VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. G267/2012	
CATCHWORDS	
Review and Regulation List – Transport Accident Act, s 79(2) – Applicant unsuccessful in claim for compensation in relation to injuries said to have been sustained in transport accident – Whether ‘just’ to order costs in favour of respondent.	

APPLICANT	Craig Hills	
RESPONDENT	Transport Accident Commission	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Member	
HEARING TYPE	Determination on the papers	
DATE OF HEARING	26 May 2022	
DATE OF ORDER and reasons	9 June 2022	
CITATION	Hills v Transport Accident Commission (Costs) [2022] VCAT 643	

Order
The application by the Transport Accident Commission for its costs of the proceeding is dismissed.

R. Tang, AM
Member			

Written Submissions:		
For Applicant 	Mr A. Hands of Counsel	
For Respondent	Mr C. Inness, solicitor	

Reasons
1	In May 2010, Mr Craig Hills sustained serious injuries to his hands and knees from a fall or jump in the vicinity of Crown Casino, which he claimed resulted from taking action to avoid a car making its way down a ramp in car park of the casino and heading towards him.  
2	Mr Hills lodged a claim for compensation under section 35 of the Transport Accident Act 1986 (Vic) (TA Act) on 22 November 2010, which was denied by the Transport Accident Commission (TAC) on 15 April 2011 on the basis that he had not provided independent proof that a motor vehicle was involved in the incident (being a requirement for compensation under section 35).
3	On or about 22 March 2012, Mr Hills applied to the Tribunal for review of the TAC’s decision.
4	For various reasons, explained more fully below, the hearing of Mr Hills’ application did not take place until late 2021.  Over four days in November 2021, I heard from Mr Hills and other witnesses and conducted two views of the location of the incident.  
5	On 13 December 2021, I affirmed the TAC’s decision and published reasons for doing so: see Hills v Transport Accident Commission [2021] VCAT 1512 (Tribunal Decision).  At paragraph [14] of that decision, I indicated that:
Having regard to the totality of the evidence, I am not satisfied – on the balance of probabilities – that the injuries sustained by Mr Hills on 16 May 2010 were suffered as a result of a transport accident. This is because the evidence, given by and for Mr Hill[s] as to the circumstances of the Incident, is not credible in the wider sense employed in Onassis. In particular … a number of aspects of the evidence as to how the Incident unfolded are inherently implausible, and Mr Hills’ account is inconsistent with both his own more contemporaneous statements and the evidence of other witnesses, including those called by him.
6	The TAC now seeks its costs of the proceeding under section 79(2) of the TA Act, which provides that the Tribunal ‘may make such orders as to costs in respect to a proceeding under [the TA Act] as it thinks just’.  
7	For the reasons which follow, and in all the circumstances, I do not consider that it is just to make an order for costs and will dismiss the TAC’s application. 
Costs framework
8	Under section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the ordinary rule at VCAT is that each party is to bear its own costs unless it is fair to make an order for costs having regard to the factors set out in section 109(3) of that Act.
9	However, that ordinary rule can be displaced.  In this regard, item 92 of Schedule 1 to the VCAT Act provides that ‘[n]othing in section 109 applies to a proceeding under the [TA Act]’.
10	The TA Act then sets out its own general costs rule, in section 79(2), which provides: 
The Tribunal may make such orders as to costs in respect of a proceeding under this Act as it thinks just, including an order requiring a representative of a party who appeared before the Tribunal to pay costs.
11	The rule has been considered in previous decisions of the Supreme Court of Victoria and VCAT.
12	In Transport Accident Commission v Tavares (Tavares), Harper J noted that the application of the rule ‘may or may not result in costs lying where they fall’.  Further, the Tribunal can take account of the nature of the proceeding, ie. being the review of an administrative decision, and its distinction from decisions of a Court on a question of law in exercising the discretion, provided that VCAT does ‘not fetter its discretion by concentrating upon that consideration … to the exclusion of other factors’.
13	Subsequently, in Transport Accident Commission v O’Reilly (O’Reilly), after noting the differences between a curial proceeding and proceedings which form part of the administration of the statutory scheme under the TA Act, Tadgell JA observed that:
It is by no means obvious that in the ordinary run of proceedings it would be just and reasonable that the [TAC] should be reimbursed for the costs it incurs in the management or administration of the scheme.  It might be said with equal justification that a person making a claim pursuant to the statutory scheme, and reasonably and in good faith pressing it, albeit unsuccessfully … should not on that account necessarily be out of pocket.  … That of course is not to say that, a power to award costs having been given to the [Administrative Appeals Tribunal of Victoria], an unsuccessful applicant might not suffer an order for costs in an appropriate case.  The task of deciding what is an appropriate case is, however, that of the AAT, without any predisposition against the unsuccessful applicant.
14	In Hanley v TAC (Hanley), Judge Bowman referred to the decisions in Tavares and O’Reilly in support of his description of section 79(2) as providing a ‘very wide’ discretion.  He also observed that the ‘legislative preference for the position that each party bear its own costs is absent’, but that nevertheless ‘it is clear that costs need not follow the event, as in a curial proceeding’.
TAC’s submissions
15	The TAC seeks orders that Mr Hills pays its costs ‘on a standard basis on the County Court scale, to be taxed in default of agreement’.
16	TAC’s application for its costs is said to be based on:
(a)	Mr Hills’ prospects of success in the substantive proceeding resting upon the credibility of his evidence and the evidence of the witnesses he called (which was called into question); and
(b)	the TAC having incurred ‘not insignificant costs’ in its defence of Mr Hills’ application.
17	In relation to the issue of credibility, the TAC observes that: 
•	the ‘central issue’ in the proceeding was whether a motor vehicle was involved in the incident which gave rise to Mr Hills’ injuries; and
•	the assessment of the viva voce evidence of five witnesses, including Mr Hills, his father and one of his friends (Mr Browdie Cooper) who was with him that evening was critical to the resolution of that issue.
18	The TAC goes on to note that, in my decision, I concluded Mr Hills had been ‘telling something less than the truth’, and that his recollection of the incident ‘appeared to have been shaped by the evidence of others’ or ‘subsequently altered by unconscious bias or wishful thinking’.  Further, the TAC refers to my finding that the evidence of Mr Cooper ‘lacks credibility for the reason that it is also inherently implausible on a number of levels’.
19	The TAC submits that:
an objective assessment of the totality of the evidence could have been undertaken by [Mr Hills] and/or his legal representatives, and that such an assessment would have plainly revealed the inconsistencies, inaccuracies, and implausibility in the evidence offered by [Mr Hills] and his witness.
20	Noting that the hearing took four days (with counsel for both parties), involved two views and the preparation and filing of a joint tribunal book of some 1820 pages, the TAC suggests it has ‘incurred not insignificant costs as a result of the length of the Hearing as well as the volume of material before the Tribunal’.  Further, the TAC notes that it was ‘required to conference with 2 witnesses called to give evidence [for the TAC] at the Hearing’ (being a police officer and ambulance officer who attended the scene on the night in question).
21	On that basis, the TAC submits it is ‘just’ in the circumstances for the Tribunal to order that Mr Hills pays its costs.
Mr Hills’ submissions
22	Mr Hills originally filed submissions on 5 January 2022 addressing the application of section 109 of the VCAT Act.  On 15 February 2022, he filed ‘replacement submissions’ on costs (Applicant’s Submissions) addressing section 79(2) of the TA Act.  It is only necessary to refer to the latter. 
23	Mr Hills submits the costs application is made in a ‘juridical context’ where the Tribunal has been established to provide Victorians ‘with a low cost, accessible, efficient and independent Tribunal delivering high quality dispute resolution’.  As such, the Tribunal’s role should be distinguished from the Courts when determining questions of law, and that distinction should be kept in mind when it comes to the question of costs.
24	Mr Hills notes that: 
•	he suffers or has suffered from symptoms of post-traumatic stress disorder, which he submits ‘affected his capacity to concentrate and to give coherent answers to some questions’ at the hearing; and
•	in my decision, I indicated that I did not consider him to be an ‘untruthful person’; rather, I observed that his recollection of the incident had ‘become emotional’ and may have been ‘altered by unconscious bias or wishful thinking’.
25	Mr Hills submits it would be ‘unjust to order costs, either fully or partially, against [him]’.
26	In this regard, Mr Hills contends that: 
(a)	his case was ‘tenable both in fact and law’, observing that no strikeout application had been brought by the TAC;
(b)	the central issue was whether his injuries arose out of a transport accident, which turned on issues of credibility that ‘can only be determined in the course of hearing evidence’, not beforehand;
(c)	regard should be paid to the ‘social and remedial nature’ of the TA Act, in that it is part of a ‘no fault insurance scheme’ for transport accident related injuries.  In this regard, Mr Hills cites the Tribunal’s decision in Edwards v RAMS Home Loans Pty Ltd  where Deputy President McKenzie indicated that, in determining whether to make an order for costs in relation to Credit Code proceedings, ‘one must consider whether this would undermine the protections given to debtors by the Code by deterring debtors from taking advantage of those protections for fear of being required to pay the credit provider’s costs if their claims are unsuccessful’;
(d)	he suffered an injury and was advised by his former solicitor to make the claim, which he did ‘in good faith notwithstanding the effluxion of time’.  Further, he notes he ‘has not been found guilty of lying, or conspiring with [others] to defraud the TAC’ and, as such, ‘does not deserve punishment in costs’; and
(e)	the delay in the matter coming on for hearing was ‘substantial and had an adverse effect on the evidence [he] was able to call’, noting that there was no CCTV footage available from Crown Casino ‘given the effluxion of time’ and that one of his witnesses ‘had died by the time the matter came on for hearing’.
27	Mr Hill also refers to his ‘tragic life’, noting that he lost his wife and children in a car accident in 1994, was later stabbed in the heart and required a stent, has suffered from post-traumatic stress disorder and chronic pain, developed an addiction to pain killers, and has been on a disability pension for many years. 
28	For these reasons, Mr Hills submits that each party should pay its own costs.
Analysis
29	As a starting point, it is useful to understand why it took so long for the matter to come on for hearing.  In this regard: 
•	in May 2012, orders were made listing an administrative mention in September 2014, at the request of Mr Hills’ then solicitors, because he was in jail at the time.  By the administrative mention dated, the parties were to ‘make recommendations for [the proceeding’s] further conduct’;
•	as a result of the failure of both parties to respond to that administrative mention (which had been extended in the meanwhile), the proceeding was struck out on 3 December 2014;
•	the proceeding was reinstated in March 2018, with the consent of the TAC and, in December 2018, the Tribunal made orders listing the proceeding for a one day hearing in March 2019.  However, it appears that the matter was not actually ready as both parties set about gathering further material to be relied upon, involving a range of summonses being issued to third parties to produce material (such as medical records);
•	the matter did not proceed directly to final hearing.  Instead, a compulsory conference was held in October 2019, although it clearly did not result in any resolution; and
•	events were then overtaken by the Covid-19 pandemic, with the proceeding being stayed in March 2020 (albeit that additional steps were taken to obtain further evidence, such as a summons to Crown Casino for CCTV footage).
30	Relevantly, the final joint tribunal book was not filed until 1 September 2021, and the parties only came to file their submissions in November 2021 shortly before the hearing. 
31	As has been noted in Mr Hills’ submissions, by the time the matter came on for hearing, one of Mr Hills’ witnesses, Mr Trent McDonald, had passed away (from a drug overdose in 2020).  This was unfortunate because there were various inconsistencies in the two statements he had provided to the Tribunal, and between his statements and those of other witnesses.  It may have been of assistance to Mr Hills if his witness had still been alive and could have explained those matters.
32	Further, the Covid-19 pandemic also impacted on the proceeding, including the hearing.  Although, there were no longer any lockdown orders in place by the time the matter came on for hearing, there were still restrictions on entering places like Crown Casino (which was necessary to enter the car park where the incident was said to have taken place).  As Mr Hills was not double vaccinated, he was unable to attend the second view where there was an inspection inside the car park.  Perhaps more importantly, it is likely that the combination of the last lockdown (from 5 August to 26 October 2021) and the restrictions on entry to Crown Casino thereafter would have prevented Mr Hills from re-visiting the car park in advance of the hearing to refresh his memory (noting that the proceeding came to be listed for final hearing in around August 2021).
33	The comments made in Tribunal Decision about the ‘inherent implausibility’ of the evidence of Mr Hills and Mr Cooper needs to be considered in the context of the observations drawn from the two views.  For example, at paragraph [139] of the Tribunal Decision, I indicated that it was ‘implausible that Mr Hills could have fallen from the Kings Way Face of the West End Car Park’ because:
[t]here is a row of car parks along that face …, which Mr McDonald states was “pretty full” …, such that any car could not have got sufficiently close to Mr Hills to force him to jump up, and fall off, from that location.
34	The combination of these matters leads me to reject the fundamental premise of the TAC’s costs submissions, namely that Mr Hills (and his legal representatives) ought to have been able to objectively assess all of the ‘inconsistencies, inaccuracies, implausibility in the evidence’ some time well before the hearing.
35	Certainly, it would have been possible for Mr Hands (counsel for Mr Hills) to provide his client with a considered assessment of his prospects of success by the time that final submissions were prepared in November 2021.  However, by that time, most of the costs for both parties would have already been incurred such that – even if he had advised the case was entirely hopeless at that point – there would only be the costs of the hearing itself to be saved.  While such costs may not have been insignificant, I expect they would only represent a small portion of the overall cost of dealing with Mr Hills’ application from its commencement.
36	The cases make it clear that, in considering whether it is just to make an award of costs under section 79(2) of the TA Act, it is appropriate to take account of the fact that the proceeding involves review of an administrative decision.  In my view, there is a strong public interest in people being able to access independent review of decisions made by government and its agencies that affect them, and this consideration is more significant when the decision is made pursuant to a statutory regime that is remedial in nature. 
37	On the other hand, I reject Mr Hills’ suggestion that any award of costs against a party should be likened to ‘punishment’ and his implicit submission that costs orders should be reserved for situations where a person has lied or engaged in fraud.
38	Nevertheless, balancing all the circumstances, I do not consider that it would be just to make an award of costs in relation to this proceeding.

R. Tang, AM
Member