1. The application pursuant to s.77 of the Act is dismissed.

2. Orders are made in terms of the Minutes of Orders provided by the parties this day.

Mr M Klemens of Counsel, instructed by Anderson Rice

Mr J Forrest of Counsel, instructed by Nathan Kuperholz

1 This matter comes before me by an application pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"). The application brought by Entertainment Development Group Pty Ltd ("EDG") was expanded by Mr Forrest of counsel on its behalf to included reliance upon s.75 of the Act. Accordingly, EDG was arguing not only that the matter should be struck out and referred to a more appropriate forum, but also that this Tribunal has no jurisdiction to deal with the matter. Mr Forrest presented argument, firstly, in relation to jurisdiction, because, if the Tribunal possesses no jurisdiction, there is then no need to move on to a consideration of s.77. Having presented the jurisdictional argument, he subsequently moved on to submissions relating to whether there is a more appropriate forum, it being suggested that the Supreme Court of Victoria is such a forum.

2 Mr Klemens of counsel appeared on behalf of Bruce Henderson Architects Pty Ltd ("Henderson"). Whilst the matter was originally referred to me only for a ruling in relation to s.77, he stated that he was in a position to advance arguments relating to jurisdiction, and did in fact do so.

3 These matters being argued as preliminary points, no attention was directed to the merits of the matter, and I make no findings of fact in relation to them. Any reference to factual matters in this ruling is solely for the purpose of placing the application in context.

4 This dispute concerns a claim by Henderson for fees allegedly payable to it in respect of architectural services and project management services provided to EDG by it. The services relate to the development of an entertainment complex called Kingpin Bowling in Richmond, to a bar called Barcode at Crown, and to the relocation of the Kingpin office from Richmond to Crown. Henderson issued an application to the Civil Claims List of this Tribunal on 25 March 2004. That application named EDG as the Respondent.

5 Paragraph 7 of the application nominates that the claim was being made under the Fair Trading Act 1999 ("the FTA").

6 Paragraph 9 puts the value of the claim at $160,875.00, and boxes were ticked indicating that the orders sought were for payment of money, payment of damages, and "Loss, injury or damage because of a contravention of the FTA".

7 Paragraph 10 describes the goods and/or services provided as being "architectural plans + labour".

8 Paragraph 11 describes the date of the contract as 15 April 2003, the date of dispute as 4 August 2003, and sets out a very brief history of the dispute.

9 By facsimile dated 7 May 2004, the solicitors for EDG foreshadowed that there may be an application pursuant to s.77 of the Act.

10 On 12 May 2004 Deputy President Levine reserved liberty to EDG to apply pursuant to s.77 of the Act, and also set a timetable which included the filing and serving of Points of Claim by Henderson before 8 June 2004. The Points of Claim were to particularise the claim made, the basis of the claim, the loss and damage, the method of calculating same, and the relief or remedy sought. Orders were also made in relation to a defence and a set-off or counterclaim.

11 Pursuant to the order of Deputy President Levine, on 8 June 2004 the solicitors for Henderson filed and served Points of Claim. The amount claimed is then stated to be $171,930.00, together with interest and costs. The details in the Points of Claim could be described as being contractual in nature, as there is reference to two agreements and to particulars of work and labour done. The amount claimed is allegedly because of a failure or refusal on the part of EDG to pay for the work and labour done in breach of the agreements. There is no reference to or expressed reliance upon any provision of the FTA.

12 Mr Suddick, solicitor for EDG, has filed and served an affidavit sworn 29 June 2004. In addition to setting out some of the complexities perceived to exist in relation to this application, the affidavit has exhibited to it a draft statement of claim which, if EDG should be successful in the present application, shall form the basis of a writ to be issued out of the Supreme Court of Victoria with a view to it being listed in the Building Cases List. I accept that it is the intention of EDG to so issue should it be successful before me. A director of EDG, Gary Berman, has also filed and served an affidavit sworn 29 June 2004. This affidavit contains a considerable number of assertions concerning the merits of the matter. It also confirms EDG's intention to issue proceedings out of the Supreme Court of Victoria.

13 Against that background, I shall now deal with the argument concerning jurisdiction.

14 EDG presented its arguments prior to those advanced on behalf of Henderson. Accordingly, I shall firstly deal with its case.

15 The case for EDG could be summarised as follows. VCAT is a creature of statute. It obtains its jurisdiction from various enabling enactments. In the present case, it is its original jurisdiction, as opposed to its review jurisdiction, which must be invoked. It has not been so invoked. Whilst the boxes ticked on the application of 18 March 2004 would indicate that this is a claim under the FTA, the Points of Claim ultimately filed make it clear that it is in fact a proceeding for common law damages for breach of contract between two commercial entities. Claims for breach of contract do not fall within the Tribunal's jurisdiction. The order of Deputy President Levine required the filing of Points of Claim which particularise the claim and set out the basis for it. That has been done, and it is now clear that the claim is not founded upon an enabling enactment which would give the Tribunal jurisdiction. To enable Henderson to file further or amended Points of Claim would be, in essence, to ignore the order of Deputy President Levine. If Henderson intends to rely upon the FTA, the correct procedure is for the present application to be struck out and for Henderson to commence again, with proper points of claim, so that reliance upon the FTA can be clearly understood and challenged.

16 The case for Henderson could be summarised as follows.

17 The Tribunal has jurisdiction in relation to FTA matters. The application issued made it clear that this was an FTA matter. Applications are issued in simple form out of this Tribunal and the application issued in the present case is sufficient to invoke its jurisdiction. It may be that the Points of Claim make no reference to the FTA. It may be that they are inadequate or could have been better drafted. This can be remedied by the filing and serving of further or amended Points of Claim. It does not mean there is no jurisdiction.

18 I agree with the fundamental proposition that VCAT is a creature of statute which has no original jurisdiction beyond that conferred by enabling enactments. Also, there is ample authority for the proposition that a tribunal should not proceed with a matter in which it has no jurisdiction and should determine any objection to jurisdiction as a preliminary question.

19 There is no argument but that this Tribunal has jurisdiction in relation to fair trading disputes as defined in the FTA. In the present case, Henderson issued an application out of this Tribunal which application specifically purports to embody a claim made under the FTA. Whilst this Tribunal can and does deal with quite complex matters, it is not a court of pleadings. The issuing out of it of an application which purports to be a claim under the FTA seems to me to invoke its jurisdiction. If, subsequently, it becomes apparent that the claim is not one under the FTA, the application will fail, and will fail on a jurisdictional basis, and regardless of the merits.

20 However, in the present case that is not clear. Mr Klemens, on behalf of Henderson, has admitted that the Points of Claim could be better drafted, and that further Points of Claim, specifying the nature of the reliance upon the FTA, may be necessary. He stated that, as originally set out in the application, Henderson is in fact basing its claim upon the FTA. If that be so, and I accept that it is, I fail to see why jurisdiction does not continue to exist, even if it be challenged at a later date. The situation is one which can be cured.

21 S.127 of the Act permits the amendment of documents in a proceeding at any time. The wording of s.127 is extremely broad. Indeed, it has been held to apply to documents that invoke the Tribunal's jurisdiction - see Yim v State of Victoria (2000) VCAT 821.

22 In the present case, I do not see why the application should fail on a jurisdictional basis when any defect can be cured by the provision of a further or amended document, and particularly when it was claimed and is still claimed that reliance is placed upon an appropriate enabling enactment.

23 Mr Forrest has argued that Henderson has either failed to comply with the order of Deputy President Levine or, alternatively, its compliance has revealed that it has no claim based upon the FTA, and to permit it to file and serve further or amended Points of Claim is to ignore the order. I agree that its compliance reveals no expressed explanation as to how it bases its claim on the FTA. However, it is another thing to say that it must fail because of this. As stated, the situation can be remedied. There may be arguments arising concerning the consequences of the failure to comply adequately with the order. This does not mean that the application fails for want of jurisdiction.

24 In summary, for the reasons set out above, I am of the opinion that this Tribunal possesses jurisdiction to deal with the application.

25 Given that I have found that there is jurisdiction to deal with the matter, I shall now turn to the arguments concerning s.77.

26 Again, I shall summarise the arguments advanced by the parties.

27 This is a complex matter involving three retainers of an architectural nature which in turn involve technical legal, architectural and instruction issues. The amount which EDG will claim against Henderson is in excess of $500,000. The case is really a complicated building case of the type that would ordinarily be managed by a Judge in the Building Cases List of the Supreme Court. The type of case management, including management of pleadings, that is required is available in the Supreme Court. However, it is not a domestic building case. Whilst there may be some members of the Tribunal in the Domestic Building List that are familiar with cases such as this, this case does not involve domestic buildings and does not fall within that list. It is a matter in the Civil Claims List where there would not be members with the required degree of familiarity or expertise. A Judge in the specialist Building Cases List in the Supreme Court would have that expertise, in addition to having the power and capacity to regulate pleadings and otherwise manage the case.

28 Further, the case has not progressed particularly far before the Tribunal, so that referral to the Supreme Court will not cause delay or add greatly to the cost of litigation. The issue of jurisdiction has been raised at an early stage. In addition, the estimated duration of the hearing is in excess of ten days. Bearing in mind the normal procedures of the Tribunal, and the requirements contained in s.98 of the Act, it is not an appropriate case for the Tribunal and will place an unnecessary strain on its resources.

29 In all of these regards, reference is made to the observations of Kellam J in Bentley v Cash Resources (2002) VCAT 1399 and to certain observations of mine in Koster v Mike Guiliano Agencies Pty Ltd & Ors (2004) VCAT 1046.

30 The Tribunal is capable of dealing with a matter such as this. Henderson issued its application out of the Tribunal and wishes the matter to be heard here. It will get a hearing date much more quickly than at the Supreme Court, particularly if the matter has to start again there. There are members of the Tribunal who are familiar with cases of this nature and, if necessary, a judicial member might be available. It is far less expensive for Henderson to litigate the matter at the Tribunal and it also chose to issue out of the Tribunal because of the comparative lack of formality. The Tribunal is an appropriate forum selected by Henderson for these reasons, and the matter should remain here.

31 There was no discussion concerning onus in this case. In Koster it was effectively conceded that it was up to the party making the application pursuant to s.77 to satisfy the Tribunal that there should be a striking out and referral. This approach coincides with that of Mr Cavanough QC as set out in his paper "Transfers and Appeals" referred to in "Pizer's Annotated VCAT Act" at page 178. As I stated in Koster at paragraph 20, whether or not an onus in the traditional sense exists, it seems to me that the words used by Kellam J in Bentley are relevant. They are:-

"... I accept that s.77 applies a forum non conveniens doctrine to the Tribunal and that it would need to be clear that the Tribunal was an inappropriate forum".

32 As was the situation in Koster, to which the present case bears some similarity, it is certainly not clear to me that this Tribunal is an inappropriate forum for the purposes of s.77. I prefer and accept the submissions of Mr Klemens made on behalf of Henderson.

33 I shall not set out again the observations which I made in Koster concerning the remarks of Kellam J in Bentley. Those observations which can be found in paragraphs 23-27 of Koster are equally appropriate in the present case. I would also refer to my observations in Koster in paragraphs 28-30 concerning the decision in Ocean Sun Line Special Shipping Co. Inc. v Fay [1988] HCA 32; (1988) 165 CLR 197, which are also applicable here, and which need not be repeated. Suffice to say that I adopt the view that the requirements referred to therein are not present in this case.

34 Further, I accept that Henderson, as did Koster, in issuing proceedings out of this Tribunal, was aware of factors such as costs and the reduced formality. Further, many matters involving the FTA commence at this Tribunal. Some of them are quite substantial. Doubtless, factors such as costs and the absence of the necessity of detailed pleadings play a prominent role in this.

35 In addition, whilst this matter has not advanced to the same extent as had Koster, nevertheless the striking out of the matter and the referral of it to the Supreme Court would involve delay. Concern regarding getting the matter on for hearing comparatively rapidly was a factor emphasised by Mr Klemens. It is of concern to Henderson. I am not convinced that Henderson should be deprived of that benefit, and it is another factor to be taken into account.

36 I am also mindful of the fact that it is Henderson, and not EDG, that has initiated this action. As in Koster, it is the party which has what could be described as a counterclaim which is seeking the transfer to another forum. It would be unfortunate if the party issuing proceedings out of this Tribunal could in essence be stymied by the lodging or proposed lodging of complicated "counterclaims" here or elsewhere. Whilst s.111(c) of the FTA clearly permits the Tribunal to refer a proceeding to another forum, it must be clear that the Tribunal is an inappropriate forum and that includes consideration of whether a striking out and referral would cause an injustice to the applicant (to adopt the words of Scott LJ in St Pierre v South American Stores (Gath & Chaves) Ltd (1936) 1KB 382 at 389 and as quoted by Brennan J in Oceanic Sun Line).

37 Finally, I am of the view that the matters raised in this case are well within the capacity and ability of this Tribunal to determine. Mr Forrest virtually conceded that there were some members of the Domestic Building List who possess the expertise and experience to deal with a case such as this. I appreciate that many matters dealt with in the Civil Claims List involve small amounts and are dealt with far more rapidly than might be the situation in this case. However, some larger matters are dealt with, and I am confident that there are a number of members, including judicial members, well equipped to hear this case. From what I have seen in the documents and from what has been put to me, I am confident that there is nothing in the case which is beyond the capacity of this Tribunal. I am also confident that the case can be managed in such a way as to have it ready for hearing in the near future, and that such hearing shall deliver justice to the parties.

38 In summary, it is far from clear to me that this Tribunal is an inappropriate forum for the conduct of this litigation. For the reasons set out above, I am of the view that the proceedings should not be struck out and referred elsewhere. In my view it is more appropriate that the proceedings continue before this Tribunal. Accordingly, the application pursuant to s.77 of the Act is dismissed.