That the applicants pay the respondents' party-party costs of this application, to be taxed on County Court scale D, but without a certificate for two counsel.

1. On 28 May 2008 I ordered that this proceeding issued by the applicants be struck out under s75 of the Victorian Civil and Administrative Tribunal Act 1998 as lacking in substance. The respondents have now sought an order that the applicants pay their costs of this proceeding. The order is sought under s75(2) of the Act which provides as follows:

'If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.'

1. As a fall back position the respondents seek costs under s109 of the VCAT Act.
2. The principles to be applied when considering an application for costs under s75(2) are not clearly spelled out in the Act. This is in contrast to the provisions of s109. That section provides that the usual rule to apply should be that each party is to bear their own costs in a proceeding. An order that one party pay the other party's costs may be made under s109 only if the Tribunal is satisfied that it is fair to do so, having regard to a series of factors set out in the section. These factors include matters such as failing to comply with orders of the Tribunal, vexatiously conducting the proceeding, and the relative strength 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, the nature and complexity of the proceeding, and any other matter the Tribunal considers relevant.
3. The respondents say that s75 gives to the Tribunal a broad and unfettered power to compensate a party who has suffered the institution and prosecution of a proceeding which is misconceived or lacking in substance. The respondents argue that where proceedings are struck out under s75(1) an order for costs should be made s75(2) and that in deciding whether to make such an order, I should not take into account the principle in s109 which provides that each party in VCAT proceedings will usually bear their own costs.
4. The respondents point out that elsewhere in the Act, in s78(2)(c) the Tribunal is required to consider s109 considerations. Section 78(2)(c) deals with costs orders where a party has conducted a proceeding causing disadvantage to the other party and that section provides that the Tribunal may make an order for costs under s109 in that circumstance. The respondents say I should conclude that s109 considerations are deliberately absent from s75(2) because Parliament did not intend them to be taken into account in considering a costs award under s75.
5. Although s75(2) provides no direct guidance on the circumstances under which costs should be awarded after a successful application under s75(1), the Act provides that I must act fairly and according to the substantial merits of the case in all proceedings (s97). Many of the matters set out in s109 are in my view therefore properly to be considered in this application for costs, even though it is brought under s75(2) and even though the matters identified in s109 are not referred to in s75(2).
6. I have found in this proceeding that the complaint is unsustainable because the conduct complained of did not occur in trade or commerce.
7. The conduct complained of against the solicitor respondents was that the solicitors accepted instructions to act for an estate. Applying the principle expressed in LT King Pty Ltd trading as Yarra Valley Financial Services v Daniel Besser & White Cleland Pty Ltd (2002) 172 FLR140. In doing so I held that the action complained of by the solicitors, that is taking instructions to act in an estate, was part of the essential character of core activities undertaken by the legal profession and therefore in accordance with King's case it was not an act which occurred in trade and commerce. In respect of the executor respondents I was not able to be directed to any authority precisely as to whether an executor is acting in trade or commerce in carrying out his or her executorial duties under a Will. However, by analogy with the reasoning in a Tasmanian anti-discrimination case of R v Anti-Discrimination Commissioner: XP McDermott (No. 2) (2000) TASSC 180, I found that the action of the executor in claiming commission under a rule could not be considered conduct occurring in trade or commerce.
8. Further, I found that even if the conduct of the solicitors and executors could be characterised as being performed in trade or commerce, it was not able to be characterised as either misleading and deceptive conduct or unconscionable conduct so as to be actionable under s9 of the Fair Trading Act 1999. This is because it was logically implausible to describe conduct as misleading or deceptive or unconscionable if it was conduct that was approved of or directed by the testator.
9. I made the point in my written reasons for decision that the points of claim as drafted were very imprecise as to the nature of the actual claim and the way in which this claim could be brought under any of the sections of the Fair Trading Act that were relied upon.
10. There is little law and much debate about the circumstances in which conduct of a professional nature can be described as being conduct in trade or commerce. The authorities are sparse, and such authorities as do exist, apart from King's case, are relatively old and are often criticised for not taking into account substantial changes in the public's perception of the professions and professionals' perception of their own role in the recent past.
11. Thus, although I have held that the actions of both the solicitors and executors could not be characterised as having taken place in trade or commerce, I do not regard that principle as so well established as to justify an order for costs against a party seeking to challenge it.
12. The respondents are on stronger ground when arguing for an order for costs on the basis of the points of claim as pleaded and the obvious inappropriateness of characterising the conduct as misleading and deceptive or unconscionable under the Fair Trading Act. This formulation could not be justified. Even accepting for the purpose of this argument that the applicants could have proven all the facts on which it relied.
13. In my view therefore, an award of costs should be made which should reflect the manifestly untenable nature of this argument, and the reasonable costs to the respondents of defending themselves against it.
14. The respondents have sought an order for costs on the Supreme Court scale, with certificates for senior and junior counsel in relation to preparation of affidavits, written submissions and appearances, including costs submission.
15. In my view the strike out application did not require the attendance of senior counsel. Apart from the issue of whether the conduct occurred in trade or commerce, the issues in the strike out application itself were relatively simple. There was very little credible opposition to the arguments put in this regard. I do not regard the fact that the respondents were solicitors whose professional conduct had been called into question as a justification for an award of costs, let alone award of costs of senior and junior counsel.
16. In support of the application for costs the respondents have relied upon observations of Deputy President Macnamara in Barbcraft Pty Ltd v Geobel Pty Ltd (2004) VCAT 747. In that case Deputy President Macnamara made a costs order including certificates for senior and junior counsel. In his view the case was technical and difficult and required the attendance of senior and junior counsel.
17. In my view the circumstances of this case as I have outlined them are completely different. This matter is not a complex matter apart from the question of whether or not the conduct engaged in was conduct in trade or commerce.
18. Accordingly, it is my view that the order which I should make in accordance with the substantial merits of the case is that the applicants pay the respondents' costs of this proceeding including the costs of this costs application on a party-party basis to be taxed on County Court scale D. I refuse the application to have the proceeding taxed on the Supreme Court scale and I also refuse the application to provide certificates for senior and junior counsel.