2. The Applicant file Points of Claim on or before 30 April 2005.

3. The Respondent file Points of Defence on or before 30 May 2005.

4. The parties make discovery of all document sin their power, possession or control that relate to a question in issue in this proceeding, including all documents that they seek to rely upon at the hearing, on or before 10 June 2005.

5. The Applicant file all witness statements it seeks to rely upon, including any expert witness statements on or before 8 July 2005.

6. The Respondent file all witness statements it seeks to rely upon, including any expert witness statements on or before 5 August 2005.

7. A mediation be conducted by a member of the Tribunal on or before 12 August 2005.

8. The matter be listed for hearing on a date to be fixed with an estimate of 2-3 days.

1 This matter comes before me by way of an application pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998. The application by the original respondent, NP Distribution P/L ("NPD") seeks that the application of Dragon Image P/L ("Dragon") be struck out and referred to the Melbourne Magistrates' Court.

2 I make no findings as to the merits of the matter and any reference to matters of fact are solely for the purpose of placing this application in context. They are not findings of fact as such. Dragon entered into a contract with NPD in August 2004 for the delivery of certain electrical items from Sydney to Melbourne. A sub-contractor collected the goods on 1st September 2004. Unfortunately there was a fatal accident on the Hume Highway and the goods were destroyed.

3 On 1st November 2004 Dragon issued an application out of this Tribunal pursuant to the Fair Trading Act 1999 seeking $50,000.00 for the loss of the goods and loss of business. A letter and some documents were annexed to the application. No points of claim or defence have been filed and served, these having been deliberately put on hold pending the outcome of this application.

4 In a well-reasoned submission in which there was reference to various authorities, Ms Siemensma, on behalf of NPD, argued that the appropriate test in an application pursuant to s.77 is not whether it is clear that this Tribunal is an inappropriate forum, as set out by Justice Kellam in Bentley v Cash Resources [2002] VCAT 1399, but is a less stringent test, namely whether there is a more appropriate forum, which in this instance would be the Magistrates' Court.

5 Her reasons for the Magistrates' Court being the more appropriate forum are that this is quite a complex case, dealing with questions of contract and exclusion clauses; the matter should be dealt with in a jurisdiction where the rules of evidence apply because of conflicting versions of facts and conversations; and VCAT is not a court of pleadings. Discovery and interrogation will be required and case management processes such as exist in the Magistrates' Court would be of assistance. In addition, the amount of money involved is quite substantial.

6 It was further argued that, in the event of the victory confidently anticipated, the respondent would be prejudiced on the question of costs, as these are often not awarded in this jurisdiction and are not automatically awarded. Furthermore, there would be no great disadvantage to the parties in relation to the question of speed of hearing, as the sort of delays that might be encountered in the County or Supreme Court should not be experienced in the Magistrates' Court. The application presently before this Tribunal has not advanced very far. In addition, Dragon may have more heads of relief open to it in the Magistrates' Court.

7 Mr Yin, the sole director of Dragon, appeared on its behalf, the question of his certification so to do having been satisfactorily resolved. Apart from some reference to the factual background, he stated his was a small family company and that, on advice, he had elected to issue the application out of this Tribunal because it would be less expensive and he would get a faster hearing.

8 Whatever the test to be applied, in my opinion this application pursuant to s.77 fails. It so fails for a variety of reasons, which I do not list in order of importance.

9 Firstly, this Tribunal is very familiar with applications pursuant to the Fair Trading Act. Indeed, it could almost be described as the first port of call for such applications. It is well equipped to deal with them.

10 Secondly, some of the reasons advanced by Ms Siemensma as to why the Magistrates' Court is more appropriate could apply to many disputed claims pursuant to the Fair Trading Act. Frequently there is a battle of word against word. Frequently contracts have to be examined. Frequently clauses in contracts have to be interpreted. Quite often the amount involved is in the order of the amount claimed here and in some cases much larger amounts are in dispute. The question of costs always depends upon the individual case. It hardly seems to me to be arguable that all such matters should be dealt with elsewhere on the basis that a more appropriate forum exists. There is nothing to which I have been alerted which lifts this case out of the ordinary run of cases or gives it some peculiar characteristic that makes another forum more appropriate.

11 Whilst this is not a court of pleadings (and nor, for that matter, is the Magistrates' Court), documents akin to pleadings, although sometimes less formal, are ordered here in appropriate cases and case management processes can be and have been put in place. Dragon has already issued out of this Tribunal. There are no corresponding proceedings on foot elsewhere. There is no issue of duplication of proceedings or risk of conflicting outcomes.

12 Dragon selected this forum for its application. Whether there is a greater range of heads of relief elsewhere is a matter for it. No challenge is raised before me as to the Tribunal's jurisdiction to deal with the matter. It has been explained why Dragon chose this Tribunal. Basically, it was because of advice that this Tribunal is convenient and appropriate, and for reasons of expense and speed of hearing.

13 Clearly these are factors which I am entitled to consider. I note that, in the matter of Rogan and Ors v Rushton (QLD) Pty Ltd [2002] VSC 375, a decision of now Chief Justice Warren to which I was referred, at paragraph 16 Her Honour referred to factors to be considered when determining a more appropriate forum. These included the connection between the alleged conduct and the jurisdiction, which factor certainly does not make the Magistrates' Court more appropriate, and, importantly, the cost and convenience for the parties as to the forum selected. Again, in the present situation, this does not seem to me to make the Magistrates' Court a more appropriate forum.

14 I am quite satisfied that this Tribunal is a more appropriate forum for the disposition of this matter. There are experienced members well equipped to hear it. The Tribunal's procedures are appropriate. Appropriate case management processes can be adopted if required. The original applicant selected the Tribunal for relevant and understandable reasons. There is nothing unusually complex about the matter. The quantum involved is substantial but not enormous, even assuming that this were a factor.

15 There is simply nothing about this case, as it presently stands, that persuades me that the Magistrates' Court is a more appropriate forum and the application pursuant to s.77 is dismissed accordingly.