16 January 2023, 16 February 2023, 12 July 2023, 31 October 2023, 18 March 2024 and 19 March 2024

Spencer v ACE Mechanics Australia Pty. Ltd. atf Salameh Family Trust (Civil Claims) (Costs) [2025] VCAT 237

1. The Tribunal orders and directs that Christopher Spencer is to pay costs of $16,896 to Ace Mechanics Australia Pty. Ltd. ACN: 006 527 911 atf Salameh Family Trust and reimburse Ace Mechanics Australia Pty. Ltd. ACN: 006 527 911 atf Salameh Family Trust with application fee of $587.90.

1. On 15 October 2024, the Tribunal dismissed the application for compensation brought by Christopher Spencer for alleged defective services against ACE Mechanics Australia Pty Ltd ACN:006 527 911 aft Salameh Family Trust t/a ACE Mechanics Ace ('Ace').[1]
2. The proceeding was heard over a protracted period of time on 16 January 2023, 16 February 2023, 12 July 2023, 31 October 2023, 18 March 2024 and 19 March 2024.
3. Mr Spencer was self represented and Ace was represented by its director, Mr Salemei. Both parties engaged the services of expert witnesses to prepare reports and attend the hearing to give evidence.
4. The Tribunal required Ace to make any application for costs by 29 November 2024 in accordance with the final order in the substantive hearing.
5. On 22 October 2024, Ace complied with the order seeking a directions hearing or orders for costs against Mr Spencer for the costs they incurred as a result of engaging an expert to prepare two reports and give evidence at the hearing of the proceeding.
6. The Tribunal required that any application for costs be referred to Member Galvin for further directions as appropriate.
7. Mr Spencer, by order dated 28 November 2024, was required to provide any submissions in relation to the costs application to the Tribunal by 20 December 2024.
8. The Tribunal did not receive any submissions from Mr Spencer by the required date.
9. Mr Spencer's claim was not a small claim and the Tribunal has jurisdiction to entertain Ace's claim for costs.

1. Ace is claiming the costs of its expert, Mr Jeremy Banks of Advanced Control Equipment, in the amount of $16,896 for attendances and reports prepared on their behalf in the proceeding together with the application fee for this application for costs of $587.90 and additional costs.
2. Ace claims that Mr Spencer should pay these costs as a result of the manner in which he conducted his case and in accordance with section 109 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
3. Ace claims that it is entitled to costs under section 109 because Mr Spencer:

(a) Failed to comply with orders or directions of the Tribunal without reasonable excuse (section 109(3)(a)(i)) as he did not comply with orders on:

(i) 15 November 2021 to submit and serve all material upon which he would rely and provide a list of witnesses by 15 December 2021;

(ii) 21 April 2023 to submit a statement of agreed facts by 12 May 2023;

(iii) 11 &12 July 2023 to submit a statement of agreed facts by 18 August 2023;

(iv) 31 October 2023 to provide material by 30 November 2023 or by the extended date being 31 December 2023;

(b) causing an adjournment (section 109(3)9(a)(iv)) - alleging that the hearing scheduled for 11-12 July 2023 was adjourned to allow applicant to prepare his case;

(c) attempting to deceive another party or the Tribunal (section 109(3)(a)(v)) when Mr Spencer is alleged to have:

(i) lied to the Tribunal during the hearing in July 2023 hearings when he claimed that he had historically prepared and disseminated a statement of agreed fact when they were not provided until 6 October 2023;

(ii) refused to respond to the respondent's request for more information to be included in the statement of agreed facts on 7 October 2023;

(iii) refused to provide information as to who had removed the timing belt kit and how parts were sent to Dayco at the hearing on 31October 2023;

(iv) lied, on 28 November2023, when he claimed that he had spoken to representatives of several parties to obtain statutory declarations which were then not forthcoming in compliance with the order of 31 October 2023;

(d) was responsible for prolonging unreasonably the time taken to complete the proceeding when he did not comply with the directions in the order of 21 December 2023 and the extension of time to 8 January 2024 for Mr Spencer to provide all evidence and a witness list ultimately providing further information on 6 February 2024.

1. The word "costs" is not defined in the VCAT Act and is not limited to legal costs as the only entitlement to seek costs.
2. There are three issues to be determined:

(a) first, whether it is fair for the Tribunal to order Mr Spencer to pay any costs to Ace having regard to the criteria set out in section 109(3) of the VCAT Act;

(b) secondly whether expert costs are appropriately awarded where parties represent themselves; and

(c) thirdly, if the Tribunal found it fair to order Mr Spencer to pay costs to Ace, the basis on which those costs should be assessed, and in particular whether they should be assessed on a standard basis or on an indemnity basis, and whether the Tribunal should depart from ordering that the assessment be made under the County Court Scale.[2]

1. In Country Endeavours Pty Ltd v Baw Baw SC (No 8)[3] the Tribunal observed that part of the purpose for the basis of the rule, in section 109(1) of the VCAT Act that parties are ordinarily to bear their own costs, is that parties should not be discouraged from bringing proceedings for fear of costs orders being made against them "at any rate where they have behaved reasonably and responsibly", but that this does not mean that parties are free to abuse the process of the Tribunal or to act unreasonably or vexatiously in bringing or maintaining proceedings.
2. Ace contends that Mr Spencer's repeated delays in providing required material, assertions made that were unsupported by action and his failure to comply with orders made to unjustly enrich himself caused Ace to spend time, resources and incur costs unnecessarily and unreasonably.
3. There is no doubt that Mr Spencer commenced the proceeding with a strong belief that his claim would succeed. However, from the outset Mr Spencer was not properly prepared to conduct his claim, having not particularised his claim effectively and failing to submit all the evidence upon which he would rely at the initial hearing.
4. Having determined that he would not rely on expert evidence he changed his mind after the commencement of the proceeding and after Ace had provided the first report from Mr Banks. This conduct caused further delay to the progress of the proceeding and resulted in the need to obtain a responsive report from Ace by way of the second report from Mr Banks.
5. What was also apparent during the hearing was that Mr Spencer appeared to fail to grasp the importance of compliance with orders and directions so as to facilitate a timely outcome to his proceeding. The consequence being that further adjournments were required for compliance.
6. The Tribunal is required to take into consideration issues that may arise when parties are self represented. The Tribunal afforded Mr Spencer multiple indulgences when he failed to submit documents, advise as to who he would rely on as witnesses and permitted a belated request to be allowed to obtain an expert's report. He also failed to make available to Ace or advise the Tribunal that he had in his possession relevant parts which were the subject of the claim and thus denied the respondent the opportunity to assess this evidence. This conduct was extremely concerning given the nature of the claim and the various opportunities afforded to Mr Spencer to make all evidence available for assessment. Such conduct led to adjournments, delay and unreasonable interference with the proper conduct of the proceeding,
7. The Tribunal is satisfied that Mr Spencer's conduct caused delay in the proper conduct of the proceeding which resulted in Ace being required to obtain a second experts report and require their expert to attend multiple times at the hearing.
8. The Tribunal finds that Mr Spencer conducted the proceeding in a way that unnecessarily disadvantaged Ace by failing to comply with orders and directions of the Tribunal without reasonable excuse,[4] causing numerous adjournments as a result of that non-compliance,[5] and was responsible for prolonging unreasonably the time taken to complete the proceeding as a result.[6] Further, the failure to produce vital evidence that was in Mr Spencer's possession despite repeated directions to submit all evidence compromised Ace's ability to respond to the claim against them.[7]
9. It is therefore fair to make an order requiring Mr Spencer to pay costs to Ace for the costs incurred in securing expert reports and attendances at the Tribunal.

1. The conduct of Mr Spencer caused a protraction of the proceeding and disadvantaged Ace by failing to produce relevant evidence to the Tribunal and Ace.
2. The Tribunal finds that Mr Spencer is liable to pay Ace's expert costs in full and reimburse Ace the application fee for this costs application. The Tribunal notes that no further request for costs was particularised and it is appropriate to limit the claim accordingly whilst acknowledging that Ace attended the hearing over multiple days and was required to prepare a defence to the claim.
3. The Tribunal orders and directs that Mr Spencer is to pay Ace $16,896 and reimburse Ace with application fee of $587.90.

[1] Spencer v ACE Mechanics Australia Pty. Ltd. atf Salameh Family Trust (Civil Claims) [2024] VCAT 995.

[2] Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 provides that "unless the Tribunal otherwise orders", if the Tribunal makes an order as to costs, the applicable scale of costs is the County Court costs scale as defined in Rule 1.13 of Chapter I of the Rules of the County Court.

[3] [2011] VCAT 2403 at paragraphs 11 and 12.