1. Proceeding to continue for determination by the Victorian Civil and Administrative Tribunal.

2. Question of costs reserved.

Mr Best of Counsel, instructed by Riordan Legal, Solicitors

Mr Sadler of Counsel, instructed by Felthams Lawyers

1 This matter comes before me as a result of my raising the issue of s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") in my decision of 17th June 2005.

2 It is to be recalled that, in that decision, I determined that this Tribunal had jurisdiction pursuant to the provisions of the Fair Trading Act 1999. The factual background of the matter is set out at some length in that decision, and I shall not repeat it here. Suffice to say that the application issued out of this Tribunal effectively involves the enforcement of a Deed of Settlement arrived at in Supreme Court proceedings, such Deed of Settlement being executed in the interval between the conclusion of evidence and addresses and the handing down of judgment. Whilst I have been persuaded that the agreement of which enforcement is now sought is one which falls within the operation of the Fair Trading Act 1999 and that accordingly this Tribunal has jurisdiction, pursuant to s.77(4) of the Act I raised the question of whether an order should be made striking out all or any part of this proceeding on the basis that it would be more appropriately dealt with by another Court, namely the Supreme Court of Victoria. As stated in the earlier decision, I did not wish this Tribunal to be seen as encroaching upon an area of dispute or the enforcement of an order more appropriately within the jurisdiction of another body. Accordingly, I formed the view that I would be assisted by arguments as to whether or not the matter should be struck out before this Tribunal and referred to the Supreme Court of Victoria.

3 As a result, the matter was listed before me again on 8th July 2005. Mr Best of counsel again appeared on behalf of the applicant. Mr Sadler of counsel again appeared on behalf of the respondents. I have now had the benefit of the submissions of counsel. Such submissions, which were in writing and which were spoken to by counsel, were detailed, contained references to many authorities, and were extremely helpful.

SUBMISSIONS ON BEHALF OF THE APPLICANT ("BOVALINO")

4 The submissions advanced by Mr Best on behalf of Bovalino could be summarised as follows.

5 An important factor in considering whether the Supreme Court of Victoria is a more appropriate forum than this Tribunal concerns whether what was agreed in the Deed of Settlement between the parties was in fact broader than what was argued before the Supreme Court and what would have been there determined had the presiding judge proceeded to judgment. In other words, the Deed of Settlement embraces issues beyond those contained in the Supreme Court pleadings. Thus, should the Tribunal hear and determine this application, it would not be in essence simply enforcing a judgment which was close to being given in the Supreme Court of Victoria. It would be dealing with an agreement of considerably broader ambit than the subject matter of the Supreme Court action.

6 In determining an application pursuant to s.77 of the Act, the predominant factors to be considered are whether the other forum has some special attribute, ability or advantage which would make the dealing with of the subject matter in that forum superior in some way to the determination of the proceeding in VCAT and whether in all the circumstances it is just and fair to strike out the proceeding and refer it elsewhere. In the present case, the contract under consideration is a relatively simple one for the provision of goods and services. The factual and legal issues are not complex. The relief that is sought is relief that can be ordered by the Tribunal. It would be unfair to Bovalino to refer the matter to the Supreme Court given the delay that would thus be caused. Such delay would act to the benefit of the Creas and deprive Bovalino of the benefits of the contract. Greater costs would be incurred in the Supreme Court and a striking out and referral would cause considerable inconvenience. The Tribunal has jurisdiction and is competent and equipped to deal with the proceeding.

THE SUBMISSIONS ON BEHALF OF THE RESPONDENTS ("THE CREAS")

7 The submissions advanced by Mr Sadler on behalf of the Creas could be summarised as follows.

8 It is not helpful to simply characterise the dispute as a consumer and trader dispute in order to enliven jurisdiction. The rights and obligations of the parties still have to be determined by common law contractual principles. Various background facts and facts surrounding the entry into the Deed of Settlement will require determination.

9 The true test pursuant to s.77 is not whether the Tribunal is an appropriate or inappropriate forum, but whether the subject matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court, or any other person or body. Assistance is gained from the cross vesting legislation and authorities relating thereto. Reference is made to the joint judgment of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Limited v Schultz [2004] HCA 61 which distinguishes the "forum non conveniens" approach from the statutory "more appropriate forum" approach. Reference is also made to the observations of Warren J (as she then was) in Rogan and Ors v Rushton (QLD) Pty Ltd and Ors [2002] VSC 375. It was there stated as follows:

"It is also generally accepted that the relevant factors to be taken into account in determining the more appropriate forum include three factors, the governing law of any agreement in dispute, secondly, the connection between the alleged conduct and the jurisdiction, and, thirdly, the cost and convenience for the parties as to the forum selected."

10 In the present case, it is not a question of competing geographic areas. It is a question of which judicial body has the most real and substantial connection with the subject matter of the proceeding. In this case, that judicial body is the Supreme Court of Victoria as the Deed of Settlement arose from the Supreme Court proceedings. It is the natural forum based upon connecting factors to use the words of Gillard J in Ewins v BHP Billiton Limited [2005] VSC 4. The fact that this Tribunal has been chosen by the Applicant and that it has jurisdiction are not relevant considerations. This Tribunal is not the natural forum and the Deed of Settlement is inextricably interconnected with the Supreme Court proceedings.

11 The Supreme Court is a more appropriate forum because it is the natural forum for this proceeding. The background facts were fully explored in the hearing before the Supreme Court. The Supreme Court proceeding, having been struck out, is capable of reinstatement. It is capable of reinstatement and the Deed of Settlement arrived at is capable of enforcement in the Supreme Court. The releases contained in the Deed are ineffective. Bovalino is in fact forum shopping.

12 Further, there are complex issues to be determined. There are difficult questions of fact and law, and pleadings. There is a disadvantage to the Creas in that, if the Tribunal decides not to strike out the present proceeding, the Creas right to have the Deed of Settlement addressed in the Supreme Court has been removed by reason of the operation of s.111(1) of the Fair Trading Act 1999. In addition, the matter has a long history before the courts, and it is not appropriate for this Tribunal to step in at the last moment. This Tribunal should be wary of attempts to characterise disputes in such a way as to have them determined by it if such proceedings realistically and traditionally are dealt with by the courts. The subject matter of the dispute remains the critical question. VCAT is not the natural forum for the resolution of the dispute, and the proceeding should be struck out.

13 As stated, I had some concerns as to whether this Tribunal might be seen to be encroaching upon an area of dispute or the enforcement of an order more appropriately within the jurisdiction of the Supreme Court of Victoria. The timing and circumstances of the execution of the Deed of Settlement had raised those concerns in my mind. It was for that reason that I invited argument in relation to the operation of s.77, no such argument having been previously advanced. Detailed and most helpful submissions have now been placed before me.

14 I prefer the submissions advanced by Mr Best on behalf of Bovalino. Firstly, I accept the assertion of Mr Best that the subject matter of the Deed of Settlement goes considerably beyond what was to be determined by the Supreme Court on the basis of the pleadings before it. This would appear to be the case, and essentially this proposition was not challenged. It is not entirely unusual for parties, in settling a dispute before a court, to turn their minds to aspects of potential dispute beyond those contained in the pleadings, and to incorporate these additional matters in a Deed of Settlement. It is the agreement embodied in that Deed, of which the subject matter of the Supreme Court dispute is only part, which lies at the heart of the present application. That the Deed of Settlement is broader than the issues requiring determination in the Supreme Court was a proposition that was not challenged, although it is equally true that, as submitted by Mr Sadler, the present dispute does include facts that were canvassed before the Supreme Court. The fact that issues beyond those raised in the Supreme Court are embodied in the Deed of Settlement and thus in this proceeding, assists in quelling any unease which I may have experienced in relation to this Tribunal encroaching upon an area of dispute or the enforcement of an order more appropriately in the jurisdiction of another body.

15 The existence of these broader issues in the Deed of Settlement is also relevant to the argument that the Supreme Court is the natural forum for this dispute. It weakens that argument. I might add that I am not convinced that, even if the Deed of Settlement was confined entirely to the issue before the Supreme Court, this means that it is in some way the natural forum for the dispute. Let us take the hypothetical example of an action in the Supreme Court for work and labour done in the sum of $1 million. The action ultimately settles for $5,000.00, which settlement is embodied in a Deed of Settlement. Would this necessarily mean that a subsequent action for $5,000.00 based upon breach of the Deed would have to be instigated in the Supreme Court as opposed to the Magistrates' Court? I have some doubts in that regard. I might add that I am also not entirely convinced that cases relating to cross-vesting legislation, whilst useful, are of more than limited assistance in the context of an application pursuant to s.77 of the Act.

16 Whatever test is applied, it seems to me that there are various factors which contribute to the ultimate conclusion that the Supreme Court is not a more appropriate forum for the determination of this proceeding, and to a finding that it should remain before this Tribunal. I have discussed some of these factors in previous rulings, including that in Dragon Image P/L v NP Distribution P/L (delivered 16th March 2005) which ruling specifically relates to a complaint brought pursuant to the Fair Trading Act 1999. Some of the factors there discussed are equally relevant to the present proceeding.

17 Firstly, this Tribunal is well familiar with applications pursuant to the Fair Trading Act 1999, being often the first port of call for such applications, and is well equipped to deal with them. Frequently clauses in contracts or agreements have to be examined and interpreted, and frequently matters of principle or substantial amounts of money are involved.

18 Secondly, in my opinion there is nothing particularly complex about the legal issues involved, and I agree with Mr Best that the same could be said of the factual matters to be determined. There are numerous experienced members of this Tribunal well equipped to deal with the matter.

19 Further, whilst this is not a court of pleadings, documents akin to pleadings, although sometimes less formal, can be ordered in appropriate cases and case management processes can be put in place. Indeed, the various documents already issued out of this Tribunal are detailed, in some instances are clearly drawn by counsel, and are similar to the type of documents that might be filed and served in proceedings in the County Court or Supreme Court. In addition, a quite extensive timetable was put in place by Deputy President Macnamara on 21st January last.

20 This leads to another factor which supports the submissions advanced by Mr Best. The proceeding is well advanced before this Tribunal. A detailed Application was issued out of it in December, 2004. A comprehensive timetable was set by Deputy President Macnamara in January, 2005. Lengthy Points of Defence drafted by counsel were filed and served in February, 2005. There was a request for Further and Better Particulars of the Points of Defence following this. Detailed affidavits have been filed, and there has been considerable correspondence. The hearing in relation to jurisdiction was conducted before me on 27th April last. Thus, as stated, the matter is well advanced before this Tribunal and at no stage, prior to my raising the issue, was there any suggestion that, if jurisdiction existed, this Tribunal was not an appropriate forum or that the Supreme Court was a more appropriate forum. I agree with Mr Best that to now strike out the matter and transfer it to the Supreme Court would involve both delay, increased cost, and inconvenience. In this regard, the remarks of Warren J in Rogan are to be recalled.

21 The other relevant factor mentioned by Warren J in Rogan is the connection between the alleged conduct and the jurisdiction. I have already referred to the connection between applications brought pursuant to the Fair Trading Act 1999 and this Tribunal. The fact that aspects of this proceeding were litigated before the Supreme Court does not create such a connection as to overcome the operation of the other relevant factors or make the Supreme Court a more appropriate forum.

22 In summary, having had the benefit of counsel's submissions, any unease which I had concerning there being a more appropriate forum has disappeared. Whatever the test to be applied, I am quite satisfied that the Supreme Court is not a more appropriate forum and that this Tribunal is appropriate. The matter is well advanced before this Tribunal. It is within the Tribunal's jurisdiction, and many proceedings brought pursuant to the provisions of the Fair Trading Act 1999 are determined here. There are experienced members well equipped to hear it. Appropriate case management procedures have already been adopted, and can continue to be adopted. The matter is not unusually complex. I am satisfied that greater cost, delay and inconvenience would be caused if the proceeding were now struck out and transferred elsewhere.

23 As no application pursuant to s.77 of the Act was in fact issued, the matter having been raised by me, there is nothing to dismiss and any order, should one be necessary, is simply that the proceeding continue for determination before this Tribunal.