1. The respondent to pay the applicant:
   • (a) damages in the sum of $62,194.32;
   • (b) interest in the sum of $10,486.67;
   • (c) costs, including reserved costs and the costs of today
     • (i) to be taxed in default of agreement on a party/party basis in accordance with County Court Scale D for the period up to and including 25 March 2008;
     • (ii) to be taxed in default of agreement on a solicitor/client basis in accordance with the County Court Scale D for the period 25 March 2008.
2. There be a stay of 90 days without prejudice to the accrual of interest on the sums ordered to be paid.

Mr Mark Black of Counsel, instructed by Riordans, Lawyers.

Dr Sadler of Counsel, instructed by Holman Webb Lawyers

1. This proceeding under the Water Industry Act 1994 came on for hearing before me in August. I published my substantive reasons on 29 August and stood the matter over for further hearing or mention on 9 October. The reason for the relatively lengthy delay between publication of substantive determination and further mention or directions hearing was that I was on leave for the whole of September and the first few days of October. As it was, the date 9 October was not satisfactory for the parties, and so the further mention or directions hearing comes on before me today.
2. In accordance with the direction which I gave, the solicitors for the applicant which was the successful party have proposed forms of order to give effect to my reasons whereby their client recovers damages in the sum of $62,194.32 and interest in the sum of $10,486.67.
3. The respondent concedes that those parts of the proposed orders appropriately give effect to my determination.
4. Two matters remain in dispute however. First, the applicant seeks an order that its costs be paid on a party party basis for a period until 25 June 2008 in accordance with County Court Scale D and thereafter on a solicitor client basis once again to be taxed in accordance with County Court Scale D. The division between party party for one period and solicitor client for another is uncontroversial; however the respondent contends that in the circumstances the taxation should be in accordance with Magistrates' Court Scale F.
5. Dr Sadler on behalf of the respondent has observed that this matter in accordance with jurisdictional rearrangements that took place some years ago could, according to its monetary value, have been prosecuted in the Magistrates' Court. He submits therefore that the Magistrates' Court scale for the appropriate sum of money is the proper one to apply. Dr Sadler concedes that it has been the practice of the Tribunal generally to be guided by the County Court scale, nevertheless he says that with modifications in jurisdiction that have taken place progressively over the years and most materially about three years ago, the nature of civil litigation in the Magistrates' Court has materially changed and so the basis and assumption of jurisdictional distribution which has guided the Tribunal in the past no longer exists.
6. For his part Mr Black, for the applicant, has referred to the Tribunal's long-standing practice and referred in particular to one of my determinations Trycala Importers & Wholesalers Pty Ltd v Growmac Imports Pty Ltd [2001] VCAT 1445 [31]. It is fair to say that what I said in Trycala Importers was no more than an indication of a pre-existing practice and there was no explanation apart from the practice having been hallowed by the years for my following that practice.
7. Dr Sadler has asked if this matter goes against his client that I provide written reasons, hence it is necessary for me to elaborate a little I think.
8. The reasons that over the years this Tribunal has generally employed the County Court scales are somewhat historical but not entirely so. This Tribunal is the successor to many previous Tribunals including in particular the Administrative Appeals Tribunal of Victoria which exercised the jurisdiction under the Water Act and the Drainage of Land Act. That Tribunal in its drainage jurisdiction customarily made orders under the Supreme or County Court scales. It is to be observed that the Tribunal's jurisdiction in drainage or water matters either in the old days under the Drainage of Land Act or now under the Water Act or the Water Industry Act is not the subject of any jurisdictional cap whatsoever. The practices which are followed are generally those practices which are followed in the Supreme Court including the use of witness statements and the like. In contrast to the practice in the Magistrates' Court, the Tribunal in this jurisdiction does hear submissions on questions of fact and the submissions on fact and law in this matter were lengthy.
9. In my view the conduct of this proceeding was more akin in the Tribunal to what one would find in the County or the Supreme Court, certainly than what one would have found in the Magistrates' Court. Moreover, when one looks at the structure of elements of this Tribunal we find that it is headed by a Supreme Court Judge. The balance of its judicial leadership is found in two full time County Court Vice-Presidents. That being the case I think the Tribunal is aligned more with the superior courts than it is with the Magistrates' Court. Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 provides a general principle that costs are to lie where they fall. There is a wide discretion which is customarily exercised in water matters to award costs to the victorious party as in Court; but the existence of Section 109 suggests that the Tribunal is generally to be a no costs jurisdiction and even where costs are to be awarded it should be a low costs jurisdiction. That means that when I look at the more senior courts in the State and consider as between their scales, which scales should be applied, I find myself directed to the County rather than the Supreme Court. Generally I have resisted applications for uplifted costs orders based on Supreme Court scales on that score.
10. In the result therefore I believe these considerations as well as the practice which has been hallowed by the years of the Tribunal generally being guided by the County Court scales should lead me to make the costs orders in the form sought by the applicant.
11. This brings me to the second matter that is contentious and that is that there be a stay of the orders for some 90 days.
12. Dr Sadler has said that either his instructors already have instructions to lodge an application for leave to appeal, or at the very least they are instructed to consider taking that course. In practice terms says Dr Sadler, a party in that position files an originating motion within a 28 day limit and that motion will come on for hearing at some later date where the applicant for leave to appeal will seek that leave from a Master of the Supreme Court. Dr Sadler says that in all the circumstances for that process to be completed, either to lead to the Master granting leave and a further stay on the one hand or on the other hand refusing leave will consume 90 days, hence he submits that the 90 day stay should be granted.
13. Mr Black submits that there is no reason to grant a stay at all. If the judgment is paid and the determination is set aside on appeal it will be possible for the respondent simply to obtain a refund from his client. In the circumstances I think the preferable course is that whilst the issue of appeal remains undetermined no payment be made by the respondent. There will then be no problem of trying to unscramble the egg afterwards if my determination is reversed on appeal.
14. The only matter which gives me pause for concern is while this process moves to its conclusion is the applicant protected from being out of its money by an entitlement to interest? The various Court statutes include provisions that judgments of Courts bear interest at the statutory rates. That would be a sufficient protection for the applicant in my view. It would be possible once I make these orders to have them registered in Court. My only concern is: does the existence of the stay operate as a restriction on the accrual of interest? Neither counsel has been able to give me any guidance on this point of practice. I think the practical answer is that Dr Sadler is correct on the likely timing of events from here and so I will grant the stay which he requests. I will however add a direction that such stay will be without prejudice to the accrual of interest on the amounts ordered to be paid.