The Tribunal lacked jurisdiction on 18 June 2025 to grant the applicant leave to amend her Points of Claim.

1. On 6 November 2025, the Tribunal convened a jurisdictional hearing at which the solicitors for Ms Brooks and for Ms Moody and Ms Hocking provided written and oral submissions. Ms Porz did not attend, but through her solicitors elected to adopt the jurisdictional submissions of Ms Moody and Ms Hocking and did not seek to be heard on them.[4]

1. This ruling is confined to whether VCAT has jurisdiction in this case. It relates specifically to whether the 'matter' in these proceedings is in federal jurisdiction under the Commonwealth Constitution. It does not concern the merits of any of the allegations made by any of the parties and no finding or comment is made about the substantive dispute between them. To the extent I express statements or findings about facts, they are merely jurisdictional findings based on the evidence currently before the Tribunal at this interlocutory stage. They are not and cannot be determinative.

Evidence received at the jurisdictional hearing

1. In addition to the evidence filed in the proceedings, the Tribunal received evidence from Ms Brooks via Zoom, limited to the issue of who had drafted her original Points of Claim and about the earlier letter of demand sent before action by her solicitors from interstate in which the allegations of statutory rights relied on by her had been framed in a different way. At my direction she gave no evidence at all about any instructions she might have given or legal advice she might have received.

Result: the matter in these proceedings is in federal jurisdiction

1. At the jurisdictional hearing, the Tribunal having received both written and oral submissions from the solicitors for Ms Brooks and for Ms Moody and Ms Hocking - for which I express my appreciation in the comprehensive and concise manner in which they were presented to the Tribunal taking into consideration numerous authorities to which the parties had been directed in listing the jurisdictional hearing - and having reviewed not just the original Points of Claim but also the earlier solicitor's letter of demand before action, I formed the comfortable opinion that on an objective characterisation of the allegations expressly made by Ms Brooks's in the context of her original Points of Claim, these VCAT proceedings engaged federal jurisdiction within the meaning of Ch III of the Commonwealth Constitution.
2. At the conclusion of the jurisdictional hearing on 6 November 2025, I made orders striking out these proceedings under s 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act') on the basis that the 'single justiciable controversy' between the parties within both proceedings, falls within federal jurisdiction, and gave Ms Brooks the opportunity to seek a referral order to a Victorian court as a more appropriate forum for the hearing and determination of the subject matter of the proceedings under s 77(3) of the VCAT Act.
3. On 11 November 2025, pursuant to the orders I made on 6 November 2025, Ms Brooks applied for an order under s 77(3) of the VCAT Act to transfer the proceeding to the Magistrates' Court of Victoria. The referral order was made by me on that date, and the principal registrar was directed to send the case file to that Victorian court.
4. While in my orders on 6 November 2024 I reserved costs of both VCAT proceedings, like Justice Woodward in Plunkett v Portier Pacific Pty Ltd (Civil Claims) [2024] VCAT 205 ('Plunkett'), I consider that the question of costs is likely to be better dealt with in the court which has jurisdiction to hear and determine the parties' substantive dispute. In giving my oral reasons for the Tribunal's jurisdictional ruling, I indicated to the parties present that whether costs can or should be awarded in a Tribunal proceeding by VCAT requires a party seeking a costs order from the Tribunal to satisfy s 109 of the VCAT Act, and where a settlement offer has been made, s 112. The general statutory rule in VCAT proceedings is that each party bears their own costs: see s 109(1). The Tribunal would need to be satisfied why that general rule should not apply to this case and why its discretion to award costs should be exercised.
5. In this case, with the final hearing date looming and parties preparing for it and assembling their witness, and with at least one of the parties themselves overseas and needing to return to Victoria for the hearing, it was desirable that the parties were informed immediately of the opinion the Tribunal had reached about its lack of jurisdiction. In giving brief oral reasons for my opinion that federal jurisdiction had been engaged, I indicated to the parties present at the jurisdictional hearing that I would provide more detailed written reasons.[5] Although Ms Brooks attended via Zoom, neither Ms Moody (who was overseas for equestrian competition purposes) nor Ms Hocking was present, and Ms Porz was neither present nor appeared through representatives at the jurisdictional hearing.
6. I shall now explain why these VCAT proceedings have engaged federal jurisdiction under s 76(ii) of the Commonwealth Constitution under the principles established by the High Court in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; (2022) 96 ALJR 476; [2022] HCA 16 ('Citta Hobart') and applied by the Court of Appeal to this Tribunal in Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; (2022) 407 ALR 187; [2022] VSCA 226 ('Thurin v Krongold') and therefore why they must be struck-out of the list of cases to be heard and determined by the Tribunal.
7. In Thurin v Krongold the Court of Appeal reiterated that VCAT, as a statutory tribunal, has a duty to be satisfied of its jurisdiction if there is any doubt.[6]

1. Sections 75 and 76 contained in Ch III of the Commonwealth Constitution describe the 'matters' which attract federal jurisdiction.[7] Matters are in federal jurisdiction if they fall within the original jurisdiction of the High Court under either section.[8]
2. The constitutional doctrine of federal jurisdiction developed by the High Court under Ch III is complex and nuanced. There have been many cases in this Tribunal and in the Victorian Supreme Court and Court of Appeal that have considered its application to cases that have been commenced in VCAT since the Court of Appeal's 2022 decision in Thurin v Krongold.
3. To give context for what I am about to say, I must explain it briefly, and some of its relevant nuances.

1. One of the critical features of the operation of the legal doctrine is that when a 'matter' falls under federal jurisdiction it can no longer be heard and determined under state or territory jurisdiction.
2. That is because under our democratic federal legal system established by the Commonwealth Constitution - that entrenches a separation of Commonwealth judicial power from Commonwealth legislative and executive power - only Australian 'courts' within the meaning of Ch III of the Commonwealth Constitution, conferred authority in accordance with Ch III to exercise the judicial power of the Commonwealth, can hear and determine any 'matters' falling under s 75 and s 76. What this means is that when a legal dispute in a proceeding before a state court or tribunal falls into federal jurisdiction it is no longer able to be decided through the exercise of state judicial power but rather becomes justiciable (by any Australian court) solely through the exercise of Commonwealth judicial power.[9]
3. The 'exercise of adjudicative authority' in 'matters' of the kind in ss 75 and 76 of Ch III is an exercise of federal jurisdiction.[10] Only 'courts' under Ch III can exercise that adjudicative authority.
4. Another distinction that is critical to understanding the operation of the constitutional doctrine of federal jurisdiction is the distinction between 'proceedings' and 'matters'. They are different constitutional and legal concepts:

(a) A 'matter' is the justiciable controversy itself; the legal dispute between all its parties that is capable of judicial determination.[11] It is sometimes called the 'single justiciable controversy' to cover the idea that it is everything that is part of the same legal dispute for judicial determination, and not a separate 'matter'.

(b) A 'legal proceeding' is the vehicle or process in which a matter is heard and determined by a court or tribunal with authority to exercise judicial power to resolve the dispute between the parties.

1. Thus a 'matter' exists independently of a 'proceeding'. A 'matter' can therefore fall into federal jurisdiction whether or not a proceeding has been commenced.
2. A legal proceeding is commenced in a court or tribunal of law by a party making an application to it, to invoke its authority to determine the dispute - its 'jurisdiction'. The proceeding becomes the vehicle in which the matter is resolved by the court or tribunal according to law in exercise of the judicial authority conferred on it by law.
3. The procedure of how a proceeding is case managed, is governed by the practice and procedure of the court or tribunal. Claims and defences between the principal parties, and any cross claims or counterclaims against other parties to the dispute in question, might be conducted - procedurally - in the one proceeding or in separate proceedings.
4. Whatever the procedure that might be adopted, for the purposes of the doctrine of federal jurisdiction, where multiple proceedings are part of the same 'single justiciable controversy' for hearing and determination through the exercise of judicial power they form one single 'matter' for the purposes of Ch III of the Constitution.

1. State and territory tribunals that are not 'courts' within the meaning of Ch III, cannot exercise the judicial power of the Commonwealth. It is impermissible for them to exercise 'federal jurisdiction'. They can only exercise the judicial power of the state or territory that established them, over matters that are not in federal jurisdiction. They cannot hear and determine (i.e. adjudicate) any 'matter' that falls within the original jurisdiction of the High Court under s 75 and s 76 of the Commonwealth Constitution.
2. Therefore while many 'enabling enactments' passed by the Victorian Parliament conferring 'original jurisdiction' on VCAT to adjudicate and determine the rights and liabilities of parties in legal proceedings brought before it confer authority on the Tribunal to exercise the judicial power of the State of Victoria, because only 'courts' within the meaning of Ch III of the Commonwealth Constitution can be invested with 'Commonwealth judicial power', when the legal dispute in question between its parties is, or raises, a 'matter' in federal jurisdiction under Ch III, s 75 or s 76, the Victorian 'enabling enactment' is to be read down so as not to confer any judicial power on VCAT to hear and determine that particular dispute.[12]

1. One way that a matter can 'arise under a Commonwealth law' within the meaning of s 76(ii) of the Commonwealth Constitution is where the rights or duties in question for resolution in a legal dispute owe their existence to federal law.[13] Another is when a claim of legal right or defence made by a party relies on a federal law.[14]
2. Thus, in Citta Hobart, the High Court recently held in determining the limit of a tribunal's 'State jurisdiction':[15]

[30] The existence and scope of a matter meeting a description in s 75 or s 76 of the Constitution must be determined by "objective assessment"[38] ...

[31] A "matter" referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated[39]. Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter "arising under" a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy_[40]__._ ... [T]he assertion operates to characterise the totality of the justiciable controversy[41] and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn[42]. (emphasis added)

1. If the Commonwealth law does not form part of the substantive dispute for judicial resolution, the Court of Appeal held in Thurin v Krongold that federal jurisdiction is not engaged if that law is simply 'lurking in the background' in an incidental but not any substantive manner.[16]
2. The example in Thurin v Krongold was where the party was a company, whose existence depended on Commonwealth law. That background element was not part of the 'matter' but rather incidental. Another case decided more recently by the Court of Appeal in Western Australia,[1] likewise found that the capacity of an incorporated party to be sued was not part of the 'matter' because that was not an issue that was part of the substantive controversy between the parties required to be determined through the exercise of judicial power.[17]
3. However, if a party positively asserts reliance on a federal law, that cannot be incidental. Thus, in Tucker v The State of Victoria & Anor (Stay Application) [2021] VSCA 120, at [337] the Court of Appeal held:

if the matter involves an asserted right or duty based on a federal statute, then a federal question arises in a way that, by definition, is not incidental. That is so, even if the court need not decide whether the asserted right or duty is established. The same issue can equally be posed in the language used in LNC Industries, namely, whether the matter involves an asserted right or duty that owes its existence to a federal statute. (emphasis added, footnote omitted)

1. In Citta Hobart, the High Court confirmed that the constitutional jurisdictional test to determine whether there has been reliance on a federal law or whether the rights or duties owe their existence to federal law is an 'objective test'. Whether a party intends or not to rely on Commonwealth law or knows they have is simply irrelevant.
2. Thus, the High Court in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 at 262, [32] ('Agtrack') held:

Whether federal jurisdiction with respect to one or more of the matters listed in ss 75 and 76 of the Constitution has been engaged in a legal proceeding is a question of objective assessment. If a party on either side of the record relies upon a right, immunity or defence derived from a federal law, there is a matter arising under s 76(ii) of the Constitution. It is not a question of establishing an intention to engage federal jurisdiction or an awareness that this has occurred. (emphasis added)

1. The majority of the High Court in Citta Hobart, commenting more recently about the application of the objective test from the perspective of a state tribunal, held at [30]:

[T]he objective assessment can be no different when undertaken by a non‑court State tribunal for the purpose of determining whether a particular claim or complaint is within the legislated limits of its State jurisdiction from when the assessment is undertaken by the Supreme Court of the State on appeal or in the exercise of its entrenched supervisory jurisdiction.

1. Justice Edelman, agreeing in Citta Hobart that the 'scope of a subject matter of federal jurisdiction is the same in a court or a tribunal', put it this way:

[60] Jurisdiction has dimensions of person, locality, and subject matter[73]. The topics in ss 75 and 76 of the Constitution cross each of these dimensions. ...

[61] In every instance, the correct answer to whether that dimension of jurisdiction exists does not vary depending upon whether the question is asked by a court or by a tribunal. Federal jurisdiction, in the dimensions covered in the topics in ss 75 and 76 of the Constitution, cannot have one meaning when it is exercised by a court and another meaning when it is exercised by a tribunal.[18] (emphasis added)

1. Undertaking that objective assessment, depending on the context of each legal dispute, can engage a range of considerations: what the subject-matter of the dispute is about, who it is between as well as what it is that parties have actually asserted as legal rights, and the context in which they made their assertions, whether before action or after proceedings have been commenced in a legal forum.
2. In Moorgate Tobacco Co Ltd v Philip Morris Ltd [1984] HCA 73, 156 CLR 414 ('Moorgate Tobacco'), the High Court held that even if a right or duty under Commonwealth law is not expressly alleged by a party to the dispute, federal jurisdiction is engaged if the court itself finds it necessary to decide whether or not a right or duty based on Commonwealth law exists. But if reliance on a Commonwealth law is expressly pleaded by a party, that is the end of the jurisdictional analysis: federal jurisdiction is engaged.[19]
3. In Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7, Barwick CJ held at [31]:

The identification of the matter is very much a question of substance and not of form. The facts alleged by either or any of the parties and their consequences will in the last resort be the determinant of what is relevantly the matter. ... [I]n determining that question, the nature of the relief sought and perhaps of the legal right or defence if any be asserted may be of assistance, but, as I have indicated, not necessarily definitive.[20]

1. The Western Australian Court of Appeal in Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 at [57] recently reiterated:[21]

57. The constitutional imperative to identify a 'matter' independently of proceedings for its determination was emphasised by the plurality in Palmer v Ayres:[35]

A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice'. (original emphasis) ... It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. (emphasis added) What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. (citations omitted)

1. In Agtrack, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ explained that in some cases:[22]

Immediate ascertainment of the factual basis of a justiciable controversy and of the attraction of federal jurisdiction in a proceeding will not always be possible by regard simply to allegations pleaded. If the attraction of federal jurisdiction itself is disputed, it may require evidence of the factual basis of the controversy to permit an answer to that question.

1. In some areas of substantive law, the judicial determination of the legal controversy is dependent on Commonwealth laws that exclude the operation of state laws, and therefore necessarily engage federal jurisdiction under the first limb of Moorgate Tobacco.[23]
2. In others, where there is a choice of law available to the parties (like this one), the analysis under the objective assessment required by Agtrack and Citta Hobart is more nuanced.
3. In Mitsubishi Motors Australia Ltd v Begovic [2023] ALJR 155 ('Mitsubishi Motors') at [12] the High Court recently observed about the different laws applicable to matters to be determined under the ACL (in an appeal unconcerned with a question of 'federal jurisdiction'):

[12] Section 131(1) of the Competition and Consumer Act 2010 (Cth) provides that Sch 2 to the Act applies as a law of the Commonwealth to the conduct of corporations. Schedule 2 to the Act is the ACL. Pursuant to the Intergovernmental Agreement for the Australian Consumer Law, the Commonwealth, the States and the Territories agreed to implement legislative schemes in which the ACL would be enacted as a law of the Commonwealth, and of each State and Territory. In accordance with this agreement, the Australian Consumer Law and Fair Trading Act 2012 (Vic), by s 8(1), gives effect to the ACL as a law of Victoria and, by s 224, confers jurisdiction on VCAT in this case.

1. Relying on this observation, the Victorian Court of Appeal in Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58 at [158] upheld VCAT's characterisation of the matter in that case being in state not federal jurisdiction, holding:

[158] ... VCAT took the view that Mr Dawn's references to the 'Australian Consumer Law' were references to the Australian Consumer Law applying as a law of Victoria. Because no Attorney-General intervened in response to Mr Dawn's s 78B notices, we will not express a concluded view on this issue. Suffice it to say we see no reason to doubt the correctness of VCAT's view. We note that it is supported by remarks of the High Court in Mitsubishi Motors Australia Ltd v Begovic. The Court noted that the text of the Australian Consumer Law is applied as a law of the Commonwealth to the conduct of corporations and is applied in Victoria by s 8(1) of the Australian Consumer Law and Fair Trading Act 2012, and that VCAT's jurisdiction in the case derived from the latter. We also note that s 131C(1) of the Competition and Consumer Act 2010 (Cth) provides that pt XI of that Act is not intended to exclude or limit the concurrent operation of laws of the States. (emphasis added)

1. In recently upholding a similar jurisdictional assessment made by VCAT, in D'Angelo and D'Angelo v The Domicile Group Pty Ltd [2025] VSC 395 ('D'Angelo'), Justice McDonald observed however, at [20]:

It does not follow ... that a reference in a pleading to the ACL[24] as a Victorian law must refer to the ACL as the Australian Consumer Law (Victoria). Rather, consistent with s 13 of the Victorian Act,[25] where a pleading refers to the ACL it is necessary to have regard to the context of the reference. It is necessary to examine the allegations made in the Points of Claim to determine, whether as a matter of context, the reference is to the ACL as a Commonwealth law or, alternatively, a reference to the ACL as a Victorian law. Whether federal jurisdiction with respect to one or more of the matters listed in ss 75 and 76 of the Commonwealth Constitution has been engaged in a legal proceeding is a question of objective assessment: Agtrak (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262 [32]. (emphasis added)

1. The first jurisdictional question in this case is whether - objectively assessed - Ms Brooks has by the express assertions of legal right made by her or her solicitors at different times, only ever relied on statutory rights under Victorian law or at any time relied on statutory rights under Commonwealth law so as to bring the matter in these proceedings into federal jurisdiction.
2. The second is whether by amending her original Points of Claim in these VCAT proceedings she can subsequently stipulate that only Victorian law is intended to be relied on so as to take the matter out of federal jurisdiction.

Can a party amend Points of Claim to take a matter out of federal jurisdiction?

1. I can dispose of the second jurisdictional question relatively quickly. The law is well settled. There are two ways to get to the same answer of 'no'.
2. In Thurin v Krongold, the Court of Appeal held that VCAT - as a state tribunal that is not a 'court' within the meaning of Ch III of the Commonwealth Constitution[26] - has no jurisdiction to hear and determine a legal dispute where two elements are present:

(a) VCAT would be required to exercise the judicial power of the State of Victoria (as it would be in this case); and

(b) the justiciable controversy (i.e. legal dispute for determination) is a 'matter ... arising under a Commonwealth law' within the meaning of Ch III, s 76(ii) of the Commonwealth Constitution.[27]

That circumstance, 'bring[s] the dispute within federal jurisdiction so as to deprive VCAT of the ability to hear and determine it'.[28]

1. It confirmed that because a 'matter' under s 76(ii) exists independently of a proceeding, what forms part of the 'justiciable controversy' between the parties in their legal dispute might be described during the course of a legal proceeding, or beforehand - such as in a legal letter of demand before action, or other assertion of rights by a party - before even commencing any legal proceeding.[29]
2. In that case, there had been an allegation raised by a party to a VCAT proceeding of reliance on statutory rights under the former Trade Practices Act 1974 (Cth) ('TPA'). The Court of Appeal held that the allegation had formed part of the one 'single justiciable controversy' in the VCAT proceeding, and had therefore brought the 'matter' between all the parties to all the claims, counterclaims and cross-claims into federal jurisdiction.[30]
3. The Court of Appeal explained:

[57] Krongold submitted that the point at which a claim formed part of a controversy between persons was not determined by when issue is formally joined between those persons in legal proceedings articulating the claim, but by when, as a matter of fact, the claim is made as between those persons. As such, it is possible for a claim to enter into a controversy, including one already in the course of litigation, by being the subject of notification or dispute between the parties.

[58] That submission should be accepted. It is well established that the identification of a 'matter' in federal jurisdiction does not depend on the form taken by the proceedings in question.[24] The 'matter' is not co-extensive with any legal proceeding but is the subject matter for determination in a legal proceeding or 'controversies which might [original italics] come before a Court of Justice'.[25]

[59] The 'matter' might therefore take shape before the issues have been delineated in pleadings at all, for example in correspondence between the parties.[26]

[59] It follows that there was no requirement for the claims made by Krongold in respect of Swan Hardware to be formally incorporated into the points of claim in VCAT in order for those claims to form part of the controversy between Krongold and Mr and Mrs Thurin, and for that controversy to extend to Swan Hardware. No order for joinder was required in order for the 'matter' to be enlarged to accommodate those claims.

[61] It is therefore irrelevant that the claims could not be adjudicated upon until Swan Hardware was joined, either to comply with s 24AI(3) of the Wrongs Act in respect of apportionment, or to attract jurisdiction in relation to the contribution claim.

[62] Equally, the claims do not become other than genuinely raised or capable of legal argument, just because joinder would be required in order to have them adjudicated. No other obstacle to the claims being arguable has been identified.

[63] Since the claims form part of the matter as soon as they are raised, the question of jurisdiction arises and must be answered as at that point. Issues of parties to a proceeding and joinder are irrelevant to the identification of the matter and must likewise be irrelevant to deciding whether the matter so identified is genuinely raised and capable of legal argument.

[64] It follows that, once the federal claims in respect of Swan Hardware were raised - which they were at least by the time Krongold served its defence dated 3 August 2018[27] - the matter the subject of the VCAT proceeding came within federal jurisdiction. VCAT thereafter lacked jurisdiction to hear and determine it. One consequence is that VCAT lacked power to order that Swan Hardware be joined as a party to the VCAT proceeding.

1. Thus, once federal claims are asserted, VCAT loses jurisdiction.
2. On the other side of the same coin, once a matter is brought within federal jurisdiction through the objective assertion of federal law, it is forever in the original jurisdiction of the High Court under Ch III. It cannot be amended so as not to have asserted it in the first place. The matter remains in federal jurisdiction despite any withdrawal of the prior assertion.
3. That was earlier confirmed in Citta Hobart, the recent High Court decision that the Court of Appeal was applying. The High Court had held that where a matter falls into federal jurisdiction under s 76(ii) - as one that 'arises under a Commonwealth law'[31] - it is not legally possible to amend a claim or defence to take it out of federal jurisdiction.[32] The legal dispute between the parties itself is coloured with federal jurisdiction from the moment it assumes that character. It forever remains in federal jurisdiction even if the ultimate determination of the matter according to law through the exercise of judicial power might not depend on the Commonwealth law, and the dispute can be resolved applying rights and remedies existing under State laws or the common law.
4. Thus, as Justice Harris in An & Ors v Australian Broadcasting Corporation [2024] VSC 518, at [92] recently summarised:[33]

A consequence of the recognition that a 'matter' encompasses all claims within the scope of a controversy, and that if a federal claim is genuinely raised and not on its face incapable of legal argument it is sufficient to bring the matter within federal jurisdiction even if it may not be established,[111] is that if a Commonwealth law or the Constitution is relied on as a source of a claim or a defence in a proceeding, the asserted claim or defence operates to characterise the totality of the justiciable controversy as being in federal jurisdiction.[112] It is also established that such a proceeding will continue to be regarded as involving federal jurisdiction even if the federal claim is rejected, or if it is struck out at a preliminary stage.[113] (emphasis added)

1. Likewise in Certain Underwriters at Lloyd's Subscribing To Policy Number P0003310PI2016AU0 v Shangri-La Construction Pty Ltd (In liq) [2024] VSC 556 ('Shangri-La'), after summarising the doctrine of federal jurisdiction[34], Justice Garde summarised the effect of the Court of Appeal decision in Thurin v Krongold in the following way at [40]:[35]

[40] ... the Court of Appeal held that the making of .... claims in the proceeding before the Tribunal, invoking alleged contraventions of the Trade Practices Act 1974 (Cth) ..., meant that the proceeding involved a matter arising under any law of the Parliament.[44] The making of those claims brought the whole of the proceeding into federal jurisdiction.[45] The Court of Appeal held that this was because:

(a) where a Commonwealth law is relied on as the source of a claim or defence asserted in the course of a justiciable controversy, the controversy is one 'arising under' a law of the Commonwealth within the meaning of s 76(ii) of the Constitution.[46] For that purpose, it is enough that the claim or defence be 'genuinely in controversy and that it give rise to an issue capable of judicial determination'; that is, it is 'enough that the claim or defence be genuinely raised and not incapable on its face of legal argument';[47]

(b) the point at which a claim formed part of a controversy between persons was not determined by when the issue is formally joined between those persons in legal proceedings articulating the claim, but by when, as a matter of fact, the claim is made as between those persons. As such, it is possible for a claim to enter into a controversy, including one already in the course of litigation, by being the subject of notification or dispute between the parties;[48]

(c) the identification of a 'matter' in federal jurisdiction does not depend on the form taken by the proceedings in question.[49] The 'matter' is not co-extensive with any legal proceeding but is the subject matter for determination in a legal proceeding or 'controversies which might come before a Court of Justice'.[50] The 'matter' might, therefore take shape before the issues have been delineated in pleadings at all, for example in correspondence between the parties;[51] and

(d) since the claims form part of the matter as soon as they are raised, the question of jurisdiction arises and must be answered as at that point. Once the [Trade Practices Act] claims were raised, the matter the subject of the proceeding came within federal jurisdiction. The Tribunal thereafter lacked jurisdiction to hear and determine it.[52] (emphasis added)

1. Thus, Ms Brooks's later amendment of her Points of Claim cannot bring her case out of federal jurisdiction if it had previously fallen into federal jurisdiction. And even though no jurisdictional assessment had been made by the Tribunal when it permitted her to amend, as the Court of Appeal held in Thurin v Krongold the Tribunal lacks the power to permit joinder of a new party where a claim that has fallen into federal jurisdiction.[36] While Mr Mackinnon submitted that the Tribunal should revoke the amendment to the Points of Claim, I have no ability to give effect to that.[37]

Objectively, has the applicant only ever relied on statutory rights under Victorian law?

1. I now turn to the first question.
2. Sometimes parties are clear about the source of law under which they assert rights, and the application of the objective jurisdictional test is clear.
3. Where there is a choice of law however, ambiguity can arise as to the actual laws and source of laws relied on by parties when they assert legal rights. In those circumstances, the objective assessment necessarily must consider the context of the legal dispute and of the language they use in its context.

1. The ambiguity in this case is twofold. It stems from the fact that on the underlying facts of this case, there is a clear choice of statutory laws: the statutory causes of action exist under both Commonwealth and Victorian laws.
2. Further, the assertions of legal rights made by Ms Brooks before proceedings were commenced and then during the proceedings, were expressed in different ways by her different solicitors. In different ways they point to reliance on Commonwealth law or reliance on both Commonwealth and state law.
3. As mentioned, before action Ms Brooks engaged solicitors in New South Wales. On her instructions they had sent a legal letter of demand that had referred to the Competition and Consumer Act 2010 (Cth) to identify the 'ACL' as the source of statutory law relied on, without being at all clear whether it was the Australian Consumer Law as a Commonwealth law or as a Victorian law (or both).
4. Had that been all that had been ever asserted expressly in this case, those assertions fell right on the border as to whether Commonwealth law had been asserted. Coming from an interstate solicitor who, on the face of the letter, showed familiarity with both the rights under the laws that were being asserted on behalf of his client and their source, it certainly looked like rights under Commonwealth law were being relied on rather than rights available to Ms Brooks simply under Victorian law. Although the New South Wales law firm said in the letter that it held instructions to commence legal proceedings, no choice of forum had been indicated in the letter. That is not a criticism, just an objective fact. Many solicitors threatening legal proceedings on behalf of clients would hold their cards close on that issue. In commencing legal proceedings there can be procedural and tactical advantages and other benefits in commencing proceedings in a federal court or state court, or in a tribunal that often does not award costs.
5. What then occurred was that Ms Brooks, the following year, commenced her proceeding in VCAT herself. In her VCAT application filed online, she did not refer to any source of law but made allegations of fact to support her claims in law that Ashton the horse was not fit for purpose and asserted that she had been misled and that the seller had knowledge that Ashton had exhibited dangerous behaviours 4 months prior to her purchase. She uploaded the contract of sale. There was nothing in her allegations that would have led to any conclusion that Commonwealth law was relied on.
6. Many months after that, with the assistance of her Victorian solicitors, Ms Brooks prepared and filed Points of Claim. In their original form they again expressly referred to sch 2 of the Competition and Consumer Act 2010 (Cth) by name, but this time without any reference to the ACL at all. This time ambiguity arose not just in that choice of language, but in the contextual structure of the Points of Claim which first relied on 'Statutory rights' then made further claims[38] before closing with concluding para 77 asserting 'liability' under the Competition and Consumer Act 2010 (Cth) and alternatively the Australian Consumer Law and Fair Trading Act 2012 (Vic) ('ACLFTA').
7. I will come back to the context Ms Brooks's assertions of statutory rights. First it is necessary to explain the legal context of the Australian Consumer Law, as both a Commonwealth and Victorian law, and either or both laws can apply to this proceeding.

1. As the High Court case of Mitsubishi Motors describes, the ACL is a national scheme of separate uniform Australian laws of the Commonwealth and each Australian state and territory.
2. It is enacted by the Commonwealth Parliament as a Commonwealth law by the Competition and Consumer Act 2010 (Cth), where it is called the 'Australian Consumer Law'.
3. The actual 'text' of Australian Consumer Law is to be found in Sch 2 of the Competition and Consumer Act 2010 (Cth) and regulations made under that Commonwealth Act.
4. The text in force as Commonwealth law from time to time, has then been picked up and 're-enacted' by the Parliament of each Australian state and territory as a separate law of each state and territory jurisdiction under what is termed an 'application act'.
5. Each separate law, although uniform, has in its turn specific 'application' as to whom, what conduct and which territorial area it applies, based on the legislative powers of each Parliament - whether Commonwealth, state or territory - under the Commonwealth Constitution.
6. In Victoria the 'application act' that has picked up and applied the text of the Australian Consumer Law as a Victorian law is the ACLFTA, in which the ACL is called the 'Australian Consumer Law (Victoria)'.
7. The language of the Australian Consumer Law refers to 'persons'.
8. Under the Acts Interpretation Act 1901 (Cth) a 'person' is defined by s 2C to include individuals, companies and bodies politic.[39] Thus in interpreting the word 'person' in the text of the ACL - whether as a Commonwealth or Victorian law[40] - one must have resort to s 2C.

The application of the ACL as a Commonwealth law

1. The ACL enacted by the Commonwealth Act, applies as Commonwealth law only to the extent of the Commonwealth Parliament's legislative powers under the Commonwealth Constitution.[41] This is well established. Its predecessor legislation, the Trade Practices Act 1975 (Cth) applied in the same way.
2. The Commonwealth Act's main 'application' provisions which apply the ACL as a Commonwealth law are s 131 (which applies the ACL to corporations) and s 6 (which applies the ACL to other persons who are not corporations).
3. Section 131 of the Competition and Consumer Act 2010 (Cth) relevantly states in Div 2 Subdiv A of Part XI[42] of that Commonwealth Act:[43]

Division 2 - Application of the Australian Consumer Law as a law of the Commonwealth

Subdivision A - Application of the Australian Consumer Law

131 Application of the Australian Consumer Law in relation to corporations etc.

(1) Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.[44] (emphasis added)

Note: Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth).

1. As the legislative note to that section makes clear, the ACL also has an extended application as 'a law of the Commonwealth' both under s 5 (to conduct outside Australia[45]) and under s 6 (to persons who are not corporations).
2. Section 6 is relevant to this case because of the claims based on advertising by Facebook (and as I have mentioned conversations in phone calls and the making of the contract through email communications). It is a very long section, but it relevantly states: (emphasis added)
   1. Extended application of this Act to persons who are not corporations

(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

(3) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2 - 1, 2 - 2, 3 - 1 (other than Division 3), 3 - 3, 3 - 4, 4 - 1 (other than Division 3), 4 - 3, 4 - 4 and 5 - 3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:

(a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and

(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.

(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2 - 3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:

(a) those provisions were, by express provision, confined in their operation to contracts for or relating to:

(i) the use of postal, telegraphic or telephonic services; or

(ii) radio or television broadcasts; and

(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.

1. It has been long established by decisions of the Federal Court that telegraphic or telephonic services under the extended application of the Commonwealth Act includes both the telephone service and the internet.
2. Miller's Australian Competition and Consumer Law Annotated, 44th ed (2022) to which I was referred (and which has contained the relevant authorities at various points in time in its earlier paper editions) summarises the authorities:

[CCA 6.60] Concept: postal and telephonic services

Section 6(3)(a) ... extends the operation of the [Commonwealth] Act to conduct involving the use of postal, telegraphic or telephonic services. The expression "postal, telegraphic or telephonic services" extends to conduct involving the use of the internet, see Seafolly Pty Ltd v Madden [2012] FCA 1346; (2012) 297 ALR 337; ATPR 42-424 (Tracey J); ACCC v Jutsen (No 3) [2011] FCA 1352; (2011) 285 ALR 110; 206 FCR 264 (Nicholas J); Abrahams v Biggs [2011] FCA 1475 (Jessup J); Jones v ACCC [2010] FCA 481 (Collier J); ACCC v Hughes [2002] FCA 270; (2002) ATPR 41-863 (Allsop J). As was said in Mason v MWREDC Ltd [2011] FCA 1512 (Greenwood J) email is a communication to a person involving the use of telephonic services for the purposes of s 6(3) of the Act.

As Parliament intended the Act to have the widest application consistent with the limitations on the Commonwealth's constitutional power, the words "telephonic services" are not limited to means of transmitting oral communications but extend to also include official directories published pursuant to the telecommunications legislation, see Snyman v Cooper (1990) 91 ALR 209; 24 FCR 433; (1990) ATPR 40-993.[46]

1. In many cases, including this one, there thus is a choice of Commonwealth law and Victorian law readily available where advertising occurs on the internet or contracts are made for the supply of goods or services with the use of cellular or internet services (such as text messaging, apps and emails).

1. As I have mentioned, the 'text' of the ACL contained in Sch 2 of that Commonwealth Act and its regulations, is also enacted by the Parliament of Victoria as a law of the State of Victoria pursuant to the ACLFTA.
2. The relevant sections of the ACLFTA which enact and apply the ACL as a Victorian law are sections 7 to 12.
3. Sections 7, 8, and 12 of the Victorian Act relevantly state:
   1. The Australian Consumer Law text

The Australian Consumer Law text consists of -

(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and

(b) the regulations under section 139G of that Act.

(1) The Australian Consumer Law text, as in force from time to time -

(a) applies as a law of this jurisdiction; and

(b) as so applying may be referred to as the Australian Consumer Law (Victoria); and

(c) as so applying is a part of this Act.

(2) This section has effect subject to sections 9, 10 and 11.

(1) The Australian Consumer Law (Victoria) applies to and in relation to -

(a) persons carrying on business within this jurisdiction; or

(b) bodies corporate incorporated or registered under the law of this jurisdiction; or

(c) persons ordinarily resident in this jurisdiction; or

(d) persons otherwise connected with this jurisdiction.

(2) Subject to subsection (1), the Australian Consumer Law (Victoria) extends to conduct, and other acts, matters or things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

1. In s 12 of the ACLFTA, a 'person' - as defined by the Interpretation of Legislation Act 1984 (Vic) s 38 - includes a natural person and a company.[47]
2. However, as I have said, when interpreting the text of the ACL, s 11 of the ACLFTA requires recourse to the Acts Interpretation Act 1901 (Cth) which, like the ACL itself, is enacted as Victorian law for that purpose.[48]
3. As can be seen under the ACFLTA:

(a) the 'Australian Consumer Law text, as in force from time to time' applying as a law of Victoria under s 8(1)(a) 'may be' referred to as the 'Australian Consumer Law (Victoria)': s 8(1)(b); and

(b) as so applying it 'is part of the' ACLFTA: s 8(1)(c).

1. Thus, the ACLFTA contemplates that reference to the ACL as a Victorian law can be made clear by using the nomenclature 'Australian Consumer Law (Victoria)'.
2. However, a reference to the 'Australian Consumer Law' generally embraces the ACL as a law of any Australian jurisdiction, Commonwealth, state or territory. That is made clear by s 13 of the ACLFTA which provides:

(1) A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.[49]

(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

1. Under s 6 of the ACLFTA, an 'instrument' means 'any document whatever', and includes pleadings in a legal proceeding.[50]
2. Thus, both her interstate lawyer's letter of demand before action and her original Points of Claim (to which I will return shortly) are an 'instrument' for the purposes of the ACLFTA.
3. This is the federal jurisdictional conundrum created by not clearly asserting rights under the uniform laws of the ACL, and to which Justice McDonald is referring in D'Angelo at [20].
4. I now turn to why I have formed my opinion based on these principles.

1. As I have mentioned Ashton had been advertised for sale on Facebook by Ms Moody and her mother Ms Hocking. Ms Brooks alleges that in responding to Ms Moody's Facebook post, and before agreeing to buy Ashton, she had other conversations with Ms Moody about Ashton's suitability over the phone, and then face to face with Ms Moody and Ms Hocking when she went to inspect Ashton with her coach, Ms Clare Porz. The contract to purchase Ashton between Ms Brooks and Ms Moody was made by email, phone call and return email - when the price was negotiated, delivery time agreed and the written contract signed and exchanged - before Ms Brooks took possession of the horse from Ms Hocking's property in Victoria after paying the price by electronic funds transfer.
2. After she took delivery of Ashton, Ms Brooks claims that it became apparent that the animal did not have the characteristics allegedly represented to her and on which she relied, and that the animal was an unsuitable horse for her purposes allegedly made known to the respondents.
3. In her evidence at the jurisdictional hearing, she said she approached her cousin by marriage, who practises in a law firm in New South Wales, to assist her with what to do about her legal problem. She instructed him to write a letter of demand, which she confirmed she read and authorised him to send.

1. That solicitor's letter of demand is dated 13 October 2023. It was sent to Ms Moody by Ms Brooks's lawyers in Granville NSW, on the letterhead of that interstate law firm.
2. That letter of demand before action alleges the following material facts as founding the basis of both common law and statutory claims under the ACL:

Since purchasing Ashton our Client and other trained professionals have formed the view that Ashton is dangerous to ride and does not meet the description provided to her by you verbally and in the [Facebook] advertisement. Since Ashton arrived at our Client's property, he has been continuously demonstrating an unstable sense and temperament ... This includes bucking rearing and spinning and slamming down on his front legs until our Client was thrown off, and subsequently performing the same behaviours on a professional trainer our Client hired ... Ashton's behaviour also includes throwing his head wildly during many rides, flinging his head backwards and upwards towards the rider, pulling the reins and preventing the rider from controlling him. This occurs on a regular basis.

When our Client and her grooms have been leading Ashton he also would have intermittent explosions, rearing and bucking particularly being led into the stable in the evenings therefore handling the horse on the lead is also dangerous.

Ashton was sold as a medium/advanced dressage horse, as per the Representations made by you as an experienced expert in this field, but we are instructed that the horse cannot complete basic transitions and novice work without behavioural issues. The behaviour issues are extremely unpredictable and dangerous both when riding and handling the horse.

1. The letter of demand then described the statutory causes of action relied on in the following way: (emphasis added)

... due to the nature of your profession and professional practices, the sale of Ashton to our Client was sold in trade and commerce for which you are deemed to be a Supplier our Client would otherwise be deemed to be a Consumer and afforded protection as such. In this regard, the sale of Ashton was the subject of numerous provisions incorporated into the ACL through the Competition & Consumer Act 2010 (Clth) which have been breached by the making of such Representations, including section 29 of the ACL which states that:

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

Given the Representations made by you, which were false, you are in breach of section 29 of the ACL and our client is entitled to compensation for her loss and damages as a result of the same.

As a Consumer afforded protection under the ACL, our Client is further entitled to rely on the following implied warranties that have otherwise been breached by you in respect to the sale of Ashton being:

1. That the goods would match the description provided;
2. That the goods will be of acceptable quality, except where there has been prior disclosure of defects or where the defects were caused by the consumer or where prior examination ought to have revealed the defects.
3. That the goods will be fit for any purpose disclosed to the consumer or represented by the supplier, except where the consumer did not, or it was unreasonable for the consumer to rely on the skill or judgment of the supplier.

Given the matters outlined in this letter it is clear that the implied warranties[51] afforded to our client in respect to the ACL have been breached and our client is entitled to compensation for her loss and damages as a result of the same.

1. The letter of demand sought that Ashton be taken back by Ms Moody and that she refund the purchase price and pay compensation for expenses incurred by Ms Brooks in alleged reliance on the impugned representations, including her costs of looking after the horse since being in her possession. It concluded: (emphasis added)

We are instructed that if this matter is not adequately resolved within 14 days of the date of this letter to commence legal proceedings against you to recover the monies claimed. If this becomes necessary we will be relying upon this letter in seeking that legal costs arising from such proceedings be paid by you on an indemnity basis, on top of the monies claimed by our Client. Our Client would hope that this would not be necessary.

1. As I have mentioned, no indication was given by the New South Wales solicitors, one way or the other, as to the forum in which legal proceedings would be commenced by the firm if Ms Brooks's demand was not satisfied.
2. Under the ACLFTA s 13(1) - which, as I have said, provides that 'A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions' - the letter could potentially be construed as a reliance on Commonwealth law or Victorian law or both.
3. The letter before action was necessarily sent before any final decision had been made to commence legal proceedings in this Tribunal in Victoria.
4. Therefore, based on the text and context of that letter, including the letterhead from where it was posted in New South Wales, it is altogether quite equivocal whether Ms Brooks was asserting rights in her solicitor's letter based solely on Victorian law or under Commonwealth law.
5. Had Ms Brooks's New South Wales solicitors acted on the instructions they said they held to commence legal proceedings if the demand was not met, there is no doubt that if they had been commenced in a federal court registry in New South Wales, that court would have had jurisdiction and could have applied both Commonwealth law and state law under its doctrine of 'associated' (or accrued) jurisdiction.[52]
6. There is nothing in that letter of demand before action to show, within the meaning of s 13(2) of the ACLFTA that a 'contrary intention appears in the instrument' or that the 'context of the reference [to the Australian Consumer Law] otherwise requires'.

1. On 7 March 2023 Ms Brooks commenced her proceeding in VCAT using an online application form. In it she answered questions about the transaction and the problem with the good or service she had been supplied and the remedy she sought. VCAT's online application form for a goods or services dispute does not require an applicant to specify the specific law or provision they are seeking relief under but does describe remedies and causes of action with thematic descriptions.[53] Despite her solicitor's earlier letter of demand, nowhere in her description of her claims did she refer to any source of law or particular law.

CONTEXT OF VCAT'S JURISDICTION OVER THIS DISPUTE

1. In this case the enabling enactment under which VCAT would have had jurisdiction is the ACLFTA which (unless the matter is in federal jurisdiction) confers on VCAT 'original jurisdiction' of two different types:

(a) Section 184(1) gives VCAT jurisdiction to hear and determine a 'consumer and trader dispute', as is defined in s 182. In essence it is any dispute about the supply or possible supply of goods or services. It does not require that goods or services be sold or delivered in trade or commerce and extends to any transaction for the supply or possible supply of goods or services whatever may be the basis of legal claim (i.e. 'cause of action') under Victorian statutory law or common law or equitable principle.

(b) Section 224 gives VCAT jurisdiction to hear and determine any 'cause of action' under the Australian Consumer Law (Victoria). As I have discussed, the Australian Consumer Law (Victoria) is enacted by the Parliament of Victoria as a Victorian law by s 8 of the ACLFTA.

1. Those sections provide (as relevant to this case, with emphasis added):
   1. What is a consumer and trader dispute?

(1) In this Chapter a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.

1. Settlement of consumer and trader disputes or small claims

(1) VCAT may hear and determine a consumer and trader dispute.

Subject to section 223, VCAT or any court of competent jurisdiction may hear and determine a cause of action arising under any provision of the Australian Consumer Law (Victoria).

1. A horse is a 'good' within the meaning of both s 182 of the ACLFTA and the provisions of the Australian Consumer Law (Victoria).[54]
2. When exercising the original jurisdiction conferred by either s 184 or s 224 of the ACLFTA, VCAT exercises the judicial power of the State of Victoria.[55]

1. Almost 2 years later, in early 2025 Ms Brooks filed Points of Claim.
2. She gave evidence that having engaged Horn Legal just prior to the first directions hearing in November 2024, she had prepared the original Points of Claim with the assistance of her solicitor. As her solicitor, Horn Legal then filed the document for her on 4 February 2025.
3. Ms Brooks said they had 'worked together on it' and Mr Horn, appearing at the jurisdictional hearing, properly accepted that was correct.
4. There can be no dispute that it is a legally prepared document. Although not signed by Mr Horn, it was filed by his firm as a legal document for use in litigation in which his firm was acting.
5. Mr Mackinnon in his colourful submissions submitted that there had clearly been legal consideration and forethought given to the drafting of the Points of Claim - they were not 'slapdash'. Mr Horn accepted that there had been legal consideration given to them, although, as I shall come to, he also submitted that they could have been framed better.
6. It is unnecessary to set out the original Points of Claim in full. It is a lengthy document divided into the following sections, to which I have added in square brackets some details and dates and description of what was expressly alleged as the source of law relied on:

D The Inspections (First and Second) [10 and 14 March 2023]

F The Agreement to Purchase (Sale) [16 March 2023]

G Behavioural issues with Ashton and Attempted Solutions [20 March - July 2023]

H August 2023 - Ashton's Full Time Training with JF Equine [August 2023]

I Ashton Bucked off Ms Fleming Causing Her to Fall [5 September 2023]

J The Applicant's Request to Return Ashton to the First Respondent [5 September 2023]

K Collection of Ashton from Ms Fleming [11 September 2023]

L Discovery of Ashton's Bucking Behaviour Prior to Sale [11 September 2023]

[para 66 - 70 referring to 'Competition and Consumer Act 2010 - Schedule 2 - Sections 18, 21, 29, 54 - 56]

[para 71 alleging the Second Respondent was 'involved' (as defined) [56] in 'a contravention of a provision of [the] Schedule or in conduct that constitutes such a contravention' damages]

[para 72 alleging that the second respondent 'was involved in the contravention and has accessorial liability to the first respondent's contraventions and stating 'The supporting legislation - Competition and Consumer Act 2010 - s 236 damages'[57]].

AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012

[para 73 - alleging negligent misrepresentation and referring to 'Supporting legislation AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 - SECT 182 and 184']

[para 74 alleging reckless and/or fraudulent misrepresentations and referring to 'Supporting legislation AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 - SECT 182 and 184']

[para 75 alleging the second respondent was involved with the misrepresentations referring back to the particulars of para 71]

[par 76 alleging the second respondent has accessorial liability 'as per AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 - SECT 217 Actions for damages as a person 'involved in the contravention']

1. The document concludes with an assertion of what the applicant asks the VCAT to find on Ms Brooks's claim against each respondent:

78. The Applicant respectfully requests the Tribunal to:

a) Find the First Respondent liable for contraventions of Competition and Consumer Act 2010

b) Find the Second Respondent liable for involvement in those contraventions.

c) Find the First Respondent liable for contraventions of AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012

d) Find the Second Respondent liable for involvement in those contraventions.

79. Remedies respectfully requested by the Applicant

a) Order the return of APH Ashton to the Respondents, the Respondents to arrange collection within 30 days.

b) Award full reimbursement of purchase and related costs, totalling $81,304.99 c) Reserve any upkeep costs (Veterinary, farrier, etc) that have been incurred caring for Ashton during the duration of the legal proceedings.

1. Mr Mackinnon, of Horseforce Legal solicitors, appearing for Ms Moody and Ms Hocking at the jurisdictional hearing, submitted that the allegation at para 78(a) and (c) were akin to alternative 'prayers for relief', like a pleading.
2. In his written submissions he put it this way:
   1. In her original Points of Claim ... comprising 24 pages ... the Applicant seeks statutory remedies arising from purchase of a horse from the First Respondent.
   2. The Applicant refers to:
      1. "Competition and Consumer Act 2010 - Schedule 2" in combination with enumerated sections preceding or succeeding this reference
      2. "Competition and Consumer Act 2010" immediately followed by enumerated sections; and
      3. "Competition and Consumer Act 2010" standing alone -

but nowhere refers explicitly to the 'Australian Consumer Law' or the 'Australian Consumer Law (Victoria)'.

1. Significantly, at paragraph 78 of her Points of Claim, the Applicant requests the VCAT to find the First Respondent "liable for contraventions of the Competition and Consumer Act 2010 (Cth)" and the Second Respondent liable for involvement in those contraventions and then "further or in the alternative" requests the VCAT to find the First Respondent liable for contraventions of the "Australian Consumer Law and Fair Trading Act 2012 (Vic))" and the Second Respondent liable for involvement in those contraventions.

1. Whether the Australian Consumer law applying as a law of the Commonwealth or as a law of Victoria is called upon in the Points of Claim requires an objective assessment - Agtrack's case. It is unnecessary to inquire beyond the Applicant's pleading for this assessment to be made. The VCAT must be satisfied that it has jurisdiction.
2. The Respondents submit that objectively, the VCAT cannot be so satisfied. The Applicant invoked Federal consumer law and the justiciable matter therefore attracts Federal jurisdiction. Whether or not the Applicant intended to reference and invoke the Australian Consumer Law being the Victorian enactment of the Australian Consumer Law and not its Federal counterpart is irrelevant on an objective assessment. That she intended to do so is apparent from the nature of her amendments in the Amended Points of Claim.[58]

1. In the Respondents' third party proceeding (C692/2025), they explicitly raise Federal and State Consumer law claims under the Competition and Consumer Act (Cth) 2010 and the Australian Consumer Law (Victoria) respectively. Accordingly, an issue of Federal jurisdiction is raised due to the invocation of various statutory provisions under the Commonwealth law; and by reason of the interconnectedness of the 2 proceedings, the entire matter has become one in Federal jurisdiction.
2. Should the VCAT determine to strike out and transfer the proceedings to a court invested with federal jurisdiction, the Respondents submit the proceedings should be referred to the Magistrates Court of Victoria on the basis that the Applicant's quantum remains below its monetary threshold of $100,000.
3. Mr Horn solicitor, of Horn Legal, appearing for Ms Brooks, submitted that para 78 of the original Points of Claim should not be interpreted as a prayer for relief, but rather as a 'conclusionary summary' of what had come before.
4. He submitted that para 78 did not expand upon what came before, and when the original Points of Claim were read in their structural textual context there had been a juxtaposition between statutory claims and common law claims. He submitted that the common law claims were picked up by the Tribunal's 'consumer and trader' jurisdiction under s 184 of the ACLFTA, and that was what that 'alternative' claim could be interpreted as referring to, with the reference to the 'Competition and Consumer Act 2010' used in that preceding structural context to identify the statutory claims available under Victorian law.
5. In his written submissions he submitted that in D'Angelo, Justice McDonald held that Sch 2 of the Competition and Consumer Act 2010 (Cth) 'is the Australian Consumer Law (ACL)'[59] and continued:
   1. ...The Applicant refers to 'The Competition and Consumer Act 2010 - Schedule 2' at paragraphs 66, 67, 68, 69, 70 and 'The Competition and Consumer Act 2010 s 236' in paragraph 72. Only at paragraphs 71 and 78 are the references to Schedule 2 dropped but it is clear from the context that this is merely for descriptive convenience and that no new or distinct legislative regime is being called upon.
   2. The Commonwealth ("Cth") designation is omitted in the Applicant's Points of Claim; this was not the case in D'Angelo, where D'Angelo's Points of Claim specifically used the (Cth) abbreviation. The (Cth) omission adds weight to the argument that the Applicant did not invoke federal law, and the Applicant's reliance was on the ACL as a law in Victoria.
   3. The Applicant concedes the law relied upon, the ACL as Victorian Law, could have been better described before she was granted leave to amend her Claim. It is contended that the Application's [sic] error was only to be imprecise in citation about the ACL, which applies as both a law of the Commonwealth and a law of Victoria, and at all times the context illuminates the law relied upon. It is that imprecision which undermines the current claim that the Applicant "invoked" federal law - the Commonwealth law is not called upon by default, in fact the reverse [is] true and the Australian Consumer Law and Fair Trading Act 2012 (Vic), section 13 says;

"(1) A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.

(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires"

1. The Applicant sought to cure the confusion, and leave to file Amended Points of Claim was granted by [a] Senior Member ... on 18 June 2025, without objection from the Respondents. The Amended Points of Claim merely add the words "The Australian Consumer Law (Victoria)" after the phrase "The Competition and Consumer Act 2010 Schedule 2" in the paragraphs impugned by the Respondents above. They were simple clarifying amendments, not new or changed references.
2. The Respondents rightly say (at paragraph 7) that whether the Australian Consumer Law applying as the law of the Commonwealth or as a law of Victoria is called upon requires an objective assessment (Agtrack's case). The Respondents then put forth a further [proposition] without authority: "It is unnecessary to inquire beyond the Applicant's pleading for this assessment to be made".
3. This assertion, by the Respondents, is at odds with the approach taken by Member Curie in D'Angelo, which Justice MacDonald specifically endorsed in D'Angelo (see paras 20-22). D'Angelo records Member Curie's original considerations in the VCAT claim for lack of jurisdiction, in terms directly apposite to the Applicant's claim. As quoted in D'Angelo (para 21), he found inter alia:

"(i) the pleadings disclose a law applicable to the state of Victoria, being: 's 18 sch 2 of the Competition and Consumer Act 2010 (Cth)' (ACL);

(ii) no other commonwealth [sic] legislation is disclosed;

(iii) the applicant's [sic] commenced a proceeding in the Victorian Civil and Administrative Tribunal (VCAT);

(xi) the ACL has been pleaded by the applicants to invoke the Tribunal's jurisdiction."

1. The Respondents' reliance on their third-party claim (C692/2025) to "federalise" the proceeding should be rejected. A contribution claim under Part IV of the Wrongs Act 1958 (Vic) cannot convert a state consumer-sale dispute into a federal one, when it relies on the same ACL matters as the initial claim and VCAT has jurisdiction to hear contribution claims following the Justice Legislation Amendment Act 2023 (Vic).
   1. It can be added in relation to the current dispute that all parties (including the Respondent (Porz) to the third-party claim) are domiciled in Victoria, that the subject matter is a Victorian chattel (a horse call[ed] Ashton currently subsisting in a Victorian paddock). In fact, there are no federal or interstate aspects to the case at all. This is an ordinary consumer dispute that would be typically heard in the Civil Claims List of VCAT.

1. I accept Mr Mackinnon's submissions. On an objective assessment, the 'matter' in these proceedings has fallen into federal jurisdiction, considering the context of how the allegations were asserted in the original Points of Claim, the subject matter of this dispute and the clear choice of statutory law - both Commonwealth and Victorian - available for its legal resolution according to law.
2. The juxtaposition in para 78, when objectively construed in the context of what comes before in the original Points of Claim, cannot have the meaning that Mr Horn contends it does.
3. Mr Horn concedes that the law that was intended to be relied on could have been better described. But as I have said - and as he concedes in his submissions - what might have been subjectively intended is irrelevant.
4. I accept Mr Horn's written submission in para 5 but otherwise reject his jurisdictional submissions, that objectively construed, only rights under Victorian law have been asserted.
5. In his oral submissions, Mr Horn submitted that because there are no federal or interstate aspects to the case at all, one could objectively construe the allegations made by Ms Brooks in her original Points of Claim as only relying on Victorian law not Commonwealth law. He again pointed to the facts that:

(a) her application in this proceeding was brought before VCAT in Victoria;

(b) her later amendments to the Points of Claim made it explicit that Victorian not Commonwealth law was relied on;

(c) all the parties are domiciled in Victoria;

(d) Ashton the horse is a Victorian chattel;

(e) the contract was exchanged in Victoria and performed in Victoria;

(f) the dispute is between natural persons.

1. All these facts may be true. But it is also true that the actual language in which Ms Brooks expressed her original Points of Claim did not refer to the ACL or the Australian Consumer Law but simply Sch 2 of the Competition and Consumer Act 2010 - the Commonwealth Act. And as I have already said, it juxtaposed claims in the manner expressly alleged in para 78. It is simply not to the point that there might be no 'interstate elements' to the transaction or the parties to it. Ms Brooks made an express assertion of rights under a law which applies federally throughout each State and Territory of the Commonwealth of Australia according to its application provisions to which I have referred.
2. It is impossible not to read that objectively other than as expressly alleged. Indeed, at one level there is no ambiguity on the face of the express allegations at all. That is the 'literal' point made by Mr Mackinnon his written submission at para 7. In his oral submissions he put it this way: The ACL is both a Commonwealth and state law. But plainly read, without embellishment, the express assertions made in the original Points of claim refer to Commonwealth law. While under the ACLFTA the ACL may be referred to as the 'Australian Consumer Law (Victoria), that is not the case here. As he said: 'Ms Brooks has not referred to the ACL at all'.

1. This case is quite different from D'Angelo where the present textual juxtaposition was not present and there was, in fact, express reference to the 'ACL'. The reference to Sch 2 could readily be interpreted as a reference to its text, where the ACL was asserted in that context within the broader context of the subject matter of that particular transaction and dispute about building work.
2. In this case, I am simply unable to objectively read the relief sought by para 78 as a 'conclusionary summary' in the manner submitted by Mr Horn.
3. It does not make sense to do so on a natural reading of the words that expressly assert there should be findings of liability 'for contraventions of Competition and Consumer Act 2010' and 'Further or in the Alternative', 'for contraventions of AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012'. To do so would make the first assertion of liability for contraventions based on the Commonwealth Act a redundant assertion. The language of 'contravention' of each Act, objectively construed, is directed to the source of law under which liability is asserted, not its content.
4. I can only read that as an alternate basis to ground each claim, not a conclusionary statement, despite the original Points of Claim having been filed in a Tribunal proceeding.
5. Recognising, as Mr Horn pressed me to do, that the original Points of Claim were filed in a Tribunal proceeding that was on foot, where when reading a 'pleading' or similar document filed in an on foot proceeding one might objectively assume that a party or their legal representative would only assert legal rights over which this Tribunal does have jurisdiction, I have (as far as I apprehend the doctrine of federal jurisdiction permits me to do) considered every construction that might displace the objective construction I have reached based on the actual asserted allegations made in the filed and served document.
6. However, even viewed through the contextual window of an 'on foot VCAT proceeding', Ms Brooks's assertion of express reliance on that Commonwealth Act as an alternative to the Victorian Act is not confined to or refined by any reference to Sch 2 of that Commonwealth Act or any specific reference to the ACL.
7. Her use of the express words 'Further or in the Alternative' can only give the objective impression that if, by the express reference to the Victorian ACLFTA, she is indeed asserting reliance on the Australian Consumer Law (Victoria) further or in the alternative, then the earlier reference to the Competition and Consumer Act 2010 (Cth) must be an assertion of reliance on the Commonwealth ACL (having force and effect as a Commonwealth law under that alleged Commonwealth Act).
8. Her choice of language construed objectively in its context, assigns her alternative assertions of 'contravention' to two separate legal pigeon-holes: the first to a contravention of the Commonwealth ACL, the second 'further or alternative' assertion to a contravention of the Australian Consumer Law (Victoria).
9. That is also the point of distinction to which Justice McDonald is referring in D'Angelo at [20].

Did the third party claim attempt to federalise the proceeding?

1. In their third party claim, Ms Moody and Ms Hocking seek contribution against Ms Porz, pleading that she had a separate statutory duty under the Commonwealth and Victorian laws to Ms Brooks.
2. Mr Horn's submitted that Mr Mackinnon's written submission about that contribution claim was to attempt to improperly 'federalise' the matter.
3. I reject Mr Horn's submission.

1. I need to briefly explain the nature of a cause of action for 'contribution' under Part IV of the Wrongs Act 1958 (Vic) ('Wrongs Act').
2. In a given case, that statutory right to claim contribution and the liability to pay it, can arise under another statute, at common law or in equity. The statutory cause of action of contribution allows one wrongdoer to recover compensation or indemnity from another wrongdoer for liability each has to someone else who has suffered legally compensable damage.

Wrongs Act, Part IV - Contribution

1. The Wrongs Act contains Part IV - Contribution. The relevant sections are s 23A and s 23B.[60]
2. Section 23A, defines what is meant by the expression 'a person liable in respect of any damage' twice appearing in s 23B to refer to different wrongdoers who might make contribution claims against the other for their liability to the person who has suffered the damage.
3. Relevantly it states:

(1) For the purposes of this Part a person is liable in respect of any damage if the person who suffered that damage, ... , is entitled to recover compensation from the first-mentioned person in respect of that damage whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise.

1. Section s 23B creates a statutory cause of action between wrongdoers liable in respect of the 'same damage': (my emphasis)

(1) Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).

1. The statutory cause of action under s 23B(1) does not require that the 'other person liable in respect of the same damage' to the person who has suffered the damage is necessarily a tortfeasor. This is clear from the definition in s 23A(1): liability can arise to the plaintiff 'whatever the legal basis of liability, whether tort, breach of contract, breach of trust or otherwise'. Nor does matter whether the wrongdoers making contribution claims between each other are jointly liable to the person who suffered the damage. This is made plain by s 23B(1) itself. What is relevant is whether it is the same damage 'suffered by another person'.[61]

166. Returning to s 23B, ss 23B(3)-(5) limit the circumstances in which a wrongdoer ceases to be liable in respect of the damage; settlements of claims that are amenable to a claim for statutory contribution; and the effect of a judgment.[62] Its last provision, s 23B(6) is relevant to this discussion in providing:

(6) References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage and it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a place outside Victoria.

1. Although this language and the principles of law with which it is dealing is complex, its availability as a cause of action is well established.
2. Balkin and Davis, Law of Torts (in their June 1996, 2nd edition), discussing the principles from the perspective of that area of 'Multiple Tortfeasors',[63] relevantly summarise the practical effect of these sections:[64]

Legislation in each of the [State and Territory] jurisdictions[65] allows one concurrent tortfeasor (whether joint or several) to recover from the others contribution towards the amount paid to the plaintiff;[66] such contribution may in some circumstances amount to a full indemnity.

In all jurisdictions other than Victoria, the legislation only applies when all the persons who might be liable to the plaintiff are so liable in tort, as distinct, say, from liability for breach of contract [or breach of trust].[67]

Contribution may be claimed only from one who has caused the plaintiff the 'same damage' as that brought about by the claimant; that is, in general, D1 and D2 must be joint, or several concurrent tortfeasors.[68]

(a) Where a defendant seeks contribution against another defendant to the plaintiff's claim, the long established procedure is for a defendant to serve a short-form 'Notice of Contribution'[69] on that other party to the proceeding, setting out the legal basis of liability (whether in negligence, contract, trust, 'or otherwise', as per s 23A(1)).[70]

(b) Where that other wrongdoer needs to be joined as a party to the proceeding, for a defendant to bring their contribution claim against that third person, it is done by 'Claim by third party notice',[71] a form of initiating process like a writ.

1. VCAT has original jurisdiction to hear and determine legal claims under many enabling enactments that span many types of civil dispute. In the different practice areas of the Tribunal, VCAT's procedures follow a similar approach adapted to the case-type.[72]
2. In this matter, in their third party claim brought against Ms Porz seeking contribution from her for any liability 'in respect of any damage' they have to Ms Brooks in proceeding C1126/2024, the manner in which they assert their cause of action for contribution in proceeding C692/2025 against Ms Porz, on each alleged 'legal basis of liability' describes the legal basis of liability for contribution - whether in negligence, contract, trust, 'or otherwise' - as per s 23A(1).

Assertions made in third party contribution claim, and parties' submissions

1. I now turn to the cause of action for contribution alleged by Ms Moody and Ms Hocking against Ms Porz under s 23B of the Wrongs Act.
2. In their 'points of third party claim' they allege: (emphasis added)

(a) in para 12, that Ms Porz owed a 'duty of care' to Ms Brooks, both at common law and 'under statute', and that she breached both duties;

(b) in para 15, that:

1. Pursuant to s.61 of the CC Act[73] and s.61 of the Australian Consumer Law (Victoria), Mr Porz guaranteed that her services would be reasonably fit for the [alleged] purposes ...;

(c) in para 17, that:

1. If Ms Brooks recovers any amount from the applicants in VCAT Case No. 1126/2024, then the applicants say that Ms Porz is jointly and severally liable to make contribution to Ms Brooks pursuant to s.23B Wrongs Act 1958 (Vic) and at common law and in equity in respect of any such amount in such proportion as to the Tribunal seems fit.

1. Mr Mackinnon's written submissions about that third party claim, like his oral submissions at the hearing, are direct and to the point. While he does not descend into any detail about how the law of contribution itself operates, he is correct in the broad manner in which he summarises its effect.
2. As he submits to support his clients' claims for contribution under the Wrongs Act:

In the Respondents' third party proceeding (C692/2025), they explicitly raise Federal and State Consumer law claims under the Competition and Consumer Act (Cth) 2010 and the Australian Consumer Law (Victoria) respectively.

1. I agree. They do. And they were entitled to do so.
2. I reject Mr Horn's submission that to do that was to attempt to improperly 'federalise' the claim.
3. Just as Ms Brooks had a choice of law and had made that choice in her own original Points of Claim by making assertions of right under both the Competition and Consumer Act 2010 (Cth) and alternatively, the ACLFTA, so did Ms Moody and Ms Hocking in asserting the laws on which they selected to found their claims of entitlement to contribution from Ms Porz.
4. It was open to them to rely on an alleged breach of state or federal[74] consumer laws causing the 'same damage' in support of their claim for contribution against Ms Porz under s 23B of the Wrongs Act.
5. Based on the context of the primary claim that Ms Brooks makes against Ms Moody and Ms Hocking for 'damage suffered', I do not characterise the alleged basis of their third party claim for contribution against Ms Porz in the way Mr Horn submits, as being an attempt to 'federalise' the case.
6. Under the authorities on federal jurisdiction, an allegation not 'genuinely raised' so as to 'fabricate' federal jurisdiction is described a 'claim or defence raised colourably' and does not invoke federal jurisdiction.[75]
7. In this case, the third party claim can hardly have that character. Nor can it be fairly seen to have been done with that intention or for that impermissible purpose.
8. Rather, that the respondents' third party claim was asserted in the manner it was, points the other way.
9. The respondents' were faced with the difficulty of compendiously responding to the ambiguous drafting of Ms Brooks's original Points of Claim, and in particular para 78, that had asserted 'alternative' liability against them under both Commonwealth and Victorian legislation.
10. It is entirely unsurprising that in responding to those alternative claims put against them, that the respondents' solicitors framed their clients' contribution claims against Ms Porz on a similarly alternative basis in the third party proceeding commenced against her.[76]
11. Whether it was necessary for them to do that, is not the issue. Nor is it relevant whether those third party claims might be likely or unlikely to succeed on their merits. They are clearly not 'incapable on their face of legal argument', which is the federal jurisdictional test that the High Court confirmed in Citta Hobart.[77] Nor are the third party claims incapable of 'coherent legal argument', which was another way the low bar of arguability in federal jurisdictional assessment has recently been set by the Court of Appeal in Dawn v Carlisle.[78]
12. The third party claim therefore also raises a matter in federal jurisdiction under s 76(ii) of the Commonwealth Constitution.
13. In any event, as I have discussed earlier, the federal jurisdictional horse had already bolted. The single justiciable controversy between all the actual and to-be-added third parties to the legal dispute was already a 'matter' in federal jurisdiction under s 76(ii) of the Commonwealth Constitution because of the allegations already asserted in Ms Brooks's original Points of Claim filed in February 2025.

What is the effect of the Justice Legislation Amendment Act 2023 (Vic)?

1. The second element of Mr Horn's written submission seeking to bolster his submission about the third party claim not being able to 'federalise' the matter was as follows:

A contribution claim under Part IV of the Wrongs Act 1958 (Vic) cannot convert a state consumer-sale dispute into a federal one, when it relies on the same ACL matters as the initial claim and VCAT has jurisdiction to hear contribution claims following the Justice Legislation Amendment Act 2023 (Vic).

1. Respectfully, that part of his submission is misplaced.

(a) As to the first part of it - about a claim that 'relies on the same ACL matters as the initial claim' - I have already explained that under the Wrongs Act a claim for contribution against another party can rely on a variety of 'legal bases of liability' from different sources.[79]

(b) Dealing with the second, the 2023 amendments to the Wrongs Act do not have the effect of giving VCAT jurisdiction over a matter that is in federal jurisdiction.

1. The legislative background to those 2023 amendments was to respond to an earlier, unrelated, decision shortly after Thurin v Krongold that had judicially construed the Victorian Wrongs Act Part IV provisions as not conferring any authority on this Tribunal to hear and determine a contribution claim brought because of the use of the word 'court' in Part IV of the Wrongs Act then in force.
2. The issue had been alluded to in Thurin v Krongold when in a joint judgment the Victorian Court of Appeal raised the issue in this passage explaining the difference between a cause of action of contribution and the defence of proportionate liability, at [28]-[35]:[80]

Wrongs Act provisions

[28] Both apportionment of damages and claims for contribution are dealt with by the Wrongs Act.

[29] Part IVAA addresses proportionate liability. In short, in any proceeding involving an 'apportionable claim', the liability of a defendant who is a 'concurrent wrongdoer' in relation to that claim is limited to an amount reflecting that defendant's proportionate responsibility for the relevant loss or damage.[5] For these purposes, an 'apportionable claim' is relevantly[81] a claim for economic loss or damage to property in an action for damages arising from a failure to take reasonable care;[6] and 'concurrent wrongdoers' are persons whose acts or omissions caused the loss or damage in question.[7]

[30] The degree of apportionment is that which the court considers just, having regard to the extent of the defendant's responsibility for the loss or damage.[8] The court may give leave for concurrent wrongdoers to be joined as defendants.[9] It must not have regard to the comparative responsibility of any person who is not a party to the proceeding unless that person is not a party because they are dead, or are a corporation that has been wound up.[10]

[31] For the purposes of pt IVAA, 'court' includes a tribunal.[11]

[32] If a defendant has judgment given against them as a concurrent wrongdoer, that defendant cannot be required to contribute to the damages recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim.[12]

[33] Part IV deals with contribution. Section 23B(1) provides that a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage. By s 24(2), the amount of contribution is the amount found by the court or jury to be just and equitable having regard to the extent of the person's responsibility for the damage. The word 'court' is not defined in pt IV, raising the possibility that VCAT lacks jurisdiction to determine claims for contribution under pt IV.[13]

[34] It can be seen that apportionment and contribution are alternative ways for a defendant to reduce their liability by identifying other wrongdoers who have contributed to the loss or damage in question. Apportionment under pt IVAA operates by reducing the defendant's liability to reflect their proportionate responsibility. This generally requires joining the other wrongdoers as defendants. It is clear that apportionment claims may be made in VCAT.

[35] Contribution under pt IV operates, not by reducing the defendant's liability to the plaintiff, but by requiring the other wrongdoers to make payment to the defendant. It is in the nature of a third party proceeding. Contribution claims may be made in a court, and the Court was informed that they are frequently made in VCAT (as in this case), notwithstanding that pt IV does not contain a definition of the word 'court'.

1. What followed shortly after was a decision by a Justice of the Supreme Court sitting as Vice President of the Tribunal, which found that VCAT was not a 'court' within the meaning of pt IV of the Wrongs Act.[82] An amendment then became necessary to ensure VCAT clearly had that jurisdiction.
2. Thus the sole reason for, and effect of, those 2023 legislative amendments by the Victorian Parliament was to clarify that VCAT is a 'court' for the purposes of that Wrongs Act so that it does clearly have jurisdiction (authority) to hear and determine a cause of action for contribution in any application made under Part IV brought in a proceeding before VCAT (in any matter in which it can exercise its original jurisdiction under an enabling enactment).[83]
3. Returning to Mr Horn's submission, the amendments made by Part 10 Div 2 of the Justice Legislation Amendment Act 2023 (Vic) to specifically address VCAT's jurisdiction over 'contribution' claims under Part IV, were neither directed to federal jurisdiction (which they could not possibly be) nor were they concerned the substantive law of contribution itself:[84]

(a) As to the substantive law of contribution, under Part IV of the Wrongs Act, before and after its 2023 amendments, s 23A has been the same. The source of law under which a person might be 'liable in respect of the same damage' within that section, can arise from any source: Commonwealth, State, Territory, common law and equity, or even foreign law.[85]

(b) As to federal jurisdiction, a court that is a Ch III court can hear and determine a contribution claim based on rights available any such statutory source of law, including under Commonwealth law. VCAT cannot. It is not a Ch III court. VCAT can only exercise the judicial power of the State of Victoria not Commonwealth judicial power under Ch III of the Commonwealth Constitution. VCAT cannot hear and determine any matter arising under a law of the Commonwealth.

1. Therefore, it simply does not follow from Mr Horn's submission - namely, that 'VCAT has jurisdiction to hear contribution claims following the Justice Legislation Amendment Act 2023 (Vic)' - that a cause of action of contribution made under the Wrongs Act can give VCAT jurisdiction over a contribution claim that falls into federal jurisdiction under Ch III, s 75 or s 76 of the Commonwealth Constitution, because of the 'subject of the controversy' in the matter or the 'character of the parties' to the matter.[86]

1. While the respondents' defence to the claim against them by Ms Brooks did not feature in the parties' jurisdictional submissions to the Tribunal, for completeness I mention it briefly because it is part of the Tribunal file and part of the 'matter' in these VCAT proceedings. It was filed in response to the original Points of Claim.
2. It, too, raises defences that expressly refer to Sch 2 of the Commonwealth Act rather than specifically the ACL or the Australian Consumer Law (Victoria).
3. In their Points of Defence dated 28 February 2025, all claims are denied by Ms Moody and Ms Hocking. They respond to the specific factual allegations made about Ashton's suitability, and about what they were alleged to have represented and whether they deny or admit it.[87] They also respond expressly to the foundation of the legal claims and their source. Thus:

(d) in para 70 they allege as the foundation to their legal defences: (emphasis added)

(a) the applicant and Ms Porz examined Ashton (including by riding Ashton under the instruction of Ms Porz on both occasions) at the First Inspection and the Second Inspection before the applicant agreed to buy him;

(b) if (which is denied) Ashton was not of an 'acceptable quality', such examinations ought reasonably to have revealed that Ashton had or potentially had, behavioural issues (which are denied) the subject of the applicant's grievances in this proceeding;

(c) by reason of the above, by force of subsection 54(7) of the Competition and Consumer Act 2010 - Schedule 2 (if applicable to the sale which is denied), Ashton is deemed to be of an acceptable quality; and

(d) further, section 55 of the said Act (if applicable) does not apply to the sale of Ashton because the applicant did not rely on, alternatively it was unreasonable for her to rely on, the skill judgement of Natasha or Lisa or either of them and they refer to paragraph 73(b) below;

(e) in para 79 they allege as a further positive defence:

(a) the applicant took possession of Ashton on 17 March 2023;

(b) the applicant allegedly encountered behavioural issues with Ashton from 20 March 2023 onwards during her ongoing riding and handling of Ashton on a daily basis;

(e) the rejection period for Ashton started on 17 March 2023 and ended on 26 April 2023, alternatively, it had expired by 5 September 2023 with the effluxion of time; and

(f) by reason of the above, by force of subsection 262(1) of the Competition and Consumer Act 2010 - Schedule 2 (if applicable to the sale which is denied), the applicant was from 26 April 2023 disentitled under section 259 of the Act to notify Natasha that she rejected Ashton, alternatively, by 5 September 2023 the rejection period had ended.

1. The manner in which these defences are asserted frames them in a way that would cover a statutory cause of action brought against them under Commonwealth law not simply one under Victorian law.

1. Unlike in Thurin v Krongold, no defence was raised, or jurisdictional argument advanced, about whether the claims made in this case by Ms Brooks against Ms Moody and Ms Hocking are subject to the statutory defence of proportionate liability.[88]
2. I mention that briefly only to note that those statutory 'defences' arise under different provisions of Commonwealth and Victorian statutes and to address what might have been entangled in Mr Horn's written submission at para 11 arising from the effect of the decision of the Court of Appeal in Mikkelsen v Li [2023] VSCA 255.
3. I have rejected Mr Horn's submission that 'A contribution claim under Part IV of the Wrongs Act cannot convert a state consumer-sale dispute into a federal one'. As I have said, that is because a contribution claim - like any third party 'claim' - is a cause of action that can potentially be based on a range of different laws when an alleged wrongdoer has been sued and claims contribution from another concurrent wrongdoer.
4. But proportionate liability - as the Court of Appeal made clear in the passage referred to above in Thurin v Krongold - is a statutory defence available as an 'alternative to a defendant to reduce their liability for a claim brought against them' for the loss or damage claimed by the plaintiff/applicant.[89]
5. In Mikkelsen v Li [2023] VSCA 255 at [56], the Court of Appeal held that the defence of 'contributory negligence' cannot be raised under the Competition and Consumer Act 2010 (Cth), as a defence to a claim for breach of the Australian Consumer Law (Victoria) enacted by the ACLFTA. There is no defence of contributory negligence in the ACLFTA. Ferguson CJ, Beach and McLeish JJA held:

[56] Section 137B makes provision for contributory negligence. It has no equivalent in the State ACL Act. It applies where a person 'makes a claim under subsection 236(1) of the Australian Consumer Law' for conduct in contravention of s 18. As indicated, the 'Australian Consumer Law' is relevantly defined as sch 2, as applied under the Commonwealth ACL Act. On that basis, because sch 2 did not apply as a law of the Commonwealth, s 137B had no application to the present case.

(a) The Commonwealth defence of proportionate liability contained in the Competition and Consumer Act 2010 (Cth), Part VIA - Proportionate liability for misleading and deceptive conduct[90] is only a defence to statutory claims made for damages for contravention of section 18 of the Australian Consumer Law in Sch 2 of that Act as a Commonwealth law.[91]

(b) The Victorian defence of proportionate liability contained in the Wrongs Act, PART IVAA--Proportionate Liability, is only a defence to statutory claims made for 'damages for contravention of section 18 of the Australian Consumer Law (Victoria)'.[92]

1. As distinct statutory defences to claims under the ACL as different Commonwealth and State laws, the streams cannot cross. Although the content of the ACL might be exactly the same, they are different defences to different claims under different laws, each having a distinct statutory source.
2. To illustrate this point, if I had found that Ms Brooks's Points of Claim solely relied on a Victorian statutory cause of action under the Australian Consumer Law (Victoria), then it would not have been possible for Ms Moody and Ms Hocking raise a defence available exclusively to cause of action under the ACL as a federal law under the proportionate liability provisions in the Competition and Consumer Act 2010 (Cth) and thereby to bring the 'matter' into federal jurisdiction by raising. Defences under that Commonwealth law cannot be argued as they are only available in response to claims made under the ACL applying as a law of the Commonwealth: see Mikkelsen v Li [2023] VSCA 255 at [56]. While it did not arise in this case, such a defence would be incapable on its face of legal argument.[93]
3. I also mention, for completeness, that the interaction between a cause of action for contribution and the statutory defences of proportionate liability to claims under the Commonwealth and Victorian versions of the ACL is quite different under each distinct Commonwealth and state body of law.[94]

1. On an objective characterisation of the rights asserted by Ms Brooks in her Points of Claim, I am comfortably satisfied that Ms Brooks has asserted reliance on rights arising under Commonwealth law so as to bring the matter in these proceedings - the single justiciable controversy between all the parties - within federal jurisdiction.
2. It was unnecessary at the jurisdictional hearing, or in giving these written reasons, for me to have formed a concluded view, however, about what had been alleged by her former solicitors in their letter sent before action from interstate.
3. As I explained to Ms Brooks who was attending by Zoom at the jurisdictional hearing, as a tribunal of law VCAT must apply the law and cannot assume jurisdiction when it does not have jurisdiction to hear and determine a dispute under its enabling enactments. Nor can parties confer on the Tribunal by agreement such adjudicative jurisdiction that it cannot otherwise exercise.[95] Thus the submission made by Mr Horn at para 8 of his written submissions, that there is some significance to the fact no objection to the amendment to the Points of Claim was raised, goes nowhere.
4. As I have mentioned, as the applicant who brought the dispute before the Tribunal, Ms Brooks has now elected to have the legal case in the two proceedings heard and determined in the Magistrates' Court of Victoria and a referral order has been made under s 77(3) of the VCAT Act.
5. Had I not formed the comfortable opinion that this matter had fallen into federal jurisdiction, I would, in any event, have made the same order striking out the two related proceedings as so likely[96] to engage federal jurisdiction, thus making a Ch III court a 'more appropriate' forum under s 77(1) of the VCAT Act.
6. The considerations discussed by Justice Woodward as President in Plunkett at para [30] also arise in the circumstances of these two proceedings. The risk of VCAT entertaining jurisdiction when real doubt exists in this lengthy case that this matter might, if not inevitably would, engage federal jurisdiction, and in circumstances where parties and their witnesses to be called in 7 day hearing might all be for nought, would have been problematic to say the very least. Mr Mackinnon submitted that for the case not to be referred to a Ch III court where there was such clear uncertainty would be 'inviting calamity on the parties' and that it 'would have been dire to raise it on day one' of the final hearing given all the witnesses and preparation and costs that would have been involved, including parties returning from overseas for the hearing.
7. I agree that it would have been dire to raise it on day 1 of the final hearing and Mr Mackinnon appropriately made the jurisdictional application on behalf of his clients before that time. I accept that the risk and consequence he describes are ones which should properly be avoided in the interests of the administration of justice and the fair and efficient resolution of the matter in this case.

1. At the jurisdictional hearing, in striking out the two VCAT proceedings under s 77(1) of the VCAT Act I reserved the costs of these proceedings generally.
2. I did so at that time because, unlike the case in Plunkett, no referral order had been made at that time. Whether a new case would be commenced by Ms Brooks or a 'referral order' sought under s 77(3) had not been decided by her as she needed to take legal advice about her procedural options.
3. However, I indicated to the parties present at the jurisdictional hearing that the Tribunal would be unlikely to award costs of the proceedings given that VCAT is governed by s 109 of the VCAT Act which requires parties to justify to the Tribunal why a departure should be made from the general statutory rule in s 109(1) that each party is to bear their own costs. I do not know if there had been any offers of settlement under s 112. That understandably, was not mentioned at that hearing.
4. Now that a referral order has been to a Ch III court with federal jurisdiction under s 77(3) of the VCAT Act, like Justice Woodward in Plunkett, I also consider that the question of costs is properly a matter for the Magistrates' Court as the court to which the subject-matter of the two proceedings has now been referred.
5. I also indicated that I would not award costs in connection with the jurisdictional application itself. It was properly brought, albeit late in the piece, and was necessary.
6. As I explained to the parties during the hearing, the Tribunal could only form a jurisdictional opinion after conducting a jurisdictional hearing and receiving written and oral submissions and some short additional evidence as is sometimes required.

[1] FEI is an acronym for Fédération Equestre Internationale (in English, the International Equestrian Federation) which is the international governing body for dressage.

• 'a very attractive, talented, trainable horse';
• 'a very willing and smart horse that is reliable and easy going';
• 'a dressage superstar';
• 'he is super easy to take out anywhere and to handle';

• 'correctly produced and only for sale as the rider is moving overseas to ride'

The Facebook post showing Ashton as 'SOLD' is dated 4 March 2023: p 102 of the exhibits filed in proceeding C1126/2024 and at Points of Claim (POC) [13], Exh 1.

[3] I shall return to those statutory defences.

[4] Email from Mills Oakley dated 3 November 2025, copied to all parties.

[5] Mr Horn also requested written reasons. He did so purportedly under s 117(2) of the VCAT Act. I note that by s 117(1), the Tribunal is not required to give written reasons for its jurisdictional opinions because they are in the nature of an 'interim' order rather one that finally determines the substantive application. This is also implicit in s 117(5) which contemplates 'reasons for findings on material questions of fact', an expression which is inapposite language for a jurisdictional hearing and jurisdictional findings or opinions. As the High Court has explained in the cases I am about to discuss, the nature of an order and decision of a tribunal of law about its jurisdiction over a case is not an exercise of jurisdiction over the application or matter in the proceeding but an 'opinion', albeit one that can be appealed for legal error. Therefore, not just because one party has requested written reasons, but because a case such as this examines a complex jurisdictional issue of general application, it is desirable as I had said to the parties I would do, that the Tribunal give written reasons. I have done so as quickly as the business of the Tribunal has permitted.

[6]At [128]. See also Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129, at 133 [21] (per Kirby J); Citta at [62]-[63] per Edelman J. In Certain Underwriters at Lloyd's Subscribing to Policy Number P0003310PI2016AU0 v Shangri-La Construction Pty Ltd (In liq) [2024] VSC 556 ('Shangri-La') at [26] Justice Garde reiterated that: (my emphasis, citations omitted)

[26] The Tribunal is a creature of statute and its jurisdiction 'derives entirely from statute'.[17] It has no inherent jurisdiction and cannot acquire jurisdiction by conduct or consent of the parties or by a party's waiving or failing to take the jurisdictional point.[18] The 'first duty' of the Tribunal is to identify whether or not it has jurisdiction.[19] The Tribunal has the authority to rule on its own jurisdiction[20] and must not proceed with a matter in which it has no jurisdiction.[21]

[7] Constitutional law cases typically divide the list of matters in s 75 and 76 into matters that fall into federal jurisdiction because of the 'character' or 'subject' of the controversy and those that fall into federal jurisdiction because of the 'character' or 'status' of the parties': Carter v. Egg & Egg Pulp Marketing Board (Vict.) [1942] HCA 30; 66 CLR 557, at 579 (per Latham CJ). See also Thurin v Krongold at [114].

[8] Section 77 empowers the Commonwealth Parliament to pass law investing any court of a state with federal jurisdiction over s 75 and s 76 'matters' and to make the exercise of jurisdiction over such 'matters' exclusive to courts that have been invested with federal jurisdiction: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 ('Burns v Corbett') at [18]. The Commonwealth Parliament did both, by enacting the Judiciary Act 1903 (Cth): Burns v Corbett at [24]-[25].

[9] See Report of the Australian Judicial System Advisory Committee to the Constitutional Commission (22 May 1987) in discussing 'The effects of federation', at 3.17-3.18.

[11] Palmer v Ayres [2017] HCA 5 at [26]-[27].

[12] Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Kiefel CJ, Bell and Keane JJ at [54] and [64]; Gageler J (as the Chief Justice then was) at [1] and [120].

[13] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154.

[14] Provided that the claim or defence is 'genuinely in controversy' and 'not incapable on its face of legal argument': Citta Hobart at [35].

[38] Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 at 262 [32].

[39] Fencott v Muller (1983) 152 CLR 570 at 603 (citing In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265), 608.

[40] LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154 and Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 408.

[41] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 571 [7].

[42] Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 477.

[16] See also Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457, 476 [10] (per Stephen, Mason, Aickin and Wilson JJ):

The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties.

[17] Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 ('Hanssen') at [7], [103]. The Western Australian Court of Appeal also said at [94], that while Thurin v Krongold 'is not binding upon us, we do agree with the conclusion reached by the Victorian Court of Appeal ... substantially for the reasons explained by the court in that case'.

[18] Edelman J continued in relation to different heads of federal jurisdiction under s 75 and s 76:

[T]he conclusion that a person is a consul, an officer of the Commonwealth, or a resident of a different State does not change simply because the forum in which the conclusion is reached is a tribunal rather than a court. Likewise, a matter does not cease to arise under the Constitution because it is raised before a tribunal rather than a court. (emphasis added)

[19] See also Moorgate Tobacco, at [10], where the High Court contrasts the two limbs of the jurisdictional test:

federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds. (emphasis added)

[20] Remarking on cases in courts where, under their procedure, allegations are pleaded, Barwick CJ continued:

Those pleaders who are used to identifying the relationship of parties with regard to some known and identifiable category of legal right or obligation will incline to express the relationship of the parties in terms of the issue between them or the cause of action which is asserted or denied. Whilst in many cases it may suffice to use such language as descriptive of the matter, it is important, it seems to me, to realize that such a course is simply convenient and will not necessarily indicate what is the matter whose parameters will mark out the extent of federal jurisdiction exercisable in the case. (emphasis added)

[35] Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 [26].

[24] The acronym he used for the Australian Consumer Law.

[25] Referring to the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[26] Which was established by its decision in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30; (2020) 60 VR 361, 372 [1]-[2] and [25] (Tate, Niall and Emerton JJA).

[27] Thus in An & Ors v Australian Broadcasting Corporation [2024] VSC 518 at [11], Justice Harris observed that a case will fall within the constitutional limitations of the exercise of federal judicial power established by the High Court in Burns v Corbett (2018) 265 CLR 304, [2018] HCA 15 (discussed by Harris J at [8]), where 'three conditions are met': (emphasis added)

(a) The resolution of the dispute will involve the exercise of judicial power;

(b) The decision maker is not a court within the meaning of Ch III of the Constitution;

(c) The proceeding is of a kind that falls within either ss 75 or 76 of the Constitution,

(referring also to Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191, [42]).

[28] Thurin v Krongold [2022] VSCA 226 at [1]. See also [54]-[64].

[29] Thurin v Krongold [57]-[58].

[30] The second and third questions that had been reserved for the Court of Appeal in Thurin v Krongold were:

(3) Do the claims of Krongold in its amended points of defence for apportionment and contribution under parts IVAA and IV of the Wrongs Act, based on allegations of liability under the TPA Liability for Defective Goods provisions [ss 74B, 75AF and 75AG] and the TPA Misleading and Deceptive Conduct provision [s 52], mean that the VCAT proceeding involves a matter arising under any laws made by the Parliament within the meaning of s 76(ii) of the Constitution?

(4) If yes ..., was the order made by VCAT on 29 August 2018 to join Swan Hardware to the VCAT proceeding beyond power and void?

Its answer to both questions, at [54]-[65], was 'yes'.

[31] Which the Court of Appeal in Thurin v Krongold identified falls into federal jurisdiction because of the subject-matter of the controversy rather than the character of the parties to the controversy.

[32] Applying what the High Court said in Citta Hobart at [31] in the passage cited earlier at [48] that:

[T]he assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn.

[111] Citta Hobart, 232-233 [31], 234 [35]; Thurin v Krongold, [55].

[112] Re Wakim; Ex parte McNally (1999) 198 CLR 511, 584 (Gummow and Hayne JJ). In characterising the dispute it is objective and independent of the parties' intentions or pleadings: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262, [29], [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 474.

[113] Citta Hobart, [31]; [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Moorgate Tobacco Company Ltd v Phillip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457, 476-477: 'If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed on other grounds. ... [I]f the pleadings attracted federal jurisdiction by raising a s 76(ii) matter for determination, that jurisdiction was not lost by subsequent disclaimer or by the primary judge's failure to determine the matter.' (Stephen, Mason Aickin and Wilson JJ).

[34] [2024] VSC 556 at [26]-[28], [33], [35]-[36].

[46] Ibid [55] citing Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 [31] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) ('Citta').

[47] Thurin v Krongold [55] citing Citta [35].

[49] Thurin v Krongold [58] citing Fencott 608; Palmer [26].

[50] Thurin v Krongold [58] citing Palmer [26] (emphasis in original).

[53] [1980] HCA 32; (1980) 145 CLR 457.

[55] [2021] VSCA 120.

[36] It has the power, however, to refer the subject-matter of the proceeding before the Tribunal to a more appropriate forum under s 77(3) of the VCAT Act, and to award costs in any proceeding brought before it - whether under original or review jurisdiction - by s 109 of the VCAT Act (which I discuss further below).

[37] That is the natural conclusion of Thurin v Krongold.

[38] Which it sought to retrospectively cure by amendment by adding a new heading 'Common law rights'.

(1) In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no‑one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.

(2) Express references in an Act to companies, corporations or bodies corporate do not imply that expressions in that Act, of the kind mentioned in subsection (1), do not include companies, corporations or bodies corporate.

[41] Commonwealth legislative power is limited to the heads of legislative power conferred on the Commonwealth Parliament under Ch I of the Commonwealth Constitution. Thus, the reference to 'person' must take account of the relevant 'application' sections of Commonwealth legislation to determine which 'persons' it extends to in accordance with the head of Commonwealth legislative power under which the Commonwealth law is enacted.

[42] Itself headed 'Application of the Australian Consumer Law as a law of the Commonwealth'.

[43] The Commonwealth Act notes in s 131(3) that:

(3) The table of contents in Schedule 2 is additional information that is not part of this Act. Information in the table may be added to or edited in any published version of this Act.

(a) section 21 of Schedule 2 also applies as a law of the Commonwealth in relation to:

(i) a supply or possible supply of goods or services by any person to a corporation; or

(ii) an acquisition or possible acquisition of goods or services from any person by a corporation; and

(b) section 147 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section; and

(c) Division 2 of Part 5-1 of Schedule 2 also applies as a law of the Commonwealth to and in relation to a person if the other person referred to in section 219 of Schedule 2 is a corporation; and

(d) section 33 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, the conduct of any person.

(g) bodies corporate incorporated or carrying on business within Australia; or

• JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236: the court had jurisdiction to determine a misleading and deceptive conduct claim based on published comments concerning rights in a play because the conduct involved use of postal, telegraphic or telephone services.

• ACCC v Homeopathy Plus! Australia Pty Ltd [2014] FCA 1412; (2014) 146 ALD 278: the respondent conceded that misleading articles published on the internet involved the use of telephonic services.

• CPA Australia Ltd v Dunn [2007] FCA 1966; (2007) ATPR 42-205: the respondent's threat to use a letterhead that included the words "Certified Public Accountant" when it was not a member of the CPA or authorised by the applicant to use that designation was sufficient to enliven the Act on the basis that the contravening conduct involved the use of postal services, through one or other of the forms of letterhead that he had threatened to adopt.

• ACCC v Chen [2003] FCA 897; (2003) 201 ALR 40; 132 FCR 309; (2003) ATPR 41-948: misleading and deceptive conduct by an individual operating internet sites in the US representing an association with the Sydney Opera House that purported to accept credit card bookings for performances, was found to be within the scope of s 6 under the extended operation of the Act to telephonic services.

• ACCC v Hughes [2002] FCA 270; (2002) ATPR 41-863: internet advertising of medical products, where the internet site was hosted in the United States came within the scope of s 6 because the material constituting the misrepresentations was on an internet site intended to be accessed by consumers in Australia and other parts of the world via telephone.

[47] Section 38 of the Interpretation of Legislation Act 1984 (Vic) provides:

In all Acts and subordinate instruments, unless the contrary intention appears -

"person" includes a body politic or corporate as well as an individual.

[48] Section 11 of the ACLFTA provides:

(1) The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the Australian Consumer Law (Victoria).

(2) For the purposes of subsection (1), the Commonwealth Act mentioned in that subsection applies as if -

(a) the statutory provisions in the Australian Consumer Law (Victoria) were a Commonwealth Act; and

(b) the regulations in the Australian Consumer Law (Victoria) or instruments under that Law were regulations or instruments under a Commonwealth Act.

(3) The Interpretation of Legislation Act 1984 does not apply to -

[49] 'Participating jurisdiction' means 'a party to the Intergovernmental Agreement which applies the Australian Consumer Law as a law of the jurisdiction, either with or without modification': ACLFTA s 6.

[50] Section 6 of the ACLFTA provides: (emphasis added)

(1) In this Chapter, unless the contrary intention appears -

"instrument" means any document whatever, including the following -

(b) a law of this jurisdiction or an instrument made under such a law;

(c) an award or other industrial determination or order, or an industrial agreement;

(d) any other order (whether executive, judicial or otherwise);

(g) an application made, information or complaint laid, affidavit sworn or affirmed, or warrant issued, for any purpose;

(i) any other pleading in, or process issued in connection with, a legal or other proceeding.

[51] The letter describes the statutory guarantees in the ACL as 'implied warranties'. That is incorrect. Under sale of goods legislation, they are warranties implied into contracts of sale of goods, but in the ACL, they are statutory guarantees and causes of action in their own right.

[52] I need say little about that doctrine other than that when seized of jurisdiction the Federal Court can apply any law applicable to the dispute, whether Commonwealth, state, territory or common law. See generally, 'An Introduction to the Jurisdiction of the Federal Court of Australia': Paper by the Hon Justice James Allsop:https://www.fedcourt.gov.au/\_\_data/assets/rtf\_file/0013/33403/RTF.rtf; s 32 of the Federal Court of Australia Act 1976 (Cth)

[53] Under the section 'Problem', Ms Brooks ticked the boxes labelled:

☑ The goods supplied are not fit for the purpose that I made known to the seller

☑ The goods supplied do not correspond with their description

☑ The goods or services supplied not what supplier promised

☑ Other: Seller had knowledge that the goods were not as described that they purposefully withheld from me.

[54] See ACLFTA, s 3(2) which states:

(2) Without limiting subsection (1), unless the contrary intention appears the words and expressions used in this Act have the same meanings as they have in the Australian Consumer Law (Victoria).

The Australian Consumer Law (Victoria) defines "goods" as including "animals, including fish": see s 3 of the ACL.

[55] See cases cited in Van Sanden v Mercedes-Benz Australia/Pacific Pty Ltd (Civil Claims) [2025] VCAT 128 at [7].

[58] The submissions then went on to distinguish Dawn's case and D'Angelo's case.

[59] That submission is an incomplete summary and characterisation of what Justice McDonald said in D'Angelo [2025] VSC 395 at [20], set out earlier.

[60] Each Australian state and territory has also enacted statutory contribution laws. Sections 23A and 23B were inserted by s 4, Wrongs (Contribution) Act 1985 (No. 10227/1985) which received Assent on 10/12/85 and came into operation on 12/2/86. Those amendments followed the recommendations of the Victoria, Chief Justice's Law Reform Committee, Contribution Report in 1979 to adopt its recommendations made in an earlier report of 10 March 1978 to adopt the United Kingdom Law Commission's (Law Com No 79) recommendations at para 81(a) to (h) of its report. That UK report had recommended, at para 81(a) that 'statutory rights of contribution should not be confined ... to cases where damage is suffered as a result of a tort, but should cover cases where it is suffered as a result of a tort, breach of contract, breach of trust or other breach of duty', and at para 81(d) that as a consequence 'the statutory right to recover contribution should be available to any person liable in respect of the damage, not just persons liable in tort'.

[61] Shan v Zhang [2021] VSC 452 at [43]-[44] and [111] (Delaney J) citing Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 ('Alexander') at [32], [37]-[40] (per Gleeson CJ, Gummow and Hayne JJ). See also [2004] HCA 7; 216 CLR 109 at [95] (per Kirby J). In Shan v Zhang, Justice Delaney observes at [44] and [111]:

[44] As is made clear in Alexander, an identical legal basis for liability is not required for the purposes of s 23B(1), particularly when the definition in s 23A(1) is borne in mind.

[111] ... Alexander[144] was concerned with s 23B of the Wrongs Act. ... what is clear from Alexander[145] is that the words of the statute are what matters.

(4) Subject to section 24(2B), a person who in good faith has made or agreed to make any payment in settlement or compromise of a claim made against that person in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not the person who has made or agreed to make the payment is or ever was liable in respect of the damage provided that that person would have been liable assuming that the factual basis of the claim against that person could be established.

(5) Subject to section 24(2B), a judgment given in an action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.

[63] After a comprehensive discussion at 841-844 of the different way the principles of joint and several and concurrent and non-concurrent tortfeasors apply under the common law.

[65] Referencing Part IV of the Wrongs Act 1958 (Vic) and the cognate legislation of other Australian state and territory jurisdictions.

(a) rights of contribution were not available to those liable for defective building work in Victoria under the Building Act 1993 (Vic) s 131 (which has its own statutory scheme for allocating responsibility for compensation for such loss to a plaintiff by limiting the actual liability to the plaintiff between wrongdoers involved in the plaintiff's loss arising from defective building works); and

(b) referring to their discussion at p 844, n 182 where they note (at the time of publication in June 1996) that a defence of proportionate liability had not by then been extended 'to all claims in negligence for property damage and purely economic loss and some claims under [the then] Trade Practice Act 1974 (Cth) and [the then] Fair Trading Acts of the states and territories', as was under consideration at the time by the Inquiry into the Law of Joint and Several Liability, Report of Stage Two (1995).

I discuss below the statutory defence of proportionate liability subsequently introduced under Commonwealth, state and territory laws.

[67] Footnoting Fletcher v National Mutual Life Nominees Ltd [1990] 1 NZLR 97 at 103 per Henry J. The authors describe the judicial inroads into that limitation in other jurisdictions to permit recovery of contribution where there was a concurrent and co-extensive duty in tort (even though the plaintiff had framed their cause of action against a defendant solely in contract). They observe:

In Victoria, any such difficulties are removed entirely by the legislation, which permits a claim for contribution to be made, whatever the basis of the liability of the claimant and the person against whom the claim is made, noting s 23A(1) of the Victorian Wrongs Act, and continuing:

A claim for contribution may be made by a defendant who is alleged to have engaged in misleading or deceptive conduct, contrary to the Fair Trading Act 1985 (Vic), s 11: Pricom Pty Ltd v Sgarioto (1994) ATPR 41-365 (Vic SC); [(1994) V ConvR 54-508]; aliter for those who allegedly contrive s 52 of the Trade Practices Act 1974 (Cth) ...

In Victoria, the 'same damage' may have been brought about by a breach of contract or of trust, as well as by a tort ...

[69] See for example Rule 11.15(5) of the Supreme Court (General Civil Procedure) Rules 2015, providing:

(5) Where a party claims against another party to the proceeding contribution pursuant to Part IV of the W_rongs Act 1958_, a notice under paragraph (1) shall be in accordance with Form 11B.

[70] In the Supreme Court rules above, Form 11B (NOTICE BY ONE TORTFEASOR CLAIMING CONTRIBUTION AGAINST ANOTHER) to be adapted as relevant, states:

TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained [e.g. as the result of a collision between a motor car driven by you and a motor car driven by the defendant , which is alleged to have been caused by the negligence of the defendants].

AND TAKE NOTICE that the defendant claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover herein against him to the extent of such amount as may be found by the Court to be just and equitable having regard to the extent of your responsibility for such damages [ e.g. on the ground that your negligence contributed to the happening of the collision].

[71] See, for example, para (a) of Rule 11.01 of the Supreme Court (General Civil Procedure) Rules 2015.

[72] As the subject-matter in this case was to be heard and determined in the Tribunal's civil claims list, to bring Ms Porz before the Tribunal the respondents to C1126/2024 were directed to commence a new third party proceeding in which they made their claim for contribution, being C692/2025.

[73] Defined in para 2 as a reference to the 'Competition and Consumer Act 2010 (Cth) - schedule 2'.

[74] As between Ms Brooks and Ms Moody there were impugned emails and phone calls, as between Ms Moody and Ms Porz there were instant messages. In the materials filed for final hearing in the tribunal book, there is ample jurisdictional evidence that in the course of her assisting Ms Brooks with her acquisition of Ashton (and indeed after the horse's purchase), Ms Porz's was in communication with Ms Brooks about Ashton via texts and WhatsApp messages. see documents indexed as 'Texts and WhatsApp messages between Katherine Brooks and Clare Porz 04.03.2023 - 11.09.2023'.

[75] See Citta Hobart at [36]; Burgundy Royale v Westpac (1987) 18 FCR 212 at 219.

[76] See above [2]-[8], [13] and [15].

[77] Citta Hobart[2022] HCA 16; , (2022) 276 CLR 216, 232-233 [31], 234 [35]; Thurin v Krongold, [55]; An & Ors v Australian Broadcasting Corporation [2024] VSC 518, at [92] (set out earlier).

[78] Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58 at [153] citing Citta Hobart ibid, at [37] where the High Court concluded:

'examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite [federal jurisdictional] assessment'.

[79] Taking another abstract example, if a customer C sues a supplier R1 claiming that what R1 made for them was faulty relying on statutory guarantees about suitability or quality, supplier R1 might then seek contribution from manufacturer R2 of the faulty materials supplied relying on a common law duty of care owed to C or applicable statutory obligation owed to C as an end-consumer. If C had been advised by adviser R3 about the thing to be made and their bad advice caused the wrong manufacturing materials to being sourced, R1 might seek contribution against adviser R3 for their bad advice to C (relying on a duty of care owed by R3 to C or R3's contractual duty C or an applicable statutory obligation owed by R3 to C. In none of these instances is the third party cause of action founding R1's claim for contribution in relation to the same damage to C, the same cause of action as the initial claim made by C against R1. It might be derived from the same legal source (common law or same statute), but it need not be. Say if R1 was themselves an agent of R4. R1's cause of action against R4 as principal may be under statute or it might be arise on an indemnity implied under by law of agency or expressly agreed. Indeed, unless wrongdoers causing the same damage to C are concurrent 'joint tortfeasors', it will never be the same cause of action alleged by C. See Balkin and Davis, at 841-844.

[5] Wrongs Act, s 24AI.

[6] Ibid ss 24AE, 24AF(1).

[7] Ibid s 24AH.

[8] Ibid s 24AI(1).

[9] Ibid s 24AL.

[10] Ibid s 24AI(3).

[11] Ibid s 24AE.

[12] Ibid s 24AJ.

[13] See Sensyn Australia v United Colours on Collins Pty Ltd [2000] VCAT 2643 [32]-[33] (Macnamara DP).

[81] I note that defence was the 'relevant' defence in that case. An 'apportionable claim' under the Victorian Wrongs Act Part IVAA also includes a claim for misleading or deceptive conduct under the Australian Consumer Law (Victoria). I discuss this below.

[82] Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2023] VCAT 233.

[83] See Wrongs Act 1958, s 23A(3) (amended as emphasised):

action includes a proceeding commenced by way of counter-claim;

S. 23A(3) def. of court inserted by No. 26/2023 s. 68(a).

S. 23A(3) def. of judgment inserted by No. 26/2023 s. 68(a).

judgment, in relation to VCAT, includes decision, order and declaration;

S. 23A(3) def. of writ amended by No. 26/2023 s. 68(b).

(b) in relation to a proceeding commenced by way of counter-claim, the notice or other document by which the proceeding is first notified to the defendant; and

(c) in relation to proceedings for contribution under section 23B, the notice or other document by which the proceedings may be originated.

[84] Their effect was succinctly described in the Legal Practitioners Liability Committee bulletin 'More changes at VCAT provide clarity' (updated on 13 December 2023, at https://lplc.com.au/resources/lplc-article/more-changes-at-vcat-provide-clarity#claims-for-contribution-and-contributory-negligence-can-be-pursued-in-vcat), in the following way:

Claims for contribution and contributory negligence can be pursued in VCAT

In Vaughan Constructions Pty Ltd v Melbourne Water Corporation ... the Tribunal held that VCAT lacks jurisdiction to determine claims for contribution under Part IV of the Wrongs Act.

By way of a refresher, Section 23B(1) of Part IV of the Wrongs Act provides that a person liable in respect of any damage suffered by another person may recover contribution from any person liable in respect of the same damage. By section 24(2) the amount of contribution recoverable from the wrongdoer is the amount found by a 'court' or jury to be just and equitable having regard to the extent of the person's responsibility for the damage. The word 'court' was not defined in part IV.

Whilst not the subject of that proceeding, the definition of 'court' in Part V of the Wrongs Act relating to contributory negligence also did not include a tribunal.

This issue has been resolved by relatively simple amendments to the definitions contained in ss. 23A and 25 of the Wrongs Act so that the provisions of Part IV relating to contribution and Part V relating to contributory negligence will also apply to proceedings in VCAT.

The Amendment Act also inserts new sections 24ADA and 28AAB in the Wrongs Act to retrospectively validate any contribution claims and claims for contributory negligence decided by VCAT prior to 10 October 2023.

[85] See s 23A(1) and s 23B(6) set out above.

[86] Using the classes of case in federal jurisdiction described earlier at fn 7.

[87] For example, at POD 20(a), Ms Hocking admits that she told Ms Brooks that 'Ashton was not a spook tense horse and did not react when a kangaroo jumped out in front of her and a friend when they were hacking their horses together'.

[88] Proportionate liability exists as a statutory defence under the laws of each Australian state and territory, and in 3 separate Commonwealth laws: see Civil Liability Act 2002 (NSW), Pt 4;Civil Liability Act 2003 (Qld), Pt 2; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), Pt 3; Civil Liability Act 2002 (Tas), Pt 9A; Wrongs Act 1958 (Vic), Pt IVAA; Civil Liability Act 2002 (WA), Pt 1F; Civil Law (Wrongs) Act 2002 (ACT), Ch 7A; Proportionate Liability Act 2005 (NT); Competition and Consumer Act 2010 (Cth) Pt VIA; Corporations Act 2001 (Cth), Pt 7.10 Div 2A; Australian Securities and Investments Commission Act 2001 (Cth), Pt 2 Subdiv GA. It in the specific areas to which each law applies, the statutory notion of an 'apportionable claim' addresses cases where there is concurrent liability by more than one wrongdoer for the claimant's loss or damage claimed, for either property damage or purely economic loss arising from a failure to take reasonable care or damages claims under the misleading or deceptive conduct provisions of state, territory and Commonwealth laws. The legislation does not extend to personal injury claims and there are other exclusions.

Under the Victorian legislation a 'concurrent wrongdoer' is a person who is one of two or more persons whose acts or omissions caused - jointly or independently of each other - the loss or damage that is the subject of the claim: Wrongs Act 1958 (Vic), Pt IVAA, s 24AH(1). There are a number of differences between the proportionate liability laws, and thus the extent of the defences they create. The NSW provisions were considered by the High Court in Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (Hunt) [2013] HCA 10; (2013) 247 CLR 613.

[89] The use of the word 'liability' in this context means 'overall liability' not liability specifically to the plaintiff who suffered the same damage.

[90] s 87CD Competition and Consumer Act 2010 (Cth).

[91] See Competition and Consumer Act 2010 (Cth); Part XI Division 2--Application of the Australian Consumer Law as a law of the Commonwealth, Subdivision A, s 131 and s 131A, and s 5 (conduct outside Australia) and s 6 (persons who are not corporations) discussed earlier.

[92] The Victorian defence of proportionate liability also extends to other claims for 'economic loss or damage to property in an action for damages whether in tort, in contract, under statute or otherwise, arising from a failure to take reasonable care'. Wrongs Act 1958 (Vic), Part IVAA, s 24AF relevantly states:

(a) a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and

(b) claim for damages for a contravention of section 18 of the Australian Consumer Law (Victoria).

[93] In a given case it might also be 'colourable' as made for the purpose of fabricating federal jurisdiction.

[94] Section 24AG of the Wrongs Act 1958 (Vic) states:

24AG Contribution not recoverable from defendant

Despite anything to the contrary in Part IV, a defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim -

(a) cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and

(b) cannot be required to indemnify any such wrongdoer.

Compare s 87CF of the Competition and Consumer Act 2010 (Cth), which contains different restrictions on the availability of a cause of action for contribution where a judgment is given under Part VIA of that Commonwealth Act against a defendant 'as a concurrent wrongdoer in relation to an apportionable claim' within the meaning of that Commonwealth Act, and 'whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant'.

[96] I note that under Part 3A of the VCAT Act, s 57B confers on the Magistrates' Court original jurisdiction over any application that 'raises, or there is some doubt as to whether it raises, a controversy involving federal subject matter' (as that expression is defined in s 57A). I also note, however, that a referral order made under s 77(3) of the VCAT Act does not appear to be a 'substituted proceeding' (as that expression is defined in s 57A).