Nektaria Pty Ltd v Dimitrijevski (Civil Claims) [2018] VCAT 97 (25 January 2018)

Question of jurisdiction where the Applicant sued for "defamation" in a broad sense - parties not represented by legal practitioners - words used loosely in the claim "breach of privacy, defamation, criminal acts, and harassing and stalking clients" - Tribunal not assisted by the parties' submissions - Australian Consumer Law and Fair Trading Act 2012 section 182(1) "consumer and trader dispute" - Australian Consumer Law sections 18(1), 236(1) and 237(1) - "in trade or commerce" - Australian Ocean Line Pty Ltd v West Australasian Newspapers Ltd [1983] FCA 66; (1983) 66 FLR 453 - Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 - Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305 - Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 - Houghton v Arms [2006] HCA 59 - TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9 - Hearn v O'Rourke [2002] FCA 1179 - Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment [2010] VSC 389.

Nektaria Pty Ltd v Dimitrijevski (Civil Claims) [2018] VCAT 97

1. This Tribunal is "intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction"[1] and its purpose is described in its Service Charter to be "to provide Victorians with a low-cost, accessible, efficient and independent Tribunal delivering high quality dispute resolution".[2]

1. In practical terms, the Tribunal does not have procedural Rules which compel parties to file "pleadings", as the Courts do, and the Tribunal frequently deals with parties - including corporations - who are not represented by legal practitioners. The Tribunal must deal with Applications as they are filed, including those which do not properly identify the legal basis of the claim sought to be made.

1. Nektaria Pty Ltd is a couturier which designs and makes bespoke wedding gowns. On 19 October 2017 it contracted to make a wedding gown for Ms Dimitrijevski for a wedding in February 2019. It received a deposit. It had over 15 months to make the wedding gown.

1. In late 2017, still over 12 months before the wedding gown was required, the parties fell into dispute, and Nektaria issued this VCAT proceeding on 22 December 2017. The subject of the initial dispute is unclear on the documents filed, because the proceeding is in its early stages. The Application form was drafted by Ms Nektaria Georgys, director.

1. In its Application form, Nektaria said that it was making its claim under the Australian Consumer Law and Fair Trading Act 2012[3] ("ACL&FTA"). It said that it was not making a monetary claim, and that it was seeking an injunction.[4]

1. In the section of the Application form in which an applicant explains why it seeks relief[5], Nektaria alleged that Ms Dimitrijevski had "made false or misleading representations in connection with or when promoting the service" and that Ms Dimitrijevski "breached the contract to provide goods/services". As Nektaria was the party which was supplying goods and services under the contract, its reference to "promoting the service" appears unusual.

1. In the section of the Application form in which an applicant gives a description of the dispute[6], Nektaria said it had been defamed. It said:[7]

The Respondent on the 3rd 4th 5th 6th 7th and 8th of December 2017 has posted [on social media] false, defamatory [material]. [The] implications are conveyed that I and my company have scammed her out of money $5,000.00 and have left her without a wedding dress. ...

She signed a contract stating her wedding is in 2019 but she claims we have stolen money from her.

These lies have been highly exposed and have caused serious damage physically and emotionally to my company, my current, potential and previous clients, high-profile models, company associates, my staff and myself.

We have also received death threats from her mother which we have reported to the police and 4-10 prank calls daily since the social media posts.

She has posted photos of my face with "scammer" with my models and staff.

She is tagging all my clients to damage my business.

Her mother has also said she will destroy my business if it's the last thing she does.

1. In the section of the Application form in which an applicant is required to state the Orders sought, the form said only "Other", but reading the Application as a whole it is clear that Nektaria sought an injunction to prohibit Ms Dimitrijevski from continuing to publish material on social media which was defamatory of Nektaria.

1. On the same day as filing the Application form, Nektaria emailed the Tribunal[8] enclosing further documents and referring to its "urgent injunction claim for breach of privacy, defamation, criminal acts, and harassing and stalking clients and associates". Included was a letter that solicitors had written to Ms Dimitrijevski on 5 December 2017 which identified three posts on Instagram made on 3, 4 and 5 December 2017. The solicitors asserted that those posts contained defamatory imputations, demanded that Ms Dimitrijevski cease and desist from engaging in such conduct and demanded that the posts be immediately and permanently removed, and foreshadowed litigation in the Supreme Court of Victoria for damages for defamation.

1. So, at that stage the proceeding concerned defamatory posts on social media. Ms Dimitrijevski's mother was not named as a respondent. The expressions "breach of privacy, ... criminal acts, and harassing and stalking clients and associates" are generic and non-technical.
2. The Tribunal does not have jurisdiction to hear claims of the tort of defamation. However, as Nektaria did not instruct its solicitors to draft its Application, and as it used those other generic terms, it should not be taken to have used the word "defamation" as literally referring to that tort.

1. The Tribunal listed the application for an injunction for hearing on 2 January 2018, and sent both parties notice of that hearing. The Notice of the hearing described it as the hearing of an application for an injunction. The Tribunal's file shows that it mailed the Notice to Ms Dimitrijevski on 29 December 2017, and that it emailed the Notice to the Nektaria. The Notice to Nektaria directed it to serve on Ms Dimitrijevski a complete copy of the Application form and any attachments, and any other documents on which Nektaria relied.

1. It is doubtful that the Notice mailed by the Tribunal reached Ms Dimitrijevski before the hearing, but the Tribunal expected Nektaria to serve her. In any event, applications for injunctions can be heard ex parte in appropriate circumstances.

1. Ms Dimitrijevski did not appear at the hearing on 2 January 2018, and the Tribunal granted an interim injunction and adjourned the proceeding to a further hearing on 16 January 2018. Nektaria gave an undertaking as to damages, and the Tribunal reserved to the parties liberty to apply. The injunction was set out in paragraph 3 of the Order as follows:

Until further order the respondent by herself or by any servant or agent must:

(a) refrain from publishing in any manner or medium any reference to the applicant, its directors (including Ms Nektaria Georgys) , employees, associates, customers or suppliers;

(b) not approach, contact or communicate with, any employee, associate, client or supplier of the applicant;

(c) remove from all social media any post or comment made by the respondent or at her directions relating or referring to the applicant, its directors, employees and associates.

1. Nektaria had not filed an affidavit in support, but again in the absence of "Court Rules" there is no mandatory requirement for an applicant to do so. Documents filed by Nektaria include screenshots of Instagram posts, and one of them says that Ms Dimitrijevski has made 197 posts, has "43.3k followers", and that 755 people were following one particular post. I understand this text to convey that Ms Dimitrijevski has 43,300 followers. That number would exceed the circulation figures for, say, many regional newspapers.

1. It is noted that the injunction of 2 January 2018 is not confined to publication on social media. It extends to publication "in any manner", and to communications with persons who deal with Nektaria.

1. The hearing on 16 January 2018 was the return of the injunction, allowing Ms Dimitrijevski and Nektaria to be heard on the question of whether the injunction should continue.

1. I was concerned to learn the basis on which Nektaria had established to the Tribunal's satisfaction on 2 January 2018 that it had jurisdiction to grant the injunction. Ms Dimitrijevski appeared at this hearing by telephone, and she was assisted by her employer Ms Christi Grinhan[9].

1. It was difficult to have the parties focus on the issue of jurisdiction (the Tribunal's power to grant the injunction) instead of their conflicting views on the "merits" (whether an injunction ought to be granted).

1. On the issue of jurisdiction Nektaria submitted that:

(a) its solicitors' letter to Ms Dimitrijevski of 5 December 2017 addressed VCAT's jurisdiction;

(b) in publishing the material on social media Ms Dimitrijevski had breached clauses 6 and 14 of the parties' contract; and

(c) in publishing the material on social media Ms Dimitrijevski had contravened an obligation imposed on her by this text which appears at the foot of Nektaria's emails:

"This document is commercial in confidence. The recipient of this document agrees not to use, disclose, to allow to use or disclosure of the said information to unauthorised parties, directly or indirectly, irrespective of the acceptance or rejection of the presentation or at any time before, during or after an agreement has been reached without prior written consent".

1. I must reject each of these submissions, for these reasons:

(a) The solicitors' letter did not address jurisdiction, and as stated above it foreshadowed proceedings in the Supreme Court of Victoria.

(b) Clauses 6 and 14 of the contract prohibit the taking of photographs or videos in Nektaria's showrooms, in the process of production or on collection of a gown, or during appointments. The material published on Instagram by Ms Dimitrijevski does not include photographs or videos taken by her. There is a photograph of a model wearing a gown which Ms Georgys said had been taken in Nektaria's showroom, but it is clear that that photograph had been published by Nektaria for marketing purposes and was effectively in the public domain. I would construe clauses 6 and 14 as referring to photographs being taken by Ms Dimitrijevski, and not to apply to the matters of which Nektaria complains.

(c) The footer on emails only purports to apply to information conveyed by Nektaria in the email, and it does not apply to the matters of which Nektaria complains.

1. Ms Dimitrijevski submitted, without developing the argument, that the dispute should be litigated in a Court.

1. I advised the parties that I had not found their submissions to be helpful. I asked Nektaria to say what Orders it would seek if the Tribunal had jurisdiction, and it replied that it was a permanent injunction along the lines of the current Order. It was not seeking damages.

1. Ms Dimitrijevski has recently filed a counterclaim, proceeding C197/2018, but that proceeding was essentially in the nature of a "defence" seeking to justify her conduct and not seeking relief.

1. I advised the parties I would consider whether the Tribunal had jurisdiction, noting that the injunction granted on 2 January 2018 was expressed to last "until further order". I pointed out that if the Tribunal did not have jurisdiction, that Order of 2 January 2018 would effectively be a nullity.

1. For the purposes of considering jurisdiction, but not for the purpose of making a finding on the merits, I would note that publishing a trader's photograph and business name on the internet, with the word "Scammer" in bright red letters emblazoned over the image, is capable of constituting misleading and deceptive conduct, and defamation. Similarly, publishing text accusing a trader of theft and dishonesty is also amenable to action. Of course both concepts are subject to defences of 'truth' although they are expressed differently, and there are various forms of 'qualified privilege' which constitute defences to a claim of defamation. For the purpose of the following discussion of jurisdiction, it is assumed that Ms Dimitrijevski's publications were misleading and deceptive.

1. Section 184(1) of the ACL&FTA confers jurisdiction on the Tribunal to hear and determine a "consumer and trader dispute", which is defined in section 182 as follows:

(1) In this Chapter a consumer and trader dispute is 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.

1. Section 184(2)(k) provides that the Tribunal may "order a party to do or refrain from doing something", which is a way of describing an injunction, and gives this example:

If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, VCAT, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser's credit record.

1. The reference in the Example to "declaring that there is no debt owing", is to the Tribunal's power under section 184(2)(i). An order requiring "the supplier to contact the credit reference agency" could be called a mandatory injunction. Section 123(1) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal "by order (to) grant an injunction, including an interim injunction, in any proceeding if it is just and convenient to do so", but this does not enlarge the Tribunal's jurisdiction, but only operates in aid of whatever jurisdiction the Tribunal already has[10].

1. There is no doubt that a dispute between a couturier and a customer about payment for a wedding gown, the quality of a wedding gown, or whether a gown was delivered on time under the parties' contract would be a "consumer and trader dispute".

1. However in my view, a dispute about the publication of defamatory misleading or deceptive material on social media, even where apparently prompted by a customer's dissatisfaction with their couturier, is not a "consumer and trader dispute" between them.

1. That dispute is "between" the couturier and the customer, but it is not "in relation to a supply or possible supply of goods or services". It is "in relation to" the contents of the publication. The defamation might have been prompted by and "in relation to a supply or possible supply of goods or services", but that is not sufficient to bring the defamation within the definition of "consumer and trader dispute".

1. To take the opposite view would be to remove any limiting effect of those words "in relation to". Almost any dispute between people who had been parties to a transaction would fall within the definition, such as an assault by a builder of a subcontractor.

Jurisdiction under the Australian Consumer Law - injunction?

1. The ACL&FTA also confers jurisdiction on the Tribunal to hear and determine causes of action under the Australian Consumer Law ("ACL"). Section 9(1) makes the ACL apply as a law of Victoria. Section 224 says that subject to section 223, the Tribunal "may hear and determine a cause of action arising under any provision" of the ACL, and section 223(1)(d) says that in various contexts the word "court" in the ACL means this Tribunal.

1. Section 18(1) of the ACL says "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".

1. Section 236(1) of the ACL says that a person who suffers loss or damage "because of" a contravention of, amongst other provisions, section 18(1) may recover against any person involved in the contravention.

1. The Tribunal can, therefore, hear claims based on misleading and deceptive conduct in trade or commerce and award damages.

1. Section 237(1) of the ACL says that a "court" may make such order as it thinks appropriate against a person who has contravened, amongst other provisions, section 18(1).

1. In other words, if Nektaria could establish that Ms Dimitrijevski's publications on social media was misleading or deceptive conduct in trade or commerce, the Tribunal could grant the injunction she seeks.

Jurisdiction under the Australian Consumer Law - was Ms Dimitrijevski's conduct "in trade or commerce"?

1. To recap, section 18(1) of the ACL says "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Conduct which is not "in trade or commerce" is not prohibited by the section.

1. Each case turns on its own facts but it is clear that publishing comments is "conduct" which is capable of being "in trade or commerce".

1. In Australian Ocean Line Pty Ltd v West Australasian Newspapers Ltd [1983] FCA 66; (1983) 66 FLR 453 the Federal Court held that publication of statements of opinion in a newspaper (as distinct from publication of advertising) could constitute conduct which was misleading or deceptive[11].

1. In Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52, the Federal Court held that publication in an on-line blog could be misleading or deceptive conduct. Put simply, in that case one business person published an article on line which was critical of a competitor.

1. In Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305 the Federal Court held that a business which manipulated reviews on the TripAdvisor website concerning its business had engaged in misleading or deceptive conduct.

1. So, the type of media that carries the publication - whether it be traditional newspapers or more recently the internet - is irrelevant. Conduct on the internet is subject to the law.

1. Section 18(1) of the ACL only applies to conduct "in trade or commerce".

1. It is easy enough to understand those words as applying to the person who engages in the conduct: for example, the car dealer who misrepresents the age or mileage of a car, or the accountant who misrepresents her qualifications.

1. In the current case, it is not the business person who has engaged in the relevant conduct - it is Ms Dimitrijevski who was the consumer.

1. On the state of the evidence, I could not find that Ms Dimitrijevski published the material in her own trade or commerce. Whilst she seems to have 43,300 followers on Instagram which leaves open the possibility that she derives income as an 'influencer' by promoting products for a fee, there is no evidence of this at this stage.

1. There is a question of whether in some way Ms Dimitrijevski's publication of the material could be said to have occurred in Nektaria's trade or commerce, because Nektaria's sale of bridal gowns takes place in trade or commerce. This question arises because Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 is a most important judgment on the meaning of the words "in trade or commerce", and in Houghton v Arms [2006] HCA 59, at paragraph 34 the High Court said:

"(I)n his judgment in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, Toohey J emphasised that, while in most cases, the focus would be on the nature of the business of the party making the representation, [the equivalent of s18 of the ACL] was not so limited; in particular, the section did not, in terms, refer to the trade or commerce of any particular corporation. Accordingly, statements made by a person not ... herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity". (emphasis added)

1. This is where self-represented litigants triggering debate about technical issues of law imposes an unreasonable burden on the Tribunal. Technical issues of law require submissions by persons, preferably legal practitioners, who take the time to research the issue and put proper submissions. It is simply not appropriate for parties to expose an idea and then expect the Tribunal to conduct the research into it.

1. As will be seen below, I have taken the view that the Tribunal does not have jurisdiction and I have determined that the proceeding be struck out. Nektaria can seek leave to appeal, or seek to reinstate the proceeding, but in either event it will have to present sound arguments in support of its position.

1. To continue. In Concrete Constructions (NSW) Pty Ltd v Nelson the High Court examined the difficulty of considering whether particular conduct took place in trade or commerce. It adopted a restrictive approach to that expression, saying

The real problem involved in the construction of [section 18 of the ACL] does not ... spring from the use of the words "trade or commerce". It arises from the requirement that the conduct to which the section refers be "in" trade or commerce. ... The phrase "in trade or commerce" ... has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct in trade or commerce can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or is incidental to, the carrying on of an overall trading or commercial business.

1. The High Court said that if the words did not have a restrictive operation, the failure of a truck driver to give a correct signal when driving a truck while working, could fall within the section.

1. The restrictive operation meant that the reference to conduct -

"in trade or commerce" can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. ... (T)he words ... refer to the central conception of trade or commerce and not to the immense field of activities in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

What the section is concerned with is the conduct of a (person) towards persons, be they consumers or not, with whom it [or those whose interests it represents or is seeking to promote] has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an identifiable section of the public. In some areas, the dividing line between what is and what is not conduct in trade or commerce may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character

1. You can see that the above comments are referring to the trader, for example promoting its goods to potential consumers.

1. In Houghton v Arms Mr Houghton and Mr Student were employees of a company called WSA. WSA was developing a business of marketing wine, and as part of their employment duties and acting within the scope of actual authority, Mr Houghton and Mr Student made representations to Mr Arms, a winemaker, which persuaded him to contract with WSA to join the marketing scheme. The representations were misleading and Mr Arms lost money. WSA became insolvent and so Mr Arms sued Mr Houghton and Mr Student personally. At trial, the Court held that Mr Houghton and Mr Student had not in any sense engaged in trade or commerce on their own account, as distinct from as employees of WSA; that they had no independent trading or commercial interest; and so Mr Arms' claim against them had to be dismissed. There was an appeal to the High Court.

Mr Arms was engaging in trade and commerce under the name "Australian Cellar Door" and by means of the auscellardoor web site. He enlisted WSA to provide services and advice for the purposes of his business. It was the business of WSA to provide such advice and services. It is not the point that Mr Houghton and Mr Student themselves were not business proprietors or that their activities were an aspect or element of the trade or commerce of WSA (and of Australian Cellar Door) but not of "their" trade or commerce. Mr Houghton and Mr Student nevertheless engaged in conduct in the course of trade or commerce and were thus within the ambit of the FT Act

1. Accordingly Mr Houghton and Mr Student were personally liable to Mr Arms.

1. You can see that Houghton went further than Concrete Constructions, because it looked at the trade or commerce of the recipient of the misleading conduct - the customer, Mr Arms.

1. Even though Ms Dimitrijevski was the customer of Nektaria, the facts are dissimilar to the case before me. Ms Dimitrijevski was not affiliated with Nektaria and its business activities, and Ms Dimitrijevski's publication was not designed to promote Nektaria's business but to damage it. Nektaria is not the recipient of the misleading conduct, in the way that Mr Arms was: instead, Nektaria says that other people are the recipients ["my current, potential and previous clients, high-profile models, company associates, my staff"] and that their reaction is causing Nektaria damage.

1. Ms Dimitrijevski's publication was made over the internet and was thus available to persons who received the publication in their businesses. It would seem that some of those persons [the "high-profile models, company associates"] received Ms Dimitrijevski's publication in their businesses and thus in their trade or commerce.

1. In 2008 the NSW Court of Appeal decided TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9, and at paragraph 48 said this about Houghton v Arms:

"The High Court has determined that a representation can be made in trade or commerce even though it is not in the trade of the person making the representation, so long as it is in the trade of the person to whom the representation is made" (emphasis added).

1. That quote seems to me to stretch paragraphs 34 and 35 of Houghton v Arms, which seems to refer to WSA's trade or commerce rather than to Mr Arms' trade or commerce.

1. In TCN Channel Nine a television current affairs program broadcast a story which was critical of a builder. Journalists attached to the program had pretended to be interested in hiring the builder in order to gain entry to premises, secretly recorded the builder, and then had a film crew arrive in a "gotcha" event which was obviously embarrassing when broadcast. A director and a franchisee of the builder sued the television station on various grounds, including misleading conduct under the equivalent of section 18 of the ACL, and won. The television station appealed, and on the section 18 point, argued that the journalists' misleading conduct was not in trade or commerce. That argument was similar to that put by Mr Houghton and Mr Student.

1. The relevant passages in the appeal judgment are at paragraphs 41 - 49. The Full Court referred to previous, similar cases on current affairs programs, including Hearn v O'Rourke [2002] FCA 1179 in which the majority of the Full Court held - in the context of an application for summary dismissal of the case on a point of law - that the conducting of an interview by a current affairs program could properly be said to be central to the trading or commercial activity of the broadcaster.

1. In paragraph 47 of the Judgment in TCN Channel Nine, the Full Court noted the outcome of Hearn v O'Rourke, but then referred to the trial judge's view (which had been overturned on the appeal) and the dissenting judgment in the appeal. The Full Court said that because Hearn v O'Rourke was a decision in a strike out application, "the majority did no more than to find that it was reasonably arguable that an interview as a preliminary matter to production of a film was "in trade or commerce" (but) that does not determine the question as to whether or not it is such". Then they said at paragraph 47:

"The present matter is, in any event, determined by the fact that, even if the steps taken to procure the involuntary interview ... were not "in trade or commerce" of TCN Nine, the very misrepresentation meant that the conduct did occur "in trade or commerce" of the (builder). I refer to the misrepresentation that the TCN Nine employees were there in order to inquire about procuring services from the respondents for the building of a house" (emphasis added).

1. Clearly then, the Full Court considered that the builder's trade or commerce was sufficient to put the misleading conduct of the journalist in trade or commerce. The Full Court followed Hearn v O'Rourke but then added some obiter in paragraph 47 in case there was any doubt. Like in Houghton v Arms, the television station, its journalists and the builder all acted in trade or commerce in various respects. The Full Court did not speculate that amongst television viewers would be people who had business relationships with the builder, for example as suppliers to the builder, and who saw that broadcast about the builder "in trade or commerce".

1. In Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment [2010] VSC 389 the Secretary was the regulator of forest timber cutting and extraction in Victoria. Auswest was the purchaser of a timber mill from Monier, and needed to obtain a right to timber to continue its business. Auswest alleged that the Secretary had engaged in misleading or deceptive conduct by writing a letter to Auswest which suggested that a timber licence would be renewed. Justice Croft in the Supreme Court of Victoria held that the

representation was not made in trade or commerce. His Honour said the representations concerned "trade and commerce" in the sense that both Monier as vendor, and Auswest as intending purchaser of the timber mill, were both engaged in trade and commerce as timber millers and suppliers. The granting or withholding of a timber licence clearly impinged upon and may have had significant effects in relation to the commercial activities of both. Nevertheless, whilst the representations concerned trade and commerce, they were not made in trade and commerce.

1. Referring to the above decisions in the context of Ms Dimitrijevski and Nektaria:

(a) Ms Dimitrijevski is not engaged in the same line of business as Nektaria, either as an associate or a competitor. She was a retail customer, who ordered a gown for her own wedding. In publishing the material, Ms Dimitrijevski did not act in her own trade or commerce. Making the publications was not central to her trading or commercial activities [Hearn v O'Rourke].

(b) Nektaria alleges in a broad way that some persons received the publications in their businesses - "high-profile models" and "company associates" - and that they and Nektaria have suffered damage. Those persons did not receive the publications in the context of investing, or considering whether to continuing to invest in Nektaria [Concrete Constructions, and Houghton]. It seems that putting the allegation at its highest, Nektaria implies that they would have been considering whether to continue trading with Nektaria in small transactions which is a lesser form of engagement.

(c) When the Court in TCN Nine said the journalist's misrepresentation occurred in trade or commerce of the builder, it was because the journalist pretended to inquire about contracting with the builder to build a house_._ Building houses was the builder's trade or commerce. However in making her publications Ms Dimitrijevski was not pretending to inquire about contracting with Nektaria.

1. In my view, even though (for the purposes of this consideration of jurisdiction) Ms Dimitrijevski's publications sought to damage Nektaria's business, her publications were not conducted in trade or commerce.

1. It follows that the publications do not contravene s18(1) of the Australian Consumer Law.

1. Through its solicitors Nektaria has already foreshadowed issuing proceedings in the Supreme Court of Victoria for the tort of defamation.

1. This Tribunal does not have jurisdiction to entertain a claim for defamation.

1. It does have jurisdiction to grant an injunction in connection with a contravention of s18(1) of the Australian Consumer Law, namely the prohibition of misleading and deceptive conduct. However, that section only applies to such conduct if it is engaged in "in trade or commerce" and, on the material before me, Ms Dimitrijevski has not engaged in conduct in trade or commerce .

1. If Nektaria sought to amend its claim in this proceeding to include a claim for damages for misleading and deceptive conduct, it would still face the hurdle that Ms Dimitrijevski has not engaged in conduct in trade or commerce, and so the application to amend would be disallowed.

1. It follows that the only Order that can be made is to strike out proceeding C8200/2017. Because no relief is sought in proceeding C197/2018, that proceeding must also be struck out. These Orders do not affect the parties' rights to litigate their dispute in a Court having jurisdiction.

[1] Director of Housing v Sudi [2011] VSCA 266, per Warren CJ at [19].

[5] Page 4 of the Application, under the heading "Why do you want these orders?".

[6] Page 3 of the Application, under the heading "The problem with the goods and/or services".

[7] I have corrected the grammar and omitted irrelevant text.

[9] The parties are at loggerheads. Nektaria opposed Ms Grinham's application for leave to represent Ms Dimitrijevski. Ms Dimitrijevski opposed Mr Carlo Boghdavi, who accompanied Ms Georgys, having any speaking role on behalf of Nektaria.

[10] Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146.

[11] Sections 19 and 38 of the ACL now limit the right to institute proceedings against the media for breach of section 18(1).