As I have said, the complainant has applied for costs against the respondent or alternatively against the respondent's solicitor. The amount sought is $500 which is the complainant's counsel's fee for appearing before the Tribunal on 22 June 1999.

On the submissions made to me by the parties, the circumstances surrounding this application are these. On 30 April 1999 the Tribunal directed the parties to exchange and file witness statements on or before 8 June 1999. The complainant's solicitor and counsel for the respondent were present at that Directions Hearing.

The complainant filed and served witness statements in accordance with the Tribunal's timetable. The respondent did not, and did not seek the complainant's consent or the Tribunal's leave to extend time for the filing and service of those statements.

On 26 May 1999 the respondent's solicitor advised counsel for the complainant that due to other work commitments the respondent's solicitor would anticipate that she would have difficulty in complying with the Tribunal's timetable.

On 11 June 1999 the respondent's solicitor advised the Tribunal Registry and the solicitor for the complainant that she hoped to be in a position to file and serve witness statements by the end of next week, that is by 18 June 1999.

June 1999 both to the Tribunal and to the complainant's solicitor reiterating the difficulty in filing witness statements in accordance with the timetable and to hope that the statements would be filed and served by the end of that week, that is 18 June 1999.

On its own initiative the Tribunal listed the matter of the respondent's failure to comply with its direction as to witness statements for a Directions Hearing. Notice of that hearing was faxed to the parties on 17 June 1999. The hearing was listed for 22 June 1999.

On 18 June 1999 the complainant briefed counsel to appear at that hearing. Also on 18 June the respondent's solicitors spoke to the Tribunal Registry which advised that if witness statements were filed and served on the following Monday, that is 21 June and appropriate notice was given to the complainant's solicitors the hearing date for 22 June would be vacated.

On 21 June at about 3 p.m. the respondent's solicitor hand delivered copies of witness statements to the Tribunal and to the firm of solicitors acting for the complainant. Attached to them was a letter from the respondent's solicitor setting out the advice from the Tribunal Registry that I've just mentioned and explaining that the parties need not attend at the hearing the next day.

Shortly after 5 p.m. on the same day, the Tribunal sent to the parties a notice vacating the Directions Hearing to be held the next day. Unfortunately, the solicitor for the complainant actually handling the file did not receive the Tribunal's notice vacating the hearing until 9 a.m. on the next morning and did not receive the respondent's solicitor's letter until 11.45 that morning and therefore had no opportunity to contact counsel who had been briefed for the hearing. This is how and why the complainant's counsel attended the Tribunal on the morning of 22 June.

The complainant applies for costs, the respondent opposes the application. The position under s.109 of the Victorian Civil and Administrative Tribunal Act 1998 is that costs lie where they fall unless the Tribunal, after taking into account a number of specified factors, considers it fair to award costs.

Section 109(iv) permits costs to be awarded against the respondent's representative in his or her own capacity where that representative is responsible for conduct described in s.109(iii) paragraphs (a) or (b). Relevantly, in the context of this application that conduct is unnecessarily disadvantaging the complainant by failing to comply with the Tribunal's directions concerning filing and service of witness statements without reasonable excuse.

On balance I do not consider the award of costs appropriate here. The costs incurred by the complainant's counsel are due not so much to unreasonable conduct by the respondent's solicitor as to an unfortunate concurrence of circumstances. It would not, in my view, be fair to award costs against the respondent or the respondent's solicitor in these circumstances.

However, I would add that the Tribunal's directions of 30 April fixed 8 June for compliance and not 18 June or 21 June or any other date. The respondent and its solicitors should not regard this timetable as variable at their whim.

My decision as I have said is that costs will be refused on this application and I will send a copy of the signed order and also of the reasons for decision once transcript has been obtained to the parties. Thank you very much.