Where an appellate court sets aside a tribunal decision on appeal but does not make an affirmative order in the applicant's favour, and the applicant may not have succeeded on remitter, it is not appropriate for the appellate court to make a substitutive costs order in the applicant's favour for the costs of the tribunal proceedings.
An appellate court that sets aside VCAT orders on appeal has no power to issue new administrative licences or direct their reissue; the appropriate course is for the applicant to apply afresh and seek review in the Tribunal if refused. The slip rule cannot be used to obtain substantively new orders that were not part of the court's original intention. The default costs position in VCAT (each party bears own costs) applies where the matter is not remitted and the applicant may not have succeeded on remitter.
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