Appellant v Respondent

1 On 16 February 2022, an order was made in the Magistrates' Court that the appellant ('Mr Warren') pay the respondent ('EPP') $3,880 plus interest and costs. Mr Warren has appealed that final order pursuant to s 109 of the Magistrates' Court Act 1989 (Vic). EPP has applied for the summary dismissal of the appeal pursuant to r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') ('application for summary dismissal'). The central question for the purposes of that application is whether Mr Warren has suffered a miscarriage of justice by reason of the refusal of Judicial Registrar Andrew ('Registrar') to stay the proceeding in the Magistrates' Court so that it could be resolved by arbitration under the Commercial Arbitration Act 2011 ('CAA'), or in the Victorian Civil and Administrative Tribunal ('VCAT').

2 For the following reasons, I find that the questions of law in the notice of appeal, even on their most charitable interpretation, are not arguable, and accordingly the appeal will be dismissed.

(a) Mr Warren's summons for directions under r 58.10 of the Rules;

(b) Mr Warren's summons for a stay under r 58.12 of the Rules; and

(c) EPP's application for summary dismissal pursuant to r 58.10(9) of the Rules.

4 Mr Warren relies on affidavits affirmed by him on 10 March 2022, 26 April 2022, 7 May 2022, 20 July 2022 and 25 August 2022 and written submissions filed on 7 June 2022 which he spoke to at the hearing of the application. Mr Warren is self-represented and appears on the face of the affidavits to have prepared them himself, although he did indicate during a hearing that he had had some assistance from the self-represented litigant co-ordinator at this Court. I have been mindful of adhering to the principles that apply in relation to self-represented litigants.[1]

5 EPP relies on the affidavits of Mr Gladwin affirmed on 26 April 2022, 6 May 2022, 15 June 2022, 20 July 2022, 29 August 2022 and 30 August 2022. EPP also relied on written submissions filed on 24 May 2022 and 20 July 2022.

6 In about June 2020, EPP installed a central heating unit for Mr Warren. Mr Warren has produced a quotation dated 2 June 2020 numbered 18999 prepared by EPP and addressed to Mr Warren. The description of the work in the quotation is:

DUCTED HEATING

1. Supply & Install a BRAEMAR TQ320 3.7 star rating 20kw heater to existing outlets.

2. A 7 year warranty on unit by manufacturer.

3. Remove the old heater & take away.

4. A 6 year plumbing certificate included.

5. A digital control included

1. A 10 year workmanship warranty is available providing the unit is serviced every year by epp.

7. Connect gas pipe to gas line & test connections for leaks.

Total $2880.00 INC GST

7 The quotation contains terms and conditions. One of those terms and conditions is headed Dispute Resolution ('dispute resolution clause') and provides:

If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

8 EPP subsequently installed the heater, but Mr Warren refused to pay for the work alleging poor quality of the installation.

9 EPP commenced a proceeding in the Magistrates' Court seeking recovery of the invoiced amount, for 'work and labour done and materials supplied', which Mr Warren defended ('Magistrates' Court proceeding'). As the claim was for an amount less than $10,000, it proceeded as an arbitration pursuant to pt 5 div 2 of the Magistrates' Court Act 1989 (Vic).

10 The complaint in the Magistrates' Court proceeding was not in evidence but the defence filed by Mr Warren, and dated 9 September 2020, in the Magistrates' Court proceeding notes that 'the defendant intends to defend this complaint' but otherwise essentially contains non-admissions.

Interlocutory hearing in the Magistrates' Court

11 On 7 September 2021, Mr Warren filed a summons in the Magistrates' Court seeking to stay the Magistrates' Court proceeding pursuant to r 23.01(1)(b) of the Magistrates' Court General Civil Procedure Rules 2020 (Vic). That rule provides:

(1) If a proceeding generally or any claim in a proceeding -

...

(a) is an abuse of the process of the Court -

the Court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or give judgment for the defendant in the proceeding generally or in relation to any claim.

12 In support of his summons, Mr Warren filed an affidavit that he affirmed on 7 September 2021. In that affidavit Mr Warren stated:

1. The Defendant [Mr Warren] seeks this proceeding be stayed pursuant to the provisions of the Commercial Arbitration Act 2011.
2. The Plaintiff [EPP] seeks recovery of invoices. Those invoices have been disputed by the Defendant.
3. The Plaintiff has issued this proceeding prematurely in breach of the dispute resolution clause; 'see section 7 of the Commercial Arbitration Act 2011 (Vic)'

...

1. The Defendant has filed a notice of defence. That notice does not refer to the substance of the dispute, and the Defendant has taken no steps inconsistent with the arbitration agreement.
2. The substance of the dispute is within the parameters of the arbitration agreement. The Court must enforce the arbitration agreement and restrain the Plaintiff from continuing with this proceeding.

13 The reference to s 7 of the CAA appears to be in error and should be a reference to s 8 of that Act which provides:

1. Arbitration agreement and substantive claim before court (cf Model Law Art 8)

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

14 Mr Warren's summons for a stay in the Magistrates' Court was heard and determined by the Registrar on 15 September 2021. It was submitted by EPP in this proceeding, and not disputed by Mr Warren, that the question whether the proceeding should be stayed pursuant to the CAA was heard and determined, adversely to Mr Warren, at the interlocutory hearing on 15 September 2021 ('the interlocutory decision'). In his affidavit affirmed and filed on 26 April 2022 in this proceeding, Mr Warren described the interlocutory application as involving an attempt to enforce the terms of the dispute resolution clause, and in particular to stop the legal proceedings in the Magistrates' Court and force the parties to arbitration. Mr Warren goes on to state: '[o]n 15 September 2021 the interlocutory application was refused ...'

15 The application to stay the Magistrates' Court proceeding having failed, the matter was subsequently heard by way of arbitration[2] in the Magistrates' Court before the Registrar[3] on 9 February 2022 ('the final hearing'). There is no suggestion that Mr Warren took any steps to overturn the interlocutory decision prior to the final hearing. Although the transcript of the reasons for the final order of the Magistrates' Court, extracted below, suggests Mr Warren did seek, again unsuccessfully, to re-argue the point. Mr Warren confirmed at the hearing of EPP's application for summary dismissal, when asked, that he made submissions at the final hearing as to what he alleged to be the poor quality of the installation. That is, there was a hearing of the merits of the dispute within the framework of the Magistrates' Court arbitration procedures.

16 On 15 February 2022, the Registrar delivered brief oral reasons allowing EPP's claim ('the final decision'). The transcript of that decision includes the following:

the issue was from the plaintiff's [EPP's] point of view was the alleged unpaid invoice issued to Mr Warren for a ducted heating unit that had been installed. That was the essential argument for the plaintiff and the defendant [Mr Warren] relied on (indistinct) arbitration clause in the terms and conditions of the quote and a secondary argument was this court was not the proper jurisdiction for the matter.

...

You [Mr Warren] gave evidence that the dispute arose from a poor quality of the installation in your view and also that this should have been under the Domestic Contracts Act, this was a domestic building dispute that should have been heard by VCAT.

17 The Registrar accepted the arguments and submissions made in support of the claim. In addressing the arguments made by EPP's representative, the Registrar held:

You, I thought, made a compelling argument in respect of the case law and authorities in respect of arbitration and the time limits, the fact that an application for a stay had been made and was unsuccessful and I accepted your argument that Mr Warren was out of time and noted that in any event this was not pleaded.

18 The notice of order, dated 16 February 2022, made by the Magistrates' Court describes the 'Claim order' as '[Mr Warren] to pay [EPP] Claim $ 3,880.00 and Interest $ 432.89 Costs $7,732.57 Stay 1 MONTH', being the final order. I note that the transcript of the final decision indicates that the order on the claim was to be for the amount of $2,880 but that the order that was made on the claim was for $3,880. It is not clear on the material filed, or submissions made, why there is this difference. The matter was not addressed at the hearing of EPP's application for summary dismissal.

19 On 11 March 2022, Mr Warren filed a notice of appeal in this Court seeking leave to appeal pursuant to 109 of the Magistrates' Court Act 1989 (Vic) against 'the final order made ... on 16 February 2022' ('Notice of Appeal'). The Notice of Appeal sets out the two proposed questions of law as follows:

(a) 'Did [the Registrar[4]] take into consideration Section 57 of the [Domestic Building Contracts Act 1995 (Vic) ('DBCA')]'; and

(b) 'Did [the Registrar] take into consideration the Dispute resolution clause?'

20 Section 109(1) of the Magistrates' Court Act 1989 (Vic) relevantly provides that a party to a civil proceeding in the Magistrates' Court may appeal to the Supreme Court, on a question of law, from a final order of the Magistrates' Court in that proceeding. Leave is not required to appeal pursuant to s 109 unless the appeal is instituted more than 30 days after the order complained of was made.[5] The order sought is 'to quash or set aside the order made by the Magistrates Court [sic] and to have the proceeding returned to the Magistrates court [sic] for rehearing according to law'. The Notice of Appeal does not seek to challenge the interlocutory decision. It is apparent from Mr Warren's affidavits and submissions that what he hopes to achieve is that the final decision is overturned, and that the matter is remitted to the Magistrates' Court where a stay is granted so that the dispute can be referred to arbitration under the CAA, or referred to VCAT.

21 The general principles in relation to appeals under s 109 of the Magistrates' Court Act 1989 (Vic) were outlined by Derham AsJ in Romas v Green:[6]

It is well established that an appeal under s 109 on a question of law must relate to a question that was involved in the making of the order. The question of law must have been raised in the Court below, whether on the pleadings, by evidence or otherwise.

The appeal under s 109 is an appeal strictly so called, and not in any sense a re-hearing. As Kaye J noted in Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd: '[i]t is necessary for the appellant to be able to identify a relevant error of law made by the Magistrate before it is entitled to relief from this Court'.

Thus, the Court is not entitled to interfere with the decision of a Magistrate unless it is satisfied that he acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues. There is a strong presumption in favour of the correctness of the decision appealed from, and the general rule is that the decision should be affirmed unless the Court is satisfied that the decision is clearly wrong.[7]

22 On 11 April 2022, Mr Warren filed an affidavit that he affirmed on 10 March 2022 upon which he relies. That affidavit is essentially a repetition of Mr Warren's affidavit affirmed on 7 September 2021 and relied on by him in support of his interlocutory application for a stay of the Magistrates' Court proceeding. That affidavit contains the following:

1. The Appellant seeks this proceeding be set aside pursuant to the provisions of the Commercial Arbitration Act 2011 (VIC).

2. The Respondent seeks recovery of a disputed invoice.

1. The Respondent's Quote Terms & Conditions contains a mandatory arbitration clause in the case of disputes.

23 In that affidavit, Mr Warren then recites the terms of cl 18 of EPP's quote, being the dispute resolution clause, and goes on to assert that:

1. The Respondent has issued this proceeding in the Magistrates Court in breach of the dispute resolution clause and alleges that the terms of the quote do not form part contract.
2. The Appellant disputes the invoice and the Respondent's unilateral attempt to ignore the arbitration agreement.

24 Mr Warren then goes on to recite ss 7 and 8 of the Commercial Arbitration Act 2011 (Vic), and principles relevant to the enforceability of dispute resolution clauses, citing WTE Co-Generation v RCR Energy Pty Ltd.[8] Mr Warren then concludes:

1. The Appellant has taken no steps inconsistent with the arbitration agreement.
2. The substance of the contract between the parties is the Quotation read together with the Respondent's terms and Conditions. The Respondent cannot unilaterally exclude the terms and conditions in order to defeat an arbitration agreement.
3. The substance of the dispute is within the parameters of the arbitration agreement. The Court must enforce the arbitration agreement and restrain the Respondent from continuing with this proceeding in breach of the terms of that agreement.

...

1. This proceeding ought to be set aside and referred to arbitration in accordance with the dispute.

25 In his affidavit affirmed on 26 April 2022, Mr Warren, having recited his failed attempt to enforce the dispute resolution clause by way of an interlocutory summons in the Magistrates' Court, concludes: 'Considering these circumstances, I humbly request that this Honourable Court grant the orders sought in [Mr Warren's] application filed on 16 March 2022'.

26 EPP applied by affidavit affirmed by Mr Gladwin on 6 May 2022 to have the appeal summarily dismissed on the following grounds:

(a) pursuant to r 58.10(9)(a) of the Rules, the Notice of Appeal does not identify sufficiently or at all the question of law on which the appeal may be brought;

(b) pursuant to r 58.10(9)(b) of the Rules, Mr Warren does not have an arguable case on appeal;

(c) pursuant to r 58.10(9)(c) of the Rules, the appeal is frivolous, vexatious or otherwise an abuse of process of the Court.

27 On the first return of EPP's application for summary dismissal on 13 July 2022, EPP submitted that the proceeding should be dismissed, among other reasons, because Mr Warren had failed to exhibit the relevant reasons for decision as required by r 58.09(2) of the Rules. The application was adjourned to enable Mr Warren to obtain a copy of the transcript of the reasons given in order to satisfy the requirements of r 58.09(2)(b). The matter came on for directions on 11 August 2022 at which Mr Warren stated what steps he had taken to obtain the transcript. Mr Warren subsequently obtained the transcript of the final hearing and EPP exhibited it to an affidavit affirmed by Mr Gladwin on 30 August 2022 for the purposes of the further hearing of its application for summary dismissal on 30 August 2022.

28 Stated briefly, EPP seeks a summary dismissal of the appeal for the following reasons:

(a) the question in relation to the DBCA is not framed as a question of law, and neither the grounds nor evidence provide the necessary factual and procedural context to support a challenge, and the work done by EPP is not in any event covered by the DBCA; and

(b) the question regarding the dispute resolution clause:

(i) is not a question of law and neither the grounds nor evidence provide the necessary factual or procedural context to challenge the order;

(ii) seeks to challenge the final decision for reasons that were resolved in the interlocutory decision and which 'did not finally determine the rights of the parties' and therefore cannot be appealed under s 109 of the Magistrates' Court Act 1989 (Vic); and

(iii) has arisen after Mr Warren submitted his 'first statement on the substance of the dispute' when he filed his defence on 9 September 2020 after which 'the [Registrar] was not obliged to take into consideration the CAA' by reason of the elements of s 8 of the CAA; and

(c) whether the appeal is frivolous, vexatious or an abuse of process.

29 Mr Warren resists the application for summary dismissal on the bases set out in his Notice of Appeal - first, that the dispute was not justiciable in the Magistrates' Court as it is a domestic building dispute governed by the DBCA, and secondly, that the proceeding ought to have been stayed as the dispute was subject to a binding dispute resolution clause to refer any dispute to arbitration under the CAA.

30 Under r 58.10(9) of the Rules, this Court may dismiss the appeal if satisfied that:

(a) the notice of appeal does not identify sufficiently or at all a question of law ...

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

31 The High Court in Agar v Hyde[9] has said in relation to summary judgment:

The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[10]

32 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[11] the Victorian Court of Appeal, in considering the terms of s 63 of the Civil Procedure Act 2010 (Vic), held that 'the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried'.[12] That is an approach that has been extended to applications under r 58.10(9) of the Rules.[13]

Does the Notice of Appeal identify questions of law arising from the final order?

33 The expression 'final order' is not defined in the Magistrates' Court Act 1989 (Vic), but has been interpreted as an antonym of the expression 'interlocutory order'[14] and as requiring an answer to the question of whether the judgment or order appealed from 'finally determines the rights of the parties'.[15]

34 Mr Warren's Notice of Appeal by its wording seeks to challenge the final order made on 16 February 2022. In that respect, it comes within the purview of s 109 of the Magistrates' Court Act 1989 (Vic). As stated above, the questions raised in the Notice of Appeal are:

(a) did the Registrar in her final decision 'take into consideration Section 57 of the DBCA' ('DBCA question'); and

(b) did the Registrar in her final decision 'take into consideration the Dispute resolution clause' ('dispute resolution clause question')?

35 As presently expressed, the questions are not questions of law, but it is sufficiently clear from the Notice of Appeal and affidavit material supporting it, that Mr Warren's complaint concerns the failure of the Registrar to properly apply the CAA (and DBCA) to the facts. If the form of the questions was all that was in issue, it may be that those shortcomings could be remedied by amendments to the Notice of Appeal, facilitated by the Court, consistently with the duty of a judge to ensure a fair trial by providing due assistance to self-represented litigants.[16] For the reasons set out below, I consider that even if the questions were formulated in their most favourable light as questions of law, they would not be arguable. Accordingly, there would be no utility in re-framing the questions.

36 EPP also submits that the final order is not capable of challenge by Mr Warren's proposed questions of law because of the failure of Mr Warren to produce the relevant transcript which would set out the evidentiary basis of the final order. I would not be willing to summarily dismiss the appeal on this basis alone. As stated above, the transcript of the final decision has been produced. Further, much of the factual background does not appear to be in dispute and the relevant provisions under the DBCA[17] and CAA[18] constrain the court to stay proceedings in defined circumstances. I do not consider that it is sufficiently clear there is no real question to be tried solely because of a lack of evidentiary basis. Accordingly, I would not summarily dismiss the appeal for that reason alone.

37 It is unclear precisely what was in issue in the Magistrates' Court regarding the applicability of s 57 of the DBCA, and when it was in issue. Neither Mr Warren's affidavit affirmed on 10 March 2022 filed in this proceeding, nor his affidavit affirmed on 7 September 2021 filed in the Magistrates' Court proceeding, deals with s 57 of the DBCA but rather they focus on the dispute resolution clause (dealt with below). Mr Warren's defence filed in the Magistrates' Court also does not refer to s 57 of the DBCA.

38 The Registrar's reasons for the final decision suggest that the applicability of the DBCA, and the appropriateness of VCAT as a forum for the dispute, was raised at the final hearing, although those reasons do not refer to s 57. The transcript of the reasons includes the following:

the defendant [Mr Warren] relied on (indistinct) arbitration clause in the terms and conditions of the quote and a secondary argument was this court was not the proper jurisdiction for the matter. (emphasis added)

39 Later, the Registrar referred to Mr Warren's evidence as follows:

You gave evidence that the dispute arose from the poor quality of the installation in your view and also that this should have been under the Domestic Contracts Act, this was a domestic building dispute that should have been heard by VCAT. (emphasis added)

40 As noted above, the Registrar's conclusions were stated as follows:

You [EPP's legal representative], I thought, made a compelling argument in respect of the case law and authorities in respect of arbitration and the time limits, the fact that an application for a stay had been made and was unsuccessful and I accepted your argument that Mr Warren was out of time and noted that in any event this was not pleaded.

I agree with you that there is a Jones v Dunkel argument in respect of the evidence and so on the balance of probabilities - and I also accepted your argument in respect of jurisdiction. I did ask you at the time about Mr Warren's assertions about the nature of the dispute and you said correctly, I think, that it is possible to be both debt and building dispute. In any event, the stay issue had already (indistinct). So on the balance of probabilities I have found the plaintiff's [EPP's] case to be the more (indistinct) find for the plaintiff.

41 I will assume for the purposes of these reasons that the question of the applicability of s 57 of the DBCA was raised orally by Mr Warren at the final hearing.

VCAT to be chiefly responsible for resolving domestic building disputes

(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.

(2) The Court must stay any such action on the application of a party to the action if -

(a) the action could be heard by VCAT under this Subdivision; and

(b) the Court has not heard any oral evidence concerning the dispute itself.

43 The first question is whether the Magistrates' Court proceeding arose 'wholly or predominantly from a domestic building dispute'.

44 Mr Warren notes that the scope of works was '[s]upply and [i]nstall a Braemer TQ320 3.7 Star rating 20kw heater to existing outlets'. Mr Warren then goes on to submit that:

the Defendant [EPP] was contracted to perform domestic building work, there is a relationship of builder-sub-contractor between the parties, and the subject matter of the proceedings is a domestic building dispute not justiciable in the Magistrates Courts [sic] Honourable jurisdiction in accordance with the DBCA.

45 EPP submits that the DBCA does not apply to the works for the following reasons:

(a) s 6(2) of the DBCA states: '[t]his Act or a provision of this Act does not apply to any work that the regulations state is not building work to which this Act or that provision (as the case requires) applies';

(b) reg 7(h) of the Domestic Building Contracts Regulations 2017 (Vic) provides that for the purposes of s 6(2) of the DBCA, plumbing work as defined in s 221C of the Building Act 1993 (Vic) is not building work to which the DBCA applies if the work is to be carried out under a contract for only that type of work;

(c) s 221C(1) of the Building Act 1993 (Vic) states: '[i]n this Part, plumbing work means any plumbing work that the regulations state is work to which this Part applies' (emphasis in original);

(d) regs 12(1)(d) and (f) of the Plumbing Regulations 2018 (Vic) provide that for the purposes of s 221C(1) of the Building Act 1993 (Vic), 'gasfitting work' and 'mechanical services work' is 'plumbing work';

(e) 'Gasfitting work' is defined in reg 19 of the Plumbing Regulations 2018 (Vic) as 'construction, installation ... or commissioning of any pipe, appliance, flue, fitting, apparatus, control or other item that is involved with the supply or use of gas and that is fitted downstream of the gas supply point'; and

(f) 'Mechanical services work' is defined in reg 21 of the Plumbing Regulations 2018 (Vic) as 'the construction, installation ... or commissioning of a mechanical heating, cooling or ventilation system in a building, which is associated with the heating, cooling or ventilation of that building'.

46 Mr Warren did not make submissions as to the specific provisions or indicate why they did not operate as submitted by EPP.

47 I am satisfied from the above analysis that the installation of a central heating unit, as in this case, is not domestic building work to which the DBCA applies. I am satisfied that the works engaged in were 'plumbing work' for the purposes of the Building Act 1993 (Vic) and the DBCA, and that the subject contract was for only that type of work; nothing else of substance is mentioned in the quote. It follows that the action did not arise 'wholly or predominantly from a domestic building dispute'. In those circumstances, I do not consider that it is arguable that the DBCA applied as Mr Warren submitted it did, or that the Registrar erred in not taking s 57 into account, or in not properly applying its terms.

48 Having reached that conclusion, it is unnecessary to address the other argument raised in relation to the applicability of the DBCA, but I do so briefly for the sake of completeness as they were raised by EPP.

49 In addition to the requirement that the dispute be a 'domestic building dispute' for the purposes of the DBCA, s 57(2) also requires that two further matters be satisfied, being:

(a) the action could be heard by VCAT under this Subdivision; and

(b) the Court has not heard any oral evidence concerning the dispute itself.

50 EPP submitted that 'it would have been open for the [Registrar] to find that the precondition in s 57(2)(a) of the DBCA could not be satisfied, namely that the action could be heard by VCAT', on the basis that there were significant delays in having building and construction matters listed for compulsory conferences and hearing. EPP relied on the decision of Impresa Construction Pty Ltd v Oxford Building Group Pty Ltd,[19] in which the County Court took into consideration extensive delays in obtaining hearings in VCAT for the purposes of deciding whether VCAT 'could' hear the matter. It is not clear from the reasons in this case whether the Registrar made any such decision, and I would not be prepared to summarily dismiss this appeal question solely on the basis that this argument may have been raised or relied on by the Registrar. To my mind, even if such considerations were taken into account by the Registrar, there may well be a question as to whether the word 'could' in s 57(2)(a) is limited to questions of jurisdiction, or whether it extends to matters of practical convenience and delay. That is a question that would more appropriately be dealt with at the hearing of an appeal.

51 It is uncontroversial that the question whether the dispute resolution clause required the Magistrates' Court to stay the Magistrates' Court proceeding was argued and resolved adversely to Mr Warren at the interlocutory hearing. That decision having been made, it was not open to Mr Warren simply to re-argue at the final hearing a point that had already been determined at an interlocutory stage by the same Registrar.[20] His remedy in respect of such an interlocutory decision is by way of an appeal from a final order or an application for judicial review. In those circumstances, I consider it is not arguable that the Registrar was in error in rejecting Mr Warren's attempt to re-argue the dispute resolution clause point at the final hearing.

52 Mr Warren does not by his Notice of Appeal explicitly challenge the interlocutory decision to refuse a stay. Nor are the reasons for the interlocutory decision, or hearing, before this Court. It is not necessary to further consider those shortcomings in light of what follows, as I find that even if the Registrar was in error in refusing the interlocutory stay application, there would not be an arguable basis to set aside the final order and remit the matter to the Magistrates' Court. That is so because in appealing from a final order, a party may challenge the correctness of that order on the ground that some interlocutory decision was wrong, provided that the interlocutory decision 'affected the final result'.[21] The majority of the High Court in Gerlach v Clifton Bricks Pty Ltd ('Gerlach')[22] explained the final words of that principle as follows:

It is necessary to make the qualification, 'which affected the final result', at least to reflect the well-established principle[23] that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.[24]

53 In Gerlach, an interlocutory order was made by a judge in the New South Wales District Court dispensing with the jury, such that the trial would proceed by judge alone rather than judge and jury. The matter proceeded to trial before another judge. The appellant obtained judgment, and the respondent appealed to the New South Wales Court of Appeal from the decision dispensing with the jury and the decision of the substantive claim, arguing that the first judge's discretion, exercised at the interlocutory hearing, miscarried. The Court of Appeal held that the order dispensing with the jury should not have been made. The Court of Appeal set aside the order dispensing with the jury and the judgment of the substantive claim, and ordered a new trial. The appellant appealed to the High Court. The majority of the High Court held:

The first question for the Court of Appeal was not, as appears to have been supposed, whether Judge Christie's discretion had miscarried [at the interlocutory stage]. It was whether, assuming the exercise of discretion to dispense with a jury had miscarried, that circumstance, standing alone, could warrant the conclusion that some substantial wrong or miscarriage had been thereby occasioned. If it had not, there was no power to order a new trial. Without an order for a new trial, a debate about the correctness of the order dispensing with a jury was wholly academic. The answer given by the Court of Appeal to this question lay in its conclusion that the action had not been tried according to law. But that is principally a statement of the conclusion it reached about the correctness of the order dispensing with a jury. As the terms of Pt 51AA, r 16(1) make plain, it is not enough to point to some error of law to warrant ordering a new trial. More must be demonstrated - that some substantial wrong or miscarriage has been thereby occasioned.

The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice is a startling proposition. It is true that, assuming the order dispensing with a jury should not have been made, a party to litigation has been wrongly deprived of the mode of trial which it desired. But that party has had a trial which, for present purposes, must be assumed to have been a trial according to law. No error in the conduct of that trial (as distinct from the mode of trial) has yet been established. And in any event the trial was by one of the modes of trial prescribed for disposition of litigation of this kind.

No doubt the dispute between the parties about whether the trial should be with or without a jury reveals that each had a different view of which mode of trial was preferable and of advantage to it. But the fact that, rightly or wrongly, parties have reached different views about that question does not demonstrate that a substantial wrong or miscarriage is suffered if one rather than the other mode of trial is adopted. Indeed, to hold that adopting one, rather than the other, available mode of trial does involve a substantial wrong or miscarriage necessarily entails the corollary that the party propounding the opposite contention would be exposed to a substantial wrong or miscarriage if that party's chosen mode of trial was not adopted.[25]

54 The question then is whether the decision not to stay the Magistrates' Court proceeding at an interlocutory stage could have 'affected the final result', in the sense of having occasioned some miscarriage of justice.

55 Because the claim was only for $2,880, the Magistrates' Court proceeding was heard as an arbitration.[26] That is, the merits of the dispute were heard and determined by way of an arbitration, albeit not the arbitration that Mr Warren says the contract contemplated. Mr Warren contends that the Magistrates' Court proceeding should have been stayed (and the dispute resolved by arbitration under the CAA) upon his application for the Magistrates' Court to do so. It is notable that s 8 of the CAA permits a party to apply for a stay, but does not require a party to so apply. Further, s 8 of the CAA mandates a stay only if the application is made 'not later than when submitting the party's first statement on the substance of the dispute', and provided other criteria are met. If the pre-conditions for a stay are not satisfied, or if a party does not apply for a stay, then the CAA does not operate to impose one, and a proceeding such as this one can readily continue as an arbitration under the Magistrates' Court arbitration procedures.[27] In that sense, there are two modes by which the dispute could properly be resolved: an arbitration under the CAA or an arbitration under the Magistrates' Court arbitration procedures. Obviously a party's choices and actions may determine which mode is used, but it is not enough for present purposes for Mr Warren merely to prove that the dispute was resolved by one of the modes when it should have been by another. If he wishes to successfully challenge the interlocutory decision and the final decision, he must also establish that he has suffered a miscarriage of justice as a result.

56 Mr Warren was unable to identify any differences between the conduct of an arbitration under the CAA and the conduct of an arbitration under the Magistrates' Court Act 1989 (Vic), nor did he identify any injustice that flowed from the conduct of the arbitration that occurred. The force of Mr Warren's argument was not that he did not receive a fair hearing at the arbitration, but rather that he has been denied his preferred (and he may say entitled) mode of determination. It is telling that Mr Warren's Notice of Appeal does not raise any issue about the conduct of the arbitration, as distinct from the mere fact that it was an arbitration under the Magistrates' Court Act 1989 (Vic) as opposed to the CAA. In those circumstances, because there has been no miscarriage of justice in the sense discussed in Gerlach, there is no arguable basis to challenge the interlocutory order, nor the final order that followed.

57 For those reasons I find that the dispute resolution clause question is not arguable.

First statement on the substance of the dispute

58 While the above reasoning is sufficient to summarily dismiss the appeal in relation to the dispute resolution clause question, EPP also submitted that the requirement under s 8 of the CAA that the application for a stay is made 'not later than when submitting the party's first statement on the substance of the dispute' was not satisfied because Mr Warren had filed his defence on 9 September 2020 in the Magistrates' Court proceeding, and that act was his 'first statement on the substance of the dispute' for those purposes. I granted time to file submissions on this point after the first hearing on 13 July 2022. EPP filed further submissions on 20 July 2022 which relied on the decision of Makool Brothers Pty Ltd v Business Compass Pty Ltd ('Makool')[28] in which Judge Anderson stated:

Section 8 of the Act [CAA] was not intended to divest a party of its rights to refer a dispute to arbitration save in the circumstances which are provided for. Those circumstances should be clear and as free from uncertainty as possible. In my view, that is only possible if the 'first statement' referred to in the section is read as referring to a statement made as required by the particular 'action', such as the filing of a formal defence to the statement of claim.

At the conclusion of oral submissions, counsel were given the opportunity of providing further written submissions if they were able to find any relevant authority which might assist in the construction of s 8. Counsel were unable to find any such authority.[29]

59 Mr Warren did not refer to any authorities on this point, but I note that in his affidavits affirmed on 7 September 2021[30] and 10 March 2022[31] he states that he had not taken any steps inconsistent with the arbitration agreement. I assume for present purposes that Mr Warren's position is that non-admissions in his defence say nothing about the substance of the dispute.

60 The question whether the filing of a 'non-admission' defence by Mr Warren on 9 September 2020 constitutes a 'statement on the substance of the dispute' for the purposes of s 8 of the CAA is not a straightforward one.[32] Several authorities have considered the question,[33] but beyond Makool, the parties did not address them. In Pathak v Tourism Transport Ltd,[34] a significant factor was that the party unequivocally submitted the substance of the dispute to the jurisdiction of the court.[35] In Gilgandra Market Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd ('Gilgandra'),[36] it was significant that details of the substance of the dispute had been argued orally.[37] In Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd,[38] Mitchell J considered Gilgandra and the authorities referred to, and concluded:

The common feature is that the statements contained what the party in question said about how the substantive dispute in the primary proceedings should be determined. That accords with the natural meaning of the language used in s 8 of the Act [CAA].[39]

61 Having regard to the state of the authorities and the limited information about the circumstances surrounding the filing of the defence, I do not consider that the question whether the 'non-admission' defence constituted the 'first statement on the substance of the dispute' is appropriately dealt with summarily. But as noted above, and consistently with the reasoning in Gerlach, that is not a question that needs to be answered. The decisive factor in this application is that even if the defence was not Mr Warren's 'first statement on the substance of the dispute', he has not suffered any miscarriage of justice by reason of the stay not being granted, and therefore the question whether it was or was not his first statement on the substance of the dispute is, to quote the majority of the High Court in Gerlach, 'wholly academic'.[40]

62 EPP further submitted that the appeal should be dismissed pursuant to r 58.10(9)(c) of the Rules on the basis that it was frivolous, vexatious or otherwise an abuse of process. EPP relied on the decision of General Steel Industries Inc v Commissioner for Railways (NSW)[41] and on its submissions generally as to Mr Warren's appeal not being arguable. Mr Warren did not raise any arguments specifically dealing with the abuse of process point beyond those set out above in relation to the binding nature of the arbitration clause.

63 In Kermani v Westpac Banking Corporation ('Kermani'),[42] the Victorian Court of Appeal considered the meaning and scope of abuse of process as follows:

Recently, the High Court of Australia in Michael Wilson & Partners Ltd v Nicolls reaffirmed what constitutes an abuse of process. They confirmed that what amounts to abuse of process is insusceptible of a formulation comprising closed categories. They cited with approval Ridgeway v R where Gaudron J noted that the concept extended to proceedings 'instituted for an improper purpose' and to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment.'

In Rogers v R, McHugh J summarised the categories of abuse as follows:

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.

McHugh J's summary was approved and adopted by the High Court in Wilson, Batistatos v Roads and Traffic Authority (NSW) and PNJ v R.[43]

64 Having regard to the conclusions set out above in relation to the 'no arguable case' submission, it is unnecessary to determine whether Mr Warren's appeal questions are frivolous, vexatious or an abuse of process. The submissions were not developed distinctly from the 'no arguable case' submission and did not address the various principles applicable to abuse of process questions[44] in any detail. I note also that the issues in this case are not without some complexity, and while I have found upon close consideration that the appeal questions raised by Mr Warren, in their most favourable light, are not arguable, it is less clear that they could be said to be frivolous, vexatious or an abuse of process as that term is discussed in Kermani.

(a) the appeal be dismissed pursuant to r 58.10(9)(b) of the Rules; and

(b) Mr Warren's summonses for a stay under r 58.12 of the Rules and for directions under r 58.10 of the Rules be dismissed.

66 The usual rule is that costs follow the event. In this case, EPP has been successful. Accordingly, I propose also to order that Mr Warren pay EPP's costs of and incidental to the appeal on a standard basis to be taxed in default of agreement, unless the parties notify the Court within 7 days of this decision that they contend for a different order as to costs. If they do, then I direct the parties, within 7 days of this decision, to file submissions of no more than 3 pages, and the parties will be notified of the further disposition of that question in due course.

[1] See, eg, Daher v Bell [2020] VSC 346, [8]-[9].

[2] Pursuant to pt 5 div 2 of the Magistrates' Court Act 1989 (Vic).

[4] The notice of appeal refers to a decision of the 'Magistrate' but it appears that Ms R Andrew is a Judicial Registrar. See Magistrates' Court (Judicial Registrars) Rules 2015 (Vic) r 8, as to the powers of Judicial Registrars which extend to the hearing of arbitrations.

[5] See Magistrates' Court Act 1989 (Vic) ss 109(2), (4).

[6] [2015] VSC 95.

[7] Ibid [24]-[26] (citations omitted).

[8] [2013] VSC 314.

[9] [2001] HCA 41; (2000) 201 CLR 552 (Gaudron, McHugh, Gummow and Hayne JJ).

[10] Ibid 576 [57] (Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

[11] [2013] VSCA 158; (2013) 42 VR 27.

[12] Ibid 40 [35] (Warren CJ and Nettle JA).

[13] See Eimany v Ruyton Girls' School [2022] VSC 420, [17], referring to Harris v Kennedy [2015] VSC 1.

[14] Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318, 320 ('Kinex').

[16] See Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624, 669-70 [131]-[132], citing Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 117 [86].

[17] Section 57(2) of the DBCA.

[18] Section 8 of the CAA.

[19] [2021] VCC 1146, [45]-[60].

[20] Kuek v Phillips [2017] VSC 332, [36].

[21] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 483 [6] (emphasis in original) ('Gerlach'), quoting Spencer Bower, Turner and Handley_, The Doctrine of Res Judicata_ (Butterworths, 3rd ed, 1996) 79-80 [170]. See also at 482-4 [4]-[8] (Gaudron, McHugh and Hayne JJ), 494-7 [43]-[51] (Kirby and Callinan JJ). See also the discussion in Xianzhu v Chen [2020] VSC 621, [22]-[29].

[22] (2002) 209 CLR 478.

[23] The majority goes on to describe that principle as being 'well established in the common law': ibid 483 [7].

[25] Ibid 485 [10]-[12] (emphasis altered).

[26] Pursuant to pt 5 div 2, of the Magistrates' Court Act 1989 (Vic).

[27] See, eg, DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97, [322]; and see discussion in Gary B Born, International Commercial Arbitration (Wolters Kluwer, 3rd ed, 2021) 2734-6, 4307-8.

[28] [2014] VCC 1708.

[29] Ibid [11]-[12] (emphasis omitted).

[30] See [12] above.

[31] See [24] above.

[32] See, eg, discussion in Gary B Born, International Commercial Arbitration (Wolters Kluwer, 3rd ed, 2021) 2734-6, 4307-8.

[33] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97, [144]-[175]; Gilgandra Market Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd [2010] NSWSC 1209, [48]-[54] ('Gilgandra'); Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52, [92]-[93]; CPB Contractors Pty Ltd v Celsus Pty Ltd [2017] FCA 1620; (2017) 353 ALR 84, 110-11 [90]-[94].

[34] [2002] 3 NZLR 681.

[35] Ibid 693 [48]-[50], 694 [52]-[53].

[36] [2010] NSWSC 1209.

[38] [2016] WASC 52.

[40] Gerlach (2002) 209 CLR 478, 485 [10].

[41] [1964] HCA 69; (1964) 112 CLR 125, 129.

[42] [2012] VSCA 42; (2012) 36 VR 130 ('Kermani').

[43] Ibid 152-3 [94]-[96] (citations omitted).

[44] The list of principles applicable to questions of abuse of process were identified in Kermani [2012] VSCA 42; (2012) 36 VR 130, 153-5 [97] (Robson AJA, with Neave and Harper JJA agreeing) and Re AWB Ltd (No 10) [2009] VSC 566; (2009) 76 ACSR 181, 228-9 [264].