case.[5]
2. It was not disputed that no conduct money had been provided to Tesko when the Summons was served. Nor was there any challenge with the validity of service or with the production of documents ultimately provided. Had those matters been placed in issue, the absence of conduct money alone may well have meant that the Summons had not been validly served, otherwise, be of no effective.[6]
3. It is, therefore, unnecessary to determine those questions in circumstances where Tesko complied, and there was no objection to the release of the documents.

Is the Tribunal seized of jurisdiction to make a monetary award to a non-party answering a summons?

1. The respondent's submission proceeded on a more fundamental contention, that the Tribunal lacked power to award any sum to Tesko, to produce documents. The submission is not directed to the amount claimed, nor to the reasonableness of time spent, but to jurisdiction. The respondent submitted the Tribunal cannot find in favour of Tesko based on the decision in Suncorp.
2. Notwithstanding the fact the Tribunal has previously determined that a person summoned to produce documents is entitled to payment for their time in attending to answer the summons,[7] Suncorp concerned a claim for legal costs by a summonsed party.
3. As noted at [7] of Suncorp, the solicitor for the party seeking its costs submitted that his client was seeking the sum of $3,500.00 to respond to a summons: $2,500.00 for counsel's fees for the appearance on 29 March 2010, and $1,000.00 for correspondence passing between solicitors.[8] The claim was clearly brought in respect of legal costs, not to appear or to produce documents in answer to a summons. In the case before me, Tesko confirmed at the commencement of the hearing that it does not seek its legal costs. Instead, the time of its general manager to collate documents.
4. While I am not bound to follow a prior decision of the Tribunal, I respectfully agree with Deputy President Aird's findings and determination handed down in Suncorp. However, it is clear that Suncorp is not relevant to the issues to be determined.

Proper Construction of s 104(4) of the VCAT Act

1. The respondent's submission also proceeds on the premise that s 104 of the VCAT Act only permits payment where a person is required to attend the Tribunal to give evidence, and not where compliance is effected by the production of documents alone. That contention raises a question of statutory construction concerning the proper operation of s 104(4). It must be resolved by reference to the text of the provision, read in its statutory context by reference to its purpose.[9]
2. Section 104(4) empowers the principal registrar of the VCAT to issue a summons requiring a person 'to attend the Tribunal to give evidence and produce any documents that are referred to in the summons.' The form of words reflects the traditional concept of a witness summons. It does not, however, prescribe an exclusive mode of compliance.
3. Subsections 104(3A) and (3B) qualify and expand how a summons issued by the principal registrar may be answered. Section 104(3A) expressly provides that a person who receives a summons to produce documents may comply by filing those documents with the Tribunal electronically or by post. Section 104(3B) similarly allows compliance with an attendance requirement by audio or audiovisual link. The provisions make clear that physical attendance is not an essential element of compliance with a summons under the Act.
4. The entitlement to payment arises under s 104(4), which relevantly provides that, 'a person in answer to a summons is entitled to be paid' the prescribed or determined fees and allowances. The subsection is silent on appearances, including the giving of oral evidence. Instead, focuses on the act of answering a summons.
5. Hence, the expression 'in answer to a summons' is of central importance. It directs attention to the act of responding to the Tribunal's compulsory process, rather than to a form of response. Where a summons requires attendance, the answer consists in an appearance in person. Where it requires production, the answer consists in producing one or more documents in accordance with s 104(3A). Both are equally answers to a summons for the purpose of s 104(4).
6. The construction is reinforced by its context. The Act expressly contemplates that a person may comply with a summons without the need to attend the Tribunal. It would, therefore, be incomprehensible to treat such compliance as sufficient to avoid a penalty for non-compliance under the Act, yet insufficient to attract the statutory entitlement to fees and allowances. Considerations of statutory purpose lead to the same conclusion.
7. Furthermore, s 104(4) serves a compensatory function. It recognizes that the compulsory use of the Tribunal' s processes may impose burdens on persons who are not parties to the proceeding, and it allocates responsibility for those burdens to the party(s) who seek to invoke that coercive power. The rationale applies with equal force where the burden arises from the production of documents as it does where it arises from attendance.
8. The respondent's contention would produce inconsistent outcomes. For example, a person required to attend briefly could recover fees and allowances, whereas a person required to spend time collating and reviewing extensive documentary material could not recover anything. Nothing in the text, structure, or purpose of s 104(4) supports such a distinction.
9. The fact the Summons in this case is entitled a 'Summons to Appear', does not alter this analysis. Statutory entitlement does not turn on the form or label of the Summons, rather, on whether the person has answered it in accordance with the Act. Tesko did so by producing the required documents. It, therefore, follows that the respondent's contention must be rejected.
10. I find s 104(4) is engaged as Tesko answered the Summons by producing documents. I also find the Tribunal has jurisdiction to determine what fees and allowances, (if any), should be paid in respect of the production.

Whether Tesko is entitled to fees and allowances for attending to answer the Summons?

1. Section 104(4) of the VCAT Act provides that, where no fees and allowances are prescribed, the fees and allowances (if any), the Tribunal may determine the fees and allowances to which a person is answering a summons.
2. Tesko answered the Summons by producing documents. Its general manager was responsible for compliance with the Summons. In discharging that obligation, Mr Caruana spent several hours locating, collating and reviewing emails, which included embedded documents. The issue is therefore whether that time gives rise to a monetary entitlement under s 104(4).
3. Having regard to the foregoing analysis of s 104(4) above, I find Tesko was engaged in answering the Summons. That compliance with the Tribunal's compulsory process attracts an entitlement to fees and allowances. The entitlement arises where the work has been performed by Tesko's general manager.
4. The Invoice relied upon in support of the application is particularised to claim 16 '[a]dministrative hours spent to collate documents as requested in summons dated 21/11/2025.'[10]
5. In oral evidence, Mr Caruana accepts that, had he known of a more efficient method of downloading emails from his inbox, the bulk of that work could have been completed in a matter of minutes. He maintained, however, that the time required to review the sent items could not have been materially reduced from the four hours he spent.
6. Although Mr Caruana could not explain how the charge out rate of $170.00 per hour (GST exclusive) was determined, the evidence establishes that the time actually spent in answering the Summons was materially less than the amount claimed in the Invoice.
7. In the circumstances, I find that Tesko used its time to answer the Summons and is, therefore, entitled to reasonable fees and allowances. However, on the evidence before me, had Mr Caruana sought assistance when answering the Summons, he could have achieved the same outcome in approximately four hours.

If the preceding aforementioned question is answered in the affirmative, what is the reasonable quantum of fees and allowances to be awarded?

1. Having concluded that s 104(4) is engaged, it follows, in principle, that Tesko be entitled to its fees and allowances, to be determined.
2. Section 104(4) contemplates persons answering a summons be compensated. In the matter of Hoang Tran Investments Pty Ltd v 2MS Constructions Pty Ltd (Domestic Building),[11] Senior Member Lothian (as she then was) observed that '[i]n enacting s 104(4), Parliament contemplated that it is appropriate in some circumstances that an amount be paid to those answering a summons.'[12] Accordingly, the Senior Member awarded the party answering a summons payment for attendance. The discretion was also exercised in favour of a party answering a summons in the matter of Merunovich v Melbourne CC,[13] ('Merunovich') whereby, Deputy President Gibson was required to exercise her discretion at [60] to direct a payment of $1,800.00 to a person who answered a summons. In that case, the Tribunal found that although the third party complied with the summons, and that the documents produced and evidence given did not go to support the objectors' case, the third party was entitled to the sum it claimed.[14]
3. Similarly, in the matter of Sowiha v Owners Corporation PS621796Q (Owners Corporation),[15] ('Sowiha') Member Rowland ordered payment of fees and allowances to an owners corporation manager in the sum of $976.20. The amount awarded was substantially less than the sum claimed of $4,126.20. At [24], the Tribunal observed that fees and allowances related to loss of business and time to collate documents. The Member allowed $200.00 per hour to collate documents.
4. Turning to Tesko's claim, having found that the Invoiced sum is not reflective of the time spent by Mr Caruana, I must do the best I can on the evidence before me to determine a reasonable sum to be awarded to Tesko.
5. The earlier determinations discussed above, in some instances, confirm that the Tribunal may reduce claimed amounts. In Sowiha the Tribunal allowed the claimant manager only three hours of time to collate documents (and to attend in person), despite a claim of 18 hours (which included other expenses for photocopying, inter alia). In any event, the Tribunal found that s 104(4) of the VCAT Act extends to loss of business time to answer a summons, prior to the return of summons hearing.[16] That an amount may be awarded even if attendance proves unnecessary.[17]
6. Applying those principles to the application before me, the Invoice submitted by Tesko claimed 16 hours at $170.00 per hour, totaling $2,992.00. Mr Caruana's evidence is that the time spent was far less. While it is accepted that reviewing the sent items required approximately four hours, I find the remainder of the time spent, particularly the inefficient downloading of emails avoidable.
7. In the circumstances, a reduction in the claimed amount is justified to reasonably account for actual time spent. An inference may be drawn that Mr Caruana is an employee of Tesko and the $170.00 for its employee would necessarily include profit. Therefore, having regard to the guidance in the earlier matters mentioned above, I find that four hours of administrative work at the rate of $150.00 per hour represents a reasonable fee and allowance to cover Tesko's cost. The reduction recognises that Tesko's work was capable of more efficient performance and that the entitlement under s 104(4) of the VCAT is to reasonable fees and allowances only.
8. I, therefore, find that Tesko is entitled to a monetary award reflecting four hours at $150.00 per hour (GST Exclusive), which equates to the sum of $600.00 payable by the responding party; recorded in the Tribunal's order made on 16 December 2025.

[1] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 104.

[2] Preena v Pryda Developments Pty Ltd (Domestic Building) [2010] VCAT 434, [94], 'before any claim for payment of his fees can properly be considered [the party attending the hearing in response to a Summons to Appear] should prepare a properly particularised tax invoice. This should be forward to the owners, in the first instance, for payment. If the owners do not pay, ....'.

[3] See Order 5 of Tribunal's order dated 23 September 2025.

[4] Owners Corporation Plan No PS 438902Q v Suncorp Metway Insurance Ltd (Domestic Building) [2010] VCAT 1316.

[5] Ong v Quickbuild Pty Ltd (Domestic Building) [2013] VCAT 1335, where the Tribunal discussed the nature of payments to persons attending to answer a summons extending beyond conduct money.

[6] Quach v RU (No1) [2017] ACTSC 233.

[7] Ong v Quickbuild Pty Ltd (Domestic Building) [2013] VCAT 1335. See also: Owners Corporation RP002044 v Finch (Owners Corporation) [2016] VCAT 2166; Hoang Tran Investments Pty Ltd v 2MS Constructions Pty Ltd (Domestic Building) [2006] VCAT 1210, [10]; Beaconsfield Parade Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2020] VCAT 820; Roberts v Monash CC [2002] VCAT 129; Tomasevic v Cheung [2006] VCAT 2292; See Order 4 of MBC Shotcrete Pty Ltd v Bullion Building and Construction Pty Ltd (Domestic Building) [2006] VCAT 2040; See Order 2 of Galway v Envision Homes Pty Ltd (Building and Property) [2020] VCAT 220.

[9] Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35, [4], statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose - being what the provision is designed to achieve in fact - insofar as that purpose is discernable from the statutory text and context.

[10] Tax invoice - particulars of work performed.

[11] [2006] VCAT 1210.

[13] [2015] VCAT 609.

[15] [2016] VCAT 269, 24.

[16] Beaconsfield Parade Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2020] VCAT 820, at [46], Member Tang (as he then was), citing the VCAT matter of Ong v Quickbuild Pty Ltd [2013] VCAT 1335, held that it is well established that the power to require payment of fees and allowances under section 104 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) extends to amounts claimed for loss of business time relating to the work of collating and copying documents, as well as attendance.