VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z133/2020	
CATCHWORDS	
Review and Regulation List – costs application – application for review pursuant to Transport Accident Act 1986 (Vic) – review application dismissed by consent without hearing or determination – applicant making application for costs – no reviewable decision identified and no jurisdiction evident in respect of the review application – costs application refused – Transport Accident Act 1986 (Vic) s 79.	

APPLICANT	Dianne Vidal	
RESPONDENT	Transport Accident Commission	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth	
HEARING TYPE	Decision on the papers	
DATE OF ORDER and reasons	3 June 2022	
CITATION	Vidal v Transport Accident Commission (Costs) (Review and Regulation) [2022] VCAT 618	

Order
1	The applicant’s application for costs is refused.

E Wentworth
Senior Member			

		

Reasons
1	On 27 February 2020, the applicant Ms Dianne Vidal filed an application at VCAT for review under the Transport Accident Act 1986 (Vic) (the Act). 
2	The review application was dismissed by consent on 5 October 2021 without a hearing or determination of the merits of the application, and without much more than administrative action by the Tribunal having taken place.  
3	Costs were reserved subject to submissions from the parties.  
4	This decision is about Ms Dianne Vidal’s subsequent application for costs against the Transport Accident Commission (TAC).  The TAC does not seek its costs; however, it opposes an award of costs in favour of Ms Vidal.
5	Both parties agreed to the costs application being decided on the papers and provided written submissions and additional materials.
6	My decision is to refuse the costs application, for the following reasons.
Background
7	Ms Vidal has been a TAC client for nearly three decades, having sustained spinal cord injuries in a transport accident in 1993. 
8	TAC accepted her claim for compensation and, after rehabilitation, she returned to her modified and wheelchair accessible home in 1996.  In recent years, further modifications have been required.
9	From her application for review and supporting materials, it is apparent that Ms Vidal is concerned about the workmanship involved in modifications to her home in recent years and other problems to do with works carried out or not carried out to her satisfaction.  Her letters to the TAC show a high level of frustration at perceived delays, as well as concerns about being able to preserve her independence.   
10	The recent modifications were carried out following a TAC decision made on 13 December 2018, agreeing to pay for specified modifications (but not others); and a subsequent TAC decision on  6 June 2019 agreeing to pay for further modifications recommended in an Occupational Therapy Assessment Report.
11	In her review application to VCAT, filed by her legal representative on 27 February 2020, Ms Vidal sought orders that the TAC take steps ‘to rectify the defective building works’, ‘carry out such further works as are necessary’ and ‘pay the costs of the application’.
Consideration of the costs application
12	In her legal representative’s application for costs, the submission is:
This Application was lodged as a result of the failure by the TAC to ensure that all the works were correctly and appropriately completed. This was not the case, and the TAC email of 27 February 2020 exhibits the fact that there were many outstanding problems.

Accordingly, the Application was need[ed] to enforce the Applicants complaints.

The costs claimed are as follows:

1. Legal fees: $3000
2. Application fee: $162.90

13	Under s 79 of the Act, costs may be awarded in TAC review matters provided it is ‘just’ to do so.  Section 79 of the Act displaces the general rule as to costs in VCAT applications otherwise set out in s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).  
14	In this case, the application for review was dismissed by consent, without any consideration of the merits. While this of itself is not determinative, as submitted by the TAC there are relevant doubts about whether the Tribunal had jurisdiction in any event.
15	 As submitted:
•	VCAT has jurisdiction to review a ‘decision’ of the TAC, on the application of a person whose interests are affected by the decision, provided the person makes the application within 12 months of becoming aware of the decision.
•	VCAT cannot alter the 12-month time limit. 
•	‘Decision’ is defined in s 3 of the Act:
decision includes a declaration, determination, direction or order.
•	‘Decision’ has been held to mean a decision of a final nature; one that is final, operative, and determinative.  
•	As observed in Murdoch v Business Licensing Authority [2010] VCAT 942 (Murdoch), to find otherwise would lead to a fragmentation of the process of administrative decision-making and risk the efficiency of the administrative process; and could involve the Tribunal in usurping the function of the primary decision-maker before they have completed their task.  
•	No decision reviewable by VCAT was identified in the application for review. 
•	Nor is one evident on the material.
•	A potentially reviewable decision was made on 13 December 2018 by the TAC, when the TAC agreed to pay for some specified modifications requested, but not others.  No application was lodged in respect of that decision within time.  
•	On 6 June 2019, the TAC agreed to pay for the further modifications recommended by the occupational therapist.  No application has been lodged in respect of that decision to agree to pay for further modifications (and it would be surprising if it were).  The issue raised in the review application is about the quality of the works subsequently carried out.
•	On 1 August 2019, the occupational therapist wrote to the TAC recommending a modification to an existing downpipe, and on 2 October 2019 recommended its realignment.
•	There were then communications between the TAC and Ms Vidal’s solicitors and with the project manager for the works in February 2020 about Ms Vidal’s remaining concerns, including poor workmanship and her request that the TAC remove the downpipe altogether.  Her letter dated 10 February 2020 sets out her detailed concerns.
•	On 10 February 2020 Ms Vidal’s solicitor asked the TAC to advise what they were doing to ‘rectify the problem’.  
•	The TAC responded on 27 February 2020, including proposing reassessment by a builder or glazier of some of the items of concern.  It is clear from the TAC’s response that a final decision had not yet been made, the various requests were under consideration, some proposals were made, and a response was sought.  
•	As at the date the application for review was filed, no decision had been made by the TAC, nor was a relevant decision identified in the review application.  The process was continuing and not concluded.
16	Ms Vidal’s solicitor’s submissions state that the review application was brought ‘to enforce the Applicant’s complaints’.  I appreciate that it may have been intended to speed up the process, but that would not bring it within the Tribunal’s jurisdiction. Nor would it necessarily be a proper basis to commence review proceedings, in my view, in the absence of a reviewable decision.  The observations made in Murdoch are apposite here.
17	Section 79 of the Act gives the Tribunal a discretion.  The Tribunal is not required to award costs; it may do so if it is satisfied that it is ‘just’ to do so.
18	I recognise that the injuries Ms Vidal suffered in the transport accident almost three decades ago changed her life; and continue to confront her with challenges as she ages.  She is determined to remain as independent as possible, and the continuing accessibility of her home is an understandable priority.  There is no doubt that the modifications she wanted made had not been completed to her satisfaction at the time the review application was filed. 
19	I am not satisfied, however, that it is ‘just’ to make an order for costs against the TAC in circumstances where:
•	the application for review has been dismissed, without a determination on the merits, let alone a determination favourable to Ms Vidal;
•	the Tribunal most probably did not have jurisdiction in any event; no reviewable decision was identified in the application, nor could one be identified from the materials;
•	nor is it likely that the Tribunal had the power under the Act to make the orders sought in the application in any event: that is, direct the TAC to attend to rectification of building works involved in a home modification; 
•	to the extent that there may have been a reviewable decision in the past, no application was made within the time limit in respect of it; 
•	in the circumstances, the application appears to have been misconceived and brought ‘to enforce the Applicant’s complaints’; and
•	the TAC has incurred costs in responding to the application.

20	The application will be refused.

E Wentworth
Senior Member