VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C3313/2021
CATCHWORDS	
Respondent’s application for costs where the applicant fails to appear at the final hearing and fails to comply with pre-hearing directions made by the Tribunal – discussion of section 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in this context – costs awarded under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)	

APPLICANT	Coady Thomson	
RESPONDENT	Automax Australia Pty Ltd ACN:612 518 582	
WHERE HELD	In Chambers	
BEFORE	D Bignell, Member	
HEARING TYPE	Costs application on the papers	
DATE OF ORDER	1 September 2023	
CITATION	Thomson v Automax Australia Pty Ltd (Civil Claims) (Costs) [2023] VCAT 1025	

Order
For the written reasons provided, the applicant shall pay the respondent’s costs of this proceeding, assessed in the amount of $1,500.00.

D Bignell
Member			

Reasons
1	This application concerned the applicant’s purchase on 3 March 2021 from the respondent of a used 2014 Mitsubishi Triton GLX Utility. The applicant alleged that the car was not fit for purpose, but contrary to a directions order of the Tribunal, failed to further articulate his claim. When the application came on for hearing, it was dismissed due to the applicant’s non-appearance. The respondent now seeks its costs.
Background
2	There could scarcely have been submitted a less informative document as a grounding application. Filed on 19 May 2021, it simply identified the parties and stated the following: 
Product Car
Problem Not fit for purpose
Desired outcome Payment $0.00, cancel sale of car under 40k
Purchase date Mar 03 2021
Date problem noticed Mar 04 2021
Purchase price $20,888.00
Full amount paid No
Amount paid $1,156.00
…
About the problem  Not even 24 hours of owning not found out the check light was on witch [sic] I wasn’t aware of and I also found out after buying it that the canopy didn’t lock. I have been without a car for nearly 3 months now. 
3	The application was lodged with a copy of an invoice from the respondent, addressed to the applicant, which indicated a sale price of $20,888.00.
4	Following lodgement of the claim on 19 May 2021, as is standard practice VCAT required the applicant to file an ASIC company search in respect of the respondent company. This he did on 1 June 2021. A directions Order was issued on 4 August 2021, requiring the applicant to substantiate his claim, by filing and sending to the respondent Points of Claim, setting out the relevant facts and events giving rise to the application. The Order also directed the respondent to subsequently file and exchange Points of Defence by 23 July 2022, and imposed additional requirements on the parties regarding the provision and exchange of evidence. 
5	On 23 August 2021, the respondent filed a notice of appointment of a solicitor, in anticipation of the hearing proceeding a year or so later on its then scheduled date of 2 September 2022.
6	When the respondent failed to receive Points of Claim in accordance with the Tribunal’s directions, the solicitor for the respondent notified the Tribunal. The hearing date assigned was vacated, and the parties were directed to file their respective documents in accordance with the extended timeline, with the matter relisted for hearing on 21 March 2023. 
7	On 30 August 2022, the respondent filed an outline of submissions based on the applicant’s failure to substantiate his claim, and proposed that the application be struck out with an order for costs in its favour.
8	When the matter came on for hearing, the solicitor for the respondent informed the Tribunal that although the initiating application was ambiguous as to the amount claimed, they had been instructed that the applicant had paid the full amount of $20,888.00. From its interpretation of the application the respondent had assumed the applicant intended to claim a full refund and had instructed solicitors accordingly.
9	As the applicant failed to attend the hearing, an order was made dismissing the proceeding due to the applicant’s failure to appear or be represented. 
10	Costs were reserved, with both parties invited to make written submissions in their regard. Although the respondent filed submissions for costs on 4 April 2023, the applicant simply emailed to say that he no longer wished to go ahead with the court [sic] hearing. Both parties were informed that subject to any objection being raised, the issue of costs would be addressed on the papers. Neither party objected.
Respondent’s submissions
11	The respondent seeks costs of the proceeding to be fixed in the sum of $1,500.00, or to be otherwise taxed in accordance with the County Court scale. 
12	No breakdown of the costs claimed is provided although the history of the respondent’s communications is detailed and annexed to its submissions, including its correspondence to the applicant: a letter of 23 August 2021 attaching Notice of its Appointment of a Solicitor, and a brief email on 10 August 2022 (querying whether Points of Claim had issued).
13	In its submissions, the respondent has not directly addressed subsections 109(3)(a)–(e) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), but seeks instead to rely on section 78(2)(c) of the Act, which allows the Tribunal to order costs if it believes that a party to the proceeding is conducting it in a way which unnecessarily disadvantages another party to the proceeding by certain conduct having regard to the matters set out in section 78(1) of the Act. 
14	The respondent seeks to rely on the applicant’s conduct falling for consideration under the following:
(a)	Failing to comply with an order or directions of the Tribunal without reasonable excuse (section 78(1)(a)); and
(b)	Failing to attend the hearing of a proceeding (section 78(1)(g)).
15	Whilst the respondent’s submission referred to section 78 of the VCAT Act, section 78(3) provides that when section 78 is enlivened the Tribunal can award costs under section 109. There is no doubt that, in the current circumstances where the applicant failed to comply with pre-hearing directions and failed to appear at the hearing, that costs could be claimed under section 109 independently of section 78. No issue of procedural fairness arises from the respondent having referred to section 78 in its submission.
Power to award costs – section 109 VCAT Act
16	The respondent’s arguments may, however, be considered under section 109. Notwithstanding that each party must ordinarily bear their own costs arising from a VCAT proceeding, the Tribunal may order a party to pay all or part of another party’s costs if satisfied it is fair to do so, having regard to the criteria set out in section 109(3).
17	Those considerations are:
(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);
(iv) 	causing an adjournment;
(v) 	attempting to deceive another party or the Tribunal;
(vi) 	vexatiously conducting the proceeding;
(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;
(d) 	the nature and complexity of the proceeding;
(e) 	any other matter the Tribunal considers relevant.
Section 109(3)(a), did the conduct of the proceeding unnecessarily disadvantage another party?
18	The respondent refers to the applicant having failed to file his Points of Claim, or to provide copies of documents relating to the issues in dispute, in contravention of the Tribunal’s multiple orders. While it is clear that the applicant certainly breached these orders without proffering any excuse, and had the applicant properly articulated and quantified his claim, the respondent would have been better able to prepare for hearing, the applicant ultimately did not attend to press his claim.
19	I am not satisfied that the applicant conducted the proceeding in a way which caused unnecessary disadvantage to the respondent.
Section 109(3)(b), did the applicant prolong unreasonably the time taken to complete the proceeding?
20	As the above timeline shows, prior to the hearing, the applicant missed dates for delivery of documents, as a result of which a hearing date was vacated, and a new one assigned. The failure by the applicant to comply with the Tribunal’s orders without excuse, or to seek to withdraw the proceeding prior to it being dismissed by the Tribunal, led to the time taken to conclude the proceeding being unreasonably prolonged. 
Section 109(3)(c), does the relative strength of the claims weigh in favour of an order for costs?
21	As indicated above, the applicant failed to properly articulate the basis of his claim, beyond the sparse information in the application and failed to provide any evidence in support of it. While there may have been a genuine grievance on the applicant’s part, one can only guess as to its substance, in light of his abject detachment from the proceeding once filed. While this may incline one to consider the respondent to have perhaps been hasty in their instruction of solicitors at an early stage of the proceeding, it may alternatively be the case that in so doing, they hastened the applicant’s quiet retreat. Either way, I am unable to conclude that these factors weigh in favour of an order for costs being made. 
Section 109(3)(d), does the nature and complexity of the proceeding weigh in favour of an order for costs?
22	It was reasonable for the respondent to construe the applicant’s claim, as expressed in the application, as being a claim for monetary compensation of over $20,000.00. It was also reasonable for the respondent to consider that the applicant’s expression of his claim was inadequate and that engaging legal practitioners might put the respondent in a position to obtain preliminary orders of the Tribunal compelling the applicant to provide proper particulars of his claim.
23	For these reasons I am satisfied that the nature and complexity of the proceeding were such that it was warranted for the respondent to engage legal practitioners.
Section 109(3)(e), any other matter that is relevant
24	I do not perceive the respondent’s submissions as raising any other matter of relevance, but take note of the multiple occasions between the issuance of the proceeding, and its dismissal, upon which the applicant could have sought to withdraw the application. It was remiss of the applicant to allow the proceeding to remain live, knowing the respondent had engaged legal practitioners, for nearly two years.
25	I am satisfied that having regard to the above criteria, it is fair to require the applicant to pay the respondent’s costs. Having regard to my own experience as a legal practitioner, I am also satisfied that the respondent’s claim of $1,500.00 is an appropriate assessment of the costs incurred, and will make an order to that effect. 

D Bignell 
Member