06/11/2016, 01:51:PM
06/11/2016, 01:51:PM
If a disputed matter is brought into VCAT can costs be awarded?
The Victorian Civil Administrative Tribunal, which is known as VCAT for short, is regulated by the VCAT Act 1998.
VCAT may award costs in accordance with section 109 of the VCAT Act.
Generally, each party bears their own costs at VCAT, which this approach by VCAT is designed to promote justice and to minimise the overall costs in tribunal proceedings. However, section 109(2) of the Act empowers VCAT to make a costs order against one party to pay part or all of the costs of another party. Though VCAT will only make this cost order if it is “fair to do so”.
When a costs order is made, VCAT will take in account matters set out in section 109(3) of the Act, which includes:
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 the Act, the regulations, the rules or an enabling enactment;
iii. Asking for an adjournment as a result of (i) and (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 if 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 proceedings;
e. Any other matter the tribunal considers relevant.
When VCAT considers to award costs against a party there are several points that VCAT takes into account in addition to section 109(3) of the Act. These points include that VCAT must be satisfied it is fair to award cost; that the use of the discretionary power to award costs will provide a just outcome; that the costs awarded are reasonable in the circumstance.
The power to award costs is broad under the VCAT Act and some examples where costs have been awarded include: where a successful party is required to pay some or all of an unsuccessful party’s costs; where a party joins another party to the claim against their will; where are party is ordered to pay the application costs of the claim, and so on.
VCAT cannot award a costs order against a party for costs that are incurred prior to commencing proceedings. Costs orders may only be ordered from the time the proceedings have started, which is when the application to commence proceedings has been lodged with VCAT.
VCAT’s power to award costs is subject to the VCAT Act and other Victorian or Commonwealth legislation.
Where proceedings in VCAT have stopped and are reinstated to continue, VCAT may take into account the entire proceedings in its consideration in respect to determining a costs order.
VCAT cannot award costs against a non-party to the proceedings. This means only the parties that are involved in the proceedings can VCAT make a costs order against.
Under section 109(2) of the Act a costs order may be made by VCAT against a party to the proceedings at any time. This is a broad discretion of VCAT, for which a party who files a claim at VCAT should be well aware of because a costs order may be issued against them, as well as the respondent, subject to the facts of the matter and how the proceedings are handled by each party.
If a party files an application at VCAT and it is struck out without consideration of a cost order during the proceedings, VCAT may consider a costs order after the event.
VCAT’s discretion to issue a cost order against a party is for the purpose that justice will be done.
There are many issues in relation to costs that VCAT can order against the parties to the proceedings. Therefore, it is important that both the applicant and the respondent consider the process of VCAT seriously. It is essential that any proceedings that are brought at VCAT are justified and reasonable in the circumstance. Because if proceedings are commenced at VCAT inappropriately, the potential of a costs order being issued against the applicant is possible. Then if proceedings are brought on proper grounds and if either party did not act correctly in the conduct of the proceedings, a costs order may be made by VCAT.
Everyone has a right to defend their legal rights and VCAT is there for that purpose. However, the key point is to bring a proper claim if you are an applicant, or a proper defence if you are the respondent. Though no matter which position a person may be in for VCAT, call me, and get that legal advice to protect your legal rights and interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799
Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”
