1. Under paragraph 5 of Croft J's Order, after the costs are taxed and paid, the Applicant has leave to file Amended Points of Claim.

1. Whilst the Respondents have filed a Summons for Taxation of the costs awarded on 16 January 2017, the process of having the costs taxed has not proceeded and so the Respondents find themselves in the unenviable position of having the benefit of two awards of costs, but being unable to proceed with having them taxed together efficiently. Because the taxation of their costs has stalled, the Respondents cannot complain of a delay by the Applicant in filing Amended Points of Claim. It is a most unsatisfactory position.

1. Rather than challenging the Costs Court's view of its jurisdiction in the Court, the Respondents have sought a further Order of this Tribunal.

1. In paragraph 3 of the Reasons for his Order of 1 June 2017[3] Croft J set out the proceeding's "unfortunate procedural history" with a detailed list of the Applicant's failures to comply with Orders of the Tribunal and with its Practice Note PNVCAT2 concerning the contents of experts' reports. Croft J noted that in the interlocutory hearing the Applicant did not seek to put an alternative version of the history of the proceeding[4].

1. Relevantly to the Order of 16 January 2017, the Applicant had sought to rely on an expert's report by a Dr Coker on issues of loss and damage. On 16 September 2016 I made an Order that the Applicant file and serve a signed supplementary report from Dr Coker disclosing all of the information required by PNVCAT2. The Applicant served a supplementary report of Dr Coker, but refused to supply to the Respondents spreadsheets and calculations of the estimated revenue shortfalls which were a significant aspect of the report. The Respondents sought a directions hearing to compel the Applicants to disclose that information, which the Applicant was undoubtedly obliged to disclose under PNVCAT2, and it was listed for hearing on 16 January 2017. Days before that directions hearing the Applicants disclosed the information.

1. Relevantly then to today's application, paragraph 3 of the Order made 16 January 2017 said that:

The Applicant shall pay the Respondents' costs of correspondence pressing the Applicant for the service of spreadsheets and calculations referred to in the Applicant's expert's report, to be assessed by the Costs Court on a standard basis under the Supreme Court Scale.

1. Section 111(b) of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") the VCAT Act empowers the Tribunal to order that costs be taxed or assessed by the Costs Court.

1. The Order did not expressly say that the costs were to be taxed "forthwith" or "immediately", but neither did it stay the taxation of the costs. It was not even expressed in the form of stating that taxation would occur "in default of agreement" (which words can cause delay, by leaving room for argument that the party must seek agreement before it can proceed with its taxation). The Order did not say the Respondents' right to have their costs taxed was conditional on some other step being taken.

1. As the Order was expressed, the Respondents could have set out to have the costs taxed at any time.

1. Section 109(6) of the VCAT Act provides that if the Tribunal makes an order for costs before the end of the proceeding, it may require that the order be complied with before it continues with the proceeding. My Order of 16 January 2017 was not to that effect. This power is irrelevant to the Cost Court's view.

1. The Tribunal is a creature of statute which does not have inherent jurisdiction. Other than costs orders under sections 75 and 78 of the VCAT Act - which are irrelevant to this application - the Tribunal's power to award costs is conferred by Division 8 of the VCAT Act.[5]

1. Given that the work of the Respondents' legal practitioners in pressing for the spreadsheets and calculations was made otiose once the Applicant disclosed the information, I would have no hesitation in describing the costs awarded on 16 January 2017 as being "costs thrown away". I would have no hesitation in saying that those costs are included in the costs thrown away to 1 June 2017, referred to in the Order of Croft J made on 1 June 2017. I recognise, though, that these expressions on my part have no formal influence on the Costs Court's concern with its jurisdiction.

1. As shown in exhibits LS-5 and LS-6 to the affidavit of Mr Sher, the Costs Registrar advised the Respondents on 21 November 2017 that Rule 63.20.1 of the Supreme Court Rules provided that if an order for costs was made on an interlocutory application or hearing, the party in whose favour the order is made shall not tax those costs until the proceeding in which the order is made is completed, unless the Court orders that the costs may be taxed immediately. The Costs Registrar wrote, "The order ... made 16 January 2017 does not provide for the costs to be taxed immediately, unlike the order made ...on 1 June 2017".

(a) There is no equivalent to Rule 63.20.1 in the VCAT Act. Certainly the power given by section 109(6) cannot be seen as requiring the Tribunal to expressly say when costs may be taxed.

(b) As I note below when discussing Dale v Clayton Utz (No 3) [2013] VSC 593, before Rule 63.20.1 came into operation on 1 April 2013, a party in a Supreme Court proceeding could seek immediate taxation in respect of any costs order. As there is no equivalent to Rule 63.20.1 in the VCAT Act, surely that is the position in VCAT today.

(c) As a simple matter of English expression, in the absence of a provision such as Rule 63.20.1, the addition of a word such as "immediately", "now" or "forthwith" is superfluous. There is no difference between the Tribunal ordering that "Smith shall pay Jones $10,000.00" and "Smith shall now pay Jones $10,000.00". The former expression does not stay Smith's obligation and so it requires Smith to pay immediately.

(d) The Order made 1 June 2017 does not say "immediately", which is the word used in Rule 63.20.1. It says "forthwith". The Costs Registrar has taken the view that there is no distinction between the two. If (as I believe) the costs ordered on 16 January 2017 are costs thrown away and are thus within the costs ordered to be taxed and paid forthwith by the Order of 1 June 2017, then the Costs Registrar's concern has been met.

1. In any event, on 21 November 2017 the Costs Registrar invited the Respondents to "advise whether the VCAT proceeding had been finalised" - and can I say that the only proceeding is this VCAT proceeding, Croft J having sat as an acting judicial member of VCAT, and his Order of 1 June 2017 and Reasons being headed in this VCAT proceeding - and if not, to make submissions on whether the costs ordered on 16 January 2017 could be taxed.

1. The Respondents made submissions on 23 November 2017. They conceded that the VCAT proceeding has not been finalised. Their submissions that the costs could nevertheless be taxed did not find favour with the Costs Registrar, who wrote that "the costs order made on 16 January 2017 cannot be characterised as an order for 'costs thrown away' ".

1. As a result, the Respondents made their application for an order that the costs referred to in paragraph 3 of the Order made 16 January 2017 may be taxed immediately.

1. I consider that Rule 63.20.1 of the Supreme Court Rules is irrelevant to the Orders made by this Tribunal on 16 January 2017 and I June 2017.

VCAT's power to make an order as sought by the Respondents

1. Given the absence of the Applicant, I note that section 119(1) of the VCAT Act empowers the Tribunal to correct an order. To the extent that the Costs Registrar's construction of the Order made 16 January 2017 identifies an error or defect of the kind referred to in section 119(1), I make this Order pursuant to that section. Additionally, because the VCAT proceeding has been stayed as distinct from finalised, the Tribunal is not functus officio and so it continues to have power to make interlocutory orders. Finally, even though this sentence is not contained in Croft J's Order of 1 June 2017, paragraph 40 of His Honour's Reasons[6] includes, "(T)he above findings do not preclude further orders made in the exercise of case management powers", and section 117(6) of the VCAT Act provides that "the reasons for an order, whether oral or written, form part of the order".

1. So, unconvinced as I am of the Costs Court's construction of the Order made 16 January 2017 and of the relevance of Rule 63.20.1, and being unclear on whether the email of 11 December 2017 from the Costs Registrar amounts to a ruling on jurisdiction, I do take the view that I have power to make an order of the kind sought by the Respondents, albeit on different grounds as were put by the Respondents.

The Respondents' submissions that VCAT make an order for immediate taxation under Rule 63.20.1

1. Counsel for the Respondents took me to some cases concerning Rule 63.20.1, including to his credit an aspect of one decision which did not favour the Respondents' position.

1. In Dale v Clayton Utz (No 3) [2013] VSC 593, Hollingworth J dealt with an application by Mr Dale for a costs award in his favour to be dealt with immediately, even though the proceeding was continuing. Her Honour noted that Rule 63.20.1 came into operation on 1 April 2013, and changed the previous position in the Court which had enabled a party to seek immediate taxation in respect of any costs order.

1. I note in passing that s109 of the VCAT Act has been amended once since 1998, but that the amendment was on a different topic[7].

1. Her Honour said that the Rule was introduced to avoid multiple taxations, to avoid interlocutory applications being used as a means to exhaust the opposing party's funds, and to avoid unfairness. At paragraph [60] Her Honour said the Court's discretion under the Rule had to be exercised judicially, and at paragraph [63] she went on to say, by reference to a Federal Court decision, that the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice, that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded.

1. To interject again, as a VCAT member I am not exercising a discretion under Rule 63.20.1 of the Supreme Court Rules, and I do not see in Division 8 of the VCAT Act any general practice that the costs of an interlocutory proceeding cannot be taxed until the principal proceeding is concluded.

1. At paragraph [65] Her Honour said, by reference to authorities, that the demands of justice may require a departure from the ordinary rule for three broad reasons: the conduct of the unsuccessful party, the likely delay before the final completion of the proceeding, and because the interlocutory application involves a separate or discrete issue.

1. Counsel for the Respondents submitted, and I accept, that those three broad reasons all favour the granting of the Respondents' application. The conduct of the Applicant was described in paragraph 3 of the Reasons for the Order of 1 June 2017[8]: the proceeding's "unfortunate procedural history". The likely delay is established by the fact that the proceeding is stayed, and that only after the costs are taxed and paid may the Applicant file Amended Points of Claim - with the consequence that the Respondents could not begin to assert that there was a want of prosecution for failure to file Amended Points of Claim until the taxation was done. Finally, the costs which were awarded in the Order of 16 January 2017 certainly involved a discrete issue: they were costs associated with causing the Applicant to properly disclose information relating to its experts report, and the disclosure of that information brought that chapter to a close.

1. In Setka v Abbott [2013] VSCA 376, the Court of Appeal discussed Hollingworth J's above decision. In paragraph [27] the Court of Appeal approved Hollingworth J's statements that the discretion had to be exercised judicially and Her Honour's identification of the three broad reasons for departing from the default position.

1. In Mandie v Memart Nominees Pty Ltd (No 2) [2015] VSC 622, McMillan J discussed Rule 63.20.1 and at paragraph [25] cited Dale v Clayton Utz (No 3) and Setka v Abbott and said the three broad reasons identified in those decisions were examples of circumstances in which a Court will make an order as to how costs will be taxed on an interlocutory application. At paragraph [30] Her Honour found that Memart's conduct of its proceeding had been unsatisfactory; the proceeding had been delayed; costs had been wasted; and that whilst the proceeding had been on foot for over a year, pleadings had not yet closed. Her Honour ordered that the costs of the relevant interlocutory application be taxed immediately.

1. In Fanissa Pty Ltd v Versace [2016] VSC 416, Hargrave J considered and applied Dale v Clayton Utz (No 3) and Setka v Abbott, but in the particular circumstances did not order that costs be taxed immediately.

1. At paragraph [29] Hargrave J said that if a party relied on the conduct of the unsuccessful party, being the first of the three broad reasons identified by Hollingworth J, that ground should usually be advanced at the time the costs order was made or very soon thereafter, to the Judge making the order. It was that Judge who, having just made the costs order, had control of all the relevant

facts and who could best exercise the discretion on this ground efficiently. His Honour said, "It would be an exceptional case for an application made more than a year later to be granted on that ground. Such a late application would be contrary to the overarching purpose as it would waste judicial resources and cause extra costs to the parties".

1. If in the case before me I was asked to exercise a discretion under Rule 63.20.1, I would say that there has not been a significant delay in making the application. It has only been prompted by the Respondents' receipt of the email from the Costs Registrar in December 2017. Further, the words 'overarching purpose' allude to the Civil Procedure Act which is not applicable to the Tribunal. I commend the Respondents' Counsel for drawing Fanissa Pty Ltd v Versace to my attention, but I do not consider that it would operate against the Respondents in this case, if Rule 63.20.1 applied.

1. If I was asked to exercise a discretion under Rule 63.20.1, I would be persuaded to exercise that discretion and make an order that the costs awarded on 16 January 2017 could be taxed immediately. The Applicant's conduct of the proceeding has been unacceptable, as summarised in paragraph 3 of the Reasons for the Order of 1 June 2017 and not contested by the Applicant. The Applicant had no good reason for not disclosing the spreadsheets and calculations referred to in Dr Coker's report, which in effect it conceded shortly before 16 January 2017. The costs awarded in my Order of 16 January 2017 are discrete: they were costs wasted, thrown away, by the Respondents because of the Applicant's unjustified refusal to disclose the spreadsheets and calculations. That discrete matter has now been resolved. If the Applicant were to continue with this proceeding in the future, there would be no continuing issue about the disclosure of the spreadsheets and calculations. Those costs are precisely defined and would not be expected to be substantial, and so the Applicant would not be prejudiced by being required to pay those costs prior to the whole proceeding being finalised.

1. Rule 63.20.1 of the Supreme Court rules does not apply to VCAT. There was no need for my Order of 16 January 2017 to expressly state that the costs there awarded could be taxed immediately. I do not consider that my Order contained a "mistake", which is the word used in the heading to section 119.

1. Nevertheless, the authorities establish that the so called "slip rule" is very wide, and applies to much more than accidental transposition of numbers and the like. In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 1685, a decision of the Full Federal Court, Lockhart J said that application of the slip rule is not even confined to giving effect to the intention of the Judge at the

time when the Court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative.

1. The Tribunal's power to correct an order is enlivened where there is a "defect in form". For the purposes of this application, I am prepared to consider the Cost Court's view of the meaning of paragraph 3 of my Order of 16 January 2017 as having identified a defect in form.

1. In the circumstances, and as I say without being convinced that it is strictly necessary to do so but in the interests of assisting in the efficient progression of this litigation, I will make an order, under section 119 of the VCAT Act, to enable the costs referred to in paragraph 3 of the Order made 16 January 2017 to be taxed immediately.

1. The Respondents have incurred costs in making this application. They sought an order that those costs be costs in this proceeding. I cannot make such an order, because it would mean that the costs would follow the event when the proceeding was finally determined.

1. Again, because the Tribunal does not have inherent jurisdiction, this was an application made under s109 of the VCAT Act, which empowers the Tribunal to order, "at any time", a party to pay costs to another, only if the Tribunal is satisfied that it is fair to do so having regard to the criteria set out in section 109(3) of the VCAT Act. Costs do not follow the event, although two of the criteria are whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding [s109(3)(b)[9]], and the relative strengths of the claims made by each of the parties [s109(3)(c)].

1. As I have indicated above, it is apparent from the correspondence exhibited to the affidavits of Mr Sher and Ms Vieira, that the Respondents put the Applicant on notice in a timely manner of the reasons for the Respondents bringing this application, and the Applicant failed to respond to the Respondents and did not participate in the hearing before me. By this conduct the Applicant removed any chance of an order being made inexpensively by consent on the papers, and put the Respondents to the trouble of having to prepare the affidavits, briefing Counsel to appear, and for Counsel's preparation of submissions.

1. I am satisfied that it would be fair to order the Applicant to pay the Respondents' costs of the application, having regard to sections 109(3)(b) and 109(3)(c).

1. The above comments can be taken into account in the future. Because the Respondents did not seek the costs of the application at this stage, I will order that the Respondents' costs be reserved.

[1] I am not familiar with the procedures of the Costs Court. The view is expressed in an email of 11 December 2017 from the Costs Registrar. It is not in the form of an "Order", even though it deals with the important issue of jurisdiction. Mr Sher, legal practitioner for the Respondents, deposes in an affidavit that the Costs Registrar had proposed to strike out the Respondents' Summons for Taxation of the 16 January 2017 costs, but not that this had actually happened. In any event, currently the Costs Court will not tax those costs, so the point has to be dealt with.

[2] I was asked not to read exhibit 1 to Mr Sher's affidavit on the basis that it was written by the Respondents' legal practitioners 'without prejudice', and I have not done so.

[3] [2017] VSC 226; [2017] VCAT 589.

[4] Paragraph 3 of [2017] VSC 226; [2017] VCAT 589.

[5] For example, in paragraphs 27 - 32 of [2017] VSC 226; [2017] VCAT 589 Croft J expressly relied on section 109.

[6] [2017] VSC 226; [2017] VCAT 589.

[7] Section 109(7) was inserted in 2014. It provides that the Tribunal's power to award costs under s109 is exercisable by any member.

[8] [2017] VSC 226; [2017] VCAT 589

[9] "Proceeding" includes this application.