1 The Monash City Council or its valuer valued land known as the Brandon Office Park as at 1 January 2002 at a total sum of $10,253,000. The owner objected to this valuation. The council revised this valuation to $9,320,000. This revised valuation was confirmed by the Valuer General. The landowner sought to review the revised valuation. It contended that the appropriate valuation was $7,450,000.

2 On 28 May 2003 Deputy President Baker-Smith made certain orders at a directions hearing which included an order that provided the Valuer General with an opportunity to apply to be joined as a party to the proceeding. The Valuer General took up that opportunity and, at a further directions hearing on 8 July 2003 Deputy President Baker-Smith joined the Valuer General. Subsequently the Valuer General contended that the proper valuation of the land was $10,250,000.

3 On 7 August 2003 a compulsory conference was held before Mr I D Robinson. The conference was attended by Mr Grant Jackson and Ms Sian Gunson on behalf of the owner and by Ms Melanie Olynyk on behalf of the council. The Valuer General did not appear. I am told that the reason why the Valuer General did not appear was due to an administrative oversight.

4 The notice which informed the parties of the compulsory conference, which was dated 28 July 2003, indicated that the major purpose of a compulsory conference is to attempt to settle matters without further hearing or expense to the parties and, in particular, was to identify and clarify the issues in dispute, promote a settlement, identify questions of law and fact to be decided by the tribunal and to allow directions to be given concerning the conduct of the case.

5 Notwithstanding what might be thought to be the somewhat limited purpose of a compulsory conference, Mr Ian D Robinson, who constituted the tribunal on that day, ordered by consent of the applicant and the respondent that the site value applicable to the subject land as at 1 January 2002 is $8,800,000. No order was made as to costs as between the owner and the council on that day. Indeed it would seem quite apparent that the order that was made was made on the basis that no such costs would be awarded. However the owner did foreshadow an intention to claim costs against the Valuer General.

6 Subsequently the Valuer General wrote to the tribunal apologising for the non-appearance on 7 August and indicating, retrospectively, that it consented to the order that was made adjusting the site value.

7 Subsequent to that, on 28 August 2003, the owner applied for costs against the Valuer General. That application was said to be made pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 but, as is now apparent, it is effectively made, as it must be, under section 25 of the Valuation of Land Act.

8 The owner claims $2,100 in costs representing seven hours additional work at $300 per hour. It is said that this additional work was involved in attending the compulsory conference where the Valuer General was joined as a party, looking at two additional comparable sales which the Valuer General had indicated his valuer intended to rely upon and preparing the application for costs.

9 Ms Davidson, who appeared for the Valuer General, opposed any award of costs and submitted that the tribunal was functus officio and had no power to make any order as to costs. In that respect she relied upon a decision of Justice O'Bryan of the Supreme Court of Victoria in Mansell v Keating (5 May 1995). She also submitted that there had been no determination of the tribunal in favour of the owner and, hence, the basis for any award under section 25 of the Valuation of Land Act had not been made out. Thirdly she submitted that as a matter of discretion there should be no order as to costs.

10 Section 25(2) of the Valuation of Land Act provides that the tribunal may, in its discretion, award the costs of any proceedings to the party in whose favour the proceedings are determined. In my opinion proceedings are determined whether they are determined after a contest or whether they are determined by consent. The making of an order that finalises a proceeding is the determination of the proceeding. That is precisely what occurred here on 7 August 2003. It may be that that determination was made in circumstances where there was an element of unfairness to the Valuer General, he not having been notified that the hearing was one at which a final determination would be made. However the subsequent consent given by the Valuer General to the order that was given removes any complaint that can legitimately be made about such a failure.

11 I have no doubt that, not only were the proceedings determined on 7 August 2003, they were determined in favour of the owner. This is because the site valuation which would have stood, but for the review before the tribunal, was reduced. It is true that it was not reduced to the extent sought by the owner, but it was still reduced.

12 The way section 25 of the Valuation of Land Act is framed, it is necessary to determine the proceedings before one embarks upon the exercise of considering whether or not to award costs. This is because it is impossible to embark on that exercise until one has determined in whose favour the proceedings have been determined. Given the language of the statute, I doubt whether there is any obstacle for an application for costs to be made after the conclusion of the hearing at which the proceedings were determined. In any event I am told, and I accept, that the issue of costs against the Valuer General was in fact raised on 7 August this year and, further, the written application, which was on 28 August 2003 was only three weeks after that hearing. I suspect that the first of the two authorities referred to by Mr Justice O'Bryan in Mansell v Keating, namely the Family Court case of Marriage of Kazimierczak [1987] FLC 76,419 is more applicable than the decision in Mansell itself. In the Family Court case, the court made it clear that where the power to award costs is derived from a statute, as is the case here, any limitation as to the exercise of that power must be found within the statute itself. I see no limitation which would prevent an application for costs being made three weeks after the determination of a proceeding, if indeed it was made three weeks after, contrary to what I said earlier.

13 Therefore I have formed the view that I have a discretion as to whether to award costs. It seems to me that the non-appearance of the Valuer General on 7 August did not add to costs at all. It also is my conclusion that no other conduct of the Valuer General deserves criticism. I accept the argument that if costs are to be awarded in this case, the appropriate party against whom costs should be awarded is the council. But no costs are sought against the council; and for good reason. It seems implicit that when the council settled the matter, it did so on the basis there would be no application for costs against it.

14 Generally speaking in valuation matters, costs can be justified on two different bases. One basis might be that the party has succeeded in the case in either having the valuation reduced or in maintaining the valuation and they should get costs in the same way that a successful litigant generally gets costs in civil proceedings. Indeed, last week in HSBC Asset Management Pty Ltd v Whitehorse City Council (reference L10/2003) I made an order for costs essentially on this basis. The second basis for which costs might be awarded could generally be described as the conduct of a party.

15 In the present instance there may be a theoretical basis for an award of costs in favour of the owner on the basis that the valuation has been reduced. Such an award would need to be made against the council and, as I have said, it would not be appropriate to do so, not only because no application is made, but also because it seems implicit in the settlement that it was intended that no such application be made.

16 As to the second basis I do not see any conduct of the Valuer General that has added to the owner's costs and there is no foundation for any award against the Valuer General on that basis.

17 Ms Davidson has applied for the costs of this hearing. She is relying on section 75 of the Victorian Civil and Administrative Act and says that the application for costs today was misconceived and, as a result, I should order that the owner pay costs to her client to compensate her for having appeared today to resist the application.

18 Section 75 is concerned with the summary dismissal or striking out of a proceeding or part of a proceeding. It is not really concerned with costs following a final order in a proceeding or part of a proceeding. It is true that I could have dealt with the matter under section 75 before I dealt with it finally and that would have then attracted the order; and the fact that I have not done it in that order should not affect the final outcome.

19 I think the principles about costs that apply in valuation matters do not have the clarity that is desirable. It will take some further decisions of this tribunal or of the Supreme Court to provide that clarity. It is desirable to avoid any element of unpredictability in relation to costs issues.

20 I have found against the owner in relation to costs, but it does not follow that the application warranted summary dismissal on the basis of being misconceived. Many cases brought before courts and tribunals are misconceived. But the summary dismissal of a matter on the basis that it is misconceived is generally because it is apparent on its face. The owner in this case, and its advisers, genuinely thought they had a claim against the Valuer General. This is not a type of case that is analogous to one that is frivolous or vexatious. The concept of a matter being misconceived or lacking in substance, where used in the context of section 75, has some relationship with claims that are frivolous or vexatious.

21 I also take into account that, at least to some extent, this application is being made because the Valuer General did not attend the compulsory conference on 7 August. It is appropriate to let the costs of today fall where they lie. I will make no order as to costs in relation to today's proceeding.