Victorian Civil and Administrative Tribunal|2005-12-20

Geopec Pty Ltd v Ausbuild Constructions Pty Ltd (Civil Claims) [2005] VCAT 2708 (20 December 2005)

Victorian Civil and Administrative Tribunal Act 1988 - Fair Trading Act 1999 - Commercial building dispute - Ss.75 and 77 - Tribunal has jurisdiction and is appropriate forum.

Mr Laird of Counsel, instructed by Robert James Lawyers

Mr Burgess, Solicitor, of Henderson & Ball, Solicitors

1 These matters come before me by way of applications by Geopec Pty Ltd ("Geopec") pursuant to s.75 and s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act").

2 By way of an application issued out of this Tribunal on 7th September last, Ausbuild Constructions Pty Ltd ("Ausbuild") claims as against Geopec an amount in excess of $70,000 essentially in relation to work and labour done pursuant to a contract dated 17th May 2005. The application is of the pro forma type, and specifically recites that it is a claim made under the Fair Trading Act 1999 ("the FTA"). Points of Claim attached to the application form refer to the contract and allege that Geopec engaged Ausbuild to undertake the design and construction of a commercial building at Caroline Springs. Without going into the details of the contract, essentially Ausbuild is claiming progress payments in respect of design and consultancy work performed pursuant to it.

3 On 29th September 2005, Geopec issued out of this Tribunal an application against Ausbuild and against Martin Clarke, a director of Ausbuild. For the purposes of this ruling, I shall not refer to Clarke separately, as he had the same legal representation as Ausbuild, and no separate arguments were advanced in relation to him. Geopec's application has also been made by way of the standard form, and attached to it are Points of Counterclaim. The application form specifically states that the claim by Geopec has not been brought pursuant to the FTA, but pursuant to the Trade Practices Act 1974 (which is, of course, Commonwealth legislation). The amount claimed by Geopec is considerably in excess of that claimed by Ausbuild.

4 It is against that background that Geopec has made the present applications. It is alleging that Ausbuild's claim should be summarily struck out or dismissed pursuant to s.75 of the Act because of a want of jurisdiction. Alternatively, it seeks a striking out pursuant to s.77 and a referral of the matter to the Supreme Court of Victoria. Mr Laird of counsel appeared on behalf of Geopec. Mr Burgess appeared as solicitor for Ausbuild, which resisted both applications.

5 It should also be said that Mr Laird accepted that Geopec's counterclaim was based upon Commonwealth legislation and that, should the matter continue before this Tribunal, appropriate amendments would be made. He also stated that Geopec has not in fact commenced any proceeding in the Supreme Court of Victoria. Geopec has raised the question of the jurisdiction of this Tribunal in its defence to Ausbuild's claim. It has not issued Supreme Court proceedings pending the hearing of these matters, but, should the matter be referred, it would then issue proceedings of the type foreshadowed in its Points of Counterclaim. I accept Mr Laird's assurance in this regard and am determining the matter on the understanding that, should it be successful, Geopec will be so issuing proceedings.

6 In reciting the factual background to this matter I am making no findings "on the merits". I am treating any factual material which has been placed before me as doing no more than establishing the context in which these applications are to be viewed, and so as to make this ruling more understandable.

7 I shall now deal with the applications in turn.

8 Mr Laird's initial argument was that Ausbuild's application involved no reliance upon any breach of the FTA and that examination of its Points of Claim in fact revealed no reliance upon the FTA. He argued that the substance of what it is claiming must be examined, and the mere fact that the form refers to the FTA is insufficient. He expanded on this by saying that commercial building disputes of this kind cannot be considered to be consumer and trader disputes within the meaning of the FTA. The legislation was not intended to cover such matters. No such matters were intended to, nor do, fall under the operation of the FTA and thus are not within the jurisdiction of this Tribunal. If it were otherwise, he submitted, it would mean that cases involving hundreds of millions of dollars, such as the Burnley Tunnel dispute, in fact fell under the FTA and could be heard here.

9 The submission of Mr Burgess was that this is a claim based upon contract for the supply of goods and services. There is no need to refer to any breach of the FTA. It is a consumer and trader dispute within the meaning of s.107 of the FTA. The Tribunal has jurisdiction to hear it.

10 In my opinion the arguments advanced by Mr Burgess are correct. It is a common misunderstanding of the operation of the FTA that, for jurisdiction to exist, there must be demonstrated some breach - for example, unfair terms or unfair practices. The misunderstanding sometimes extends to the belief that the only other type of claim that falls under the FTA are small claims or claims that involve complaints against traders, in the sense of store keepers or tradesmen. Perhaps the use of the words "consumer and trader" leads to this misapprehension.

11 Whatever the common belief may be, and whatever was originally intended in relation to the operation of the Act, the definitions contained within it make it clear that a claim such as that issued by Ausbuild falls within it. Furthermore, there is no financial limit operative.

12 A consumer and trader dispute is defined in s.107 of the FTA as being a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services. If it is such a dispute, pursuant to s.108(1), the Tribunal may hear and determine it.

13 In paragraph 3 of the FTA, "purchaser" in relation to a supply of goods or services is defined as meaning the person to whom the goods or services have been or are to be supplied. "Services" is defined as including, inter alia, rights, benefits, privileges or facilities granted under a contract for or in relation to the performance of work. Ausbuild alleges Geopec is the person to whom such rights, benefits, privileges or facilities have been provided under a contract in relation to the performance of work. Thus, Geopec is the purchaser. "Supplier" is defined as the person who has supplied or is to supply the goods or services. Ausbuild is the supplier. The necessary elements required by s.107 are present, and the Tribunal has jurisdiction to hear the matter. Ausbuild has brought its claim pursuant to the FTA. Its Points of Claim demonstrate why this is so. The matter is properly before the Tribunal.

14 The submissions advanced by Mr Laird could be summarised as follows.

15 The natural place for hearing a dispute such as this is the Commercial Building Cases List in the Supreme Court of Victoria. Lists such as it or its County Court equivalent are designed specifically to hear such matters. If a commercial building matter such as this came before the Federal Court, it would, as a matter of practice, be referred to the Supreme Court - see Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2003] FCA 1483 as an example of the approach adopted by the Federal Court. In addition, doubts exist whether, before the Tribunal, there could be non-party discovery or interrogation. There is no doubt that these procedures can be used in the Supreme Court. This a complex case and it would be unfair and a waste of the Tribunal's time and facilities to have such a matter heard in the Civil List. Reference is made to the observations of Kellam J in Bentley v Cash Resources Australia Pty Ltd [2002] VCAT 1399. There is a considerable amount of money involved in this dispute, but whatever the amount, matters such as this should be heard elsewhere, and, in this instance, by the Supreme Court of Victoria.

16 Mr Burgess submitted that this Tribunal should hear the matter. He referred to various decisions of mine concerning the capacity and ability of members of this Tribunal to deal with such matters - see, for example, Spadaro v Mirvac Victoria Pty Ltd (delivered 9th March 2005) and Bruce Henderson Architects Pty Ltd v Entertainment Development Group Pty Ltd (delivered 14th July 2004) amongst others. The matter is in fact not particularly complex. It is not a case of the type where a large amount of evidence is going to be given concerning faulty workmanship. Ausbuild issued out of this Tribunal. Geopec did the same. The matters should not be referred elsewhere.

17 I again prefer the arguments advanced by Mr Burgess. He commented on several occasions concerning my confidence in the ability of members of this Tribunal to hear and determine a case such as this. I agree. This matter is by no means unique. Cases larger and more complex than this are dealt with in a number of lists. I see no reason why a commercial building dispute issued out of the Civil List should be in a different position.

18 Claims of various kinds brought pursuant to the provisions of the FTA are determined here, and they are of varying degrees of complexity and size. As I observed in Dragon Image Pty Ltd v NP Distribution Pty Ltd (delivered 16th March 2005), this Tribunal could almost be described as the first port of call for applications such as this.

19 Further, as I have remarked on several occasions, whilst this is not a court of pleadings, 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.

20 In the present case there is no risk of duplication of proceedings or of conflicting outcomes. Ausbuild opted to issue out of this Tribunal. The matter has already advanced a considerable distance. Questions of cost and convenience are to be taken into account - see the observations of Warren J in Grogan and Ors v Rushton (Qld) Pty Ltd [2002] VSC 375. I am not persuaded by the submission of Mr Laird that there may be little difference in the cost or speed of litigation when comparing the Supreme Court and this Tribunal.

21 In Rogan, Warren J also referred to the connection between the alleged conduct and the jurisdiction as being a factor to be considered. Bearing in mind that this is a claim based in contract and pursuant to the terms of the FTA, that consideration would not lead me to the conclusion that the matter should be referred elsewhere, and indeed is supportive of the proposition that it should remain here.

22 In summary, whatever test is to be applied in relation to the burden of proof (and there was some argument concerning this), I am far from persuaded that the Supreme Court is a more appropriate forum. I am not persuaded that it is the natural forum based upon connecting factors, to use the words of Gillard J in Ewins v BHP Billiton Limited [2005] VSC 4. The matter has advanced a considerable distance before this Tribunal. It is within the Tribunal's jurisdiction, and many proceedings brought pursuant to the provisions of the FTA are determined here. There are experienced members well equipped to hear it. Appropriate case management procedures can be adopted. I am not persuaded that the matter is unusually complex. I am satisfied that greater cost, delay and inconvenience would be caused if the proceeding were now struck out and transferred elsewhere.

23 Mr Laird submitted that, in essence, it is not a question of degree and that no such matters involving commercial building disputes should be justiciable here. I cannot agree with him. Indeed, that very argument seems to me to defeat the position which he advances. If simple, non-complex commercial building disputes cannot be heard here, despite being within the Tribunal's jurisdiction, and despite there being no indication of legislative intent to the contrary having been put before me, there is then little point in analysing the volume or complexity of this or any other commercial building dispute. I do not accept this "all or nothing" argument. Questions of degree may become relevant. In an appropriate case, a commercial building dispute may be referred elsewhere. It is not appropriate in this case.

24 Both applications are dismissed.

Geopec Pty Ltd v Ausbuild Constructions Pty Ltd

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Judgment (11 paragraphs)

Geopec Pty Ltd v Ausbuild Constructions Pty Ltd (Civil Claims) [2005] VCAT 2708 (20 December 2005)

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