Appellant v Respondent

9. The argument run below is encapsulated in an affidavit filed in support of the appellant's case in this proceeding. In paragraph 7 of the affidavit of Ms Nieva Connell sworn 28 July 2008 she states:

"By written submissions and oral submissions in support of the appellant's application for orders the appellant argued before the tribunal:

(a) the tribunal had no jurisdiction to entertain the claim for stress, suffering and loss of enjoyment damages by reason of s 1591A and s 107(3) of the Fair Trading Act;

(b) the tribunal had jurisdiction to entertain a personal injury claim for no greater than $10,000; and

(c) even if the tribunal had sufficient jurisdiction, the stress, suffering and loss of enjoyment damages could not be awarded as the respondents had not complied with the significant injury criteria of the Wrongs Act."

"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

11. On 23 May 2008, the Tribunal dismissed the appellant's application for the claim against it to be dismissed.

1. On 24 July 2008, a Master of this Court granted the appellant leave pursuant to s 148 of the VCAT Act to appeal against the decision of the Tribunal made on 23 May 2008.
2. In essence, the appellant contends that the Tribunal erred in law in its construction of the expression "personal injury" in s 107(3) of the Fair Trading Act 1999 and erred in law in its construction of s 28LE of the Wrongs Act 1958 - which translates into a complaint concerning the interpretation of the word "injury" in s 28LB.
3. Section 107(3) of the Fair Trading Act is the section that, in combination with s 159(1)A, arguably limits the jurisdiction of VCAT in certain claims for personal injury to a sum not exceeding $10,000.
4. Section 28LE of the Wrongs Act is the provision which disentitles a person from recovering damages for non-economic loss unless the person has suffered a "significant injury" within the meaning of Part VB A of the Wrongs Act.
5. By their letter appended to the application to VCAT, the respondents claim $20,000 for "stress, suffering and loss of enjoyment" in addition to the sum of $4,380 I have identified above.
6. In dismissing the appellant's application under s 75, the Tribunal concluded that the claims as presently formulated were not undoubtedly hopeless or obviously unsustainable in fact or in law or bound to fail (see generally State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Forrester v Aims Corporation [2004] VSC 506). The language of the Tribunal in this regard was the conventional language from authorities in the line in which the decision of General Steel[1] is one of the leading authorities.
7. In paragraph 36 of the appellant's outline of argument on the leave application before the Master, it was stated:

"Given that the VCAT has already made a decision about its jurisdiction, the plaintiff" -

"cannot at a later date (without leave to apply out of time) seek to appeal from any adverse decision which may be made against it on this point. The decision under review once and for all resolves the question of construction of s 159 and VCAT's jurisdiction for the purposes of the case."

1. I have read carefully and considered the detailed and helpful submissions, and supplementary submissions provided by Dr Sadler. I have also listened carefully to his arguments this morning and am not persuaded that they justify the dismissal of the proceeding pursuant to s 75 of the VCAT Act.
2. Without any disrespect to the respondents, who have not appeared this morning, there is a certain lack of precision in the way in which their claim has been set out at VCAT. Indeed, Dr Sadler fairly conceded this morning that there are difficulties in characterising what the claim is by reason of loose language.
3. No evidence has yet been given, and it may be that there will be evidence of losses that are recoverable notwithstanding any failure to comply with s 28LE of the Wrongs Act and the apparent limit in s 107(3) of the VCAT Act. Specifically and in any event, there are at least the items that total $4,380 that I have referred to above, which would prevent the success of the application made under s 75 which was, as I have already stated, to dismiss the proceeding.
4. In this regard, the words of Mason CJ and Dawson, Gaudron and McHugh JJ in Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533, although delivered in another context, are apposite. Their Honours said:

"We should however state in the plainest 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 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. The question in that case was, of course, a limitation question.
2. Similarly here, in my view, insufficient is known of precisely what damage was sustained by the applicants below (the respondents here) to justify summary dismissal.
3. Further, insofar as the appellant is concerned that the decision of VCAT might somehow bind the Tribunal at trial, this concern is misconceived. All that has occurred is that an application for summary dismissal by a defendant has itself been dismissed, allowing the proceeding to go forward to trial. There is no estoppel created by the decision below. At this stage, it is not necessary to embark on a definitive interpretation of the relevant statutory provisions. Contrary to the appellant's contention before the Master, the appellant can re-agitate its constructions of the relevant sections at trial. It is enough to say that the respondent's claims are not so obviously untenable as to justify the dismissal of the entire proceeding (as was sought in the application dated 22 January 2008).
4. For the above reasons, I am of the opinion that the appeal should be dismissed. Accordingly, the order of the court is, appeal dismissed.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125