VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H305/2019	
CATCHWORDS	
Application for certification of counsel’s fees – proceeding concluded in 2009 and Tribunal functus officio – application dismissed	

APPLICANT	James Gray	
RESPONDENT 	State of Victoria (Department of Education and Training)	
WHERE HELD	Melbourne	
BEFORE	Deputy President G. Nihill	
HEARING TYPE	Hearing	
DATE OF HEARING	1 October 2019	
DATE OF ORDER AND WRITTEN REASONS	4 December 2019	
CITATION	Gray v State of Victoria (Department of Education and Training) (Human Rights) [2019] VCAT 1913	

Order

The application is dismissed.

G. Nihill
Deputy President			

APPEARANCES:		
For applicant 	In person	
For respondent	Ms S. Norton, of counsel	

Reasons

1	At the hearing on 1 October 2019 this proceeding was heard together with file reference number A145/2005, the matter of Anja Turner obo Rebekah Turner v State of Victoria, Department of Education and Training (Anti-Discrimination) [2007] VCAT 873. This matter, a complaint of discrimination, was heard in 2006 by Deputy President McKenzie, who is no longer a serving member of the Tribunal. On 22 May 2007, Deputy President McKenzie found that the discrimination complaint was proven in part, and she otherwise dismissed the complaint. There was a further hearing as to quantum in 2007.
2	The file reference number A145/2005 has been destroyed and no copy of it exists. 
3	On 28 August 2018 James Gray, who had been counsel for the applicant Ms Turner, sought orders certifying his fees in the proceeding. It was not possible in the circumstances for the Tribunal to make such an order. Mr Gray filed transcript of the proceeding, and on 14 June 2019 and 10 July 2019 I made orders simply recording that I had not been the presiding Member and the file was no longer in existence, however that it appeared on the basis of the material filed by Mr Gray that he had attended on the days he asserted he did, and that his assertion as to preparation appeared reasonable. 
4	The respondent sought a rehearing under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). This was listed on 1 October 2019. At the hearing I set aside the orders dated 14 June 2019 and 10 July 2019. The respondent provided evidence at the hearing that a costs order had been made, by consent, on 11 November 2008. As the file had been destroyed, I had not been aware of this costs order, which obviously finalised any issue as to costs. Mr Gray had not filed a copy of this costs order. In any case, the orders I had made were not the orders Mr Gray was seeking. He was seeking orders certifying his fees. 
5	At the hearing on 1 October 2019, Mr Gray set out his application. He sought orders certifying his fees in the proceeding file number A145/2005 at $197,300.00. With the consent of the parties I accepted this application, as application number H305/2019, with Mr Gray as the applicant and State of Victoria (Department of Education and Training) as the respondent. 
6	Mr Gray had been counsel for Ms Turner. Ms Turner and her solicitors commenced a proceeding in the Costs Court to enforce the costs order made by Deputy President McKenzie. On 7 November 2012, the Costs Court ordered the respondent to pay the applicant’s interim costs, though not including Mr Gray’s fees, and otherwise adjourned the taxation to a date to be fixed. Mr Gray was joined to the taxation proceeding, on his application. As I understand it, Mr Gray did so because his instructing solicitors had not taken steps to recoup his fees in the Costs Court. 
7	On 20 August 2018, Associate Justice Wood noted in orders that certain allowances were recoverable by Mr Gray, amounting to a “tentative total” of $37,948.68. This tentative total was not formalized in an order, at the request of Mr Gray, for reasons set out by Associate Justice Wood as follows:
In the preamble to the Scale, there is a general discretion to allow an appropriate amount where the Scale item is seen to be inadequate. However, there are specific provisions in relation to counsel which apply notwithstanding anything contained in the Scale. One provision state that apart from mediation (item 20A) ‘the trial judge ONLY’ can allow higher fees for counsel in any proceeding – see item 29(h)(iv)…
…The second applicant requested an adjournment of the taxation prior to finalisation of the matter pending a foreshadowed application to VCAT for orders in relation to item 29 of the County Court Scale.
8	I refer to Associate Justice Wood’s orders in this level of detail as they show how this application came to be made to the Victorian Civil and Administrative Tribunal (VCAT). 
Submissions of the applicant
9	Mr Gray sought orders that VCAT certify his fees at $197,300.00. He said that Associate Justice Wood agreed that the costs order dated 11 November 2009 did not prohibit him from doing so. He said that he had heard from a friend of a friend of someone involved in the case that counsel representing the respondents had incurred fees considerably higher than his. He said that he had done much more of the work than his instructing solicitors. 
10	Mr Gray acknowledged that Deputy President McKenzie was no longer a serving Member of the Tribunal but submitted that I should ask the President of the Tribunal to reconstitute the Tribunal under section 108 of the VCAT Act so that effectively I would then stand in for Deputy President McKenzie. In the alternative, Mr Gray submitted that I could make the orders that he sought under section 130 of the VCAT Act. Section 130 of the VCAT Act provides that VCAT’s power to make an order or decision includes a power to make the order or decision subject to any conditions or further orders that VCAT thinks fit.
11	On the application of Mr Gray, the principal registrar issued a summons dated 20 September 2019 requiring a solicitor for the respondent to attend and produce “all solicitors and barristers tax invoices in the matter of Turner v State of Victoria”. Mr Gray submitted that this evidence would establish that his claim for fees was fair and reasonable.
Submissions of the respondent
12	The respondent submitted that the Tribunal became functus officio a long time ago, once final orders were made determining the VCAT proceeding and specifically when costs orders were made, by consent, in 2009. The Tribunal holds no jurisdiction to hear Mr Gray’s application or to make orders. Therefore, even if Deputy President McKenzie were still available to consider the making of an order, she would have no jurisdiction to do so. 
13	For the same reason, the documents sought by Mr Gray could serve no legitimate purpose and the summons should be set aside. 
Discussion and conclusion
14	The file in A145/2005 no longer exists. It has become clear from the documents recently filed by the respondent in that matter and in this one, H305/2019, that costs orders were made by consent in 2009. The proceeding A145/2005 concluded at that point. As Senior Member Davis stated in Big Apple Group Pty Ltd v Melbourne City Council (Building and Property):
The Tribunal becomes functus officio once it has made an order finally determining a proceeding or once the order has been authenticated…
… the order … was made and authenticated by the consent of the parties… This is a final determination of the proceedings…
15	Once the Tribunal has decided a matter and concluded the proceeding, it cannot go back and do it again, or modify its orders. This means that I cannot, even if I had been the presiding Member, make a new or varied costs order. 
16	As to Mr Gray’s submission that I should ask the President of VCAT to reconstitute the Tribunal, I record that section 108 of the VCAT Act states that:
At any time before the conclusion of the hearing of a proceeding a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding.
17	Mr Gray made that submission today, more than ten years after the conclusion of the hearing. What he seeks is not contemplated by section 108 of the VCAT Act. Similarly, I do not accept the submission that I may make additional orders under section 130 of the VCAT Act. The Tribunal is functus officio, and no further orders can be made with respect to the proceeding A145/2005.

18	The application is therefore dismissed, and the summons dated 20 September 2019 is set aside. 

G. Nihill
Deputy President