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[2001] VCAT 2447
procedural. The application was amended to state that it was made in the alternative under the Fair Trading Act 1999 as a fair trading dispute. The proceeding was adjourned to a date fixed by the Principal...
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The applicants' claims appeared to fall outside the Small Claims Act's two-year limit, so they asked to add an alternative claim under the Fair Trading Act. VCAT considered itself bound by earlier authority to treat the relevant Fair Trading Act provisions as applying retrospectively. It therefore allowed the change, but adjourned the proceedings because the respondent had been surprised by the new basis. The decision did not resolve whether the applicants' claims were factually or legally successful.
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2,402 words · generated 29/09/2026
This decision concerned a procedural question in five related VCAT proceedings, not a final determination of the applicants' claims. The five applicants were Ben Pham, Meagan Peberdy, Mariana Peric, Helen Stefanovski and Anne Maree Bole. They brought substantially identical claims against Merrimu Holdings Pty Ltd, formerly trading as Melbourne School of Fashion. Alan Vassie, Member, heard the proceedings together for the relevant procedural issue on 16 October 2001. His reasons, dated 29 October 2001, applied to all five proceedings ([1]).
Each applicant had enrolled in a Bachelor of Fashion course that started in 1997 and was due to finish in 1999. They claimed to have paid approximately $15,000. The course was downgraded to a diploma course during 1999. According to the claims as described by Vassie M, a dispute arose in April 1999 when the respondent requested an additional payment to offer an “advanced diploma” instead of a diploma. The applicants refused to pay. They said that a diploma could have been obtained from another educational institution after one year, so two years' worth of their course fees had been wasted ([2]). Those matters were allegations forming the basis of the claims, not findings after a full hearing.
The applicants each filed a claim in July 2001 under the Small Claims Act 1973, claiming $10,000, the limit for claims under that Act as recorded in the reasons ([2]-[3]). The Act's definition of “small claim” required a claim to have arisen not more than two years previously. The respondent objected that the claims appeared to have arisen in April 1999, more than two years before the proceedings began. Vassie M observed that the objection initially appeared likely to succeed, while also noting that further evidence might affect the position ([3]-[4]).
The applicants then sought to amend their claims so they were also made, in the alternative, under Part 9 of the Fair Trading Act 1999. Part 9 commenced on 1 September 1999. Section 107(1), as quoted in the reasons, defined a “fair trading dispute” as a dispute or claim between a purchaser or possible purchaser and a supplier or possible supplier in relation to a supply or possible supply of goods or services. Sections 108 and 109 addressed the orders and remedies available to VCAT when determining such a dispute ([5]).
The immediate question was whether VCAT could allow an alternative claim under Part 9 if the underlying disputes arose before that Part commenced. Vassie M allowed the amendment, but adjourned the proceedings because the respondent had been taken by surprise by the additional legal basis. The order also directed that the proceedings be listed together with four related matters for a whole morning hearing. Nothing in these reasons decides whether the applicants ultimately proved their allegations or could obtain any particular remedy.
The reasons explain a change in VCAT's approach to the retrospective operation of Part 9. The Tribunal had initially considered that Part 9 applied only to disputes arising on or after 1 September 1999. One reason for that view was that sections 108 and 109 provided remedies that courts did not have under the general law, suggesting that the provisions were substantive. If so, the presumption against retrospectivity would be relevant. Vassie M referred to Deputy President Macnamara's earlier decision in Anderson v Economo, which took that view ([6]).
The key authority discussed was Vamot Pty Ltd v Tempacoe Pty Ltd. Vassie M quoted a statement by Beach J of the Supreme Court of Victoria that section 108 was retrospective and would apply to the dispute in that case. The quoted statement was made in the course of refusing an application to remove proceedings from VCAT. Vassie M treated it as authority affecting the Tribunal's approach ([7]).
He also referred to Cambridge Co-ordinates Pty Ltd v Vikings Press Pty Ltd, in which Macnamara DP had revisited his earlier position in Anderson. As Vassie M recounted it, Macnamara DP said that, because Vamot was a Supreme Court decision and there was no higher or co-ordinate authority to the contrary, section 108 should be regarded by VCAT as retrospective ([8]). Vassie M adopted that understanding for the matter before him. He expressly said that the Tribunal would be bound to take a different view if the Supreme Court took a different view ([8]).
That reasoning supplied the basis for allowing the amendment. The applicants' claims appeared to have arisen before 1 September 1999, so if Part 9 were not retrospective, the proposed amendment would be pointless and impermissible. On VCAT's then-operative view that Part 9 did operate retrospectively, the claims were open to be made under it. Vassie M also recorded that no good reason had been put forward to oppose the amendment and that the interests of justice appeared to favour allowing it ([9]-[10]).
The adjournment addressed a separate procedural concern. Allowing the new legal basis could affect how the respondent prepared its case. Vassie M considered that the respondent had been taken by surprise, and therefore adjourned the proceedings rather than requiring the hearing to continue immediately ([10]). The result balanced permission to raise the alternative basis against the need to give the respondent an opportunity to respond.
The decision describes the Tribunal's earlier position as one in which Part 9 was understood to apply only to disputes arising on or after 1 September 1999. That approach was supported by the view that the new remedial powers in sections 108 and 109 were substantive and attracted the presumption against retrospectivity. Vassie M identified Anderson v Economo as an example of that earlier VCAT approach ([6]).
The change described in Pham was not presented as a fresh, independent analysis of the text of Part 9. Rather, Vassie M considered that a Supreme Court statement in Vamot, followed by the Tribunal's treatment of it in Cambridge Co-ordinates, governed the approach VCAT should take. On that basis, the Tribunal was to regard Part 9 as retrospective unless the Supreme Court expressed a different view ([7]-[8]).
The practical difference was important for these applicants. Their alleged dispute arose in April 1999, before Part 9 commenced, and their Small Claims Act claims appeared to have been brought outside the two-year period described in that Act. If Part 9 could not apply to earlier disputes, the proposed alternative basis would not be available. If it could apply retrospectively, they could plead a fair trading dispute in the alternative, subject to the eventual determination of the claim ([3]-[5], [9]).
The decision should be read within its procedural limits. It allowed an amendment because VCAT considered the proposed claim legally open on its then-operative understanding of Part 9. It did not finally determine the applicants' substantive rights, the truth of their allegations, the effect of the two-year restriction, or which remedies might be granted. Nor does the judgment purport to decide every question about retrospectivity under the Fair Trading Act. It records VCAT's position in the context of the amendment application ([4], [9]-[10]).
At [6], Vassie M explained why the initial view against retrospective operation had appeared persuasive: sections 108 and 109 gave VCAT powers to grant remedies not available to courts under general law, which could indicate that the provisions were substantive. In plain English, a law that changes the remedies available may be treated differently from a law that merely changes procedure, and the initial view was that this difference weighed against applying the provisions to earlier disputes. The paragraph reports the earlier reasoning; it is not the conclusion Vassie M ultimately applied.
At [7], Vassie M quoted Beach J in Vamot as saying that section 108 was retrospective and applied to the dispute before the Supreme Court. In plain English, the Supreme Court had made a statement that VCAT could provide relief under section 108 in a dispute that pre-dated the new provisions. Vassie M relied on that statement as relevant authority, while the present reasons do not reproduce a full analysis of the statutory text in Vamot.
At [8], Vassie M wrote: “The view the Tribunal is now bound to take, therefore, is that Part 9 of the Fair Trading Act has a retrospective operation.” This is the clearest statement of the legal premise he used. His qualification matters: he added that VCAT would have to take a different view if the Supreme Court did. The statement describes VCAT's position at the time, rather than announcing a final resolution of every possible issue about Part 9.
At [9], he said the amendment was permissible because the applicants' claims were “open to be made under a retrospective operation of Part 9”. In plain English, the applicants could add the Fair Trading Act basis because, on VCAT's then-applicable approach, the fact that the disputes arose before commencement did not by itself prevent them from pleading the alternative claim. The paragraph also says that, if Part 9 were not retrospective, the amendment would be pointless and impermissible.
At [10], Vassie M explained that the respondent had been surprised by the additional legal basis and that he therefore considered an adjournment appropriate. In plain English, the applicants were allowed to change their case, but the respondent was given additional time before the hearing continued. This is part of the procedural outcome, not a determination of the underlying dispute.
The reasoning is most directly relevant to a procedural situation with these features: a claim is brought under the Small Claims Act; the underlying dispute appears to have arisen more than two years before filing; the claimant seeks to add a claim under Part 9 of the Fair Trading Act; and the dispute arose before Part 9 commenced on 1 September 1999. Those are the circumstances Vassie M addressed ([2]-[5], [9]).
The decision's particular subject matter was an education course that allegedly changed from a degree course to a diploma course, followed by a disagreement about further payment for an advanced diploma. But the central procedural reasoning was not confined to fashion education. It concerned the asserted retrospective operation of Part 9 and the amendment of claims to rely on it. The statutory definition quoted at [5] concerns disputes between purchasers or possible purchasers and suppliers or possible suppliers in relation to goods or services.
The decision also illustrates a separate procedural consideration: even where amendment is permitted, an adjournment may be appropriate where the other party is surprised by the new legal basis. Vassie M expressly relied on the respondent's surprise to justify adjourning the proceedings ([10]). The judgment does not set out a general test for amendments or adjournments, so it should not be treated as supplying a comprehensive rule for every such application.
Important limits follow from the record. Vassie M had heard only brief evidence from Mr Pham when the jurisdictional point arose. He stated that additional evidence might show the Small Claims Act issue in a different light ([4]). The reasons do not determine whether the claims actually fell outside the two-year period, whether the allegations could be proved, or whether the applicants would obtain relief under Part 9. A later analysis of those questions would require material beyond what this decision resolved.
The supplied judgment does not discuss any later judicial treatment of Pham v Merrimu Holdings. It therefore does not establish whether a later court or tribunal followed, distinguished, questioned or displaced this decision. No claim about later treatment can be made from the text provided.
The cases identified in the reasons are earlier authorities, not later treatment of Pham. Vassie M referred to Anderson v Economo as reflecting VCAT's earlier view that Part 9 was not retrospective ([6]). He then considered the Supreme Court's statement in Vamot and the Tribunal's subsequent treatment of it in Cambridge Co-ordinates ([7]-[8]). Those authorities informed Pham; the judgment does not report what happened in them after the decisions it cites.
For research purposes, the distinction is important. Pham records what Vassie M considered VCAT was bound to do in October 2001, in the absence of a contrary Supreme Court view. It does not itself provide a later appellate endorsement of that position. A current account of the doctrine or its subsequent history would need later legal sources, which are not included in the material supplied here.
The reasons leave several matters unresolved. First, Vassie M did not decide the merits of the applicants' claims. The order permitted an alternative legal basis and adjourned the proceedings; it did not find that the course had been misrepresented, that the respondent had breached a contract, or that the applicants had suffered recoverable loss ([2], [10]).
Second, the decision did not finally determine whether the Small Claims Act's two-year requirement defeated the applicants' claims. Vassie M said that the claims appeared to have arisen more than two years before commencement, but also noted that further evidence might change the picture. His reasons addressed the amendment after the objection was raised, rather than resolving the objection after a full evidentiary hearing ([3]-[4]).
Third, although the judgment states that VCAT considered itself bound to treat Part 9 as retrospective, it does not provide a full statutory analysis of every provision in Part 9. The discussion focuses on section 108 and the reasoning attributed to Vamot and Cambridge Co-ordinates ([6]-[8]). The reasons do not decide whether every provision in Part 9 has the same temporal operation in every context.
Fourth, Vassie M expressly left open the possibility that the Supreme Court might take a different view. He said VCAT would be bound to take that different view if the Supreme Court did ([8]). The judgment supplied here does not say whether that occurred.
Finally, the reasons do not specify what orders or remedies might ultimately have been available to the applicants under sections 108 and 109, nor whether the facts would satisfy the statutory definition of a fair trading dispute. They identify the statutory framework and explain why the proposed alternative claim could be added; the eventual application of that framework to the facts remained for a later hearing ([5], [9]-[10]).
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1. The application is amended so that it is expressed to be made, in the alternative, under the Fair Trading Act 1999 as a fair trading dispute.
2. The proceeding is adjourned to a date to be fixed by the Principal Registrar at Melbourne to be heard by any Member other than Member S. Liden.
3. The Principal Registrar is directed to list the proceeding for hearing at 10.00 am on the adjourned date, together with proceedings no. C2928/2001, C3213/2001, C3214/2001 and C3248/2001 and to allow a whole morning for the hearing.
4. The Respondent having requested written reasons for this decision, those reasons will be provided to the parties.
___________________________________________________________________________________________________________
1. These reasons for decision are common to five proceedings which were listed for hearing, and commenced to be heard together by me, on 16 October 2001. The five Applicants have brought identical claims against the same Respondent. The proceedings are:
In each proceeding I made an order allowing an amendment to the application and adjourning it. The Respondent requested written reasons for my making of that order in each case.
2. Each Applicant brought his or her claim under the Small Claims Act 1973 and claimed $10,000.00 which is the limit of the Tribunal's jurisdiction in claims made under that Act. The essence of each claim is that the Applicant paid approximately $15,000.00 to enrol in a Bachelor of Fashion course offered by the Respondent; the course commenced in 1997 and was due to be completed in 1999; in 1999 the course was downgraded to a diploma course instead of a degree course and in April 1999 a dispute arose when the Respondent asked for an additional payment in return for offering an "advanced diploma" instead of a diploma and the Applicant refused to pay. Each Applicant claims that the diploma could have been obtained from another educational institution after one year only, not three years, and so two years' worth of the enrolment fee was wasted.
3. Each Applicant lodged his or her claim with the Tribunal on a date in July 2001. The definition of "small claim" in the Small Claims Act confines it to a claim that:
"... arises out of a contract for the supply of goods or the provision of services or a contract of insurance being a claim that has arisen not more than two years previously between persons who, in relation to those goods or services or that contract of insurance, are a customer on the one hand and a trader on the other."
Although there was arguably a contract for the provision of services between the Respondent as a trader and each Applicant as a customer, the claim of each Applicant appeared to have arisen more than two years before that Applicant's proceeding commenced. As I understood the way in which each claim was put, the Respondent breached the contract in April 1999.
4. The Respondent took the objection that each claim had arisen more than two years before the commencement of the proceeding and that the Tribunal therefore had no jurisdiction conferred upon it by the Small Claims Act. I heard only brief evidence from Mr. Pham, one of the Applicants, before the point arose. At first sight it appeared to me that the objection was bound to succeed, although I do not know whether additional evidence might show the matter in a different light.
5. Once the point was taken the Applicants, at my suggestion, asked me to allow an amendment to their claims so that they were also brought, in the alternative, under the Fair Trading Act 1999. That Act came into force on 1 September 1999. Part 9 confers a jurisdiction upon the Tribunal to hear a "fair trading dispute" defined in s.107(1) as
"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."
Sections 108 and 109 set out the orders and remedies that the Tribunal may make and grant when determining a fair trading dispute.
6. At first the Tribunal took the view that the jurisdiction conferred by Part 9 was only in respect of disputes that arose on or after 1 September 1999. There seemed to be powerful arguments in support of that view, including the argument that sections 108 and 109 gave the Tribunal the power to grant remedies that the courts do not have the power to grant under the general law and so the provisions of Part 9 were substantive. If that argument were correct, the presumption against retrospectivity would operate. Such a view was taken by a Deputy President of the Tribunal, Macnamara DP, in Anderson v. Economo [2000] VCAT 434 (decided on 29 January 2000).
7. However, in Vamot Pty. Ltd. v. Tempacoe Pty. Ltd. [2000] VSC 251, (2001) Vic. Conv. R. 54-633 (decided on 7 June 2000) Beach J. of the Supreme Court of Victoria, in the course of refusing an application for an order for removal of a proceeding from the Tribunal (Domestic Building List) to the Supreme Court and then to the Federal Court, said:
"12. The fact of the matter is that, having regard to the provisions of the Fair Trading Act 1999 as they now stand, in particular the provisions of section 108, which provision I consider to be retrospective and which would apply therefore to the present dispute between the parties, VCAT now has the power to give to Vamot virtually all of the relief it is seeking in the Federal Court proceeding."
8. In Cambridge Co-ordinates Pty. Ltd. v. Vikings Press Pty. Ltd. (2001) V. Conv. R. 58-553 (decided on 10 October 2000) Macnamara DP referred to Vamot and to his earlier decision in Anderson v. Economo and said:
"Since Vamot is a decision of the Supreme Court, absent any higher or co-ordinate authority, Section 108 of the Fair Trading Act should be regarded by this Tribunal as retrospective."
The view the Tribunal is now bound to take, therefore, is that Part 9 of the Fair Trading Act has a retrospective operation. It will be bound to take a different view if the Supreme Court takes that different view.
9. The amendment is permissible because the Applicants' claims are open to be made under a retrospective operation of Part 9. If, contrary to the view that the Tribunal considers itself presently bound to take, Part 9 does not have a retrospective operation, the amendment would be pointless and impermissible, because the disputes between each Applicant and the Respondent appear to have arisen before 1 September 1999.
10. There having been no good reason put forward why the amendment should not be allowed, and the interests of justice having appeared to point towards the making of the amendment, I allowed the amendment. I considered, however, that because the Respondent was taken by surprise at the additional legal basis for the claims being made in the Tribunal I ought to allow an adjournment of the proceedings. I did so.
Pham
Merrimu Holdings Pty. Ltd [2001] VCAT 2447
The application was amended to state that it was made in the alternative under the Fair Trading Act 1999 as a fair trading dispute. The proceeding was adjourned to a date fixed by the Principal Registrar, to be heard by a different Member, together with four identified related proceedings, with a whole morning allowed. Written reasons were to be provided at the respondent's request.