The applicant claims a total sum of $272 for fuel costs and car parking during the hearing at VCAT in Melbourne.
I appreciate that there is some difficulty for parties from regional Victoria (in this case, Shepparton) attending a hearing in Melbourne, with the added expense that this entails.
However, I consider that the applicant's travelling expenses in this case are more in the nature of 'personal costs' that would not ordinarily be considered to be in the nature of legal costs that might be awarded against another party - whether or not a lawyer or professional advocate was engaged. Moreover, as a matter of discretion, I do not consider the circumstances of this case warrant these travelling expenses (if capable of being awarded as costs at all) being awarded against the Council on some indemnity basis.
I do not propose to allow this item.
[2]
The applicant claims a total sum of $7,125 for professional legal fees incurred during the course of the proceedings. This comprises two invoices from Belleli King and one invoice from Hargraves.
A self-represented party is one who is not represented in the proceeding by a professional advocate. That person has chosen for whatever reason to represent itself, even though it may obtain background advice or assistance from a variety of professional or other sources, both paid or non-paid.
As a matter of general principle, this background advice and assistance may sometimes pertain directly to specific matters in the conduct of the proceeding and, if provided by a lawyer, could conceivably comprise legal costs incurred in the proceeding. Commonly, this would arise with the lawyer effectively and transparently becoming the 'solicitor on the record' in the proceeding for a period, so that the legal costs incurred would clearly be in the capacity of a professional advocate, and claimable as costs in the proceeding for that relevant period. Although not lawyers, the professional advocacy services initially provided by LMS that I have allowed above fall into this category, as they actually prepared and lodged the s 185 application and attended at a directions hearing.
Where a lawyer provides more general background advice, the situation is less clear. The payment for any background advice is more in the nature of a personal cost or administrative expense incurred by a party that has chosen to represent itself as a matter of record. The obtaining of that background advice will not ordinarily be known to the other parties. It may however depend on the specific purpose for which the legal assistance was provided.
Here, the two invoices from Belleli King dated 24 August 2016 ($4,650) and 29 September 2016 ($1,900) reference that they are 'Re: Special Charge - Greater Shepparton City Council'. However, neither is prepared as a bill of costs that itemises individual attendances. Rather, they refer generally in a single short-form paragraph to costs for 'professional services rendered including receiving instructions, all perusals, attendances and correspondence etc'. The first invoice does not indicate the time period to which the costs apply, and neither of the two invoices indicate the basis upon which the costs of been calculated. Both include an 'anticipated disbursement' of $727.27 for counsel's fees, but there is no indication of the nature of the advice obtained. Indeed, Belleli King was then representing the D'Agostino brothers, and the relevant counsel was the D'Agostino's barrister. It is not clear if the applicant was obtaining separate advice, or co-ordinating its case with the other applicant. More particularly, neither of the invoices anywhere mentions VCAT, or documents or advice pertaining directly to the VCAT proceeding.
The invoice from Hargraves dated 7 March 2017 ($575) at least references that it is 'Leo Schoonderbeek ATS Greater Shepparton City Council - VCAT Hearing' and its timing is contemporaneous with the final hearing of the proceeding. However, beyond this, the invoice is similarly devoid of detail. It simply provides an invoice for unspecified 'professional fees', without indicating what professional assistance was provided.
The applicant's costs submission in reply was prepared by Belleli King. It contends that, due to the complex nature of the proceedings, the applicant sought legal advice and instructed solicitors to draft submissions in support of its s 185AA application and draft a witness statement for use in the proceedings. No further information is provided, and these particular matters are certainly not referenced in the invoices themselves. Moreover, so far as I am aware, there was only one with the statement filed by the applicant, I have already separately allowed the costs of Mr Toll and LMS in the preparation of this two-page witness statement. It is not a witness statement that bears any overt indication (either in form or content) that it has been settled by a lawyer.
At no stage during the periods of the relevant invoices of either Belleli King or Hargraves were either of those lawyers the 'solicitors on the record' for the applicant in the VCAT proceeding, nor could it be construed that they were then acting in the role of a professional advocate for the applicant.
Even if some form of general background advice could comprise legal costs capable of being awarded in the proceeding, there is insufficient information to support any of these invoices being included in such an award, as costs necessarily or reasonably incurred by the applicant (as a self-represented party) in the proceeding.
In the absence of further supporting information, and as a matter of discretion, I do not propose to allow these items.
[3]
The applicant seeks its costs of the costs application in the sum of $2,200. It does so in the final two lines of the costs reply submission, without elaboration.
The applicant had prepared and submitted its own costs application. Following a detailed submission in response from the Council's lawyers, VCAT received a similarly detailed submission in reply. The reply document was signed by Belleli King as 'solicitors for the applicant'.
Much of what has been included in the submissions in reply are not really matters that constitute a 'reply', and comprise submissions that should have been made with the initial costs application. Nonetheless, in the context of a self-represented party unfamiliar with matters of this nature, it is perhaps understandable that the applicant belatedly sought some legal assistance with regard to its costs application. The reply submission had the benefit of removing or clarifying some costs items.
Moreover, it is clear from the reply submission that it was prepared and submitted by Belleli King in the role of a professional advocate on behalf of the applicant.
As I have indicated, there is no indication as to how the amount of $2,200 has been calculated. It was not an item that had been included in the original costs application, and thus presumably relates primarily to Belleli King's role with the reply submission. It is not a costs item that the Council has had the opportunity to comment upon either generally, or in terms of its quantum. However, rather than put the parties to additional cost in providing the Council with that opportunity, I have decided to exercise my own judgement and discretion in the matter.
Having regard to what I have said, and the distinctions I have drawn about the costs which are capable of being awarded in favour of a self-represented party, I consider that the applicant is entitled to recover part of the costs it has incurred (albeit belatedly in reply) in the costs application. However, I consider that the amount of $2,200 is excessive for a 'reply' submission. Having regard to the relevant factors in s 109 of the VCAT Act, the nature of the reply submission in the context of the overall costs claimed, and my general discretion and experience, I consider that it fair in the circumstances to allow this item in the sum of $800.
[4]
It follows from the above that I am satisfied that it is fair to make an order that the Council pay the specified part of the costs of the self-represented applicant in the proceedings, fixed at $2,670 (i.e. the total of the three costs items that I have allowed).
Together with the fees reimbursement of $3,758.50, this means that the Council must pay to the applicant the total sum of $6,428.50. Although the parties did not address me on the question of timing, I consider it appropriate that payment be made within 30 days of the date of this order.
Parties
Applicant/Plaintiff:
Schoonderbeek Pty Ltd
Respondent/Defendant:
Greater Shepparton CC [2017] VCAT 1204
Legislation Cited (2)
Government Act 1989
Civil and Administrative Tribunal Act 1998
Cases Cited (3)
Schoonderbeek Pty Ltd v Greater Shepparton CC [2017] VCAT 1204 (8 August 2017)
I note for the record that the original costs application had included an amount of $9,800 for the applicant's 'attendance time', claimed as its managing director's preparation and appearance at the hearing. The original costs application had also included a claim for the applicant's lunch expenses incurred during the hearing. Neither of these items were pursued in the applicant's reply submission.
Before turning to the individual items of costs still claimed, I will deal with two preliminary matters.
First, I disagree with the Council to the extent that it submits that the applicant should not receive any costs on the basis that the applicant's two proceedings 'did not run' and were never considered or finally determined on their individual merits. It is not necessary for costs to be predicated on there being a favourable 'merits' outcome in a proceeding. Moreover, as I have outlined earlier, the five proceedings were listed and heard together. For a variety of legal and practical reasons, the D'Agostino s 185AA submissions were heard first. Although the applicant's two applications were not finally heard, the applicant had also been heard on (and supported) the threshold grounds upon which the D'Agostino s 185AA application ultimately succeeded. Even putting to one side the applicant's separate s 185AA proceeding, the basis upon which the special charge was ultimately declared invalid was such that the applicant should never have had to make an application for review, as there was no valid scheme to review.
Despite this, I acknowledge that I should not, in considering the application for costs, give any significant weight to the third factor under s 109(3) of the VCAT Act - namely, the relative strengths of the claims made by the applicant in its proceedings. Having not heard the merits of the applicant's proceedings, it is impossible to form a concluded view about this. This is certainly not fatal to the applicant's claim for costs. It simply means that the application needs to be founded on other relevant grounds or circumstances.
Secondly, I do not agree with the Council's contention that the applicant cannot recover any costs as a self-represented party, on the basis of an argument that costs comprise only legal costs incurred by a lawyer on its behalf. I accept that there is some ambiguity in the authorities on the extent (if any) that a self-represented party can recover costs. In Cachia v Hanes[1994] HCA 14; (1994) 179 CLR 403, the High Court had indicated that costs meant 'legal costs', and some VCAT decisions have followed that principle notwithstanding that Cachia concerned a matter in the NSW courts, rather than a Tribunal such as VCAT that encourages self-representation and that also has governing legislation explicitly recognising non-lawyer 'professional advocates'. For my part, I agree with the sentiment expressed by the then VCAT President Justice Morris in Aussie Invest Corporation Pty Ltd v Hobsons Bay CC[2004] VCAT 2188, to the effect that the constitution, purpose and practices of VCAT militate against the decision in Cachia being too strictly applied in a VCAT context.
However, having said that, I consider that the costs that are capable of being awarded in favour of a party who is not represented by a lawyer should still be very broadly in the general nature of legal costs - for example, the costs of a professional advocate, or the costs of an expert witness necessarily retained to give relevant evidence in the proceeding. I do not consider that the costs capable of being awarded to a self-represented party should ordinarily extend to costs that are more in the nature of personal costs or administrative expenses.
In Aussie Invest, then then VCAT President had said that, having regard to the special circumstances of VCAT, the Tribunal has power to make an order for costs in favour of an unrepresented person to compensate that person for wages lost and travelling expenses incurred in attending a hearing, on the basis that it is an outgoing directly related to the proceeding cost which can be indemnified. Having the power, and exercising it as a matter of discretion or common practice, are two very different things. Costs are discretionary, and each case turns on its own facts and circumstances. Moreover, even in Aussie Invest, it appears that the power was being considered only in the context of 'indemnity' costs rather than 'standard' costs. I would have thought it would be an extreme or unusual case where the costs awarded in favour of a self-represented party could extend to lost wages or travelling expenses. Here, in any event, I do not consider these proceedings would warrant an award of indemnity costs.
I acknowledge that the Council's argument against awarding costs to a self-represented party, and its reference to the decision in Cachia, was perhaps put most strongly in the context of the applicant's claim for $9,800 for the 'attendance time' of its managing director in preparing and appearing at the hearing. As I have noted, this aspect of the costs application was subsequently withdrawn by the applicant - quite properly in my view. Apart from any debate about the strict application of the decision in Cachia to a Tribunal such as VCAT, there is a reasonably well-established principle that 'costs' do not include the time taken by a self-represented person in preparing and conducting its case. I would not have allowed those so-called 'costs' in this proceeding.
I turn then to the items remaining in the applicant's claim for costs, and the issue of quantum.