1. The substantive application was filed by Mr Skinner (the Applicant) on 5 June 2007 pursuant to the Fair Trading Act 1999 (the F.T. Act). The claim is against the First Respondent and Ford Credit Australia Ltd and seeks the sum of $117,994 for 'loss, injury or damage because of a contravention of the Act'.
2. This decision deals with an application by the Ford Motor Company of Australia Pty Ltd (the First Respondent or the Ford Motor Company) to dismiss the proceedings against it pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).
3. The Applicant's claim says that it is 'regarding disclosed information in Judge Bowman's orders that need clarification regarding County Court 2nd October 2003 mediation'. To understand the Applicant's claim it is necessary to set out some of the background to the proceeding.
4. On 25 May 2001 Mr Skinner commenced proceedings in the County Court (proceeding No. 04459 of 2001) against B.S. Stillwell Motor Company Pty Ltd (Stillwell). In his Statement of Claim Mr Skinner said:
   • A representative of Stillwell's made certain representations with respect to a commercial refrigerated vehicle (a Transit Hordern 6x2) about, among other things, the suitability of the vehicle for Mr Skinner's purposes.
   • In reliance on those representations Mr Skinner entered into a written agreement, dated 31 March 2000, with Ford Credit Australia Limited ('Ford Credit') in respect of the refrigerated Transit Hordern ('the hire purchase agreement') and in or around April of 2000 he took possession of the vehicle from the defendant's premises.
   • The vehicle supplied was not suitable, in various respects, for Mr Skinner's purposes.
   • The defendant had breached various provisions of the Trade Practices Act 1974 (Cth) and the F.T. Act 1999 (Vic).
5. Mr Skinner claimed an amount of $60,402.99, representing his liability under the hire purchase agreement, and substantial damages including loss of profit.
6. At a mediation on 2 October 2003 Mr Skinner's claim was settled. This is the mediation referred to in Mr Skinner's current claim. Pursuant to the settlement agreement the County Court proceeding was struck out by consent and with no order as to costs.
7. The settlement agreement provided that Stillwell would indemnify Mr Skinner in respect of the hire purchase agreement (some $50,000 was owed by Mr Skinner to Ford Credit) and pay Mr Skinner the sum of $3,000.
8. Mr Skinner was dissatisfied with the settlement and sued his solicitors, Slater & Gordon, alleging, among other things, negligence and breach of duty. That claim was dismissed by the Legal Profession Tribunal. Mr Skinner then filed a claim with the Victorian Civil and Administrative Tribunal (the Tribunal). This claim was also against Slater & Gordon but was filed pursuant to the F.T. Act (the VCAT claim).
9. On 24 May 2007 Judge Bowman dismissed Mr Skinner's VCAT claim, pursuant to s.75 of the VCAT Act[1]. The reasons for his Honour's decision may be summarised as follows:
   • Mr Skinner's application simply failed to identify what Slater & Gordon had done wrong, which failing had caused Mr Skinner's loss;
   • there was nothing alleged in Mr Skinner's claim which led to a resultant identifiable loss;
   • in short, Mr Skinner's claim was 'completely lacking in substance';
   • many of the allegations made by Mr Skinner had been dealt with in the previous proceedings before the Legal Professional Tribunal. The two proceedings overlapped substantially to the extent that Mr Skinner's VCAT application constituted an abuse of process in that he was seeking to re-agitate issues which had already been determined; and
   • in summary, Mr Skinner's application was 'misconceived, lacking in substance, an abuse of process and bound to fail'.[2]
10. His Honour also indicated that had it been necessary for him to do so he would have dismissed the application pursuant to s.78 because Mr Skinner had failed to comply with Tribunal orders and that such action had unnecessarily disadvantaged the respondent.
11. In the course of his reasons Judge Bowman made the following observations which appear to have led Mr Skinner to file his current claim:

"Turning to the factual background, Mr Skinner engaged S & G as his solicitors in relation to a dispute between himself and BS Stillwell Motor Company Pty Ltd ('Stillwell') concerning a commercial refrigerated vehicle which Mr Skinner obtained from that company. Finance was organised through a hire purchase company, Ford Credit Finance ('Ford'). I appreciate that Stillwell and Ford are totally separate entities, and indeed at one stage consideration was given to joining Ford as a party to the dispute. However, their interests essentially coincide for the purposes of this ruling. As shall be discussed, the dispute settled at mediation and the terms of settlement involved Ford to a significant degree. However, Mr Skinner's action itself was solely against Stillwell."[3]

1. Mr Skinner refers to this aspect of his Honour's decision in his current application and says:

"Judge Bowman has made comments in his ruling dated 24th May 2007 that in mediation in October 2 2003 I was not aware of regarding comments about 'Ford'. Those details he must have obtained through my solicitor Slater & Gordon or Mr Cafari as they do not appear in my evidence submitted.

Due to the ruling and orders supplied to me by Judge Bowman on the 24 May 2007, I wish to initiate a hearing based on the events of the mediation between Grant Skinner and BS Stillwell with Ford Motor Company and Ford Credit to answer the allegations of Judge Bowman in his orders dated 24 May 2007, regarding the matter which was heard in mediation in 2nd October 2003.

The allegations listed in Judge Bowman's orders dated 24 May 2007 need clarification regarding 'Fords' involvement in the 2003 County Court mediation."

1. The substantive application is said to be based on breaches of sections 32I, 32IA, 32B, 33 and 34 of the F.T. Act and Mr Skinner relies on two High Court authorities in support of his claim - Baxter v Obacelo Pty Ltd[4] and Burns v M.A.N. Automotive (Aust) Pty Ltd.[5]
2. On 3 August, Ford Motor Company of Australia Pty Ltd wrote to the Tribunal submitting that the matters raised in Mr Skinner's application were 'not suitable to be dealt with' by the Tribunal and should be dismissed on the following grounds-
   • The application discloses no clear or sustainable cause of action and is lacking in substance because neither Ford Australia nor Ford Credit were a party to either the County Court proceedings or the VCAT proceedings before Judge Bowman and accordingly neither Ford Australia nor Ford Credit can provide any information in relation to these proceedings;
   • In relation to the claims of breach of implied warranties, Ford Australia submits that although it manufactured the vehicle, Mr Skinner is not privy to any contractual relationship with Ford Australia and therefore his claims under sections 32I, 32IA, and 32B of the Fair Trading Act 1999 are bound to fail;
   • Mr Skinner does not have standing to prosecute claims under sections 33 and 34 of the Fair Trading Act relating to prescribed safety standards;
   • Mr Skinner's claims are statute-barred as the cause of action accrued in 2000 and that s 159(3) of the Fair Trading Act prohibits actions for damages outside of a 6-year limitation period.
3. As Mr Skinner was a litigant in person, and consistent with the Tribunal's obligation to act fairly, I directed his attention to the salient points of law and procedure relating to the application. In particular I informed him of the key principles applicable to applications to dismiss or strike out a proceeding which are set out later in this decision (see paragraphs 17 and 18).

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious , misconceived or lacking in substance; or

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

1. This is an application to dismiss the proceeding insofar as it applies to the Ford Motor Company. The distinction between an order dismissing a proceeding and an order striking out a proceeding is important. An order dismissing a proceeding brings the proceeding to an end without the possibility of reinstatement. By contrast the Tribunal has an implied power to reinstate a proceeding that has been struck out.[6]
2. The principles relevant to an application to dismiss or strike out a proceeding pursuant to section 75 may be shortly stated:
   • The power should be exercised with great care and only if it is clear that there is no real question to be tried[7] or, to put it another way, where the Tribunal is satisfied that the proceeding is undoubtedly hopeless, obviously unsustainable in fact or in law or be bound to fail.[8]
   • It is an interlocutory application and the Tribunal is obliged to proceed on the assumption that the Applicant will be able to prove each fact alleged in the claim.
   • A proceeding should not be dismissed or struck out under section 75 if the ultimate fate of the proceeding depends upon contested questions of fact.
3. The essence of the Respondent's submission is that Mr Skinner's claim is misconceived or lacking in substance.
4. As a creature of statute, the Tribunal has no inherent jurisdiction.[9] It has such jurisdiction as is conferred on it by Victorian legislation, referred to as 'enabling enactments' in the VCAT Act (see section 43). Under some enactments it is given a review jurisdiction and under others it has original jurisdiction.[10]
5. Here, the Fair Trading Act 1999 ('the Act') is the relevant 'enabling enactment'.
6. VCAT has two main types of original jurisdiction under the _Ac_t:-

(i) jurisdiction to hear and determine actions for damages as a result of a contravention of a provision of the Act (section 159); and

(ii) jurisdiction to hear and determine a 'consumer and trader dispute' pursuant to section 108.

1. As I have already noted Mr Skinner's claim is said to be based on breaches of sections 32I, 32IA, 32B, 33 and 34 of the F.T. Act.
2. Sections 32I, 32IA and 32B deal with certain implied conditions and warranties in contracts for the supply of goods. In this case the Ford Motor Company is not party to any such contract with Mr Skinner. It follows that this aspect of Mr Skinner's claim is bound to fail.
3. For completeness I also note that even if the Ford Motor Company were party to a contract with Mr Skinner any such contract would appear to fall outside the scope of Part 2A of the F.T. Act (see sections 32D and 32DA(1)(d)).
4. The other limb of Mr Skinner's claim is based on sections 33 and 34 of the F.T. Act. These sections provide, relevantly, that it is an offence for a person to, in trade or commerce, supply goods if:
   • (a) the goods are of a kind in respect of which there is a prescribed safety standard; and
   • (b) the goods do not comply with that standard.
5. Pursuant to section 159 of the F.T. Act an action in damages may lie arising from a contravention of a provision of the Act. Hence if the Ford Motor Company had contravened section 33 an action may lie in damages. But in this case it is clear that no such action lies.
6. A necessary element of the offence created by section 33 is that the goods supplied are of a kind in respect of which there is a 'prescribed safety standard'. Section 34 makes it clear that safety standards may be prescribed in the regulations. There is no regulation pursuant to the F.T. Act which prescribes a safety standard for commercial vehicles. There being no 'prescribed safety standard' it is apparent that the offence created by section 33 has no application in the circumstances of this case.
7. As Mr Skinner is a litigant in person I have also considered whether there is some other legal basis upon which his claim may be based.[11] I mentioned earlier that the Tribunal also has jurisdiction to hear and determine 'consumer and trader disputes' pursuant to section 108 of the F.T. Act. If Mr Skinner's claim can be properly characterised as a 'consumer and trader dispute' the Tribunal will have jurisdiction to determine it.
8. Section 107(1) of the Act relevantly defines the expression 'consumer and trader dispute' to mean:-

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

1. The words 'purchaser', 'goods, 'supplier' and 'supply' are relevantly defined in section 3 of the Act in the following way:-

"Purchaser in relation to a supply of ... goods means the person to whom the ... goods have been ... supplied;

Supplier in relation to a supply of ... goods, means the person who has supplied ... the ... goods;

(a) in relation to goods - supply (including re-supply) by way of sale, exchange, lease, hire or hire purchase agreement ..."

1. In this case it is clear that Stillwell was the supplier of the commercial vehicle in question. It was Stillwell, not the Ford Motor Co., who supplied the Transit Hordern 6x2 to Mr Skinner. It follows that Ford Motor Company is not party to any 'consumer and trader dispute' with Mr Skinner for the purpose of the F.T. Act.
2. I am satisfied that Mr Skinner's claim against the Ford Motor Company is bound to fail. In reaching this conclusion I have considered the authorities relied upon by Mr Skinner, but they are not relevant to the determination of the issue before me. The central question is whether Mr Skinner has a cause of action against the Ford Motor Company pursuant to the F.T. Act. The answer to that question, for the reasons given, is that he does not.
3. In the circumstances it is unnecessary for me to deal with the other points advanced by the First Respondent in support of its application.
4. In the course of his submissions Mr Skinner made allegations about the negligent conduct of his former solicitors and misleading representations regarding the fuel efficiency of the vehicle supplied to him. The alleged misleading representations were made by a representative at Stillwell. These matters have nothing to do with the Ford Motor Company.
5. I propose to make an order dismissing the proceeding against the Ford Motor Company. Mr Skinner's proceeding in respect of Ford Credit is not the subject of this application and is unaffected by my decision.

[1] [2007] VCAT 917 (24 May 2007)

[2] [2007] VCAT 917 (24 May 2007) at [35]

[4] (2001) HCA 66

[5] (1986) 161 CLR 653

[6] Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146

[7] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd [2001] VSC 385 at [14]

[8] State Electricity Commission of Victoria v Rabel [1998] IVR 102; Forrester v Aims Corporation [204] VSC 506 (8 December 2004)

[9] Herald and Weekly Times Pty Ltd v VCAT & Ors [2006] VSCA 7 (9 February 2006), at [27] per Maxwell P.

[10] See generally Casey v Galimberti & Ors [2006] VSCA 232 (1 November 2006) at [5]-[6] per Maxwell P.

[11] See Neil v Nott [1994] HCA 23; (1996) 121 ALR 148 at 153