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At the interlocutory hearing before Judge Bowman (20 November 2003), no oral evidence was called; both sides relied on affidavits and exhibits. Carrigans conceded that roughly $25,000 of the claim (commissions) fell within the agency agreement, but maintained that the balance, involving stock replacement, repairs, and a harvester purchased directly, was not subject to the agency agreement ([11]). Viticulture argued the whole dispute should be resolved under the arbitration clause. The Tribunal was invited to strike out or refer the proceeding under s 77 as a more appropriate forum issue ([3], [6]–[10]).

Judge Bowman dismissed the application under s 77, and also dismissed the s 75 application which had not been pressed with vigour ([18], [3]). The Tribunal accepted that Carrigans had a serious and maintainable argument that the bulk of the items claimed were outside the agreement, preferred the dispute to be heard in one forum rather than split between jurisdictions, and emphasised practical considerations of convenience and economy given the small size of Carrigans and the work being performed in Victoria ([13], [16]). The Tribunal did not decide whether the arbitration clause ousted its jurisdiction (left open) ([19]). Costs were ordered in favour of Carrigans for certain interlocutory work and the hearing before Judge Bowman, with scale reserved; there was no order for costs relating to an earlier hearing before Member Vassie on 18 July 2003 or the adjourned hearing on 18 September 2003 ([24]).

Why the court decided this way

The core legal question was whether VCAT should exercise its discretion under s 77 to strike out or refer the proceeding because South Australia (and arbitration) was the more appropriate forum. The Tribunal approached s 77 through the lens of a forum non conveniens-type analysis, the onus is on the party seeking to have the Tribunal decline jurisdiction to show clearly that the Tribunal is an inappropriate forum ([14], [15], [18]). Judge Bowman described s 77 as a discretionary power which must be exercised judicially ([15]).

On the facts before the Tribunal, Judge Bowman found the following matters decisive:

• Carrigans had a "serious and maintainable argument" that the bulk of the claimed items were not subject to the agency agreement and hence not caught by its arbitration clause ([16]).
• The parties had a practical interest in having the entire dispute heard in one forum rather than splitting proceedings between jurisdictions, for reasons of cost, convenience and economy ([13]).
• The work was performed in Victoria and Carrigans was a small operation undertaking the work in Victoria; Viticulture was the larger organisation based in South Australia. These facts weighed towards allowing the proceeding to remain in VCAT ([16]).
• The s 75 ground was not pursued and lacked supporting material, so no strike-out on that basis was warranted ([3]).

Taken together, these considerations led the Tribunal to conclude it was not persuaded that VCAT was an inappropriate forum and therefore refused to strike out or refer the proceeding under s 77 ([18]). The Tribunal deliberately did not decide the more complex question whether the arbitration clause ousted the Tribunal's statutory jurisdiction under the Fair Trading Act, noting that resolution of that issue was unnecessary for the interlocutory question and could raise difficulties; that point was left open for later determination ([19]).

Before and after state of the law

Before this decision, the leading framework for s 77 applications in VCAT was that the Tribunal exercises a forum non conveniens type discretion when asked to decline jurisdiction in favour of another forum, and earlier VCAT decisions and judicial statements (for example Bentleigh v Cash Resources and others cited to the Tribunal) had emphasised the need for clarity that VCAT was inappropriate before it would be struck out ([14]). The Tribunal also relied on authorities and texts discussing s 75 strike-out principles (Norman v Australian Red Cross Society was directly cited in the judgment as illustrating s 75 principles) ([3]).

After this decision, the practical import is that VCAT will refuse to strike out where the claimant shows a real, arguable case that a significant part of the dispute falls outside an agreement containing an arbitration clause. The decision reinforces that s 77 is an exercise of judicial discretion which should not be exercised lightly to oust VCAT jurisdiction when the moving party has not demonstrated clearly that the Tribunal is inappropriate ([15], [16], [18]). The judgment also underscores the Tribunal's pragmatic consideration of convenience, economy and the desirability of resolving a single commercial dispute in one forum rather than splitting it across jurisdictions ([13], [16]).

The Tribunal expressly left open the larger question whether arbitration clauses can oust VCAT's statutory jurisdiction in matters involving statutory remedies such as under the Fair Trading Act, that remains unresolved in this judgment ([19]).

Key passages with plain-English translation

1. Passage: "The power to strike out and refer to another tribunal or court pursuant to s.77 is a discretionary one, and, of course, that discretion must be exercised judicially." ([15])

   • Plain-English: The Tribunal has a choice whether to refuse jurisdiction under s 77, but must use good judicial reasoning rather than mechanical rules.

2. Passage: "I am of the view that this application to strike out the proceeding should fail. ... Carrigans has a serious and maintainable argument that the bulk of the items claimed by it are not subject to the Agreement." ([16])

   • Plain-English: The Tribunal would not send the case away because Carrigans has a credible case that most of its claims are not covered by the contract’s arbitration clause.

3. Passage: "In summary, I am far from persuaded that the proceeding should be struck out on the basis that there is a more appropriate forum." ([18])

   • Plain-English: The Tribunal is not convinced another forum is better, so the claim stays in VCAT.

4. Passage: "It is unnecessary for me to consider whether the agency agreement and the arbitration clause contained therein may be disregarded, and whether the arbitration agreement can only be enforced by an action in damages." ([19])

   • Plain-English: The Tribunal deliberately avoided deciding whether the arbitration clause removes VCAT’s jurisdiction or how it might be enforced.

5. Passage on costs allocation: the Tribunal ordered Viticulture to pay costs for opposing the strike-out application and for the hearing before Judge Bowman, but not for earlier procedural listings that failed because of Registry oversight ([24]).

   • Plain-English: The successful party on the strike-out application (Carrigans) recovered some but not all interlocutory costs; the Tribunal split responsibility sensibly between the parties and the registry.

What fact patterns trigger this precedent

This decision is most relevant where:

• There is a contractual arbitration clause and choice-of-law/forum clause pointing to another jurisdiction, but the claimant advances a mixed claim containing items arguably outside the contract (eg stock replacement, repairs, purchases not covered by the agency relationship) ([6], [11]).
• The claimant’s operations and much of the performance occurred in Victoria (or the Tribunal's State), creating convenience and proximity reasons to keep the matter in VCAT ([16]).
• The dispute is sizeable and complex such that splitting the hearing between jurisdictions would increase cost and inefficiency ([13], [16]).
• The moving party cannot demonstrably show that the Tribunal is clearly inappropriate for resolving the whole dispute, that is, the moving party fails to satisfy the burden of proof to displace VCAT jurisdiction under s 77 ([15], [18]).

In sum, where a contract-based arbitration clause exists but the claim is not a pure contractual claim or is factually mixed, and where the claimant has a plausible argument that a substantial portion of the claim lies outside the arbitration agreement, VCAT is likely to retain jurisdiction rather than strike out or refer the proceeding.

How later courts have treated it

This judgment records and applies existing VCAT authorities and statements about s 77 (for example Bentleigh v Cash Resources) and reiterates the forum non conveniens approach within VCAT ([14]). The decision itself leaves open significant legal questions about the interplay between contractual arbitration clauses and statutory tribunal jurisdiction (notably in relation to the Fair Trading Act) ([19]). The judgment does not purport to settle that larger question.

Readers seeking subsequent appellate or persuasive treatment of this particular VCAT decision should consult post-2003 authorities and databases to see whether courts or later Tribunal decisions have considered or followed Bowman VP’s approach. The present decision stands as Tribunal-level authority emphasising that an arguable case that substantial issues fall outside an arbitration clause will weigh against s 77 strike-out.

Still-open questions

The judgment deliberately leaves unresolved several legal issues practitioners should note:

1. Does a contractual arbitration clause (or an arbitration clause together with a choice of law/forum clause) conclusively oust VCAT's jurisdiction to hear claims that include statutory remedies under instruments such as the Fair Trading Act? Judge Bowman noted potential difficulty in ousting VCAT's jurisdiction but made no ruling ([19]).
2. If a dispute is mixed and contains both arbitrable and non-arbitrable components, what is the precise test and procedure for separating the arbitrable from the non-arbitrable issues without causing duplication, forum-shopping or unfairness? This judgment prefers a single forum for convenience and economy but does not provide a detailed splitting mechanism ([13], [16]).
3. What evidential burden does the moving party bear on a s 77 application to show that another forum is more appropriate? Judge Bowman expressed the view (aligning with Kellam J in Bentleigh) that it must be clear VCAT is inappropriate, but the precise allocation and intensity of that burden remains a question for future decisions ([14], [18]).
4. How should tribunals and courts balance contractual autonomy in favour of arbitration against statutory rights and the protective design of statutory tribunals? The judgment leaves this balance for future consideration ([19]).

Practitioners faced with similar factual matrices should consider:

• Establishing clearly whether the claimed items are covered by the contract and arbitration clause, with specific factual and documentary support, where the moving party seeks to oust VCAT jurisdiction.
• Framing submissions on convenience, economy and prejudice where a split hearing is proposed, and demonstrating why a single forum is not feasible if seeking a strike-out.
• Addressing pre-emptively whether statutory remedies (eg under the Fair Trading Act) put the claim beyond pure contractual arbitration, and preparing to argue the point if it becomes necessary.

This decision is a useful Tribunal-level guide on exercising discretion under s 77: when the claimant can show a substantial arguable claim outside the arbitration agreement, and practical considerations favour one forum, the Tribunal will generally retain jurisdiction.

4. Oral evidence was not called nor required, there being in evidence affidavits to which are exhibited documents which became the subject of argument. The following factual basis to which I shall refer in no way represents any finding on the merits of the matter, as these were not investigated. It is a summation based upon non-controversial submissions, the affidavits, and the exhibits thereto. It relates solely to this strike-out application.

5. By an agreement dated 10 August 2000, Viticulture appointed Carrigans as one of its agents. It should be said that Viticulture is, essentially, based in South Australia, and Carrigans in Lilydale in the State of Victoria. I accept that Viticulture is quite a large organisation, and that Carrigans is a relatively small one. Viticulture is involved in the distribution of equipment relating to the harvesting of grapes for the wine industry and the agency agreement executed by the parties on 10 August 2000 is described as being for the 2000/2001 vintage. The agreement is stated to remain in force until 31 May 2001. The parties continued the relationship beyond that date, and an agreement exists in relation to the 2001/2002 vintage, although that does not seem to have been executed. In any event, for the purposes of the present dispute, the overwhelming bulk of the items claimed relate to the executed agreement in relation to the 2000/2001 vintage. No point of substance was taken concerning the unexecuted agreement.

6. The items for which payment is claimed by Carrigans are, to some extent, particularised in the Points of Claim, and a large number of invoices are exhibited to the affidavit of Mr Trevor Andrew Carrigan dated 17 July 2003. The agency agreement, which is exhibited to the affidavit of Cynthia Pearl Hynes dated 6 June 2003, contains within it an arbitration clause, namely Clause 19.1.

7. That clause reads:-

13. Further, there was considerable discussion as to whether, if some items claimed did and some did not fall under the agreement, the hearing of the dispute should be split. Mr Hancock was strongly of the view that it should not. Ms Moore, whilst stating that her primary submission was that the entire matter should be heard in South Australia, did concede that it would be preferable for the matter to be heard in its entirety in one place or the other. That is an entirely sensible approach to adopt, and I agree with it. For reasons of cost, convenience and economy of time, it seems to me that the dispute should be heard in its entirety as a single case in one jurisdiction or the other.

14. In support of his argument that the application should not be struck out, Mr Hancock referred to various decisions, including the statement of Kellam J in Bentleigh v Cash Resources (2002) VCAT 1399 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. I was also referred to cases such as L U Simon Builders v Lubeka Systems Aust Pty Ltd (2201) VCAT 2217 and Adelaide Steamship Industries Pty Ltd v Commonwealth of Australia (1974) 8 SASR 425.

15. It is clear that the power to strike out and refer to another tribunal or court pursuant to s.77 is a discretionary one, and, of course, that discretion must be exercised judicially.

16. In exercising that discretion, I am of the view that this application to strike out the proceeding should fail. Without going into the merits of the ultimate arguments, I am satisfied that Carrigans has a serious and maintainable argument that the bulk of the items claimed by it are not subject to the Agreement. As stated, I accept that there should be no splitting of the hearing. I accept that the work done by Carrigans was performed in Victoria, and that some items of machinery, such as the harvester referred to above, were forwarded from South Australia to Victoria. I also accept that Carrigans is a small operation, in the sense that the work is performed by Mr Trevor Carrigan and by one employee. It was also put to me, and not contested, that Viticulture is, by comparison, a large operation. These matters were referred to in relation to the balance of convenience.

17. I might say that the affidavit of Mr Carrigan, and the exhibits thereto, underline the existence of a maintainable argument on the part of Carrigans. Again, without making any comment as to the ultimate merits of the matter, I accept the contents of Mr Carrigan's affidavit for the purposes of the dispute before me.

18. In summary, I am far from persuaded that the proceeding should be struck out on the basis that there is a more appropriate forum. Whether or not there is a burden of proof in relation to such an application before this Tribunal, and I am inclined to the view expressed by Kellam J that it would need to be clear that this Tribunal was not the appropriate forum, I am certainly far from satisfied that it is inappropriate for the proceeding to continue here. The application pursuant to s.77 is dismissed, as is the application pursuant to s.75.

19. As a result of this ruling, it is unnecessary for me to consider whether the agency agreement and the arbitration clause contained therein may be disregarded, and whether the arbitration agreement can only be enforced by an action in damages, as was submitted by Mr Hancock. It seems to me that there may be some difficulty in ousting the Tribunal's jurisdiction vested in it pursuant to the Fair Trading Act, but no specific ruling is required in that regard.

20. In order to avoid further expense and the necessity for further attendance by legal representatives, the question of costs was also argued at the end of the principal submissions. In summary, Ms Moore stated that, if Viticulture were successful, it would not be seeking costs, but would resist any application by Carrigans for costs. In so submitting, she relied upon the fact that this is usually a "no costs" jurisdiction, as indicated in s.109 of the VCAT Act. In anticipation of Mr Hancock relying upon delay, she argued that any delay was not caused by Viticulture, but by procedural problems within this Tribunal. A subsequent adjournment when the matter was fixed for 18 September 2003 was caused by the absence of counsel.

21. I accept that, when this strike out application was first listed before Member Vassie on 18 July 2003, the nature of the application, requiring as it does a judicial member, should have been detected by the Registry and the matter fixed accordingly. That is in no way a criticism of Member Vassie who, as I was told, did his best to find a solution to the problem when it became apparent that he could not hear it. Given the large volume of work handled by the members, it is hardly surprising that, in circumstances where there had been no specific request for a judicial member, the real nature of the application did not become apparent until the day of the hearing.

22. Mr Hancock sought costs on behalf of Carrigans and indeed referred to delay by Viticulture. He pointed out that the original application was issued on 19 December 2002 and that there was reference to a possible interlocutory application by Viticulture at the directions hearing on 12 March 2003. He emphasised the overall delay before this strike out application was heard.

23. I am of the opinion that it is appropriate that there be a costs order in relation to the strike out application, but not for all costs incurred. I accept that the hearing for Member Vassie on 18 July 2003 could never have proceeded because of the requirements of s.77. I accept that it was the result of an unfortunate oversight that was the fault of neither party. I also accept that the hearing fixed for 18 September was adjourned at the request of Carrigans. However, the fact remains that this is substantial commercial litigation and that its outcome has been delayed by the interlocutory application made by Viticulture. I also take into account that this particular proceeding is not only substantial, but complex, and that the strike out application involved attention not only to complex factual matters but also to quite involved questions of law. In addition, the application was based upon both s.75 and s.77 of the VCAT Act, although, on the day of hearing, it was only reliance upon s.77 that was pursued.

24. In summary, I am of the view that Viticulture should pay Carrigans' costs for some of the expenses that have been incurred. I am of the view that Viticulture should pay Carrigans' costs relating to the preparation, lodging and serving of the affidavits in opposition to the strike out application, this including any items which may relate to consideration of Viticulture's material. I am also of the view that Viticulture should pay the costs and disbursements, including counsel's fees, related to the hearing before me on 20 November last. Viticulture should not be responsible for any costs relating to the hearing before Member Vassie on 18 July, or the adjourned hearing on 18 September. The costs that are payable should be those appropriate for an interlocutory application, as opposed to a final hearing.

25. The scale of costs was not argued before me, but, as stated, the amount involved exceeds $120,000. Given that this is a substantial commercial matter, in contrast with many of the matters which are before this Tribunal, it seems to me that Scale "D" of the County Court Scales might well be appropriate. However, as counsel advanced no arguments as to the appropriate scale or method of determining costs, I would be happy to entertain further submissions in this regard.