Tamas v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 113

Court of Appeal (Vic)|2003-08-21|Before: ORMISTON, CALLAWAY and EAMES, JJ.A.

ADMINISTRATIVE LAW - Practice and procedure - Costs - Order for costs made by Tribunal against non-party - Whether power to make order - Whether company director was "the representative of a party" before Tribunal, although the company was represented by counsel and solicitor - Victorian Civil and Administrative Tribunal Act 1998, ss.59, 62, 84, 89, 109, .

Having had the advantage of reading the judgments which Callaway, J.A. and Eames, J.A., in particular, are about to give, I agree that the appeal should be allowed for the reasons stated by them.

Nevertheless I would add this. Although I agree that one may see from s.62 of the Victorian Civil and Administrative Tribunal Act 1998 what persons are entitled to represent parties in proceedings before the Victorian Civil and Administrative Tribunal ("the Tribunal"), it may be that there could be persons other than those described in that section or formally designated pursuant to a provision in that section who may be "the representative" or one of the representatives of a party in a proceeding before the Tribunal. It is possible that persons do or may act as representatives of parties without their being formally "permitted or specified" by the Tribunal (see s.62(1)(c) of the Act) or likewise may act in a proceeding without obtaining a certificate of authority as contemplated by sub-s.(7) of s.62 of the Act. The critical matter, to my way of thinking, is that the person has conducted or otherwise acted in the proceeding as "the representative" of the party for that purpose and, as the other members of the Court have observed, that may mean that there are more than one person who might satisfy that description. What it does not include, unless they take on the role of representing the party in the proceeding, are officers, employees, agents or others authorised to act on behalf of a corporation or another person merely because they act or have acted at some time on its behalf for other purposes, albeit in connection with the proceeding, say by providing instructions or giving evidence.

I should be cautious about expressing any conclusions as to the extent to which purported representatives of a party may be found responsible for costs under s.109 of the Act because, after raising the position of solicitors, none of the parties appearing before this Court (which, of course, did not include the Tribunal itself) were able to state with any authority what the practice was of the Tribunal in relation to solicitors. Section 62 appears to concentrate primarily on those who would wish to act as advocates to represent the interests of parties before tribunals rather than on those who would take the solicitor's role in instituting or defending proceedings in the Tribunal. It seemed, so far as we could gather, that solicitors were permitted to file documents on behalf of their clients in proceedings but that that was not the subject ordinarily of any specific order. It was inappropriate to adjourn the proceedings merely to obtain further details from the Tribunal as to the activities of solicitors as such, so that I would be very cautious in expressing any views on the application of s.109 to those solicitors who do not act as advocates for their clients. Nevertheless, rules of this kind in courts have frequently been the basis of orders against solicitors, indeed one may generalise by saying that they are used far more frequently against solicitors than against barristers. Moreover it may be sufficient that the Tribunal through its staff permits a solicitor to take steps by way of filing documents and the like, such that the party may be treated as being thereby represented by a person "permitted ... by the Tribunal" within the meaning of s.62(1)(c) of the Act. Further than this, however, I would not wish to venture, for the answer in the present case is clear. There was no basis upon which it could be said that Mr Tamas had relevantly acted for his company in the conduct of the proceeding itself, whatever sins he had previously committed or was subsequently to perpetuate in the course of giving evidence.

I am more troubled by the proposal that an award of costs should now be made against Mr Tamas's company, albeit that the Tribunal appeared to err in suggesting that one had to choose between making an order against the party or its representatives. Of course ordinarily an order against a legal representative of a party suggests that the Court is relieving that party of the responsibility for the incurring of the relevant costs and placing it on the shoulders of the legal representative. Nevertheless the words in s.109(4) "rather than the party" qualify the expression "is responsible for conduct ... " and not the words "the Tribunal may order ...". Gabor Tamas Constructions Pty. Ltd. was not served and was and is not represented before this Court and I am not even clear that an application was originally made for an order for costs against it. The only other respondents before

this Court are the claimant and the Housing Guarantee Fund Ltd. which was the first respondent before the Tribunal. As may be seen Mr Tamas's company was not a party to this appeal, nor, as I understand it, was there any basis upon which the claimant, the second respondent, could cross-appeal.

In these circumstances, error having been found in the determination of the incidence of costs by the Tribunal, the preferable course ordinarily would be to remit the matter to the Tribunal, so that it can exercise its discretion afresh, subject to the statutory restrictions. I do not believe that we can make that decision in the absence of the party to be affected by any proposed costs order, namely Gabor Tamas Constructions Pty. Ltd. Perhaps it does not have any merits on its side, if one assumes that the acts of the appellant can fairly be attributed to his company, but there may be other arguments available to that company of a more technical kind. Moreover there have been suggestions that the company is either in liquidation or under some form of administration. The claimant could, perhaps, have sought an order at an interlocutory stage that Gabor Tamas Construction Pty. Ltd. be joined as a condition of granting leave to appeal to the appellant. That did not occur and so regrettably I do not consider that we can make an order in the absence of the party to be affected. It is possible that this Court could now make appropriate orders for joinder and service but I venture to suggest that the costs of those proceedings and of seeking the order against the company would be more expensive in this Court than it would be in the Tribunal. I would therefore consider that, regrettably, the remittal of the issue of costs to the Tribunal is the only appropriate course. Nevertheless, unless the second respondent seeks such an order I would not put the parties to the expense of such a step.

As Eames, J.A. explains in his reasons, the sole issue in this appeal is whether the Tribunal erred in law in holding that the words "the representative of a party" in s.109(4) of the Victorian Civil and Administrative Tribunal Act 1998 applied to the appellant. I agree with his Honour that the Tribunal did so err and, accordingly, that the appeal should be allowed. I agree with the learned presiding judge about the orders to be made.

The use of the definite, rather than the indefinite, article before "representative" in the opening words of s.109(4) raises two points for consideration. The first has to do with the singular and the plural. Plainly, this is a case where the singular includes the plural.[1] Accordingly, if a party has two or more representatives, the Tribunal may make a costs order against all of them. But that does not mean that, if there are two counsel, they must both be penalized, or that, if three practitioners are involved, a costs order must be made against all of them. The natural meaning of the words, in their context and having regard to the purpose of the sub-section, is that "the representative" includes a number of representatives and any one or more of them. That result could have been achieved more simply by saying "a representative" in the opening words.

Why then did Parliamentary counsel say "the representative"? It is that question which raises the second point for consideration. The reason, in my opinion, is that it is a natural and correct use of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication. As Ormiston, J.A. pointed out in the course of the hearing, there is an illustration of that in the first two lines of s.109(4) itself. They refer first to "a party" but then, the person or thing having been identified, to "the party". The definite article was chosen before "representative" because Parliamentary counsel had in mind one or some or all of the kinds of representative that had been identified earlier in the Act, namely the various persons who may represent a party pursuant to s.62, 84 or 89. The appellant falls into none of those categories, so it is unnecessary to decide whether the reference back includes representatives under s.84 or 89 or, indeed, whether it includes all the persons who may represent a party pursuant to s.62.

9 To my mind it is the plain meaning of the expression "the representative" that it refers back to one or more of the kinds of representative earlier identified in the Act and not to other persons who may, in a more general sense, be said to be representatives of a party. That produces a result that is consistent with the context in which s.109(4) finds itself. Even if the focus is on responsibility for conduct, there must first be a person satisfying the description "the representative of a party". I agree with Eames, J.A., for the reasons he gives[2], that the omission of sub-s.(3)(c), (d) and (e) from sub-s.(4) confirms our interpretation.

This appeal addresses the question whether the Tribunal had power under s.109(4) of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") to award costs against a non-party. By originating motion pursuant to Rule 56 of the Supreme Court Rules the appellant Gabor Tamas sought to review and set aside an order for costs made against him personally by a Deputy President in the Domestic Building List at VCAT on 29 May 2002. A judge in the Trial Division rejected the contention made on behalf of the appellant that the orders of the Tribunal were either made in excess of jurisdiction or else constituted error of law on the face of the record. Against that decision of the trial judge the appellant now appeals to this Court, leave to appeal having earlier been granted.

The proceedings giving rise to the costs order

The proceedings giving rise to the costs order were initiated by Ms Leanne O'Loughlin, the applicant before VCAT and second respondent to this appeal. Ms O'Loughlin's claim for damages, interest and costs derived from provisions of the Domestic Building Contracts Act 1995, the House Contracts Guarantee Act 1987, and the Building Act 1993. Ms O'Loughlin's claim related to defects which had emerged in a building owned by her at 128A Nicholson Street, Abbotsford ("the premises"). She claimed damages by way of the cost of rectification and with respect to bridging finance, the former damages being estimated at $64,047 and the latter at $4,200, as at September 2000, and continuing.

Ms O'Loughlin had purchased the premises in a finished state and was not involved as owner during the construction of the premises, nor did she know the identity of the builder. In March 1999 she made application to Housing Guarantee Fund Limited ("the Fund") seeking compensation pursuant to the statutory guarantee scheme and nominating as the builder the company Gabor Tamas Constructions Pty. Ltd. ("the company"). The Fund accepted that there were defects in the premises and advised her that the builder had been given 28 days to rectify those defects. Subsequently, however, the Fund rejected her claim on the basis that the company was not, in fact, the builder of the premises and, accordingly, no statutory guarantee was in existence at the time of the construction of the building. The Fund came to that conclusion by virtue of a statutory declaration which had been delivered to the Fund by the appellant, Gabor Tamas. In that declaration he denied that either he or the company was the builder of the premises and asserted that the work had been performed by one Dawson Howard who he claimed was the "in-house builder", for the architects who were the developers of the project.

In the face of the denial by the appellant that either he or the company was the builder, and the Fund's consequent rejection of her claim, Ms O'Loughlin had little choice but to issue proceedings, and did so under the VCAT Act, naming the Housing Guarantee Fund Limited as first respondent, Gabor Tamas Constructions Pty. Ltd. as second respondent, Renaissance Projects Pty. Ltd. ("Renaissance") as third respondent, Nanjey & Partners ("Nanjey") as fourth respondent, JSC Builders Pty. Ltd. ("JSC") as fifth respondent and Dawson Howard as sixth respondent. Renaissance was the vendor of the premises, Nanjey was the building surveyor, JSC was the structural engineer and Dawson Howard was joined because he was nominated as the builder by Mr Tamas, in his statutory declaration.

The application was heard over some eight days between 3 June 2001 and 10 July 2001 and on 14 September 2001 the Deputy President found in favour of Ms O'Loughlin in her claim against the first, second and fifth respondents, reserving the question of the apportionment of responsibility as between those three respondents. The application against the third and sixth respondents was dismissed. Prior to the hearing Ms O'Loughlin had compromised her claim against the fourth respondent. The liability of the Fund to Ms O'Loughlin only arose once an order was made that the builder was liable to her.

In a subsequent hearing the Deputy President heard applications under s.131 of the Building Act 1993, with respect to apportionment of liability as between the three respondents who had been found liable to Ms O'Loughlin, and at that time he also considered applications for costs. The Deputy President gave extempore oral reasons for costs orders which he announced on 22 April 2002 but then he published written reasons on 29 May 2002, in which he referred to and adopted the oral reasons earlier given, in effect, treating the published reasons then delivered as supplementing his earlier reasons.

Separate applications had been made on behalf of Ms O'Loughlin and the Fund under s.109(4) that Gabor Tamas personally pay their costs. Counsel for Gabor Tamas Constructions Pty. Ltd., who also appeared for Mr Tamas in his personal capacity, opposed the applications and submitted that there was no jurisdiction under the sub-section to make any such order against Mr Tamas.

In his decision on 29 May 2002 the Deputy President ordered that Mr Tamas pay the costs of the applicant, Ms O'Loughlin, and the costs of the Fund, personally. Additionally, the Deputy President also ordered that the applicant's costs be paid by the fifth respondent, JSC. We were not advised whether the costs order made against JSC proved to be of value, but I presume it was not.

In his extempore reasons of 22 April 2002 the Deputy President held that Mr Tamas "is and has been a representative of the second respondent". He held that the power under s.109(4) to award costs against the representative of a party was not limited to legal representatives but also included non-legal representatives of a party and was capable of encompassing more than one representative of such a party.

Section 109 of the Act reads as follows:

"109. Power to award costs (1) Subject to this Division, each party is to bear their own costs in the proceeding. (2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding. (3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to - (a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as - (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceeding; (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; (d) the nature and complexity of the proceeding; (e) any other matter the Tribunal considers relevant. (4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in sub-section (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily. (5) Before making an order under sub-section (4), the Tribunal must give the representative a reasonable opportunity to be heard. (6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding."

In his written reasons the Deputy President expanded on his earlier reasons and stated that he had concluded that within the terms of s.109(3) it was appropriate to depart from the presumption in s.109(1) that parties bear their own costs. Such a departure is allowed for by sub-s.(2). The Deputy President held that within the terms of s.109(3)(a) the applicant had been unnecessarily disadvantaged by the proceedings and had thereby suffered considerable loss and unnecessary expense.

The Deputy President concluded that but for s.109(4) he would have been satisfied, and so ordered, that having regard to each of the paragraphs of s.109(3) the second and fifth respondents should have paid the costs of Ms O'Loughlin. He concluded, however, that s.109(4) was attracted by the circumstances of the proceedings and that an order should be made against "the representative of a party, rather than the party". The Deputy President concluded that the expression "rather than a party" meant that an order of costs could not be made against both a party and the representative of a party. He concluded, therefore, that an order should be made against Gabor Tamas under s.109(4). In so concluding the Deputy President made the following finding:

"Mr Tamas himself, as a director of the second respondent, is, in my view, a `representative' of the second respondent. I accede to the applications made to make costs orders against him personally. His interests and those of the second respondent are aligned and not opposed, as was conceded."

Mr Tamas was one of two directors and shareholders of the company, his wife being the co-director and other shareholder. He was, in effect, the managing director of the company and its general manager. The Deputy President concluded that it was appropriate that an order be made against Mr Tamas personally because his conduct fell within the description of conduct described in s.109(3)(a)(v). He said of the conduct of Mr Tamas:

"Moreover if I focus on the statutory declaration made by Mr Tamas I am satisfied that that was made in order to deceive another party, including the Fund or the Tribunal. The statutory declaration I am satisfied is false and was falsely sworn. This brings in s.109(3)(a)(v) of the Act which goes to satisfying the terms of s.109(4). Yet it was the existence of that perjured document that caused the Fund to resile from the decision it had made. His `ploy' continued even during the hearing in his evidence concerning Dawson Howard. But it was not a document able to be generated by the second respondent by itself which could only act via one of its officers who, on this occasion, happened to be Mr Tamas. In light of s.109(4) why, it might be asked, should the second respondent have to pay in costs for something done by Mr Tamas outside the ordinary course? He was then `the very ego and centre of ... personality of the corporation': Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915] A.C. 705 at 713-4 per Viscount Haldane. At the relevant time he was `the' representative of the second respondent, and from that time on I am satisfied he is responsible in his own capacity for the costs incurred by the applicant and the unnecessary disadvantage he has caused her. This I consider is consistent with the policy of s.109(4) considered in the context of the Act as a whole. However, that time, of course, was a time before even the proceedings had been issued. So all the legal costs incurred by her, are, in effect, included on this basis."

In his reasons the Deputy President held that s.109(4) was not confined to legal practitioners "although that is its obvious application" and he said that by reference to other provisions in the Act it was clear that "the representative" referred to in that section need not be a lawyer and may be a person without legal qualifications. In concluding that one obvious application of the expression "the representative" was to legal practitioners, the Deputy President was referring to s.62.

Counsel for all parties agreed that s.62 was one relevant place where "the representative" was to be located in the Act. It was not contended by counsel for any party that any of its provisions applied to Mr Tamas. Nor was any other section of the Act identified whereby the role taken by Mr Tamas in this case was expressly acknowledged. The dispute between counsel was whether it was of any significance that the role of Mr Tamas as "the representative" was not to be found in s.62, nor any other sections of the Act which might be relevant. The respondents contend that the expression - "the representative" - was intended to have the widest usage, and was not intended to be limited to roles specified by the Act, but applied to any circumstance where a company official or director might be regarded, in broad terms, as representing the company. The section reads:

"62. Representation of parties (1) In any proceeding a party - (a) may appear personally; or (b) may be represented by a professional advocate if - (i) the party is a person referred to in sub-section (2); or (ii) another party to the proceeding is a professional advocate; or (iii) another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented; or (iv) all the parties to the proceeding agree; or (c) may be represented by any person (including a professional advocate) permitted or specified by the Tribunal. (2) The following persons may be represented by a professional advocate in a proceeding - (a) a child; (b) a municipal council; (c) the State or a Minister or other person who represents the State; (d) a public authority within the meaning of the Public Sector Management and Employment Act 1998; (e) the holder of a statutory office within the meaning of the Public Sector Management and Employment Act 1998; (f) a credit provider within the meaning of the Consumer Credit (Victoria) Code or the Credit Act 1984; (g) an insurer within the meaning of the Domestic Building Contracts Act 1995. (3) A party that is a body corporate may be represented in a proceeding by a director, secretary or other officer except, in the case of a body corporate that is not referred to in sub-section (2), a director, secretary or officer who is a professional advocate. (4) Despite sub-section (3), if all officers of a body corporate are professional advocates, one of those officers may represent the body corporate in a proceeding. (5) If a party is a child, the Tribunal may appoint a litigation guardian, in accordance with the rules, to conduct the proceeding on behalf of the child. (6) If a party is unrepresented in a proceeding, the Tribunal may appoint a person (whether or not a professional advocate) to represent that party. (7) If a person who is not a professional advocate seeks to represent a party in a proceeding - (a) if the party is a body corporate, the person must give the Tribunal a certificate of authority for the representation from the body corporate; or (b) in any other case, the Tribunal may require the person to produce a certificate of authority for the representation from the party. (8) In this section - `professional advocate' means - (a) a person who is or has been a legal practitioner; or (b) a person who is or has been an articled clerk or law clerk in Australia; or (c) a person who holds a degree, diploma or other qualification in law granted or conferred in Australia; or (d) a person who, in the opinion of the Tribunal, has had substantial experience as an advocate in proceedings of a similar nature to the proceeding before the Tribunal - other than a person who is in a class of persons disqualified by the rules from being a professional advocate. (9) Rules for the purposes of sub-section (8) may only disqualify a class of persons from being professional advocates on the basis that persons in that class - (a) have been the subject of disciplinary proceedings under the law of Victoria, another State, a Territory or the Commonwealth or under the rules of a professional or occupational association or other body; and (b) have been found guilty in those proceedings of professional misconduct (by whatever name called) or of another breach of professional or occupational standards."

Initially, counsel for Mr Tamas contended that it was only in s.62 that "the representative " to whom s.109(4) referred was to be located. They modified their submissions in the course of the hearing, however, in response to submissions by their opponents that the identity of the representative might also be found in s.84 and s.89, thereby demonstrating, so it was said, that the expression was not used in s.109(4) in a restrictive way. Whilst making the concession, however, that those sections might also identify a person who could be "the representative" for the purpose of s.109(4) counsel for Mr Tamas submitted that whether that was so or not was irrelevant to the present appeal, as on no view was either section relevant to the present case.

"84. Tribunal may require personal attendance at compulsory conference The Tribunal or the principal registrar may require a party to attend a compulsory conference personally or by a representative who has authority to settle the proceeding on behalf of the party." "89. Tribunal or mediator may require personal attendance at mediation The member or principal registrar who refers a proceeding for mediation or the mediator may require a party to attend the mediation, either personally or by a representative who has authority to settle the proceeding on behalf of the party."

"Proceeding" is defined in s.3 to mean a proceeding including, inter alia, a compulsory conference under s.83 and a mediation under s.88.

Jurisdictional error or error of law on the face of the record.

An application for judicial review under Rule 56 seeks relief in the nature of certiorari. As noted earlier, the claim to relief in this case was sought on alternative bases, either on the basis of jurisdictional error, i.e. that the Tribunal acted without jurisdiction, or else, on the basis that the decision constituted an error of law disclosed on the face of the record. The question whether the Tribunal was amenable to relief in the nature of certiorari on account of jurisdictional error when determining a costs application under s.109, is not easily determined, and would require a close consideration of the authority and powers of the Tribunal so as to determine whether in the exercise of its functions its role is more analogous to that of an inferior court rather than an administrative tribunal.

A court of law ordinarily has authority to decide questions of law as well as questions of fact and in so doing is acting within jurisdiction and would not therefore be amenable to relief in the nature of certiorari on grounds of jurisdictional error. A purely administrative tribunal, however, is unlikely to be empowered by its legislation to authoritatively determine questions of law, or to make an order or decision other than in accordance with the law. Accordingly, an error of law on the part of such a tribunal is likely to constitute jurisdictional error. Because a court of law would ordinarily be empowered to decide questions of fact and law it follows that even if it determined a question of law wrongly, it would nonetheless have jurisdiction to do so, and would not be amenable to relief by way of certiorari for jurisdictional error.[3]

By agreement between counsel we were spared the need to resolve the question whether this Tribunal had jurisdiction conferred upon it by the VCAT Act to decide questions of law as well as fact and thus should be treated as more akin to an inferior court than a purely administrative tribunal. Thus, the question whether the Tribunal was amenable to certiorari on grounds of jurisdictional error does not fall for decision. All counsel sensibly agreed that the issues on the appeal could be resolved by reference to the alternative basis of claim, which asserted that the decision of the Tribunal constituted error of law on the face of the record.

The resolution of that issue, all counsel agreed, turned on the simple proposition that if the Deputy President was wrong in his interpretation of the expression "the representative" in s.109(4), whereby he concluded that it extended to Mr Tamas, then that constituted error of law on the face of the record, and relief should be granted. If, on the other hand, the Deputy President was correct in his conclusion that Gabor Tamas could be "the representative" then no error of law on the face of the record was made out.

The issue in this case is relatively confined and it is unnecessary to set out the competing arguments of counsel in great detail before turning to an evaluation of the merits of the appeal.

On behalf of Mr Tamas the submissions were quite simple. By using the expression "the representative" in s.109(4) Parliament was intending only to embrace a person who was stipulated by the terms of the Act as acting in a representative capacity for some purpose connected with a proceeding under the Act. The range of such persons is to be found, primarily, in s.62, which is a section expressly concerned with "representation of parties". Mr Tamas does not fall within any of the categories of representative under that section, and the respondents did not suggest otherwise.

Counsel for the appellant observed that the only sub-section of s.62 which bore any proximity to the position of Mr Tamas was sub-s.(3), but it was not contended by counsel for the respondent that it applied. Not only did Mr Tamas not purport to represent the company in the proceeding (the company had a professional advocate to represent it) he had not provided a certificate under sub-s.(7).

Thus, under no provision of the Act, so it was submitted, nor for any purpose recognised in the Act, was Mr Tamas made "the" representative of the company. In so far as he was treated by the Deputy President as the "alter ego" of the company, and in a general sense might be said to articulate and represent its interests, that is not something with which s.109(4) of the Act is concerned. He might be "a" representative for those general purposes but he was not "the" representative for any purpose of the Act to which s.109(4) related.

Counsel submitted that a review of other provisions of the Act supported the contention that the draftsperson used the expression "the representative" deliberately and with focus on sections of the Act. I will discuss those provisions later.

As an alternative contention, counsel submitted that no order could have been made, in any event, because the conduct that was said to give rise to the costs order was his attempt to deceive another party by his statutory declaration. That conduct occurred before any proceedings had commenced. There was no "party" when the statutory declaration was sworn. Once the proceedings commenced the appellant was merely a witness and it would be remarkable, so it was submitted, that a mere witness could be liable to a personal costs order. It would be even more remarkable, so it was submitted, if a mere witness (by virtue of being a "representative" of a company) might become liable for costs and yet if the same conduct was indulged in by a mere employee or someone unconnected with the company (i.e. not a "representative") no costs order could be made against them.

I will dispose of this alternative argument, now. When he gave evidence the statutory declaration was tendered and Mr Tamas gave evidence consistent with its terms and, in effect, re-asserted its accuracy. In those circumstances it would have been open to the Tribunal to conclude that (had the conduct been the work of "the representative" of the party) the use of the false statutory declaration did constitute behaviour under s.109(3) justifying a personal costs order.

For the respondents, it was submitted that the expression "the representative" was extremely broad and should be interpreted to mean "a" representative of the company. Counsel submitted that it would produce an absurd result if the word "the" was interpreted to limit the range of persons liable for costs in such circumstances. If it was to be given such a restricted meaning than where counsel was engaged in a case it would only be counsel who was "the" representative and not the solicitor of the party.

Counsel contended that there was no reason to limit the expression to a representative under s.62. Section 109(4) did not limit the application of the words in that way. Counsel submitted that, while a person identified in s.62 might be liable to an order of costs under s.109 there could be no logical reason to confine jurisdiction on costs to that category of representative of the party as defined by s.62 and not others. Counsel submitted that the fact that a company director could be "a representative" for a compulsory conference under s.84 or for a mediation under s.89 demonstrated that the expression was intended to have wide application, because at a mediation hearing or compulsory conference not only might someone be there as "a representative", required to attend with authority to settle the proceeding on behalf of the party, the party might also be represented by a professional advocate.

In a discrete argument, counsel for the third respondent placed emphasis on the word "responsible" in s. 109(4). This shows, so it was submitted, that Parliament wanted the Tribunal to identify and render liable to a costs order the person who actually caused the inconvenience and costs to another party, and that would often be someone who was a "representative" of a company in only a broad sense, and not by virtue of having been given an identified role as a representative by virtue of a section of the Act. The intention was that a broad range of persons might constitute a representative of the company and be liable to be held responsible for inappropriate conduct. Use of the word "the" could not be regarded as confining the operation of s.109(4) to a single person filling the role of the professional or non-professional advocate under s.62.

Sections 84 and 89 show that at any one time there might be both advocates and others who were each a representative of the party and, so it was submitted, the word "the" was used merely to make the point that it was only "the" representative who was responsible for the conduct that the section was concerned with, and not any other representative who was also representing the party at that time but whose conduct was not responsible for unnecessary cost or inconvenience to another party. Thus, out of a range of persons who might all constitute "a" representative, the responsible one would be identified.

As will be seen, both sides also sought to draw support for their arguments from the limitation of s.109(4) to conduct under sub-s. (3)(a) and (b).

In my opinion, the use of the word "the" before "representative" in s.109(4) is a quite deliberate usage by the draftsperson. Throughout the Act the draftsperson uses "a" and "the" with care and not interchangeably. In s.109(4), itself, a distinction is drawn between "the" representative and "a" party. In s.84 and s.89 "a" representative is employed. The use of the word "the" focuses attention on the terms of the Act. The use of the definite article amounts to a statement that the person who is being referred to is someone whose representative role is stated in the Act. To conclude otherwise is to treat the word as meaning "a" or "any" representative and thus refusing to give any meaning or effect to the deliberate choice of word by the draftsperson[4].

There is no dispute that s.62 is one place where "the" representative might be found. There is no doubt that a professional advocate would meet the description in s.109(4), so too a non-professional advocate under s.62(1)(c), a company director secretary or officer under s.62(3) or (4), or a person appointed to represent an unrepresented party under s.62(6). All or any of those persons could be "the representative" for the purpose of s.109(4). An order under s.109(4), in my opinion, could be made against more than one person. The singular "representative" in s.109(4) must be taken to include the plural (s.37(c) Interpretation of Legislation Act 1984), thus where a party was granted leave to be represented by two or more counsel, or, else was entitled (without leave) to be represented by a professional advocate and had more than one advocate do so, each of the advocates was capable of being identified as "the" representative of the party. For the same reason, I consider that solicitors who acted for a party before the Tribunal would be capable of being declared "the representative" even although barristers had also been engaged to take the advocacy role in hearings. To that extent, only, I agree that "the" might be read as "a"; that is so simply in order to accommodate the plural.

Where there was more than one counsel and/or both solicitor and counsel, all purporting to "represent" the party in the course of proceedings, the Tribunal would have power to order costs be paid by the representative or representatives of the party. It would not follow that a costs order would have to be made against all of them. To that extent an order would be made against "a" representative rather than "the representatives". It does not detract from the conclusion that the word "the" was used deliberately to acknowledge that more than one person might share the description of "the" representative or representatives of the party.

In the course of the hearing before us, and in response to submissions by their opponents, counsel for the appellant conceded that s.84 and s.89 meant that the scope of "the representative" under s.109(4) would extend to "a representative" of a party who attends a mediation or conference pursuant to a requirement imposed on the party by the Tribunal that someone be present with authority to settle the case. Such a "representative" might be a company director, and it is possible that both such a person and a professional advocate might attend together. Counsel for the appellant submitted that at most that meant that when looking to the Act to identify "the representative" persons such as company officers might be included within the term in addition to a person filling a role under s.62. The extended range of representatives would be limited to those persons appointed by a party in response to a requirement made under s.84 or s.89. However, since this case was not concerned with a mediation or compulsory conference it was irrelevant, so counsel submitted, whether s.84 and s.89 could be interpreted that way. Even if the representative included persons in s.84 or s.89, that did not mean that a company officer who was not otherwise performing a representative role which was expressly provided for by the Act should also be treated as "the" representative for purposes of s.109(4).

In my opinion, the competing arguments as to the significance of ss. 84 and 89 do not take the matter any further. We are not called on to interpret those sections but even if a company officer might be "the" representative of a corporate party and be liable for a costs order against him when filling the role assigned under s.84 or s.89 it would not follow that the term "the representative" also applied to a company officer when he or she was acting on behalf of the company for purposes other than s.84 or s.89.

Although it is unnecessary for me to express a concluded view it seems to me unlikely, in any event, that "the" representative in s.109(4) would extend to a representative of a party whose only involvement was attendance at a conference or mediation by direction of the Tribunal under those sections. In performing such a limited role the representative is being required merely "to attend", not to conduct proceedings, and the conduct proscribed by s.109(3)(a)(b) seems to me to be unlikely to be focussed on such a limited role. It may be, of course, that in some instances the role taken by the representative might be greater and might constitute a person conducting proceedings. Whether the person in that instance would be "the representative" for the purpose of s.109(4) might be more arguable.

The usage in ss.84 and 89 of "a" representative once again shows the care of the draftsperson when choosing in definite or indefinite article. It is appropriate that "a" be used in those sections because they are addressing a representative who is at present unidentified. The requirement to attend or provide "a" representative by the Tribunal or principal registrar is a preliminary step to the party then choosing who "the" representative will be. If inquiry was thereafter made for the purpose of s.109(4) as to who it was who was filling the role of "the" representative of the party in response to a requirement under ss.84 or 89, then it would be the person so chosen and authorised by the party. It is arguable (although I am not presently so persuaded) that the person might be "the" representative for the purpose of a personal costs order under s.109(4), and if a professional advocate also attended that might make either or both liable as "the" representative (or representatives). Once again, even if that be the better interpretation it would not advance the resolution of the question before us as to whether Mr Tamas was "the" representative for the purpose of s.109(4).

In my opinion, the use of the word "the" when read with the restriction of the conduct giving rise to personal costs orders being that specified in sub-s.(3)(a) or (b) points unmistakably to the conclusion that the intention is that only a very particular type of representative is being specified by the sub-section. Putting to one side the question of the limited role which a non-advocate representative might play in s.84 and 89 proceedings in my opinion it is the person or persons taking a representative role akin to that of advocate of a party's cause during proceedings to which s.109(4) is directed. The primary focus (and, in my opinion, as presently advised, the exclusive focus) of s.109(4) is on those taking roles in representing a party as prescribed in s. 62 which would apply to all proceedings in which that person, or those persons were engaged, including in s.84 or s.89 hearings (as distinct from persons representing a party not as advocates or in a capacity under s.62 but merely in response to a requirement that someone represent the company). The pre-eminent position of s.62 for the purpose of s.109(4) flows from the terms of s.62 itself [5] but other provisions of the Act are entirely consistent with that conclusion.

In Part 4 of the Act the General Procedure of the Tribunal is set out. In Division 2, s.59 specifies who constitutes "parties" to a proceeding and in the same Division s.62 deals with "Representation of parties". Just as reference anywhere in the Act to a party or parties would naturally take the reader to s.59 so too the reference to "the" representative in s.109(4) would naturally suggest that the identification of that person is to be found in the terms of the Act, and a reading of s.62 would readily supply the answer as to who that would be.

Likewise, s.143(2) provides that "(a) person representing a party in a proceeding" has the same immunities "as a legal practitioner" in proceedings in the Supreme Court. That provision would be quite appropriate for a company director, secretary or officer taking the advocacy role on behalf of a corporate body under s.62(3) or (7) but would be entirely inappropriate for a company officer playing a role such as that taken by Mr Tamas in these proceedings (as a witness and in instructing counsel and solicitors on behalf of the company). Yet if the contentions of the respondents are correct Mr Tamas must also have the same immunity as counsel. Section 143 is concerned with "Immunity of participants" and among a wider range of persons it deals with the following: Tribunal members (sub-s.(1)), a party (sub-s.(3)), a witness(sub-s.(4)), a mediator (sub-s.(6)); a referee (sub-s.(7)). It is a section which sets out all the participants in Tribunal proceedings but makes no provision for someone such as Mr Tamas.

Mr Waddell, for the third respondent, submitted that it was significant that neither in s.143(2) nor in s.62 was the phrase "the representative" used. He submitted that the use, instead, of phrases such as "representing a party" or "represented by" indicate that there is no intended narrow meaning to the words "the representative" in s.109(4), in particular, no reference back to s.62. As was pointed out in argument, however, s.143(2) could not speak of "the representative", as there might not be anyone representing the party. The fact that the words "the representative" are not used in s.62 does not make any of the categories of persons therein named any less "the representative", and as I understood it there was no dispute that all of those persons[6] did meet the description in s.109(4).

It is also significant, in my view, that it is only by virtue of conduct under s.109(3)(a) and (b) that the personal costs order can be made. Those provisions proscribe conduct which disregards the processes of the Tribunal or the Act, unreasonably prolong the proceedings or cause unnecessary vexation to an opponent. It does not punish the representative by way of a costs order by reference to the relative strengths of the claims or the fact that "a party has made a claim that has no tenable basis in fact or law" (see s.109(3)(c)). Nor is the nature and complexity of the proceedings relevant to the making of a personal costs order (s.109(3)(d)).

Mr Waddell submitted that the fact that the conduct which is addressed under s.109(3)(a) and (b) is conduct which might well have had nothing to do with the advocate and might have occurred away from the Tribunal hearings suggests that s.109(4) was directed to conduct of persons such as company officers in addition to the conduct of those acting as advocates. I am not persuaded that such an intention is apparent in s.109(4).

Bearing in mind that it was recognised (as evidenced by s.109(1) and s.62) that many of the proceedings would be conducted, in person, by non-lawyers, it may be assumed that some of the claims brought would be hopeless and/or over complicated in their conception and exposition. Whilst a party might justifiably be penalised with a costs order on that account in some instances it might be thought unreasonable to make the representative of the party personally liable in costs for conducting a case with those defects. It might also be thought that even in the presentation of a hopeless and ill-conceived case the representative still can play a valuable role in endeavouring to assist the Tribunal and the party. The representative, might however, reasonably be held responsible, where his or her conduct (quite apart from the party's) in the conduct of the proceedings is of a character described in sub-ss. (a) and (b). The exclusion of sub-ss.(c)(d) and (e) indicate clearly, in my view, that it is representation of a party for purposes as described in s.62 that s.109(4) is concerned with[7]. Indeed, if the conduct of Mr Tamas was to be capable of producing a personal costs order, because in the broadest sense he was a representative of the company, one would expect that the conduct in sub-s.(3)(c) and (d) would be particularly targeted, rather than be deliberately omitted, because rather than merely add to the difficulties of an opponent during the course of proceedings it would be persons such as directors who were the "alter ego" of a company who would most likely be responsible for pursuing a hopeless and unmeritorious case, rather than their advocates.

I conclude, therefore, that in the context of the other provisions of the Act s.109(4) was intended to have application only to those acting in a representative capacity for purposes provided for in the Act itself. It is within the terms of the Act that "the representative" is to be found, and in that context, Mr Tamas was not capable of being the subject of a costs order.

Although I have concluded that his interpretation of s.109(4) was incorrect I record that the reasons of the Deputy President were comprehensive and carefully considered. It is with some regret that I have rejected his interpretation of the provision because the conduct of the appellant, as found by the Tribunal, would have amply justified a personal costs order being made against him, had there been power. Indeed, in his thorough arguments before us Mr O'Bryan made it clear that on behalf of his client he did not seek to contend otherwise.

It seems likely that Ms O'Loughlin, having been drawn unnecessarily into prolonged and costly litigation by the dishonest conduct of Mr Tamas, will not now have the benefit of a costs order of any value. That is a very unfortunate outcome, which suggests that legislative amendment to s.109(4) is urgently required.

The Deputy President concluded that an order for costs could not be made against both Mr Tamas and the company. It is clear that but for his erroneous belief that the Tribunal had power to make the order against the appellant the Deputy President would have made an order against the company. Indeed, he would have made an order against both had he considered he had power to do so, rather than being obliged to make an order against one or the other, but not both.

The company was not a party on the appeal. In the hearing below both Mr Tamas and the company had been represented by the same counsel, who also represented Mr Tamas before us. The powers given to the Court of Appeal under s.148(7)(a) and (d) are very broad and, in my opinion, would permit the court when setting aside the order made against Mr Tamas to substitute an order for costs against the company. Mr O' Bryan, who represented Mr Tamas before us (his client being present in court throughout the appeal) did not seek to argue against that proposition and specifically did not contend that the court could not make such an order without the company being made a party to the proceedings. The question may well be academic because we were told that the company is insolvent, but nonetheless it is appropriate, in my view, that an order should be made against the company. Unnecessary costs would be incurred were the matter to be referred back to the Tribunal and notice be given to the company so that an order might then be made against the company.

I conclude, therefore that the appeal should be upheld and the orders of costs made against the appellant in the court below should be set aside. The orders as to costs made in the Tribunal against Mr Tamas in favour of the second and third respondents should also be set aside. In my opinion, it would be appropriate that an order of costs be made in favour of the second and third respondents for their costs of the proceedings before the Tribunal to be paid by Gabor Tamas Constructions Pty. Ltd., but I am in the minority as to the appropriateness of such an order.

[1] Interpretation of Legislation Act 1984, s.37(c); Blue Metal Industries Ltd. v. Dilley [1969] UKPCHCA 2; (1969) 117 C.L.R. 651 at 656 and Commissioner of State Revenue v. The Muir Electrical Co. Pty. Ltd. [2003] VSCA 112 at [13].

[3] See Craig v. South Australia [1995] HCA 58; (1995) 184 C.L.R. 163 at 178-180; see, too, RSL v. Liquor Licensing Commission [1999] VSCA 37; [1999] 2 V.R. 203 at 210 per Phillips, J.A.

[4] See "Statutory Interpretation in Australia", Pearce & Geddes, 5th Ed., pars [2.22] [2.23]

[5] Arguably, the person under s.62(5) who was appointed by the Tribunal "to conduct the proceeding on behalf of (a) child" would not be a representative, not being described as such. The person appointed "to represent" an otherwise unrepresented party under sub-s. (6) would, however, be a representative and be liable to costs orders, a somewhat surprising possibility but not a matter which provides any assistance in resolving the questions raised by this appeal.

[7] S.109(3)(e) refers to "any other matter the Tribunal considers relevant". Although it does not point strongly in either direction it might be thought that the exclusion of this paragraph from a costs order under s.109(4) is also consistent with the interpretation I favour. Persons appearing as advocates for a party might reasonably require that if they, and not the party, were to be at risk of a costs order they ought know (at least to the extent sub-s.(3)(a) and (b) tell them) just what conduct on their part would put them at risk. At the outset of the proceedings 3(a) and (b) would spell out the conduct to be eschewed; an order based, later, on an application of 3(e) would not do so.

Sector Management and Employment Act 1998

Building Contracts Act 1995

Sector Management and Employment Act 1998

Building Contracts Act 1995

At a glance

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Before

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Judgment (77 paragraphs)

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Legislation Cited (4)