First Plaintiff v First Defendant

INJUNCTIONS - Application for urgent interlocutory injunction to restrain VCAT from hearing a proceeding - Whether VCAT lacked jurisdiction to hear proceeding by reason of plaintiffs' reliance on the ACL - Whether the reference to the ACL in points of claim in VCAT proceeding referred to ACL as a law of the Commonwealth or as a Victorian law - When read in context the reference to the ACL was a reference to the ACL as a Victorian law - Not necessary in the interests of justice to restrain VCAT from continuing to hear the plaintiffs' claim - Competition and Consumer Act 2010 (Cth) schedule 2, ss 18, 236 - Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 8, 12, 13, 224 - Supreme Court (General Civil Procedure) Rules 2015 Order 56.

1 The plaintiffs commenced proceedings against the first defendant in the Building and Property List of the Victorian Civil and Administrative Tribunal ('VCAT') in August 2020. In further amended points of claim dated 22 November 2022,[1] the plaintiffs alleged, inter alia, that the first defendant engaged in misleading and deceptive conduct in breach of s 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) ('ACL').[2] The prayer for relief included a claim for damages under s 236 of the ACL.[3] The same claims were repeated in second further amended points of claim filed on 15 April 2024.[4]

2 The plaintiffs' claim was listed for a five day hearing in VCAT commencing 23 June 2025. On 11 June 2025, the plaintiffs' solicitors wrote to the first defendant's solicitors and contended that, by reason of their reliance upon ss 18 and 236 of the ACL, VCAT had no jurisdiction to hear and determine the claim.[5] The plaintiffs proposed that the first day of the hearing be converted to a directions hearing, 'so that the parties can consider and if necessary make submissions on how to deal with the matters in dispute and the proceedings'.[6] This proposal was rejected by the first defendant's solicitors.[7]

3 The hearing commenced in VCAT before Member Curie on 23 June 2025. Counsel for the plaintiffs submitted that VCAT had no jurisdiction to hear and determine the plaintiffs' claims because of their reliance upon ss 18 and 236 of the ACL. Counsel for the plaintiffs made an application for the hearing to be vacated and for the proceeding to be referred to a Presidential member to hear an application under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to transfer the proceeding to the County Court. This application was rejected and the hearing commenced.

4 On the afternoon of 23 June 2025, the plaintiffs commenced a proceeding by originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). In the originating motion the plaintiffs claim:

1. A declaration that the plaintiffs' matter against the first defendant is in federal jurisdiction.
2. An order in the nature of prohibition preventing the Tribunal from continuing to hear the merits of the proceeding.
3. Further or alternatively, leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, and the granting of an appeal under that section, setting aside the Tribunal's order to dismiss the plaintiffs' application made 13 June 2025, and remitting the proceeding for further management in accordance with law.

4. Costs.

5. Such further or other order as the Court considers appropriate.

5 The sole ground relied upon in support of the relief claimed in the originating motion is as follows:

The Tribunal lacks jurisdiction to determine the proceeding brought by the plaintiffs in the Tribunal because the plaintiffs have relied upon a Commonwealth law, being section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth).

6 The plaintiffs' application was listed in the Practice Court at 10.30am on 24 June 2025. When the hearing commenced, I raised with the plaintiffs' counsel the application of s 78B(1) of the Judiciary Act 1903 (Cth). Section 78B(1) provides:

Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for the consideration by the Attorneys-General, of the question of intervention in the proceeding or removal of the cause to the High Court.

7 The plaintiffs contend that by reason of their reliance on the ACL the proceeding is a federal matter and that the Victorian Parliament is incapable of conferring judicial power on VCAT in respect of any matters arising under ss 75 and 76 of the Commonwealth Constitution. Counsel for the plaintiffs properly conceded that the plaintiffs' claim for relief under Order 56 involves a matter arising under the Constitution or involving its interpretation. As such, subject to s 78B(5), the Court could not proceed to hear the matter on 24 June 2025 until notices had been served on the Attorneys-General of the Commonwealth and the States.

8 Section 78B(5) permits a Court to hear and determine proceedings without delay, so far as they relate to the grant of urgent relief of an interlocutory nature, where the Court thinks it is necessary in the interests of justice to do so. The plaintiffs' counsel accepted that s 78B(5) does not apply to the relief claimed in the originating motion because the relief sought is not interlocutory in nature. The plaintiffs' counsel made an oral application to amend the summons on the originating motion to include a claim for an interlocutory injunction to restrain VCAT from hearing and determining the VCAT proceeding. The purpose of this injunction was stated to be to allow the plaintiffs to comply with the notice requirement under s 78B(1), following which the Court could hear and determine the plaintiffs' application under Order 56.

9 At the conclusion of the hearing on 24 June 2025 the Court:

(i) granted the plaintiffs' application for leave to amend the summons to claim an interlocutory injunction restraining VCAT from continuing to hear the proceeding which had commenced on 23 June 2025; and

(ii) dismissed the amended summons.

At the time of pronouncing orders I informed the parties that I would provide written reasons for dismissing the plaintiffs' amended summons.

10 The present proceeding involves a matter arising under the Commonwealth Constitution. By virtue of s 78B(5), the Court can only grant the relief sought by the plaintiffs in the amended summons if satisfied that it is necessary in the interests of justice to do so. I do not consider that it is necessary in the interests of justice to restrain VCAT from hearing and determining the VCAT proceeding. The proceeding has been on foot since August 2020. VCAT is in a position to conclude the hearing of the plaintiffs' claim by 27 June 2025. If an injunction had been granted restraining VCAT from hearing the proceeding, there would potentially have been significant delays before the plaintiffs' claim was heard and determined.

11 The purpose of the injunction sought by the plaintiffs in their amended summons is to enable them to comply with the requirement under s 78B of the Judiciary Act to serve a notice of a constitutional matter on the Commonwealth and State Attorneys-General. Thereafter, the plaintiffs wish to pursue their application under Order 56 for orders prohibiting VCAT from hearing and determining the VCAT proceeding. Whatever the outcome of that application, either party could appeal any order arising from the Order 56 proceedings. Further, if the plaintiffs were ultimately unsuccessful in challenging VCAT's jurisdiction to hear and determine the VCAT proceeding, there could be a delay of 12 to 18 months before the matter ultimately returned to VCAT. Such a delay does not only have an adverse effect upon the plaintiffs. The first defendant has a legitimate interest in the VCAT proceedings being concluded within a reasonable timeframe. The undesirability of fragmentation and delay in the processes of the law is a matter which weighs against restraining VCAT from hearing and determining the plaintiffs' claim.[8]

12 If the plaintiffs had been able to establish that it was strongly arguable that VCAT does not have jurisdiction to hear and determine their claims, considerations of fragmentation and delay would carry less weight. Further, if there was real doubt as to VCAT's jurisdiction to hear the plaintiffs' claims there would be force in the plaintiffs' contention that they should not be put to the trouble and expense of conducting proceedings which might ultimately result in orders which are unenforceable for want of jurisdiction. I am not, however, satisfied that, by reason of advancing claims for breach of s 18 of the ACL, VCAT has no jurisdiction to hear and determine the plaintiffs' claims.

13 Section 131 of the Competition and Consumer Act 2010 (Cth) provides that Schedule 2 of that Act applies as a law of the Commonwealth to the conduct of corporations. Schedule 2 is the ACL. In July 2009, the Commonwealth, States and the Territories entered into the Intergovernmental Agreement for the Australian Consumer Law. Under that agreement the Commonwealth, States and the Territories agreed to implement legislative schemes in which the ACL would be enacted as a law of each State and Territory. Pursuant to this agreement, the Victorian Parliament enacted the Australian Consumer Law and Fair Trading Act 2012 (Vic) ('the Victorian Act').[9]

(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).

16 Section 13 of the Victorian Act provides that a reference in any instrument to the ACL is a 'reference to the ACL of any or all of the participating jurisdictions... except so far as the contrary intention appears in the instrument or the context of the reference'. The definition of 'instrument' in the Victorian Act includes a 'pleading in... a legal or other proceeding'.

17 Section 224 of the Victorian Act provides that VCAT or any Court of competent jurisdiction may hear and determine a cause of action arising under any provision of the Victorian Act.

18 The plaintiffs' counsel submitted that [18] to [21] of the further amended points of claim dated 22 November 2022 and [18] to [22] of the second further amended points of claim dated 15 April 2024 refer unequivocally to the ACL rather than the Victorian Act. I do not accept counsel's contention that, simply because the plaintiffs' pleading refers to the ACL rather than the Victorian Act, the pleading should be read as referring to the ACL as it operates as a law of the Commonwealth.

19 Section 8(1)(a) of the Victorian Act provides that the ACL applies as a Victorian law. Section 8(1)(b) of the Victorian Act provides that the ACL as applying as a Victorian Act 'may be referred to as the Australian Consumer Law (Victoria)'. The combined effect of ss 8(1)(a) and (b) is as follows:

(i) the ACL as in force from time to time applies as a Victorian law; and

(ii) as so applying, the ACL may be referred to as the Australian Consumer Law (Victoria).

20 It does not follow, however, that a reference in a pleading to the ACL as a Victorian law must refer to the ACL as the Australian Consumer Law (Victoria). Rather, consistent with s 13 of the Victorian Act, 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.[10]

21 On 23 June 2025, Member Curie provided reasons for rejecting the plaintiffs' contention that VCAT did not have jurisdiction to hear and determine the plaintiffs' claims. The reasons included the following:

1. Having regard to the recent VCAT matter of Coady v Yachting Victoria Inc (Civil Claims) [2025] VCAT 427, I conducted an objective assessment of the legal basis of the applicants' claim before me and provide the below findings:

(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);

(iv) the contract was formed in Victoria;

(v) the subject site is located in Victoria;

(vi) the issues in dispute are those commonly determined in the Building and Property List of the VCAT, being defects and overpayments in respect of a major domestic building contracts [sic];

(vii) the proper jurisdiction to hear and determine the issue of oral variations made between parties is the VCAT under s 37(3)(b) of the DBC Act;

(viii) the applicants rely upon the warranties set out in s 8 of the Domestic Building Contracts Act 1995 (Vic);

(ix) the applicant's [sic] rely upon s 18 of the ACL in respect of misleading or deceptive conduct regarding provisions contained in the DBC Act;

(x) in the matter of Mitsubishi Motors Australia Ltd v Begovic [2023] ALJR 155, the High Court held at [12] that schedule 2 of the ACL applies as a law of the Commonwealth and of each State and Territory; and

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

22 Member Curie concluded that the reference to the ACL in the points of claim was a reference to the ACL applying as a law of Victoria. I do not discern any error in the reasoning of Member Curie.[11] Member Curie was correct to conclude that when read in context the reference to the ACL in the plaintiffs' amended points of claim and further amended points of claim was a reference to the ACL as a Victorian law.

23 For the reasons set out above, I dismissed the plaintiffs' amended summons because it was not necessary in the interests of justice to grant an injunction restraining VCAT from hearing and determining the plaintiffs' claim.

[1] Further Amended Points of Claim dated 22 November 2022, 1-7 of the exhibit to the Affidavit of David Fairweather sworn 23 June 2025.

[4] Second Further Amended points of Claim dated 15 April 2024, 8-18 of the exhibit to the Affidavit of David Fairweather sworn 23 June 2025.

[5] Letter from Fairweather Legal to Marchesin & Co Lawyers dated 11 June 2025, 27 of the exhibit to the Affidavit of David Fairweather sworn 23 June 2025

[7] Letter from Marchesin & Co Lawyers to Fairweather Legal dated 12 June 2025, 31 of the exhibit to the Affidavit of David Fairweather sworn 23 June 2025.

[8] Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13, [35]-[36] (Basten JA); Wo v Director of Public Prosecutions (NSW) [2009] NSWCA 370, [19] (Basten JA) (Fullerton and McCallum AJJA agreeing); Makucha v Sydney Water Corporation [2011] NSWCA 234, [10] (Basten JA); DPP v Kaba [2014] VSC 52; [2014] 69 MVR 137, [11].

[9] Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43, [12].

[10] Agtrak (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262 [32].

[11] Cf Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58, [158] where the Court of Appeal saw no reason to doubt the correctness of a finding by VCAT that a reference to the ACL in proposed further amended points of claim was a reference to the ACL applying as a law of Victoria.