South East Water is a licensee under Section 15 of the Water Industry Act 1994. Section 22 of that Act provides that a licensee may impose a water service charge and a sewerage disposal charge on a property owner. Until 1 January 1998, the service charges levied by South East Water were based on local council valuations (although section 22 (3A) allows for charges to be based on different considerations).

On 1 January 1998, a new pricing order came in to operation (according to the Respondent's correspondence to the Applicant) and since that time, the service charges levied by South East Water are based on property title. Where there is one title for a property, only one service charge will apply. There is only one title to the Applicant's property at 9 Salisbury Street. According to the Respondent's written submissions, the effect on the amounts charged by the Respondent to the Applicant was not initially discerned. Then, in July 2005, South East Water refunded to the Applicant an amount of almost $5,000.00 which it said was the total amount of water and sewerage service overcharged, with interest. The Applicant alleges in that incorrect valuations were applied resulting in overcharging.

Drainage and parks charges are not levied by South East Water but are included in the accounts sent by them. The Applicant also seeks a refund for overcharging in relation to these charges. 7. By his application form and the particulars lodged subsequently, the Applicant seeks 'repayment of money' amounting, to $26,473.00 plus interest.

1. The claim was fixed for a jurisdictional hearing by the Tribunal. The jurisdictional hearing was before me on 5 December 2006 and written submissions were lodged subsequently, in accord with my orders. The Applicant represented himself and the Respondent was represented by a professional advocate, who also provided the written submissions. Unfortunately, following the arrival of the written submissions, the file was misplaced. However, I have now had an opportunity to consider the submissions from both parties.

1. In the civil claims list, applications may be made under Part 9 of the Fair Trading Act 1999 for determination of a consumer trader dispute or under section 159 for damages for breach of a provision of the Act.

2. In Part 9 the Tribunal's jurisdiction is outlined in section 108:

"(1) The Tribunal may hear and determine a consumer and trader dispute."

"Consumer and Trader dispute" is defined by section 107 (1):

"(1) In this Part 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. I set out relevant parts of the definitions of terms in section 4 of the Fair Trading Act 1999 :

(d) gas, electricity, water, sewerage and telecommunications";

"services includes any rights (including rights in relation to, and interests in real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, including the rights, benefits, privileges or facilities that are, or are to be provided, granted or conferred under a contract for or in relation to - ....

(c) the conferring of rights or benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar payment.... - "

"purchaser in relation to a supply of goods or services means the person to whom the goods or services have been or are to be supplied";

"supplier in relation to a supply of goods or services, means the person who has supplied or is to supply the goods or services".

1. I note that "goods" is defined specifically to include water. However, the charges of which the Applicant complains were service charges, rather than charges for goods. Accordingly, the dispute will not fall within the definition of "consumer and trader dispute" unless the services were provided in trade and commerce, which is a qualification imposed by the definition of services.

• The water and sewerage service charges are imposed pursuant to the Respondent's authority under section 22 of the Water Industry Act 1994 as it is a licensee under that Act, and the parks and drainage charges are imposed pursuant to agreements under section 142 of the Water Industry Act 1994 and 186A of the Melbourne and Metropolitan Board of Works Act 1958 ("the MMBW Act").

• The Applicant is not a purchaser within the definition in section 107 because he has no choice whether to purchase goods or services from the Respondent, but rather incurs a fee or charge by mere ownership of a property in a particular area.

• The Applicant is not a purchaser within the definition in section 107 of the Fair Trading Act 1999 as there is no specific relationship between what he must pay to the Respondent and the benefit he receives.

• The relationship between the Applicant and the Respondent is not a purchaser/supplier relationship but rather a taxing relationship.

• The Applicant has not attempted to characterise his claim under section 159 of the Fair Trading Act 1999 but such an attempt would be unsuccessful. The claim can not be characterised as a claim for damages for breach of the Act as the sections which the Applicant might allege the Respondent has breached deal only with conduct occurring in trade or commerce whereas the Respondent's conduct towards the Applicant does not have a trading or commercial character.

• The Applicant's claims in respect of the drainage and parks charges are made against the wrong entity as the Respondent merely collects those charges on behalf of the Melbourne Water Corporation (in the case of the drainage charge) and Parks Victoria (in the case of the parks charge).

1. Some of the submissions made by the Applicant were about procedural matters, such as which documents the Tribunal should take in to account and whether the Respondent ought to have been allowed legal representation at the jurisdictional hearing. These were not relevant to the issue of jurisdiction. Also, the Applicant made some irrelevant submissions to which the Respondent has objected. I do not record the irrelevant submissions here and will deal with the Respondent's objections at a directions hearing. I have however examined all of the Applicant's submissions to extract anything relevant to the Applicant's contention that the Tribunal does have jurisdiction.

2. The Applicant's submissions were not easy to understand, however doing the best I can with them and so far as they were relevant to the issue of jurisdiction, the Applicant's submissions were:

• Section 281C(4) of the MMBW Act provides for an appeal to the Tribunal.

• The guide to civil claims published by the VCAT registry lists disputes about water as within the Tribunal's jurisdiction.

• The Respondent is in the business of making a profit so the Act should apply.

• The fact that water usage charges are not part of the application should not be seen to change the fact that overall the Respondent is in business in the same way as anyone who charges for goods or services and so ought to be subject to the Act.

• If the Respondent is exempt then no one would be covered by the Tribunal's jurisdiction under the Act.

Whether VCAT has jurisdiction by the water legislation

1. The Applicant contended that section 281C of the MMBW Act gives the Tribunal jurisdiction to hear and determine his dispute with the Respondent. That section provides for review by the Tribunal of fees set by the Board (now called the Melbourne Water Corporation). The fees are collected by the Respondent under its agreement with Melbourne Water Corporation. Section 186A of the MMBW Act authorises such agreements.

2. Review under section 281C is a review of the decision of Melbourne Water Corporation's decision to impose a fee. The Applicant has not applied under that section. If he had, the proper Respondent would be Melbourne Water Corporation and the application would be heard in the Tribunal's review jurisdiction, not the original jurisdiction with the Tribunal exercises under the Fair Trading Act 1999 in the civil claims list. Section 281C does not authorise the Tribunal to hear the Applicant's claim for a refund. Further, under section 281C, the Tribunal may only review a decision if the applicant has first applied to the Melbourne Water Corporation itself.

3. The parks charge is imposed under section 139 of the Water Industry Act 1994. That Act provides no avenue for review of the charge.

4. The water and sewerage charges are imposed under section 22 of the Water Industry Act 1994 and again that Act provides no avenue for review of those particular charges.

1. Section 159(6) of the Fair Trading Act 1999 prohibits the commencement of a proceeding for damages for contravention of the Act more than 6years after the date on which the cause of action accrued. Section 5 of the Limitation of Actions Act prohibits bringing an action in contract or tort more than 6 years after the date on which the cause of action accrued.

2. Neither party addressed this issue at the hearing or in submissions. I will accord the Applicant an opportunity to make submissions on this point, but unless the Applicant is able to establish that the cause of action accrued some time after the amounts were paid, I should strike out any part of the Applicant's claim which relates to payments made more than 6 years before 13 September 2006 when the Applicant's application was lodged.

3. At present it seems likely that the period which can be covered by the Applicant's claim dates only from September 2000.

Whether there is a dispute between a purchaser and supplier

The Respondent argued that the Applicant cannot be regarded as a purchaser because he has no choice whether to purchase anything from the Respondent. That argument relies on how "purchaser" is defined. In the definition in section 4 of the Fair Trading Act 1999, a purchaser is merely one to whom services have been supplied.

In the Shorter Oxford English Dictionary, "purchase" is defined first as "the act or action of purchasing" and then, more relevantly, as "the action or process of procuring, obtaining or acquiring for oneself in any way". While the Applicant does not actively purchase anything from the Respondent, he is part of a process in which he is supplied with goods or services for which he pays. I agree the Applicant is not an active purchaser, but I was not persuaded that his passivity meant he was not a purchaser at all.

The Respondent also argued that the Applicant ought not be called a purchaser because there is no specific relationship between what he pays and what he receives for the various charges, that in fact the Applicant is more like a taxpayer than a purchaser. This raises an issue which is addressed in varying ways by the Water Industry Act 1994, namely the status of an authority's users as "customers".

Omitting the time outside the limitation periods, the Applicant's claim covers September 2000 to June 2005. In that period, the Water Industry Act 1994 was amended a number of times. At first, the 1994 Act referred to express and implied "customer contracts" (in division 2 Part 2) but those provisions were repealed by the Water Legislation (Essential Services Commission and Other Amendments) Act 2003, No. 48. That same amending act inserted into the Water Industry Act 1994 section 9, which requires the Respondent to enter an approved "customer dispute resolution scheme". Section 22 (4) refers to the persons on whom water and sewerage service charges are imposed as "customers".

The setting of charges by the Respondent is governed (as far as I can discover by researching the relevant internet site) by a Water Industry Regulatory Order, made under section 4D of the Water Industry Act 1994. The Essential Services Commission is identified as a regulator under that order.

By section 4F of the Water Industry Act 1994, the Respondent may be subject to Codes made by the Essential Services Commission. Codes may provide for standards, including "customer related standards...practices (including with respect to the payment of compensation to customers)" - see section 4F(2)(a). These provisions were inserted into the Act in 2003 by the same amending act referred to above which repealed references to customer contracts.

All these statutory provisions indicate that Parliament intended to treat water authorities and their users as operating in a market where the user is a customer. This of course is a simplification of Parliament's intention. The legislation is elaborate and appears to be aimed primarily at the economic context in which water providers operate. The degree of regulation affecting the relationship between each water retailer and its customers is part of that context. Since 1994, the Act has referred to the persons receiving services from the Respondent as its customers.

Under the Water Industry Act 1994, the Applicant has access to the Energy and Water Ombudsman Victoria for customer dispute resolution. It appears from the charter of the EWOV (available on its internet site) that the decisions of the EWOV are not binding on customers, but are binding on the relevant water authority.

In circumstances where the customer has no access to administrative review, has access to a customer dispute resolution scheme which is not binding and the supplier is a corporation imposing a fee or charge for the availability of a service, the customer and supplier are in my view more like contracting parties than they are like taxpayer and government agency. Thus the fact that there is no specific relationship between what the Applicant pays and what he gets does not in my view overturn the general impression that he purchases goods and services from the Respondent.

In forming this view I am also influenced by the definition of services in the Fair Trading Act 1999 section 4, which includes "the conferring of rights benefits or privileges for which remuneration is payable in the form of a levy".

The dispute regarding payment for the Respondent's services then is one between a purchaser and a supplier.

Does the Applicant purchase anything by paying the drainage and parks charges?

1. As for the drainage and parks charges of which the Applicant complains, the answer is different. These are collected by the Respondent for other agencies. The parks charge is collected under an agreement between the Respondent and "the rating authority" under section 142 of the Water Industry Act 1994. The Act indicates (in section 3) that the rating authority is the responsible Minister. The Respondent submitted it is Parks Victoria. Perhaps the Minister's powers are delegated to Parks Victoria. In any case, the Respondent supplies nothing to the Applicant in respect of the parks charge, so it is not possible to characterise the dispute about the parks charge as one between a purchaser and a supplier.

2. By section 186A of the MMBW Act 1958, the Melbourne Water Corporation may enter an agreement with a licensee under the Water Industry Act 1994 to collect fees and charges due to the corporation. The drainage charge is imposed under section 280 of the MMBW Act and according to the Respondent's submissions is the subject of such an agreement between the Melbourne Water Corporation and the Respondent. Accordingly, the Applicant purchases nothing from the Respondent in respect of the drainage charge so a dispute between them about it cannot be characterised as a dispute between purchaser and supplier.

3. That is not to say that the Applicant could expect the Tribunal would have jurisdiction in respect of the drainage and parks charges should he bring an action against Parks Victoria and the Melbourne Water Corporation. Since I need not decide the question, it remains open, but I do not mean by that to encourage the Applicant to pursue that path.

4. It also remains possible that the Applicant may provide further particulars which characterise his complaint about the drainage and parks charges as breaches of the Fair Trading Act 1999, by which he alleges he has suffered damage. That would only be possible if the behaviour of which the Applicant complains could be seen as behaviour occurring in trade or commerce. I will return to this issue

Whether the Respondent provides services to the Applicant "in trade or commerce"

The dispute concerns the Respondent's charge to the Applicant for water supply and sewerage disposal. The charge is a service charge, not a charge for goods supplied. It could be characterised as a charge for access to a service. Disputes about services are within the Tribunal's jurisdiction under Part 9 of the Fair Trading Act 1999 only when the services are supplied in trade or commerce - see the definition of service in section 3 which imposes that limitation.

Further, if the Applicant were to characterise his claim as one for damages for breach of the Fair Trading Act 1995, then he would need to show that the Respondent's alleged breach of the Act occurred in trade or commerce, as the relevant provisions (such as section 9) all include that qualification.

As the Respondent submitted, the starting point for interpreting "in trade or commerce" is Concrete Constructions v Nelson (1990) 169CLR 594[1990] HCA 17; , 92 ALR 193. The majority view there was that the expression is limited to "conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character" (92ALR 193 at 197). In that case, the court found that misleading information given by one employee to another was not provided in trade or commerce. In this case, the conduct complained of, effectively the sending of accounts for payment is not conduct ancillary to the Respondent's activities. The conduct is part of the Respondent's role as a trader selling water and other services.

In Village Building Co v Canberra International Airport Pty Ltd (No 2) ((2004) [2004] FCA 133; 208 ALR 98) to which the Respondent also referred me, the plaintiff complained about statements made by the defendant which affected the plaintiff's ability to have its land (which was said to be in a potential flight path) zoned residential. Finn J in that case looked at the statutory basis of the defendant's activities. His Honour found that the fact that the defendant was in the business of making a profit and that the statements supported the defendant's commercial interests did not alter the character of the conduct, which was (for some statements) part of the defendant's statutory obligations and (for other statements) participation in political debate (see paragraphs 56 to 63).

The Respondent submitted and I agree that Village indicates it is the conduct itself which must occur "in trade or commerce" and the fact that the person performing the conduct is in the business of making a profit is not determinative.

The Respondent also referred me to two cases in which the courts have found conduct of bodies controlled by statute to be conduct in trade or commerce. I agree with the Respondent's submissions that those cases are distinguishable from the present one and are of no assistance to me in the present case.

So is the Respondent acting in trade or commerce when it charges for services to the Applicant? The Respondent submitted that imposing or collecting a charge under a statutory power is not trading or commercial conduct. Under some statutory powers, that may be so, but it is necessary to examine the statute which empowers the Respondent to charge for its services to see whether the Respondent is then acting in trade or commerce.

Those who pay the charges set under section 22 of the Water Industry Act 1994 and use the services of licence-holders under that Act are referred to as "customers" both in the Act as passed in 1994 (see ss11(4)(m), 19 to 21, 22(4)) and in the Act as it is now (ss4D(3)(e), 4F(2)(a), 4I(3)(d), 8(2)(d), 9 and 22(4)).

The Water Industry Act 1994 provides for the regulation of the "water industry" referring to "market conduct" in section 4E (1) (b), Codes in section 4F and "customer dispute resolution" in section 9, all mechanisms which would be unnecessary if each water authority was merely a tax-collecting agency.

Section 22(3A) allows the Respondent to decide the basis for the charge, so that it may be "a fixed charge or may be imposed a fixed flat rate on any specified basis or may vary according to specified circumstances other than the value of the property" Thus, the Respondent is not merely collecting a tax but it decides what sort of fee or charge to apply for its services.

The fees and charges under section 22, unlike the rates imposed by local councils for example, are not a charge on the land.

Section 22 also allows for the setting of "water usage" charges, in other words a charge based on the amount of water used. An entity which charges in that way is more obviously acting in trade and commerce and I would be troubled less by finding that the Fair Trading Act 1994 applies to that activity. However, it would make little sense to say that the Respondent is acting in trade and commerce when it charges by the kilolitre but not when it charges a fee for being connected to the service.

It might be argued on the other hand that the high degree of regulation of the Respondent's activities by the Water Industry Act 1994 and the various instruments made under Part 1A of that Act, which is entitled "Regulation of regulated water industry" indicate that the Respondent's providing access to services should not to be treated as occurring in trade or commerce, but rather as conduct of a statutory nature. The limitation of the Tribunal's jurisdiction concerning services to those occurring "in trade or commerce" is an important one - the Fair Trading Act 1999 is not in general a vehicle intended for determining disputes between government service providers and their users.

However, under Part 1A the regulation to be imposed concerns mostly prices (see section 4D(2)and (3)) . Then there are codes regulating standards and market conduct (see sections 4E and 4F). In my view these various regulatory provisions operate in the same way as regulation of other areas of commerce, such as motor car traders or real estate agents, where legislation makes rules and sets various standards to be met by operators in the industry. The imposition of those rules and standards does not change the commercial nature of the dealings between the trader and its customers.

Taking all of this into account, in my view, when the Respondent imposes a fee or charge on a user under section 22 it acts in trade or commerce. Accordingly, the Tribunal has jurisdiction to deal with a complaint about that under part 9 of the Fair Trading Act 1994 and also perhaps under section 159, should the Applicant characterise his claim that way.

Does the Respondent act in trade or commerce when collecting a fee or charge for other agencies?

The Respondent collects the parks charge on behalf of the relevant rating authority, pursuant to an agreement under section 142 of the Water Industry Act 1994 and the drainage charge on behalf of Melbourne Water Corporation pursuant to an agreement under section 186A of the MMBW Act. Does the Applicant act in trade or commerce in carrying out the activities it has agreed with those bodies?

It appears from section 142 of the Water Industry Act 1994 and section 186 of the MMBW Act that the Respondent is free to enter such agreements or not enter them, so an argument that the Respondent is merely carrying out a statutory duty by entering the agreements would not be convincing.

The Respondent could be seen as an agent of the rating authority under the Water Industry Act 1994 and of Melbourne Water Corporation. In that case the provisions empowering the bodies to set and collect the charges should be considered. I heard no submissions about this point and it may be irrelevant as I have found the Applicant cannot have a consumer trader dispute with the Respondent about these charges. However, in case the Applicant should later characterise his claim under section 159 of the Fair Trading Act 1999, I will address the question.

In the case of the parks charge, my view is that neither the rating authority nor its agent is acting in trade or commerce in setting or collecting the charge. The rating authority is the relevant Minister who presumably delegates the function to Parks Victoria. The rate is a charge on the land (by Water Industry Act 1994 section 140(1)). The relevant provisions refer to land owners, not customers (see section 139). The relevant provisions are in a different part of the Act from those dealing with the regulated water industry and licensees. The charge appears from Part 4 of the Act to be applied to public parks and reserves, not for any service accessed by the Applicant or other persons subject to the charge. All these factors indicate that the setting and collecting of the parks charge is not conduct in trade or commerce.

The setting and collecting of the drainage charge is more problematic. The following factors indicate that setting and collecting the fee is not conduct in trade or commerce. The fees imposed under section 280 (and collected by the Respondent under its agreement pursuant to s.186A) are fees charged by Melbourne Water Corporation for its functions as a delegate of the Minister under Part 10 of the Water Act 1989. The fees are a charge on the land. Those liable to pay the fee are not referred to as "customers" in the MMBW Act. There is provision for a review of the charge by application to VCAT under section 281C. On the other hand, the Melbourne Water Corporation is defined in the Water Industry Act 1994 as part of the regulated water industry and appears to be subject to the provisions of Part 1A of that Act which refer to customers and potentially imposes standards and codes on the Melbourne Water Corporation. Further, section 4B of the Water Industry Act 1994 provides that if there is any inconsistency between Part 1A of the Water Industry Act 1994 and the MMBW Act then Part 1A prevails. On balance then, I am of the view that the setting and collection of the drainage charge is conduct in trade or commerce, given the statutory context in which it occurs.

The Applicant has not characterised his claim under section 159 of the Fair Trading Act 1999 and if he does so it may be that he will need to claim against Melbourne Water Corporation rather than the Respondent. That is a matter for further consideration.

1. The Tribunal's jurisdiction under the Fair Trading Act 1999 extends to the Applicant's claim in respect of the water and sewerage service charges, whether characterised under Part 9 or section 159 of that Act. The parks charge is not within the Tribunal's jurisdiction under the Fair Trading Act 1994. The drainage charge is within the Tribunal's jurisdiction only insofar as the Applicant's claim can be characterised as a claim under s.159 which may require the Applicant to direct the claim against Melbourne Water Corporation itself.

2. Further consideration is required as to characterisation of the Applicant's claim concerning the drainage charge, the period to which the claim relates and whether (as the Respondent submitted) the Applicant's wife should have been an Applicant. I will deal with these issues at a directions hearing.

1. The claim in respect of the parks charge is struck out.

2. The claim in respect of the drainage charge is struck out in as much as it is a claim under Part 9 of the Fair Trading Act 1999.

3. The principal registrar is directed to fix a directions hearing before me in this proceeding.