TUN v Victims of Crime Assistance Tribunal (General) [2009] VCAT 2479

The respondent is to pay the applicant's costs and disbursements fixed in the sum of $6630.00.

1. On 10 August 2009 I made orders setting aside a decision of the Victims of Crime Assistance Tribunal (VOCAT) rejecting the applicant's claim for assistance, and substituting it with a decision to award the applicant special financial assistance in the sum of $1000.00. I reserved liberty to apply in relation to costs.
2. The applicant has made an application for costs. The total legal costs and disbursements sought are $6916.00, made up as follows :

(c) Solicitors appearance at Directions Hearing 161.00

1. VOCAT agrees that the applicant is entitled to an order from this Tribunal for payment of the costs and disbursements itemised above as (b)-(e), (g), (h) and (j). This leaves in dispute items (a), (f), (k) and (i).
2. The costs and disbursements claimed as items (a) and (f) were incurred for the purpose of the applicant's application to VOCAT which was unsuccessful, and item (k) for this costs application.
3. VOCAT contends it is doubtful this Tribunal has jurisdiction to make an order for costs in connection with the application to VOCAT.
4. VOCAT submits that there are only two possible sources of jurisdiction to award costs. First, it may fall under s 59 of the Victims of Crime Assistance Act 1996 (VOCA Act). Secondly, under s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
5. In summary, VOCAT submitted that VCAT's jurisdiction is confined to that conferred by the relevant enabling enactment, in this case s 59(1) of the VOCA Act.
6. VOCAT points to the fact that the applicant applied under s 59(1)(a) of the Act for review of the refusal to make an award, and thus contends this Tribunal's jurisdiction is confined to the jurisdiction conferred by s 59(1)(a).
7. VOCAT submitted that the costs of an application to VOCAT are not expressly referred to in s 59(1)(a), nor is it clear that costs incurred in connection with an application to VOCAT comprise part of "an award of assistance on an application under Division 2 of Part 3" of the VOCA Act. In short, costs are not included within clearly defined heads of assistance under the VOCA Act.
8. The submissions continue :
   1. The nature and scope of the VOCAT's power to make an award for assistance differs profoundly from its power to determine that the costs of a proceeding are to be paid.
   2. The focus of ss 8 and 8A of the VOCA Act is on enabling the recovery of the applicant by compensating him or her for certain, specified forms of assistance. By contrast, the focus of s 48 of the VOCA Act is to provide the VOCAT with a broad discretion to pay, or not to pay, the costs of a legal practitioner.
   3. Hence, there is no connection in s 48 of the VOCA Act between the making of an award and a determination for costs; it is clear that it is open to the VOCAT under s 48 of the VOCA Act to determine not to pay an applicant's costs of a proceeding even if the VOCAT makes an award of assistance.
   4. The legal costs of a proceeding are not chargeable to an applicant, but are instead viewed and treated as the costs of the legal practitioner. Under s 48(4) of the VOCA Act a legal practitioner cannot charge for costs unless the VOCAT so determines upon a separate application from the legal practitioner or the applicant.
   5. We submit that under the VOCA Act, costs payable under s 48 of the VOCA Act are a separate and discrete part of the process to provide for the payment of awards to victims of crime.
   6. The contrast between Parliament's provision for the VOCAT to award assistance and determine to pay the costs of a proceeding is stated explicitly in the Attorney-General's second reading speech in the Legislative Assembly for the Victims of Crime Assistance Bill. Under the heading 'Awards of assistance to primary victims' the Hon Ms Wade MP listed the three heads of assistance which were then available to an applicant, before stating :

All awards should be consistent with the objective of assisting victims toward complete recovery.

1. Under the heading 'Section 85 statement' the Hon Ms Wade MP went on to discuss what has become s 48 of the VOCA Act :

Clause 48 prevents legal practitioners recovering from application to the tribunal any costs other than those allowed by the tribunal. This limitation is necessary to enable the tribunal to control the legal costs it pays to legal practitioners acting for applicants to the tribunal.

1. In our submission :
   • 36.1 the omission of costs from the heads of assistance for an award provided for in ss 8 and 8A of the VOCA Act and the separate provision for costs in a different Part of the VOCA Act;
   • 36.2 the contrast between the language of ss 8 and 8A of the VOCA Act in confining the heads of assistance for which the VOCAT can award assistance, with the language of s 48 of the VOCA Act in furnishing the VOCAT with a broad discretion to determine that costs in a proceeding are, or are not, to be paid; coupled with
   • 36.3 the Attorney-General's express distinction between the purpose of an award for assistance and the determination of the costs in the proceeding,

demonstrate that Parliament intended that the costs in a proceeding before the VOCAT did not comprise part of an award for assistance.

1. Accordingly, we submit that the VOCAT's decision on costs under the VOCA Act is not reviewable by the VCAT under s 59(1)(a) of the VOCA Act, and, as a result, the Applicant is not entitled to an order from the VCAT for the costs described in entries (a) and (f).
2. VOCAT further submitted that s 109 of the VCAT Act did not empower VCAT to award the costs of the initial application as they are not part of a proceeding before VCAT.

1. I agree with the submission that s 109 cannot apply to costs incurred before VOCAT. It is clear that s 109 can only apply to costs of proceedings before this Tribunal, and note that the costs and disbursements claimed for the hearing at this Tribunal are awarded under s 109 of the VCAT Act.
2. However, I cannot accept VOCAT's submission in relation to costs before VOCAT. Nowhere in those submissions or in those of the applicant is there any consideration of the Tribunal's powers contained in s 51(1) of the VCAT Act. Section 51(1) states :

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

1. "Function" is defined in s 3 of the VCAT Act to include :

1. On review, this Tribunal has all the powers of VOCAT and one of the powers exercised by VOCAT is to make an order as to costs.
2. The predecessor of VCAT, the Administrative Appeals Tribunal had occasion to consider the same issue, on review from decisions of the Crimes Compensation Tribunal, the predecessor of the Victims of Crime Assistance Tribunal. I respectfully agree with the observations of Deputy President Macnamara about these matters in Re Wilkinson and Crimes Compensation Tribunal (1995) 9 VAR 127 which are just as applicable to the present legislative regime. At 136 and 137, he said:

I come now to the issue of costs. Before the Crimes Compensation Tribunal there was no order for costs in favour of any of the applicants upon the premise that their applications had been unsuccessful. There are a number of decisions of this Tribunal, and I mention Re La Delpha and Crimes Compensation Tribunal (unreported, AAT of Victoria) a decision of Deputy President Mr Galvin on 8 February 1991 to the effect that this Tribunal has no jurisdiction to vary or set aside costs awards made by the Crimes Compensation Tribunal. Section 26 of the Criminal Injuries Compensation Act grants a right of appeal to this Tribunal with regard to certain determinations of the Crimes Compensation Tribunal. There is no mention in that section of costs. Section 32 which deals with the issue of costs deals only with the powers of the Crimes Compensation Tribunal. These matters led Mr Galvin to conclude, as I have already noted, that the Administrative Appeals Tribunal cannot revise a costs award made by the Crimes Compensation Tribunal.

However, one might compare statutory rights of appeal elsewhere, for instance, the former s 35 of the Judiciary Act 1903 (Cth) which gave an appeal as of right in certain decisions of States Supreme Courts and the High Court of Australia. Section 52 of the Administrative Appeals Tribunal Act 1984 (Vic) which gives a right of appeal to dissatisfied parties to the Supreme Court with regard to errors of law made by this Tribunal. In those sorts of provisions there is no reference to costs, but clearly, I think, the costs below may be dealt by the Appeal Court.

Section 25(2) of the Administrative Appeals Tribunal Act provides that upon hearing an appeal this Tribunal has all the powers of the respondent in making its determination, and of course in the present instance, one of the powers exercised by the Crimes Compensation Tribunal is to make an order as to costs.

Moreover, there are reported instances of the Administrative Appeals Tribunal making orders of the sort I have contemplated, and I mention, for instance, Re O'Keefe and Crimes Compensation Tribunal (1986) 1 VAR 245.

The failure to reverse the costs ordered below, would, in my view, be an injustice. The order was made on what is now a false premise, namely, that the applications have been unsuccessful. For the reason given, I believe, the Tribunal does have jurisdiction to deal with this issue and I would vary the decision of the respondent such that in each appeal an award of costs with regard to the proceedings before the Crimes Compensation Tribunal is made in favour of the applicant in accordance with the Scales applied by the Crimes Compensation Tribunal.

1. In my view, the correct approach is that VCAT on review has jurisdiction to make an award of costs incurred before VOCAT. It is well accepted that on review, VCAT "stands in the shoes" of the decision-maker and re-makes the decision with all the powers and functions of the original decision-maker (s 51(1)). The power exercised by VOCAT to award costs is incidental to its power to award assistance. The power that VCAT has to award these costs is incidental to its powers to carry out its functions on review or under s 59 of the VOCA Act. I also observe that under the former Criminal Injuries Compensation Act 1983, the power to award costs was in a different part of the Act from the power to make an award and that under that former legislation there was a provision similar to s 48, with respect to what costs a legal practitioner was entitled to.
2. It may be conceded it would not be open to an applicant to bring a review application with respect solely to a costs determination by VOCAT. However, once a review application is brought, within s 59(1) of the VOCA Act, the additional incidental ancillary powers and functions granted by s 51(1) of the VCAT Act become available to this Tribunal.
3. It follows that I would order costs and the disbursements with respect to the VOCAT application. I am satisfied that the $1200 claimed for preparation and appearance is just under the lower end of costs awards in that jurisdiction for applications of modest complexity and I award that amount. I also award disbursements in the sum of $385.00 for the psychologist's report of 6 August 2008.
4. This leaves item (i), the psychologist's preparation fees of $286.00 and item (k) the applicant's costs of further submissions in relation to this costs application.
5. Whilst a witness would be entitled to a fee for preparing themselves to give evidence at a hearing, VOCAT has difficulty with this particular claim. They point out that the psychologist prepared a report dated 14 June 2009 (item (g)) and a report dated 22 July 2009 (item (h)), both of which they agree should be reimbursed, together with her appearance at the hearing. Having prepared those two reports, the former only six weeks before the hearing, and having been paid for her appearance at the hearing, they claim the applicant is not entitled to an order for the costs of preparation for the hearing. VOCAT submits that any preparation required for the hearing may reasonably have been done when preparing her reports, and in particular her report dated 22 July 2009, 8 days before the hearing..
6. The applicant contends that it was necessary for the psychologist to review 34 items in material filed by VOCAT which related to previous VOCAT applications, police statements and other psychological reports, in order to produce her report of 22 July 2009 and also to further review these documents in preparation for the hearing. Thus the applicant contends it was appropriate for the psychologist to spend two hours reviewing that material to enable her to give evidence.
7. I do not accept in all the circumstances that such preparation was required, particularly because the hearing was on 30 July 2009, just 8 days after the report of 22 July 2009 was prepared, a time when all those matters would have been fresh in her mind. I am not satisfied that extra work in order to acquaint herself with the facts of the case for the purpose of giving evidence was required, and do not allow item (i).
8. So far as item (k) for costs associated with this costs claim is concerned, VOCAT indicated that were I to make an order in accordance with the request, it would not oppose the claim for further costs in the sum of $550.
9. Given that I have made such an order with the one exception of item (i), I am satisfied that the claim of $550 should be granted.

1. For these reasons, I order that the respondent pay the applicant's costs and disbursements fixed in the sum of $6630.00.