2. Incidental orders re injunction (see other orders made this day).

1. In this matter, I am asked to determine a preliminary question relating to the jurisdiction of this Tribunal in relation to an application issued pursuant to the Fair Trading Act 1999 ("the FTA").

1. The matter has already been before the Court of Appeal and basically in relation to whether the applicant, Peter Sherman ("Sherman") was afforded natural justice by a member of this Tribunal. The Court of Appeal determined that there had been a denial of natural justice, set aside the orders made by the Tribunal, and remitted the original application for further hearing and determination by a Tribunal differently constituted. However, during the course of argument, Ms Knights, on behalf of the respondent Diana Watson ("Watson"), raised an additional argument relating to jurisdiction pursuant to the FTA. On that occasion Phillips J. A. remarked as follows:-

"Now, it may be that the point raised by Ms Knights deserves more attention: certainly it is a point which is not easily resolved this afternoon. Obviously, if correct, it may have far-reaching consequences, although Ms Knights, despite her researches, has been unable to find any case touching upon the correctness of her submission or otherwise".

Accordingly, and an after some further comments by Phillips J. A., the jurisdictional argument was referred back for hearing and determination by this Tribunal.

1. The only facts which need to be set out by way of background are as follows, and in no way relate to the merits of the application. On 31 January 2002, Sherman issued out of this Tribunal an application in which Watson is named as the respondent. The application purports to be pursuant to the FTA. The amount claimed is $11,167.00, although I understand that this was subsequently increased to $12,647.00. It purports to be in relation to services provided by Sherman to Watson pursuant to an agreement entered into on 28 January 2001. The services allegedly provided are of an advisory nature, and the amounts allegedly owing for the provision of such services are calculated on what could be described as a percentage of assets basis. Thus, there is no doubt but that the applicant Sherman brings the proceeding as the provider of the services, and the respondent Watson is claimed against as the purchaser. There is also no doubt, and it was agreed, that the applicable legislation is the FTA as it was prior to the amendments contained in the Fair Trading (Amendment) Act 2003. However, Ms Knights did refer to some provisions of the amending Act in order to support arguments relating to the purpose of the legislation generally and the intention of the legislature.

1. Ms Knights made careful and detailed submissions on behalf of Watson. It would appear that these were substantially those which were advanced before the Court of Appeal, and it is fully understandable that the Court was of the view that the point raised deserved more attention and could not be easily resolved at short notice.

1. The argument put forward by Ms Knights could be summarised as follows, and I trust that such summary does it justice. Sherman is the provider of services, or the trader. Watson is the recipient, or consumer. The claim brought by Sherman for payment in relation to the provision of services to Watson is a thinly disguised action for a debt. It was never the intention of the legislature, as revealed in the relevant second reading speech, or the purpose of the legislation as set out in S.1 of the FTA, that the FTA be used as a vehicle for debt recovery by the providers of goods and services. The whole point of the legislation is that it is designed to protect consumers. This is clear from the second reading speech, as delivered to the Legislative Assembly on 25 March 1999. It is also clear from an analysis of the structure of the FTA which is designed to deal with undesirable trade practices, false testimonials, coercion of consumers, pyramid selling, codes of practice and the like. Further, the stated purposes of the FTA as set out in S.1, make it clear that it is the conduct of traders and suppliers which is to be controlled by the legislation. The amendments contained in the Amending Act, and particularly the addition of those claims not exceeding $10,000 to S.107, support these propositions.

1. Mr Sherman, who appeared on his own behalf, made the following submissions. The purposes of the FTA as set out in S.1 include the promoting and encouragement of fair trading practices and of a competitive and fair market, in addition to referring to those purposes more directly relevant to the protection of consumers. In addition, the first paragraph of the second reading speech refers to the enhancing of the concept of fair dealing where there is an equitable balance between the rights of consumers and traders. This is consistent with the FTA being for the benefit of, and being able to be used by, both categories of parties.

1. Further, the various lists operating out of this Tribunal, and including the civil claims list which involves the FTA, are available, for example, to landlords and tenants or builders and house owners. It is logical that applications pursuant to the FTA are available to both types of litigants. Decisions of this Tribunal, such as Director of Housing V Young (2002) VCAT 227 and Techcor Developments P/L v Mustafa and Byrne (2002) VCAT 467, further support this proposition.

1. Both this Tribunal and the Court of Appeal have stressed that the definition contained in s107 of the FTA is broad. Such broad wording should not be restricted. The addition to S.107 of claims for amounts less than $10,000 by virtue of the amending Act does no more than add another type of claim which may be brought. Generally, the breadth of operation of Ss107 and 108 is such that applications by suppliers and traders against consumers are permissible.

1. Whatever may have been the primary purpose of the legislation, the wording of various provisions in Part 9 of the FTA seems to me to be of sufficient breadth to encompass an application by a supplier or trader and to encompass this application.

1. Whatever the intention of the legislature may have been, the wording of Ss 107, 108 and 110 of the FTA as in operation at the relevant time is comparatively clear. Section 108 (1) of the Act provides that the Tribunal may hear and determine a fair trading dispute. A fair trading dispute is defined in S.107(1) as:-

"a dispute or claim arising between a purchaser.....of goods or services and a supplier of goods or services in relation to a supply....of goods or services".

There is certainly nothing restrictive about this wording. As was pointed out by Mr Sherman, and to state the obvious, a dispute involves more than one person. The wording of S.107(1) refers to and identifies the two categories of disputants. The definition is in no way restricted so that only one such category falls within it. It does not, for example, define a dispute as a claim brought by a purchaser against a supplier.

1. Further, the words "in relation to" are also words of great breadth. I discussed this and referred to a considerable number of authorities in Wurzel v Rossi, Ryan and Raniga (delivered 10 April 2003). Perhaps those authorities are best summarised by the statement of Clarke J. A. in IBM Australia Limited v National Distributions Services Limited 100 ALR 361, a decision of the Court of Appeal of the Supreme Court of NSW. At page 377, Clarke J.A. stated:- "the phrases 'in relation to' or 'related to' are of the widest import and should not, in the absence of compelling reasons to the contrary, be read down".

1. My view in this regard is reinforced by the wording of S.110 of the FTA. It reads:-

"The Tribunal may only make an order to resolve a fair trading dispute on the application of-

This is not wording which confines the making of any application to one group or type of litigant.

1. In addition, both this Tribunal and the Court of Appeal have treated the FTA as having broad general application. An example of this can be found in the decision of the Court of Appeal in the Zeus and Ra Pty Ltd v Nicolau (2003) VSCA 11, where the Court of Appeal confirmed that the breadth of operation of the FTA was such as to include a dispute between a landlord and a tenant.

1. In addition, the cases referred to above of Director of Housing V Young and Techcor Developments P/L v Mustafa and Byrne are decisions of Deputy Presidents of this Tribunal which support the conclusion at which I have arrived. Whilst it appears to have been decided on its facts and without any legal or jurisdictional argument being advanced, it is clear in Techcor that Deputy President Urquhart applied the FTA so as to permit the provider of labour and materials to recover an amount owing to it by a consumer. In Young, Deputy President Levine found that the Director of Housing was a supplier of services and a tenant the purchaser of same, and ordered the tenant to pay to the Director an amount effectively representing the cost of certain repairs. Again, it represents a situation where the FTA was applied so as to permit the supplier of services to recover an amount from the recipient of those services. I appreciate that neither of those decisions are binding upon me, but, representing as they do decisions of Deputy Presidents of this Tribunal and bearing in mind the principals of comity between coordinate divisions of the same court, they are of some persuasive force. I would not follow them if I was of the opinion that they were wrong. However, to the contrary, I am of the view that the approach adopted in them is correct.

1. I have examined the second reading speech. I have also borne in mind the submissions made by Ms Knights in relation to the amending Act and what it reveals in relation to the intention of the legislature and the purposes of the FTA. However, the wording of the relevant sections of the FTA seems to me to be both broad and clear. I do not accept that there is the ambiguity argued for by Ms Knights. The wording seems to me to be sufficiently clear to preclude the reading down, of or otherwise interfering with, the plain language which has been used. Accordingly, I shall not do so.

1. In summary, I am of the opinion that this Tribunal does have jurisdiction to deal with this application.