2. In its written submissions, the Respondent sought costs in the total sum of $67,500 pursuant to s.109(2) and (3) of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"). Briefly, it was submitted that the Applicant's conduct in the proceeding had unnecessarily disadvantaged the Respondent in the following ways:

3. In paragraph 38 of his statement the Applicant said that the incident the subject of the hearing was the first time he had been involved in an incident causing any serious damage while ship-handling; he conceded in cross-examination that he had been involved in a number of incidents while piloting ships which resulted in damage of up to $75,000, but said this was not "serious" damage, and did not involve "ship-handling". The Respondent referred to my findings that the Applicant's statement in paragraph 38 was misleading, and that his evidence in connection with it was unsatisfactory.

(b) Causing an adjournment and unreasonably prolonging the time taken to complete the proceedings

4. It was submitted that the production by the Applicant during the course of the hearing, without prior notice to the Respondent, of an alternative transcript of the investigator's tape-recorded interviews of witnesses taken during the course of the investigation, led to an adjournment of proceedings to allow the Respondent to review that transcript. Moreover, it was submitted, the time spent by the Applicant seeking to impugn the investigative and decision-making process adopted by the Respondent, unnecessarily prolonged the proceedings in circumstances where the Tribunal had made it clear that on a hearing de novo the focus of attention would be on the correct or preferable decision to be made on the evidence before it.

5. It was submitted that the Applicant ran his case on the flawed basis that he was entitled to rely on the thrust of the Santa Lucia's screws at full ahead revolutions to counteract sternway and prevent a collision with the wharf at the time when the vessel was so close to the wharf that nothing else could prevent collision. It was submitted that this proposition is flawed in that achieving full ahead revolutions depended on the ringing of emergency full ahead revolutions as well as on the acceptance of the Applicant's assumptions underpinning his calculations that the achievement of 65 revolutions would have prevented the collision. It was also submitted that this proposition ignores the Applicant's responsibility in putting the vessel so close to the wharf and having to rely on such a mechanism to avoid collision. Finally, it was submitted, the Tribunal's findings to the effect that the Applicant should have known how to achieve 65 revolutions, and acted imprudently in putting the vessel in a position where only the achievement of 65 revolutions could, or would, avert collision, warrant the conclusion that the Applicant persisted in putting a case which had no reasonable prospects of success.

6. It was submitted on behalf of the Applicant that the clear rationale of section 109 of the Act is not to penalise unsuccessful parties by imposing costs orders, and that, prima facie, the position is that, regardless of the result, each party on an application to review bears its own costs. This position is "the ordinary course" in the Occupational Business Regulation List: Re Fan and Business Licensing Authority (unreported, VCAT, Justice Kellam P. and Davis D.P., 14 March2001).

7. It was submitted that the independent expert pilotage evidence called on behalf of the Applicant was to the effect that his actions did not warrant suspension of his licence; on this basis, the Applicant had not acted unreasonably in seeking a review, even if that evidence was not ultimately accepted by the Tribunal.

(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);

(v) attempting to deceive another party or the Tribunal;

(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;

(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."

9. Having considered the submissions made by the parties, I do not consider it appropriate to depart from the presumption in s.109(1) of the Act that each party bear its own costs of the proceeding, for a number of reasons. Although I found the Applicant's evidence concerning paragraph 38 of his statement to be unsatisfactory, and there was some delay occasioned by the late filing of the second, alternative transcript of the interview with the Applicant, I do not consider that in the context of the entire proceeding these matters warrant departure from the presumption in s.109(1) of the Act. It was conceded by the Respondent that the first transcript was, in the light of the version provided by the Applicant, seriously deficient. There was expert evidence in support of the Applicant's contention that his conduct did not warrant suspension of his licence, although this evidence was ultimately not accepted. In these circumstances, it was not clear at the outset that the Applicant's claim had no tenable basis in fact.