Jurisdiction - whether jurisdiction conferred by s 159 of Fair Trading Act 1999 survives the Act's repeal - 'consumer and trader dispute' - definition of 'services' in Australian Consumer Law (Victoria) - 'in trade or commerce' - Fair Trading Act 1999 s 9(1), s 159; Interpretation of Legislation Act 1984, s 14 (2); Australian Consumer Law and Fair Trading Act 2012, ss 182, 184; Australian Consumer Law (Victoria), s 2.

Blairgowrie Safe Boat Harbour Ltd (ACN: 083 358 721)

AHV Pty Ltd v Blairgowrie Yacht Squadron Inc (Civil Claims) [2013] VCAT 1789

1. The proceeding is dismissed summarily pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998.

1. The respondents' application for costs is refused.

1. This proceeding concerns subscriptions and fees paid by the applicants, or by one or more of them, for membership of an association of yachting sportspersons and for the use of facilities at Blairgowrie harbour.
2. These reasons are for a decision upon an application the respondents have made for an order for summary dismissal of the proceeding. They have sought the order under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act').
3. The first respondent, Blairgowrie Yacht Squadron Inc ('the association') was incorporated under the Associations Incorporation Act 1981. It is now subject to the provisions of the Associations Incorporation Reform Act 2012 ('the Reform Act'). Its members are persons involved in the sport of yachting at Blairgowrie.
4. The second respondent, Blairgowrie Safe Boat Harbour Ltd ('the harbour company'), is a company limited by guarantee. Although there has been no evidence about its membership, the respondents have asserted that the association is the sole member of the harbour company. As I indicate below, I think that such a state of affairs would tend to work in the applicants' favour, and so I proceed to determine the summary dismissal application on the basis that the assertion is correct.
5. The respondents jointly occupy certain land identified in a lease to them from the Minister for Environment and Conservation ('the Crown lease') which was expressed to commence on 12 February 2001. From the provisions of the Crown lease I have inferred that the land identified in it includes the harbour, jetty and slipway at Blairgowrie and the association's headquarters at Blairgowrie.
6. The first applicant, AHV Pty Ltd, is a company which the second and third applicants, Gerald Vaughan and Fiona Vaughan, control. Until December 2012 AHV Pty Ltd was entitled to use a berth at Blairgowrie harbour under a written licence from the harbour company ('the berth licence'). The original licensor was Mrs Vaughan. The applicants allege that she signed the berth licence in March 2001 but transferred it to AHV Pty Ltd in 2010. It gave up the berth in December 2012.
7. Mr and Mrs Vaughan were members of the association from 2001. Mr Vaughan did not remain a member for long. Mrs Vaughan did. She was a full member from 2003 until 2012. She, and Mr Vaughan while he was a member, paid annual membership subscriptions to the association.
8. In this proceeding the applicants have claimed $9,937.20. They have filed particulars which show that that sum consists of the total membership fees paid since 2001, plus 'car park access fees' paid, plus compound interest at the rate of 6.75% per annum.

1. The primary claim made in the proceeding is that certain conduct of the harbour company induced Mr and Mrs Vaughan to become members of the association and to pay membership subscriptions. The conduct is alleged to have been 'misleading and deceptive' and so to have contravened s 9 of the Fair Trading Act 1999 which was in force at the time that the conduct occurred. It has not always been entirely clear that that was how the primary claim was put. But in a written submission to the Tribunal dated 24 June 2013 the applicants expressed it in that way reasonably clearly, and disavowed any intention of making this primary claim against the association: it was against the harbour company only, they insisted. They allege, however that the association was the harbour company's 'manager'.
2. The context in which the alleged conduct occurred was the existence of the berth licence and its provisions for payment of fees. By clause 5.1 of the berth licence the licensee agreed to pay a licence fee in instalments. By clause 5.3 the licensee was required to pay other fees, which the parties have referred to as 'service charges'. Clause 5.3 provided:
   • 5.3 In addition to the Licence Fee the Licensee is to pay the Licensor during the Licence Term within fourteen days of the receipt of a quarterly account from the Licensor:
     • (a) a proportion of the Variable Outgoings incurred during the relevant period of the Licence, being such proportion as the Licensor determines in its reasonable discretion to be equitable having regard to the aggregate Variable Outgoings and the size and facilities made available to the Licensee under this agreement;
     • (b) those actual expenses incurred by the Licensor which relate solely to any of the Licensee, the Craft or the Berth.

For the purpose of clarity the Licensee acknowledges that expenses which relate solely to any of the Licensee, the Craft or the Berth are not be included in the determination of the Variable Outgoings.

'Variable Outgoings' were defined in Clause 1 to mean costs, charges, fees, expenses and other outgoings which the harbour company either incurred, or determined should be provided for, concerning the management, maintenance and security of the harbour.

1. Documents which the applicants have received from the respondents show that the quarterly service charges that 'berth owners' are required to pay vary according to whether the berth owner is a 'member' or a 'non-member' of the association. Non-members are required to pay substantially more than members.
2. The conduct complained of appears to be this. The applicants allege that Mr and Mrs Vaughan were induced to join the association and pay membership subscription by being offered a 'discount' on the service charges if they became members. In fact, they allege, there was no 'discount'. The service charge that they were billed for was the full service charge, calculated in accordance with clause 5.3, without any discount. Instead (and as, they allege, representatives of the respondents have admitted), non-members pay a 'penalty' so that their service charges are higher than those of members.
3. Nowhere have the applicants alleged who made the offer, or to which person it was made, or when it was made, or how it was made. They do not even allege that the offer was express rather than implied. In their various versions of their application to the Tribunal they have referred to a 'scheme' that the respondents introduced about service charges and membership subscriptions. That language suggests that the representation about advantages flowing from becoming a member of the association may have been implied rather than express. Nevertheless, I am prepared to assume that the applicants want to allege that some particular person on behalf of the harbour company made to Mr and/or Mrs Vaughan a representation that if they became members of the association they would receive a 'discount' from the service charges payable to the harbour company, and that they joined the association after that representation was made. I also assume that the applicants want to allege that they would not have joined the association if they had known that they were getting no discount but instead non-members were going to be paying a 'penalty'.
4. Because the respondents have asserted that the association is the sole member of the harbour company, and because (so the applicants allege) the harbour company had appointed the association as the 'manager' of the harbour, it is understandable that the applicants would not be able to be certain which hat the person making the representation was wearing (metaphorically speaking): the harbour company's hat or the association's hat. At all events they are alleging that representation was made on behalf of the harbour company. I would have expected them to be able to specify, however, who made the representation, to whom it was made, when it was made, where it was made and how it was made. I take into account their failure to be specific about those matters.

1. The claimed sum of $9,937.20 includes the annual membership subscriptions - loss and damage that they allege that they have suffered as a result of having been induced by a misrepresentation to join the association and pay the subscriptions - and also includes 'car park access fees'.
2. Since 2003, the applicants allege, they have paid car park access fees to the association. They allege that the association was never entitled to charge those fees and that the terms of the Crown lease entitled them to park on land identified in the lease without having to pay a fee. The provision in the Crown lease that they rely upon is clause 16.10 in Schedule A. It provides:
   • 16.10 Car parking
     • 16.10.1 The Lessee must make the car parking spaces within the lease area available for their intended purpose at all times except during the winter period between 1 April and 30 November when no more than 50% of the spaces within the lease area may be made available for boat storage and repair.
     • 16.10.2 The Lessee must ensure that Blairgowrie Yacht Squadron Members, harbour berth holders and their visitors use car parking in the lease area and along the access road in preference to the public car park located to the west of the lease area.
     • 16.10.3 The Lessee must maintain car parking areas and access lanes within the lease area to the satisfaction of the lessor so that they are in useable condition at all times.
3. Clause 16.10 gives no support at all to the applicants' case about car park access fees. It imposes obligations upon the respondents to make car parking spaces available and to maintain them in useable condition. It also imposes obligations to ensure that the association's members and other persons park 'in the lease area' and not in a public car park. It says nothing about whether either respondent may or may not charge fees for car parking access. It does not say that association members may park 'in the lease area' without having to pay a fee.
4. There having been no other basis put forward for the claim for a refund of car parking access fees, I consider that that claim would be bound to fail if there were a final hearing of the proceeding.

Summary Dismissal: Legal Principles, Fact and Submissions

1. Section 75(1) of the VCAT Act, under which the respondents have made their application for an order for summary dismissal of the proceeding, provides:
   • (1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -
     • (a) is frivolous, vexatious, misconceived or lacking in substance; or
     • (b) is otherwise an abuse of process.
2. The principles governing the disposition of an application under s 75(1) for summary dismissal or striking out are well established. It is a very serious matter to dismiss or strike out a proceeding summarily, and the power to do so under s 75(1) should be exercised only where it is obvious that the case cannot possibly succeed or where it is obvious that the case is an abuse of process for other reasons. Otherwise an applicant is entitled to have the case fully heard and adjudicated upon at a final hearing. In Forrester v AIMS Corporation [2004] VSC 506; (2004) 22 VAR 97 Kaye J confirmed that those principles, expressed by the Court of Appeal in State Electricity Commission of Victorian v Rabel [1998] 1 VR 102, apply to applications brought under s 75(1). Moreover, the application for an order for summary dismissal or striking out should be dealt with on the footing that the Tribunal should assume that all the facts alleged in the claim are able to be proved: Klona v Cummins Engine Co Pty Ltd [2002] VCAT 733.
3. To identify the facts alleged in the claim one needs to examine the documents that the applicants have filed in the proceeding.
4. The initiating application that commenced the proceeding was filed on 23 January 2013. It named AHV Pty Ltd as the only applicant. On 24 May 2013, by leave granted in a Tribunal order of 6 May 2013, an amended application was filed. It purported to name Mr and Mrs Vaughan as applicants as well as AHV Pty Ltd. On 6 June 2013 the Tribunal made another order joining Mr and Mrs Vaughan as the second and third applicants.
5. Various documents were attached to the initiating application and to the amended application. They amounted to:
   • a four-page typewritten amplification of the claim;
   • copies of the Crown lease;
   • copies of the berth licence;
   • a circular from the respondents that set out service charges for the year 2011-2012, showing the different rates for association members and for non-members;
   • copies of invoices to Mr and Mrs Vaughan from the association for membership subscriptions and for 'car stickers';
   • a table showing subscriptions and car parking access fees paid, a calculation of interest thereon, and the calculation of $9,937.20;
   • copies of the association's annual financial statements.
6. To unearth the facts that the applicants allege, I have had regard to all those documents. Apart from facts which might give particulars of the alleged representation made to them about service charges, the applicants have given no indication that there might be other facts as to the substance of their case that they would endeavour to prove at a hearing. So I am in as good as position as a Member of the Tribunal presiding over a final hearing of the proceeding would be to judge whether or not the applicants have any chance of success.
7. In support of their application for summary dismissal the respondents have made submissions in three stages. The first was a written submission dated 14 June 2013. The second was an oral submission made by their Counsel Mr Barr at the hearing of the application on 15 July 2013. The third was another written submission which I had given them leave to file and serve. It was dated 29 August 2013.
8. The first of the submissions was confined to the argument that the Tribunal has no jurisdiction to hear and determine the proceeding and so the proceeding could not possibly succeed and ought to be dismissed summarily. The second and third of the submissions also made a 'no-jurisdiction' argument but added an argument that the proceeding was so lacking in substance that it was hopeless and ought to be dismissed summarily.
9. I consider that the Tribunal does have jurisdiction to hear and determine this proceeding. I defer giving my reasons for that view until I have dealt with the substance and merits of the proceeding. Nevertheless, I deal first with whether the Tribunal still has a particular jurisdiction under the repealed Fair Trading Act 1999.

1. The primary claim in this proceeding is based upon an allegation of misleading or deceptive conduct by the harbour company that induced Mr and Mrs Vaughan to join the association and pay membership subscriptions.
2. Section 9(1) of the Fair Trading Act 1999 ('the FT Act'), in force at the time that the alleged misrepresentation that constitutes the alleged conduct occurred (which I infer was either 2000 or 2001), but no longer in force, provided:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. The FT Act was repealed by s 233 of the Australian Consumer Law and Fair Trading Act 2012 ('the ACLFT Act') when that Act came into force on 1 July 2012.
2. Section 159 of the FT Act had provided a source of jurisdiction for the Tribunal which was quite distinct from and independent of the jurisdiction conferred by Part 9 of the FT Act to hear and determine a 'consumer and trader dispute'. Section 159, so far as is presently relevant, had provided:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(2) A proceeding under this section may be brought before the Tribunal or in any court of competent jurisdiction.

(3) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued.

1. Before the whole FT Act was repealed, the consumer protection provisions in it (including s 9(1)) were repealed and replaced by the Australian Consumer Law (Victoria). That had occurred on 1 January 2011.
2. Section 14(2) of the Interpretation of Legislation Act 1984 provides that the repeal of an Act or a provision of an Act shall not affect any right or obligation acquired or incurred under that Act or provision, and that any legal proceeding or remedy in respect of any such right or obligation may be instituted or enforced as if that Act or provision had not been repealed.
3. I think that it is clear enough that s 14(2) has the effect of preserving the consequences of a person's contravention of s 9(1) of the FT Act while it was still in force, so that the applicants were entitled to commence a legal proceeding to complain of a contravention of s 9(1) even after the repeal of the FT Act. Compare Director of Consumer Affairs Victoria v Palamera [2012] VSC 311 at [39].
4. What is not so clear by any means is whether s 14(2) has the effect of preserving the applicants' right (which they had while the FT Act was in force) to invoke the jurisdiction that s 159 of the FT Act had conferred upon the Tribunal, or whether after the repeal of the FT Act the only jurisdictional basis on which they could commence their legal proceeding in the Tribunal was pursuant to the 'consumer and trader dispute' jurisdiction that once existed under Part 9 of the FT Act but now exists instead under Chapter 7 of the ACLFT Act.
5. The respondents' submissions revealed an assumption that only the 'consumer trader dispute' jurisdiction was available to the applicants now.
6. The question whether s 14(2) has the effect of preserving a right to invoke the jurisdiction that s 159 of the FT Act had conferred upon the Tribunal has not been decided, so far as I am aware. There is a great deal of learning that could be brought to bear upon it and that concerns provisions like s 14(2): see, for example, Pearce & Geddes, Statutory Interpretation in Australia, 5th edition, paras [6.7] to [6.12]. This case is not the occasion on which to attempt to decide it. A proper occasion would be one in which the question had been properly ventilated and had been the subject of detailed argument.
7. I propose to assume, in the applicants' favour, that the jurisdiction that s 159 of the FT Act had conferred upon the Tribunal still exists despite the repeal of the FT Act. Thus the applicants are able to put their case as one for recovery of loss or damage caused by a representation that amounted to a contravention of s 9(1). Without them being able to rely upon that source of jurisdiction and that statutory cause of action, and if they had to rely only upon the 'consumer and trader dispute' head of jurisdiction, they might have to prove that the representation was fraudulent or negligent. The fact (if it was a fact) that the representation amounted to contravention of s 9(1) might not alone be enough.

1. To succeed in a proceeding brought under s 159 of the FT Act for damages for contravention of s 9(1) - a proceeding which I am assuming that these applicants have brought and were entitled to bring even after the repeal of the FT Act - an applicant must prove that:
   • there was conduct that was misleading or deceptive or liable to mislead or deceive;
   • the conduct was that of the named respondent;
   • the conduct occurred in trade or commerce;
   • the applicant has suffered loss or damage;
   • the applicant suffered the loss or damage because of the conduct.
2. In accordance with the principles that govern applications for summary dismissal I must assume that the applicants will be able to prove the following matters:
   • (a) A person represented to either Mr or Mrs Vaughan, or to both of them, that if they joined the association and paid membership subscriptions they would receive a discount from service charges payable under the berth licence.
   • (b) The person made that representation on behalf of the harbour company or should be regarded as having done so. This is the point at which the blurring of the distinction between the harbour company and the association works in the applicants' favour. The representation was principally about the extent to which Mr and Mrs Vaughan would have to pay service charges to the harbour company. The association was the sole member of the harbour company. It was also the harbour company's manager. Even if there were to be evidence that the association's hat, not the harbour company's hat, was being worn at the time that the representation was being made, there would be plenty of scope for the Tribunal to decide that the harbour company was nevertheless legally liable for the consequences of the representation.
   • (c) They joined the association and paid the membership subscriptions because of the representation, that is to say, they relied upon the truth of it and were induced by it to join and to pay.
3. The representation was misleading and deceptive because there was no discount. They were billed for and paid subscriptions at the full rate payable under clause 5.3 of the berth licence.
4. Despite those assumptions which I am obliged to make, I have concluded that the applicants cannot possibly succeed in their primary claim, because they cannot possibly establish that they suffered loss or damage by paying membership subscriptions to the association. For the moment I pass over the issue of whether the conduct complained of occurred in trade or commerce.
5. Much of what Mr Vaughan (on behalf of the applicants) has had to say in the application documents and in submissions to me, both oral and written, has focused upon the propriety of 'non-members' being charged a higher service charge under the berth licence than members of the association were charged. When exercising a 'reasonable discretion' under clause 5.3 of the berth licence to determine a licensee's 'equitable' proportion of the 'Variable Outgoings' that the licensee's quarterly account for service charges should include, the harbour company is entitled under the clause to have regard 'to the aggregate Variable Outgoings and the size and facilities made available to the Licensee under this agreement'. The clause does not entitle the harbour company to have regard to whether the licensee is a member of the association. That is the way that the applicants' argument seems to run. It may be correct, although there is no need for me to decide whether it is correct. It explains why the applicants characterise the higher service charges for non-members as a 'penalty'.
6. The amount by which service charges to 'non-members' exceeded the service charges to the association members in 2011-2012 greatly exceeded the membership subscriptions that Mrs Vaughan paid in those years. The documents filed in the proceeding show that. The applicants have not alleged that in any previous years what they paid in membership subscriptions was more than the 'penalty' that they would have had to pay under the berth licence if they had not joined the association. I am entitled to infer, and I do infer, that it was always less.
7. That state of affairs prompts a number of questions. Why should it matter to the applicants that non-members were paying higher service charges under the berth licence than they should have been, if that were the fact? What legal right do the applicants have to object to the way in which non-members were being billed for service charges? If the subscriptions that Mr and Mrs Vaughan paid were less than they would have had to pay as a 'penalty' under the berth licence had they not joined the association, what loss did they suffer by paying the subscriptions? The answers to those questions, in my opinion, are 'it should not', 'none' and 'none'.
8. I imagine, however, that Mr and Mrs Vaughan might endeavour to prove loss or damage by putting their case in the following way. 'Had we known the truth, that we would be getting no discount if we joined the association but rather would have to suffer a penalty by paying higher service charges if we did not join, we would never have joined the association and so never would have had to pay membership subscriptions. We realise that the harbour company would then have billed us for service charges at the penalty rate. We would have refused to pay at the penalty rate. Or, to avoid the risk of losing the berth, we would have paid under protest. Then, while we still had the berth, we would have asked the Tribunal to decide that the harbour company was not entitled to bill us at the penalty rate. The Tribunal would have decided the issue in our favour. Hence we would never have had to pay either the subscriptions or the penalty rate.'
9. Putting the case in that way shows how far-fetched it is. It piles speculation onto speculation. The prospect of a Tribunal member accepting it is, to my mind, so small that the case can be described as hopeless. The inevitable outcome of any hearing would be a finding that the applicants had not suffered any loss or damage because of any conduct that had contravened s 9(1) of the FT Act.
10. The outcome would be the same even if, contrary to my assumptions, the applicants had not intended to make a claim based upon the statutory cause of action that s 159 of the FT Act had created or were not entitled after the repeal of s 159 to make such a claim by a proceeding in the Tribunal. In any claim for damages based upon an alleged misrepresentation they would have to prove that they had suffered loss and damage as a result of the misrepresentation. For reasons given above I consider that their case is hopeless in that regard.

1. The respondents put forward other reasons why they submitted that the primary claim could not possibly succeed.
2. First, they submitted that AHV Pty Ltd had no claim that could succeed because there was no allegation that it had paid any of the subscriptions. That is so. It may have paid car parking access fees, or it may not have. At all events, even if one of the three applicants cannot possibly succeed that is not a reason for dismissing the whole proceeding summarily.
3. Secondly, they submitted that whatever the harbour company did was not done 'in trade or commerce'. They made that submission in support of the contention that the Tribunal lacked jurisdiction because no 'consumer and trader dispute' was involved. I shall say something below about that contention. But whether the applicants could establish that the harbour company's representation was made 'in trade or commerce' and so was capable of contravening s 9(1) of the FT Act, is a question that logically requires consideration at this stage.
4. In any determination of whether conduct occurred 'in trade or commerce', the starting point is the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. The High Court in that case was considering s 52 of the Trade Practices Act 1974 (Commonwealth) as it then was: the counterpart of s 9 of the FT Act. Four justices of the Court stated (at p 604) that the section was concerned with conduct 'in the course of ... activities or transactions which, of their nature, bear a trading or commercial character'.
5. The activities of the harbour company in the context of which the alleged conduct occurred was the administration of the berths or the harbour and the setting of service charges for licensees of the berths. Those activities would appear to bear a trading or commercial character. The respondents, however, submitted otherwise. They relied upon the fact that the harbour company was limited by guarantee and upon the provisions of its constitution. During the hearing of the summary-dismissal application they tendered a copy of the constitution. It was not verified by affidavit or by any other evidence but no doubt its registration with the Australian Securities and Investments Commission would be easy enough to prove and it would be unduly technical of me not to have regard to it. In their final written submission the respondents summarised relevant clauses in the constitution (while referring to the harbour company as 'BSBH'):

(a) BSBH is to be operated as a non-profit company (cl 6(b));

(b) Members of BSBH are not entitled to any surplus assets or profits on the winding up or reconstruction of any nature of BSBH (cl 8);

(c) On the winding up of BSBH, members are not entitled to participate in any distribution or return of BSBH's assets (cl 87); and

(d) Any surplus assets of BSBH on winding up must be applied after meeting all expenses of BSBH to a charity or non-profit or other like association or organisation which among its objects provides for the betterment of sailing in Victoria (cl 88).

1. Those clauses in the constitution, the respondents submitted, demonstrate that the harbour company 'operates for altruistic purposes' and that 'its activities are beneficient and community-protective rather than trading or commercial'. In my opinion they do not. The only hint of altruism is the provision for application of assets upon a winding-up. The phrase 'beneficient and community-protective' is one that I had used in a decision upon which the respondents relied, Habashy v Relpar Australia Pty Ltd & Anor [2006] VCAT 1912. That was a decision about a community health service, an entity which is hardly comparable to a company that looks after harbour facilities for the benefit of yachting sportspersons.
2. At the very least, the respondents have not established that the applicants could not possibly prove at a final hearing that the conduct about which they complain was conduct 'in trade or commerce'. It is well and truly arguable that it was. I would not have accepted a submission that that primary claim should be dismissed summarily because the conduct was not 'in trade or commerce'.
3. Thirdly, the respondents submitted that the proceeding was largely statute-barred. The proceeding was commenced on 23 January 2013. Payment of membership subscriptions began in 2001. Payment of car park access fees began in 2003. The respondents have conceded, correctly in my opinion, that a claim for recovery of moneys paid since 23 January 2007 is not barred by statute. But they submit that a claim for recovery of moneys paid before that date is barred by statute. Even if the submission is correct, it is not a reason for dismissing the whole proceeding summarily. Moreover, I should heed the warning given by the majority of the High Court in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

1. I have concluded that the applicants' primary claim for recovery of membership subscriptions cannot succeed because they cannot possibly prove that they suffered loss or damage because of the conduct of which they complain. I have also concluded that the other claim for recovery of car parking access fees cannot succeed. Accordingly I conclude that the proceeding so lacks substance that it should be dismissed summarily. I do not reach that conclusion lightly. The Tribunal always leans against granting a summary-dismissal application and will not grant it if the proceeding has any realistic chance of success. But where, as in this case, it is obvious that the applicants will fail and that all parties ought to be spared the time and expense of a final hearing, the Tribunal ought to say so.

1. My conclusion having been that the proceeding ought to be dismissed summarily because of lack of substance, a lengthy examination of the extent of the Tribunal's jurisdiction is not warranted, even though the parties in their submissions engaged in a lengthy examination themselves. Nevertheless, I must explain why I have decided that the Tribunal does have jurisdiction to hear and determine this proceeding.
2. I have dealt with the primary claim on the assumption that a source of jurisdiction for the Tribunal to hear and determine it is s 159 of the FT Act which has had a continued operation. Should that assumption be wrong, the only possible source of jurisdiction would be the 'consumer and trader dispute' jurisdiction conferred by Chapter 7 of the ACLFT Act.
3. The section in Chapter 7 that confers the jurisdiction is s 184(1). It provides that VCAT may hear and determine a consumer and trader dispute. So far as is presently relevant, s 182(1) provides:

(1) In this Chapter a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

1. For the applicants' primary claim against the harbour company to attract the jurisdiction that s 184(1) confers, the harbour company has to be the supplier of services and the applicants, or one or more of them, have to be a purchaser of services, and the dispute has to relate to a supply or possible supply of services.
2. For a definition of 'services', s 3(2) of the ACLFT Act requires one to resort to the definition in the Australian Consumer Law (Victoria). So far as is presently relevant, the definition of 'services' in s 2 of the Australian Consumer Law (Victoria) is:

(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

1. The definition is significantly different from the definition of 'services' that had been in the FT Act before the Australian Consumer Law (Victoria) definition superseded it. So far as is presently relevant, that definition had been:

'services' includes any rights (including rights in relation to, and interests in real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, including the rights, benefits, privileges or facilities that are, or are to be provided, granted or conferred under a contract for or in relation to -

(b) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service; ...

1. The significant difference is this. The present definition is divided into paragraphs (a) and (b). In paragraph (a) the rights etc, referred to are those that are or are to be provided, etc, 'in trade or commerce'. They will not be 'services' unless they are provided, etc, 'in trade or commerce'. In paragraph (b), there is no specified requirement that the rights, etc, be those that are or are to be provided, etc, 'in trade or commerce'. The paragraphs are joined by the word 'and', indicating, in my opinion, that (b) is additional to and independent of (a). There was no such division of the definition in the FT Act. In that earlier definition, the word 'including', which followed the phrase 'in trade or commerce', indicated that the rights, etc, that were or were to be provided, etc, under a contract, still had to be provided, etc, 'in trade or commerce' before they met the definition of 'services'.
2. The consequence of the division of the present definition into the two paragraphs is this, in my opinion. If the dispute or claim relates to something provided under a contract that meets the description in paragraph (b)(ii), it will be about 'services' whether or not something was provided 'in trade or commerce'. Otherwise, the 'in trade or commerce' requirement of paragraph (a) must be met.
3. Contrary to the view I have just expressed, the respondents submitted that the 'in trade or commerce' requirement applies to paragraph (b) as well as to paragraph (a) of the definition. In support of the submission they referred me to a sentence in a textbook by S.G. Corones, The Australian Consumer Law, 2nd edition (2012) para [3.230]. The learned author does not mention the division of the definition into paragraphs, but does say that the definition 'only extends to services provided, granted or conferred "in trade or commerce"'. I recognise that the phrase 'without limiting paragraph (a)', with which paragraph (b) commences, could support the view that (b) just gives specific instances of (a), but the word 'and' between the two paragraphs tells against that view.
4. The applicants can justifiably say, in my opinion, that the berth licence was a contract for or in relation to the provision of facilities for recreation - the berthing of a yacht or other recreational vessel - and that a dispute that was connected to service charges under the berth licence involved 'services' as defined by s 2(b)(iii) of the Australian Consumer Law (Victoria). As a consequence, the primary claim met the definition of 'consumer and trader dispute' in the ACLFT Act and the Tribunal has had jurisdiction to hear and determine it.
5. Should my construction of the definition of 'services' in s 2 of the Australian Consumer Law (Victoria) be wrong, and if it is necessary for the applicants to establish that by the berth licence the harbour company provided facilities 'in trade or commerce' before there were 'services' and hence before the Tribunal could have jurisdiction, I consider that they have established that. In Sigma Constructions (Vic) Pty Ltd v Marywell Investments Pty Ltd [2004] VSCA 242 the Court of Appeal was dealing with the definition of 'services' in the FT Act and the reference to 'in trade or commerce' in it. Batt JA, with whose judgment the other members of the Court agreed, said that the passage from the majority judgment in the Concrete Constructions case, which I quoted in paragraph 52 above, may be taken as a safe guide to the meaning of that phrase in the definition, and went on to say (at para [22]):

The provision, etc, of rights, etc, must be "in the course of ...activities or transactions which, of their nature, bear a trading or commercial character...".

1. When a company grants a licence to occupy a berth, imposes licence fees and imposes other service charges for the use of the berth and of other facilities at a harbour, it does so in the course of activities which, of their nature, bear a trading or commercial character, even though what lies behind the activities is a recreational pursuit by the licensees. In paragraphs 53 and 54 above I have given reasons for not accepting the respondents' submissions to the contrary.
2. I summarise my reasons for deciding that the Tribunal has jurisdiction to hear and determine the primary claim against the harbour company:

(a) I have assumed that jurisdiction is conferred by a continued operation of s 159 of the FT Act. No jurisdictional 'in trade or commerce' threshold exists there. But unless the conduct the applicants have alleged occurred 'in trade or commerce' they could not prove a contravention of a provision of the Act. There would be jurisdiction but the proceeding would fail for that reason.

(b) If the assumption is wrong, and the only available jurisdiction now for the applicants is the 'consumer and trade dispute' jurisdiction conferred by Chapter 7 of the ACLFT Act, there is a dispute between a purchaser and services and a supplier of services in relation to supply of services, namely, the berth licence, which is the supply of 'services' because:

(i) the berth licence was a contract for or in relation to the provision of facilities for recreation, whether or not those facilities were provided in trade or commerce; or

(ii) those facilities were indeed provided in trade or commerce.

1. The secondary claim, about the car parking access fees, is against the association only. It could not be against the harbour company. The only available source of jurisdiction for the Tribunal to hear and determine the secondary claim is the 'consumer and trader dispute' jurisdiction.
2. In my opinion the dispute about the car parking access fees is a dispute arising out of the supply of 'services' by the association to the applicants or one or more of them and so is a 'consumer and trader dispute' over which the Tribunal has jurisdiction. It arises out of the supply of 'services' because car parking access amounted to facilities provided in trader or commerce. That was so notwithstanding that the association is not a trading or commercial entity generally. But it does descend into trade or commerce when it charges its members fees for car parking access.
3. I think that to attract the jurisdiction there must be services that meet paragraph (a) of the definition in s 2 of the Australian Consumer Law (Victoria) - that is to say, the 'in trade or commerce' element must exist - and that paragraph (b) has no application to the dispute about car parking access fees. It is true that a contract is created between the association and a member every time a member pays a fee for car parking access, but that contract does not involve facilities 'for amusement, entertainment, recreation or instruction' within the terms of paragraph (b)(ii). It is also true that, by virtue of s 46 of the Reform Act, the rules of an incorporated association are taken to constitute the terms of a contract between the association and its members. But the dispute about car parking access fees has nothing to do with the rules of the association.
4. In submitting that the association did not and could not engage in conduct 'in trade or commerce', the respondents attempted to rely upon the rules of the association. The final written submission purported to quote from the rules. The trouble is that the quotations did not match any document that any party had filed during the course of the proceeding. No copy of the rules had been produced during the hearing. I cannot simply act upon assertions made in the written submission. I am prepared to assume, however, that the association exists for the purpose of promoting and assisting the sport of yachting and is in the nature of a sporting club, not a commercial body.
5. The respondents also pointed to a provision in the Associations Incorporation Act 1981 that prohibited an incorporated association from trading or securing a pecuniary profit for its members. That Act, however, has been repealed and replaced by the Reform Act. There is no prohibition upon trading in the Reform Act, but it does provide, in s 33, that an incorporated association must not secure pecuniary profit for any of its members.
6. It remains a safe general rule that an incorporated association now governed by the Reform Act will not be engaging in conduct 'in trade or commerce'. But there are going to be exceptions, and this case is one of them. When it charges car parking access fees it is engaging in conduct 'in trade or commerce'. That does not mean that the Tribunal will have any jurisdiction to deal generally with disputes between an incorporated association and a member. It will not.
7. Accordingly I consider that the Tribunal has had jurisdiction to hear and determine the whole proceeding.

1. 'Unfair'. In their final written submission the respondents pointed to an allegation by the applicants that clause 5.3(b) of the berth licence was 'unenforceable and unfair'. They asserted that the applicants were endeavouring to have the Tribunal declare that clause 5.3(b) was an 'unfair' contractual term and void for that reason. I doubt that the applicants were endeavouring anything of the sort. I have regarded the word 'unfair' as a rhetorical flourish. At all events, the Tribunal did not gain any power to declare that a contractual term was 'unfair', and void for that reason, until 9 October 2003 when Part 2B was introduced into the FT Act. As the applicants have alleged that Mrs Vaughan executed the berth licence in 2001, Part 2B of the FT Act could have had no application to any of its terms. Part 2B applied only to contracts entered into after its commencement (s 32Y(4)).
2. Material submitted late. At the conclusion of the hearing of the application for summary dismissal I had given the parties permission to make further written submissions. The applicants filed a written submission dated 2 August 2013. While doing so, however, they endeavoured to make new assertions about the activities carried on by the association and by the harbour company and to file documents in support of those assertions. The point of doing that was to support the contention that each of the respondents did engage in conduct in trade or commerce. They were not entitled to do that. I have ignored those assertions and have dealt with factual matters on the basis of what was presented to me before and at the hearing. The applicants have suffered no disadvantage in that regard because I have decide the jurisdictional point in their favour.
3. Costs. In their final submission the respondents made an application for an order for costs in the event that I decided to dismiss the proceeding summarily. If, as the respondents were assuming, the only jurisdiction that the applicants could attempt to invoke was the 'consumer and trader dispute' jurisdiction, this proceeding was a 'small claim' as defined by the ACLFT Act. The sum claimed was below $10,000.00. By virtue of Schedule 1 clause 4I of the VCAT Act the Tribunal cannot award costs in a 'small claim'. If, as I have been assuming, the applicants were entitled to and did invoke the jurisdiction conferred by s 159 of the FT Act, the proceeding was not a 'small claim' and there would be no prohibition upon awarding costs. But s 109(1) of the VCAT Act provides a general rule that parties should bear their own costs. By s 109(2) and (3) I am empowered to depart from the general rule and award costs if I think it fair to do so. I do not. I have borne in mind the lack of particulars of the alleged misrepresentation. I have also borne in mind that the amount claimed is inflated by a claim for interest and includes amounts that are probably statute-barred. But the proceeding, although misconceived, was prompted by a genuine grievance, in my estimation, not by a desire to vex the respondents. I shall refuse the application for costs.

1. As a consequence of my conclusion that the Tribunal has had jurisdiction to hear and determine this proceeding but it so lacks substance that it cannot possibly succeed, I shall order that the proceeding is dismissed summarily under s 75(1) of the VCAT Act. The respondents' application for costs is refused.