2. In default of agreement by 22 March 2004, I refer the assessment of such costs to the Principal Registrar under s111 of the Act. In that event by 2 April 2004 the Respondent must file and serve its fill of costs and, by 16 April 2004, the Applicant, if objecting, must do so in writing by document filed and served accordingly. Thereafter the Principal Registrar shall carry out his assessment.

1. In my Reasons for Decision given on 15 October 2003 I directed that this matter be listed again on a convenient date on the question of costs.

2. The matter was listed on 21 November 2003 but was unable to be advanced very far on that occasion due to the pressure of business.

3. The matter has now been heard by me on 21 January 2004.

4. I have, on this occasion, heard submissions as to why I should not proceed to determine the question of costs until a question of construction (order 1, sought by the Applicant) is itself heard and determined. This was opposed.

5. I have provided my Reasons why, in my view , I am in a position to determine the question of costs without having determined that question of construction. As to that question of construction, I agree that it was not determined by me on 3 October 2003 - for some reason I am unable to explain but perhaps due to a misunderstanding. It seems to me, though, that the two are not related, and are quite separate and distinct. I have given my Reasons for this as my view. A question of entitlement to costs seems to be an independent question to the one of construction in the circumstances of this case, for the Reasons I have given.

6. Having ruled that I consider I should hear and determine the question of costs, I have heard submissions from the parties accordingly.

7. The Respondent applies for its costs on the grounds set out in its submissions. The Applicant relies on its submissions made previously and addressed additionally on this occasion.

8. I have read and considered the various documents and affidavits to which I was referred by the parties.

9. The first point I should make, I think, is that s109 of the Victorian Civil and Administrative Tribunal Act 1998 allows indemnity costs orders to be made, in my view. I did not understand the Applicant to contend otherwise.

10. Next, it is submitted by the Respondent that I should make an order for indemnity costs in its favour, "of and incidental to" the hearing on 3 October 2003, and in respect of both 21 November 2003 and 21 January 2004. This was opposed by the Applicant.

11. The initial position of the Parliament generally in relation to costs in the Tribunal is to be found in s109(1). I may depart from that position under s109(2) if I consider it fair to do so having regard to the matters set out in s109(3). Under s109(3)(e) I may have regard to "any other matter" which I consider relevant.

12. I consider under s109(2) that it is fair in this case, having regard to the matters in s109(3), that I should order the Applicant to pay the costs of the Respondent "of and incidental to" the hearing on 3 October and in respect of 21 November 2003 and 21 January 2004, and "of and incidental to" those days, as sought.

13. At the hearing on 3 October the Applicant failed to have the orders made ex parte on 4 September 2003 (and extended by consent on 10 September 2003) extended. That date - 3 October - was the return date ( if I exclude the consent orders of 10 September) for the orders which I made ex parte by way of injunctive relief on 4 September. The Tribunal was convened on 4 September at the request of the Applicant for an urgent hearing at which injunctive orders were made. Yet, for one reason or another, the Applicant did not achieve the continuation of these orders at the hearing on 3 October. In other words, the Applicant did not succeed. Nevertheless, in the course of doing so, it caused the Respondent to be unnecessarily disadvantaged, in that the Respondent was required to attend the hearing on 3 October, and to prepare for it, and to appear by Counsel (Mr Levin QC) if it was to see the orders against it defeated. I leave aside, to another day, any question of construction of whether the Applicant is entitled to the order it seeks by order 1 in its application. The Applicant, though, did not achieve any success in relation to any of the injunctive relief it sought on 4 September, when the matter was returned for hearing, in the presence of both parties this time, on the return date of 3 October. Yet, by commencing the process on 4 September, and by not withdrawing later, and by continuing up to and including the day of the hearing on 3 October, the Applicant seriously and unnecessarily disadvantaged the Respondent in my view.

14. I am satisfied I should depart from s109(1) and order that the Applicant pay the Respondent's costs. I consider it fair to do so considering s109(3).

15. I am asked, however, to order that costs be ordered on an indemnity basis. Authorities on indemnity costs include Fountain Selected Meats (Sale) Pty. Ltd v International Produce Merchant Pty. Ltd. [1988] FCA 202; (1988) 81 ALR 397 and Colgate Palmoline Co. v Cussons Pty. Ltd. [1993] FCA 536; (1993) 118 ALR 248. I was referred also to the decision of Williams J in Tomer Australia Ltd. v Ambridge Investments Pty. Ltd. [2003] VSC 478.

16. A factor of critical importance, as I see it, is, in the words of Woodward J. in Fountain Selected Meats at p 400-1, whether I can be satisfied that the Applicant's proceeding has been commenced or continued "in circumstances where the Applicant, properly advised, should have known that he had no chance of success." For, if so, Woodward J says it "must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law."

17. Various matters were pointed out to me by Counsel for the Respondent on this question of indemnity costs. One in particular was the issuance of the proceeding in September without any regard to the fact that there was a solicitor (his Instructor) on record. This action, it seems to me, was highhanded. I was also referred to certain costs orders which have been made in related or other proceedings between the parties in the Supreme Court. However, I do not consider those orders, though made, are relevant to the exercise of my discretion on this occasion.

18. I do consider, though, that the Applicant, if properly advised, would not have sought the injunctive relief it did seek on 4 September. I refer to my Reasons for Decision of 15 October. I consider there were a number of material non-disclosures or errors in the materials which were submitted to me at that ex parte hearing. Those, on their own, as the authorities indicate, would justify me, later, in not extending the injunctive orders. On their own, therefore, they were of a nature which meant the proceeding was doomed to fail, in that the orders made on 4 September could not, or should not, according to the authorities, be extended. Had I heard from both parties on that occasion, the orders would never have been granted. Properly advised, then, in my view, the Applicant would not have sought the orders it sought on 4 September, on the basis of the materials advanced. It would not have sought those orders because, properly advised, it would have been told that those orders on those materials would not be made, or if made, could not be extended or would not be extended on the return date. Yet the Applicant persisted. The orders were not withdrawn by the return date of 3 October. It was only then that the Applicant says it expressed its intentions to the Tribunal with regard to injunctive relief. Yet from 4 September, until then, it had maintained the orders, and sought their continuance by consent on 10 September, when, properly advised, they were orders that would not have been granted in the first place if the facts were known or had been appreciated, or had there been opposition. The Tribunal, in light of my Reasons for Decision of 15 October, is entitled, in my view, to express its disapproval of this conduct.

19. It is this conduct, which I have outlined, which, in my view, warrants me exercising my discretion ( considering s109(3)(e) ), in light of the authorities, to order the indemnity costs which are sought.