Victorian Civil and Administrative Tribunal|2007-08-02|Before: Gillard J, Warren J

This matter comes before me by way of an application by Christopher A. Perin, trading as Adelaide Ute Accessories ("Perin"), seeking that an application against him by Faru Pty Ltd ("Faru") be struck out pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act").
Essentially the basis of this application is that Perin has on foot an action issued out of the Magistrates' Court of South Australia against Faru in relation to the same dispute as is before this Tribunal. The dispute itself centres upon engine parts supplied by Faru, which is based in Victoria, to Perin, who is in South Australia, where the engine was built by another defendant to the South Australian litigation, namely Peter Gagliardi. Gagliardi is not a party to Faru's application out of this Tribunal. I accept that a further defendant, namely the engine tuner, is to be added to the South Australian litigation.
Mr Erlichster appeared as solicitor for Faru. Ms Pace appeared as solicitor for Perin. Each made careful and helpful submissions. No oral evidence was adduced.

(1) Whilst the VCAT application issued first, although not by a huge margin, it seeks a declaration pursuant to the Fair Trading Act 1999 that Faru is not liable for the amount that Perin had been seeking from it. In other words, whilst Faru got in the first punch, its action is more in the nature of a defence to an action. Perin's South Australian action is the action seeking damages and I accept that Faru's defence to the South Australian action is or will be basically what it is asserting before this Tribunal as the basis for the declaratory relief sought.

(2) Whilst Faru may have issued first, on 1st February 2007, letters of demand and other correspondence from Perin had preceded this. By a document dated 1st August 2006, the solicitors for Perin had set out the basis of his claim, had quantified it, had stated that the document represented the 21 day Notice of Claim required pursuant to the South Australian Rules, had referred to possible discussion with any insurer, and had also referred to a possible summons. Earlier correspondence had also threatened litigation. An expert's report had been provided by Perin to Faru.

Despite having been given notice, Perin delayed the actual issuing of his summons. He waited well beyond the 21 day period. Ms Pace stated that this delay was due to anticipated or attempted negotiations. I accept this proposition, which was not challenged. Faru then effectively fired the first shot, perhaps anticipating the commencement of Perin's proceeding, by seeking what could be described as a negative declaration. Perin was still a little slow in issuing, his proceeding out of the Magistrates' Court in South Australia being issued on 28th March 2007. However, when this sequence of events is studied, what could be described as the moral high ground of being the first to issue is a position that is considerably weakened.

(3) The South Australian proceeding already involves an additional party - the engine builder - who is located in South Australia. I accept that the engine tuner - also in South Australia - is about to be added. If the matter proceeds to finality, it seems inevitable that there will be a dispute concerning indemnity at such final hearing in addition to arguments concerning liability. The existence of these additional South Australian-based parties adds to the desirability of the matter being conducted there.

(4) The VCAT proceeding has not advanced any great distance. Further, Perin sought the transfer to South Australia as early as 28th March 2007, the same day as he issued the South Australian proceeding. At a directions hearing before this Tribunal the following day, Senior Member Vassie effectively noted that an application pursuant to s.77 of the Act was proposed, and he set a timetable in relation to it. In other words, the VCAT matter was not allowed to progress to any great extent before the application pursuant to s.77 was foreshadowed.

(5) My anticipation is that this matter will take a little longer to reach final hearing in South Australia than it would before this Tribunal. I accept Ms Pace's estimate of 6 months in that regard. However, the additional delay caused is not enormous. The South Australian proceeding is on foot, not merely proposed. There would be some further delay before this Tribunal. Delay is not as great a factor in this case as in others which I have considered and encountered.

(6) The risk of conflicting decisions is to be avoided. The South Australian proceeding will involve all relevant parties and all relevant issues, including indemnity. That tilts the scales considerably in its favour.

(7) Whilst legal costs will be involved in the South Australian proceeding and may not have been involved here - depending on how the case unfolded and bearing in mind that there are solicitors on each side - the balance of convenience strongly favours South Australia as being the location where the litigation should be conducted. What could be described as the principal action has been issued there, and the majority of the parties are located there. A South Australian expert witness has already been engaged.

On balance, I am satisfied that the Magistrates' Court of South Australia is the natural forum for this litigation based upon connecting factors and upon the balance of convenience.
The application pursuant to s.77 is successful and proceeding No. C584/2007 is struck out. I am not convinced that I can or that I should refer a matter such as this to an interstate court or tribunal pursuant to s.77(3). Given that the South Australian litigation is on foot, the striking out of this proceeding without referral should produce the desired result.
I shall reserve liberty to apply.

Faru Pty Ltd v Perin (Civil Claims) [2007] VCAT 1404 (2 August 2007)

Faru Pty Ltd v Perin

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Judgment (11 paragraphs)

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Cases Cited (1)

Faru Pty Ltd v Perin (Civil Claims) [2007] VCAT 1404 (2 August 2007)