Application under s75 of the Victorian Civil and Administrative Tribunal Act 1998.

Lisa Muscatello t/as Apartments Melbourne Domain (ABN: 18 089 282 502)

Booking.Com (Australia) Pty Limited (ACN: 130 562 097)

Lisa Muscatello t/as Apartments Melbourne Domain v Booking.Com (Australia) Pty Ltd (Civil Claims) [2019] VCAT 914

1. Under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), proceeding C9070/2018 is dismissed.
2. No order as to costs.

1. Booking.com (Australia) Pty Ltd (Booking Australia) has made an application for summary dismissal of the claim brought by Lisa Muscatello, trading as Apartments Melbourne Domain (Ms Muscatello), pursuant to section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
2. I heard Booking Australia's application on 15 February 2019.

1. Section 75(1) of the VCAT Act provides that VCAT may dismiss or strike out all or part of a proceeding that is frivolous, misconceived, lacking in substance or otherwise an abuse of process.
2. An order dismissing a proceeding brings the proceeding to an end without any possibility of reinstatement. In contrast, an order striking out a proceeding removes the proceeding from the Tribunal's list, but leaves open the possibility of an application for reinstatement.[1]
3. The principles for determining applications under section 75 are well established. It is a very serious matter to dismiss or strike out a proceeding summarily. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.[2]
4. The power to dismiss or strike out a proceeding, or a part of a proceeding, summarily should be exercised only where it is obvious that the proceeding cannot possibly succeed or where it is obvious that the proceeding is an abuse of process for other reasons. Otherwise an applicant is entitled to have the case fully heard and adjudicated upon at a final hearing. It must be very clear indeed that the proceeding is absolutely hopeless or so clearly untenable that it cannot possibly succeed.[3]

1. The submissions made by Booking Australia for summary dismissal of Ms Muscatello's claim rely on two grounds.
2. The first ground is that Ms Muscatello has commenced the proceeding against the wrong respondent. Booking Australia says that Ms Muscatello had a contract with Booking.com B.V, a company based in the Netherlands. Booking Australia says it has no contract with Ms Muscatello.
3. Booking Australia produced a copy of the contract between Ms Muscatello and Booking.com B.V. Although the hearing of an application under section 75 of the VCAT Act is not an occasion on which to determine contested versions of fact, because Ms Muscatello did not appear at the hearing of the section 75 application, and because her description of her claim in the initiating Application did not clearly and unambiguously allege that she had a contract with Booking Australia, as distinct from another entity such as Booking.com B.V, it is appropriate that I refer to the contract produced at the hearing. I am satisfied that Booking Australia is not a party to that contract.
4. The second ground is that Ms Muscatello has failed to file and serve Points of Claim in accordance with orders of the Tribunal made on 13 February 2019.

1. Booking Australia produced a copy of the Accommodation Agreement which it says is the relevant contract.
2. The parties to that agreement are "Individual entrepreneur Lisa Muscatello" of an address in Melbourne and Booking.com B.V of an address in Amsterdam, Netherlands. The agreement is expressed to have been made on 11 November 2016. There is no reference anywhere in the Agreement to Booking Australia.
3. I am satisfied that Ms Muscatello had a contract with Booking.com B.V. I am satisfied that Booking Australia is not a party to that contract. I am satisfied that Ms Muscatello did not have any contract with Booking Australia. On the basis that Ms Muscatello has sued the wrong entity, the proceeding must be dismissed.

1. Because the proceeding is to be dismissed on the first ground, there is no need to make a decision on the second ground. I would say that, although Ms Muscatello's formulation of her claim in her initiating Application is unclear, and would not satisfy the requirements of the rules of pleading in a Court proceeding, I would not dismiss the proceeding if this were the only ground relied on by Booking Australia. This is so, even though Orders were made by the Tribunal requiring Ms Muscatello to file and serve Points of Claim to better articulate her claim, to which she responded by filing and serving a document in much the same terms as her initiating Application. It would be usual for the Tribunal to have given Ms Muscatello an extension of time to file Points of Claim, possibly with an order for costs, rather than making a draconian order dismissing the proceeding on the basis of the breach of that order. However, as I am satisfied that Ms Muscatello's proceeding is doomed to fail because she has not sued the entity with whom she had contracted, I say no more on this point.
2. Booking Australia submitted that the documents filed and served by Ms Muscatello in this proceeding fell a long way short of articulating a claim either under the Australian Consumer Law, or under the Australian Consumer Law and Fair Trading Act 2012.
3. Nevertheless, I note that it is well established that, where an application made under section 75 of the VCAT Act is "based upon the applicant's defective formulation of the claim, then the tribunal must consider that the tribunal is not a court of pleading. A failure to particularise a claim does not of itself give foundation to a finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process."[4]

1. Section 75(2) of the VCAT Act empowers the Tribunal, where it has made an order under section 75(1), to order the applicant to pay "an amount to compensate any other party for costs expenses loss inconvenience and embarrassment resulting from the proceeding."
2. As the Tribunal noted in Ingram v McLennan & Associates Pty Ltd[5], the striking out of a misconceived application might be considered less likely to lead to an award under section 75(2) than the striking out of a claim that was clearly frivolous or vexatious. As I have noted above, Ms Muscatello's initiating application did not clearly and unambiguously allege that she had a contract with Booking Australia. It was for that reason, and the fact that she did not attend the hearing of the section 75 application, that it was appropriate to consider the contract produced at the hearing by Booking Australia. Ms Muscatello's application was more misconceived than frivolous or vexatious.
3. By its orders dated 13 February 2019, the Tribunal gave leave for Booking Australia to make an application under section 75 before the date set for it to prepare Points of Defence, effect discovery or make any counterclaim. Booking Australia availed itself of that opportunity. In all the circumstances of this proceeding I do not consider it appropriate to make an order under section 75(2) of the VCAT Act.

[1] Waddingham v Australian Securities Ltd [2010] VCAT 1311 at [9]; Luck v Victoria Police [2015] VCAT 71 at [11].

[2] Towie v Victoria [2008] VSC 177 at [9].

[3] Forrester v AIM Corporation [2004] VSC 506.

[4] Barbon v West Homes Australia Pty Ltd [2001] VSC 405 at [16-17], noted with approval in Worldwide Enterprises Pty Ltd v Westpac Banking Corporation by Judge Misso, Vice President.

[5] [2014] VCAT 412 at [5].