Victorian Civil and Administrative Tribunal|2005-11-10|Before: Mr J

BGP International Pty Ltd v Fook Huat Tong Kee Pty Ltd (Civil Claims) [2005] VCAT 2362 (10 November 2005)

Jurisdiction; Extra-territorial effect; Foreign Company; No ASIC registration

1 This is an application by the applicant for an order that the Tribunal has jurisdictional power to compel a foreign respondent, in this case a Singaporean company, to appear before it as a respondent. Upon learning that the respondent in this application was a foreign company, the Tribunal informed the applicant by letter that it should withdraw the application or alternatively, request a jurisdictional hearing; the applicant chose the latter course.

2 By a letter dated 19 September 2005 the respondent's solicitors, Maddocks, wrote and informed the Tribunal that they acted on behalf of the respondent in this proceeding that their client was not registered under the Corporations Act 2001 and does not have any place of business, registered office or representatives in Australia. The letter went on that their client did not submit to the Tribunal's jurisdiction. However, Maddocks had been instructed that their client would abide by whatever determination the Tribunal made in relation to the jurisdictional issue; with the request that in the event that the Tribunal found that it did have jurisdiction, it require the applicant to provide points of claim prior to there being any further steps in this proceeding.

3 As the Tribunal required the applicant to request this jurisdictional hearing the applicant presented its case first. It put forward a number of grounds it said established that the Tribunal had jurisdiction in this proceeding. The grounds were:-

(a) by the powers given in Section 6 of the Fair Trading Act ('the Act'), the Act had extra-territorial operation;

(b) the letter from Maddocks indicates that the respondent, via its agent Maddocks, is already within the jurisdiction and capable of being served; and

(i) agreeing to abide by the decision of the Tribunal as set out in its letter of 19 September 2005; and

(ii) indicating an intention to commence proceedings in the Supreme Court of Victoria including the same subject matter as in this proceeding.

4 The respondent submits that the Tribunal does not have jurisdiction in this proceeding because:-

(a) the Tribunal does not have power to serve outside the jurisdiction of the State of Victoria;

(b) further, the Tribunal has no power under its rules or procedures that allow service outside the jurisdiction; and

(c) the Tribunal's rules require that in any application a party which is a corporation must state its ACN number on the application, Rule 6.11(1)(b) of the Tribunal's Rules.

5 I will deal first with the respondent's first two submissions. I consider these submissions are misconceived as the respondent's submission is based on a comparison with the powers, practices and procedures of the Supreme Court and its Civil Procedure Rules. However, the power of the Tribunal springs from a different source to that of the Supreme Court. The power; and, thereby, the jurisdiction of the Supreme Court is granted by the Constitution of Victoria. The various jurisdictions of the Tribunal are not granted by the Act creating the Tribunal, ie. the Victorian Civil and Administrative Tribunal Act ('VCAT Act'), but under that Act at Section 43 the Tribunal has jurisdiction in respect of matters referred to it under enabling enactments. Therefore, to assess if the Tribunal has any extra-territorial jurisdiction in a specific matter it is necessary to look at the enabling enactment as well as the VCAT Act.

6 It is acknowledged that there is no general extra-territorial power granted in the VCAT Act. In the enabling Act giving the Tribunal jurisdiction over similar sorts of subject matter to this proceeding, the _Fair Trading Ac_t at Section 6 provides:-

'(1) This Act applies within and outside Victoria.

(2) This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament.'

7 As noted by Deputy President McKenzie in Reid v Jet Aviation JT Aviation Management AG [2000] VCAT 1858 at page 5, Section 2(1) of the Australia Act 1986 (Cmwth) provides:

'It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of the State that have extra-territorial operation.'

8 At page 6 of her decision, the Deputy President observed that by the operation of Section 6 of that Act the legislation made express provision for the extra-territorial operation of the Act and this includes the powers given to the Tribunal.

9 A similar conclusion was reached in the recent decision of Senior Member Vassie in Froesch v Mohi [2005] VCAT 1933 [13 September 2005].

10 I acknowledge that Section 6 of the Act requires that there must be some connection with Victoria, albeit general or remote, see Reid (supra) at page 5. No evidence was produced at the hearing of the degree, if any, of the connection of the subject matter of the dispute with Victoria. Although, I note that there appeared to be common agreement that the subject matter of the contract or its performance that is in dispute involved the sale of fruit for consumption in Victoria. I consider this fact provides some connection with Victoria. Further, in its letter to the Tribunal of 28 July 2005 the applicant maintains that the contract was made in Victoria. This was not contradicted by the respondent and it is a clearly maintainable position by the applicant in this proceeding. Therefore, 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 the power to serve outside the jurisdiction.

11 In relation to the respondent's final submission that the Tribunal's Rules, specifically Rule 6.11(1)(d) requires that where a party is a corporation the application must include its Australian Corporate Number (ACN) and in this case there is no ACN stated and nor can there be as the foreign corporation that is the respondent is not registered in Australia and thereby has no ACN. I consider that the respondent's submission fails on a number of grounds. Firstly, although the words 'must ... include ...' are used in the Rule, such mandatory words can only be upheld if it is in the interests of justice. If such words were applied strictly in this context it would mean that no foreign corporation would ever be amenable to the jurisdiction of the Tribunal, whether it was legitimately within the jurisdiction or not, solely for the reason that it could not and did not include an ACN on the application. Such an artificial limitation on what could be a proper party before the Tribunal would be detrimental to the interests of justice in this jurisdiction.

12 Looked at from the opposite viewpoint, what are the detrimental affects on the interests of the applicant if the respondent does not provide an ACN? In the context of this proceeding the applicant has not claimed any detriment; and I can see none as the respondent is clearly identified in the application by name together with the address of its solicitors, so that there can be no confusion over who is the proper respondent. The ACN in an application is not the primary identifier of a party, that is its name, what it does establish is prima facie evidence of registration, which in the case of a foreign tribunal is not required. Therefore, I consider there is no detriment to any party from the failure of a foreign corporation to put an ACN on the application. To require an ACN when it is clearly inapplicable would be to defeat the purpose of the Act. Thus, the requirement that all parties that are corporations have an ACN number stated on any application can only be directory and not mandatory.

13 This conclusion is reinforced and, in fact overtaken by the requirements of Section 159 of the VCAT Act, which provides:

'If a provision of this Act, the regulations or the rules is inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency.'

14 The enabling enactment that Section 6 clearly allows the Act's extra-territorial application and to the extent that any rule is consistent with that purpose under the Act, the Act will prevail to the extent of the inconsistency. Therefore, the requirement of Rule 6.11(1)(b) of the Tribunal is to the extent of the requirement for an ACN in this proceeding of no affect.

15 Thus my decision is that the Tribunal does have jurisdiction in this proceeding. In conformity with the parties' desires I will order that the applicant file and serve points of claim within approximately one month. Subsequent to that I will order a directions hearing to set the future course of this proceeding.

BGP International Pty Ltd v Fook Huat Tong Kee Pty Ltd

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Judgment (22 paragraphs)

BGP International Pty Ltd v Fook Huat Tong Kee Pty Ltd (Civil Claims) [2005] VCAT 2362 (10 November 2005)

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