Victorian Civil and Administrative Tribunal|2008-11-14|Before: Mr J

The Applicant contends that the extra territorial operation of the FT Act includes a grant of power to the Tribunal to authorise service of process outside Australia. It is said that such a construction would promote the purpose or object underlying the FT Act and make the Tribunal's extra territorial jurisdiction effective.
The Applicant also relies on the decision of Senior Member Young in BGP International Pty Ltd v Fook Huat Tong Kee Pty Ltd (BGP International)[4]. In that matter the Senior Member decided that the Tribunal had jurisdiction to determine the proceeding by virtue of the extra territorial reach of the FT Act, despite the fact that the respondent had no address in Australia at which it could be served. The Senior Member held:

"... I consider that some form of connection with Victoria has been established that would ground the jurisdiction in Victoria and via the Act in the Tribunal. Therefore I consider the Tribunal has jurisdiction in this proceeding and it has power to serve outside the jurisdiction."[5]

(1) For the purposes of this Act, a notice, order or other document may be served on or given to a person -

(ii) by sending it by post, facsimile or other electronic transmission to the person at his or her usual or last known residential or business address; or

(iii) by leaving it at the person's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there; or

(b) if the person is a company incorporated under the Corporations Act -

(i) by delivering it personally to the registered office of the company; or

(ii) by sending it by post, facsimile or other electronic transmission to the registered office of the company; or

(iii) in any other way that service of documents may be effected on a body corporate; or

(c) if the person is an incorporated association within the meaning of the Associations Incorporation Act 1981, in accordance with section 48 of that Act; or

(2) For the purposes of this Act, a notice or other document may be served on or given to an unincorporated association -

(a) by delivering it personally to the president, secretary or other similar officer of the association; or

(b) by sending it by post, facsimile or other electronic transmission to the president, secretary or other similar officer of the association at that person's usual or last known residential or business address; or

(3) if the Tribunal directs that notice be given to a person, or a class of person, by advertisement or publication of the notice, that advertisement or publication must be taken to be service of notice on the person, or persons in that class, as the case requires."

In the face of a specific legislative provision dealing with service I am not persuaded that there is any warrant for the implication of a power to authorise service of process outside Australia in the manner contended by the Applicant.
Nor is such an implied power necessary in order to render the extra territorial operation of the FT Act effective. Proceedings under the FT Act may be commenced in a Victorian Court and the specific rules relating to service outside Australia availed of.
It is not contended that the proposed Respondent is a natural person; a company incorporated under the Corporations Act or an incorporated association within the meaning of the Associations' Incorporation Act 1981. Hence paragraphs 140(1)(a), (b) and (c) are not presently relevant.
Part 4 of the S.E.P. Act enables an initiating process of a tribunal to be served in another State. But 'Industry + Commerce' does not have a registered office or place of business in Australia.
Section 157(2) and Schedule 2 of the VCAT Act provide that rules may be made for, among other things, the 'service of documents'. But there is no rule which makes provision for the service of process outside Australia.
In the alternative the Applicant contends that s 140(1)(d)(ii) of the VCAT Act, either alone or in combination with s 6 of the FT Act, provides the power to authorise service outside Australia.
I am not persuaded that s 140(1)(d)(ii), whether alone or in combination with s 6 of the FT Act, authorises service outside Australia. This provision deals with the 'manner' of service rather than service outside Australia. It may permit an order for substituted service or service by the publication of an advertisement (as contemplated by s 140(3)) but I am not persuaded that it was intended to authorise directions for service outside Australia.
It also seems inherently unlikely that the legislature intended that the enactment of s 140 would override the position at common law whereby originating process issued in Victoria does not run outside Victoria. In this context the following passage from the fourth edition of Maxwell on Statutes (at p 121) was quoted with approval by O'Connor J in Potter v Minahan:[7]

"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."

This statement has been the subject of frequent High Court endorsement.[8]
The Applicant also relies on the fact that 'Industry + Commerce' is aware of the proceeding. The Applicant does not claim that this demonstrates valid service but submits that it is a factor to consider when exercising the Tribunal's discretion under s 140(1)(d)(ii). As I have indicated I am not persuaded that s 140(1)(d)(ii) authorises service outside Australia and hence the putative Respondents' knowledge of the proceeding is irrelevant to the exercise of the discretion conferred by that provision.
As the application cannot be validly served upon the named Respondent the Tribunal has no jurisdiction to hear and determine the proceeding irrespective of whether or not there is jurisdiction in respect of the subject matter of the proceeding. There is no jurisdiction over the person against whom relief is sought.
For completeness I note that it will not always be appropriate for the principal registrar to reject an application merely because the named respondent is a foreign company with offices outside Australia. Further inquiry may be necessary. In a particular case it may be that the principal of the proposed respondent is a frequent visitor to Victoria and that service may be effected personally. But there is no evidence before me that this is such a case.
The Applicant's review of the Principal Registrar's rejection of the application is dismissed.

[1] Except where the subject matter is restricted or excluded by statute, eg the Court does not have jurisdiction in respect of matrimonial causes: Family Law Act 1975 (Cth), s 8)

[3] Herald and Weekly Times Pty Ltd v VCAT & Ors [2006] VSCA (9 February 2006) at [27] per Maxwell P

[6] See generally Law v MCI Technologies Pty Ltd [2006] VCAT 415

[8] See for example Bropho v Statement of Western Australia [1990] HCA 24; (1990) 93 ALR 207 at 215; Coco v R [1994] HCA 15; (1994) 120 ALR 415 at 419

Magistrates Court Civil Procedure Rules 1999

Incorporation Act 1981

Apollo Marble and Granite Imports Pty Ltd v Industry + Commerce (Civil Claims) [2008] VCAT 2298 (14 November 2008)

Apollo Marble and Granite Imports Pty Ltd v Industry + Commerce

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Apollo Marble and Granite Imports Pty Ltd v Industry + Commerce (Civil Claims) [2008] VCAT 2298 (14 November 2008)