Medium Neutral Citation [2003] VCAT 469

1. Application dismissed for want of jurisdiction.

2. Application pursuant to s.77 of the VCAT Act refused.

1. I have made a previous ruling in this matter that the Tribunal does not have jurisdiction. I made such ruling pursuant to s.107(2) and 108 of the Fair Trading Act 1999, and pursuant to those provisions of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") which determine jurisdiction. I ruled that the jurisdiction of this Tribunal is founded upon its own Act and upon enabling Acts. The Fair Trading Act 1999 is such an enabling Act. I ruled that, because, in my opinion, the dispute or claim related to a personal injury within the meaning of s.107(2), there existed a want of jurisdiction in this Tribunal.

2. It is now submitted that I should refer this matter to the Supreme Court of Victoria pursuant to s.77(1) and (3) of the VCAT Act. There is also an argument concerning costs relating to my finding. I shall deal with each issue in turn.

(A) REFERRAL PURSUANT TO S.77

3. I say at the outset that the respondent adopted a most sensible position in relation to the submission on behalf of the applicant that the matter should be referred to the Supreme Court of Victoria pursuant to s.77. Ms Fenton, on behalf of the respondent, agreed that referral to the Supreme Court was probably a desirable thing if this could be achieved. She made it clear that the respondent was not necessarily endorsing the submissions of the applicant, but, save for subsequently assisting the Tribunal in relation to issues that might have to be considered, was otherwise silent on the question.

4. Mr McCormick, on behalf of the applicant, made helpful submissions in relation to the meaning of s.77. In relation to that section, I agree with those who have previously expressed concerns both in relation to the drafting of the section and the manner in which it is intended to operate - see generally the observations contained in paragraph 3220 of "Pizer's Annotated VCAT Act".

5. Mr McCormick's submissions centred on the meaning to be attributed to the phrase "striking out" both as used in s.77 and generally. He also made submissions concerning the meaning of the words "proceeding" and "matter" as used in that section. Further, he referred to the use to be made of the section generally, the desirability of being able to refer matters to other forums in a relatively simple way, and the very real financial and practical benefits that would flow to the applicant if her case could now be referred to the Supreme Court, my having found that this Tribunal did not possess jurisdiction to deal with it.

6. In relation to this last mentioned point, I certainly accept that immediate referral to the Supreme Court would result in savings of time, money and effort. However, it seems to me that the basic question is again one of jurisdiction. Given the ruling that the Tribunal does not have jurisdiction to hear and determine this complaint, does it then have jurisdiction to refer the matter elsewhere pursuant to s.77(3)?

7. As unfortunate as it is for the applicant, for whose plight I have previously expressed sympathy, in my view it does not. I have reached this conclusion for the following reasons:-

(a) Mr McCormick referred me to various authorities in relation to the effect of a striking out. These authorities included Aiken v Aiken [1941] VicLawRp 27; (1941) VLR 124, R v McGowan & Anor ex parte Macko [1984] VicRp 78; (1984) VR 1000 and the cases referred to therein. It seems to me that those cases are authority for the proposition that the striking out of an action means that the action has been removed from the list, it is still extant, and there is an inherent power to reinstate it, or restore it, to the list. That could not be said of the present situation, where, once my previous finding in relation to jurisdiction is embodied in a formal order, the matter is finalised. It is no longer extant. It cannot be restored or reinstated. The only reason such formal order has not previously been made is because I wished to afford to the parties the opportunity to advance arguments as to the formal orders. Mr McCormick argued, that in essence, the matter or proceeding could be reinstated or restored elsewhere, namely in the Supreme Court. I am far from persuaded that such is the case. That proposition does not seem to me to be consistent with the wording of the section, or with the general concept of the effect of striking out.

(b) Further to (a) above, it is to be remembered that Order 3 of the Orders of Member Vassie of 18 February 2003 specified "Nothing in this order precludes the Respondents from objecting to the Tribunal's jurisdiction if they see fit to do so". Order 4 of those Orders reads "The Principal Registrar is directed to fix a Preliminary Hearing before a Judicial Member of the Tribunal for (inter alia) consideration under Section 77 of the Victorian Civil and Administrative Tribunal (Act) 1998 of whether the proceeding would be more appropriately dealt with by a Court". Following the making of those orders, on 7 March 2003 the solicitors for the respondent wrote to the Registrar of this Tribunal as follows, "Pursuant to the Tribunal Order of 18 February 2003, we apply to VCAT to have this claim dismissed for want of jurisdiction". The issue of jurisdiction was then argued before me on 24 and 25 March last. The issue of any application pursuant to s.77 abided the outcome of the jurisdictional argument. In other words, this preliminary hearing, initiated by the respondent, was conducted in two logical stages. Firstly, does jurisdiction exist? Secondly, does s.77 apply? It seems to me that, once the answer to the first question is "no", that is the end of the matter. Save for any argument as to costs, the Tribunal is then functus officio. There is nothing to reinstate or restore. Had the answer to the first question been "yes", an application to strike out the matter or proceeding and refer it to the Supreme Court would have been permissible. Doubtless if such an application were made, there would have been argument concerning the nature and complexity of the matter, its very substantial quantum and the like. However, the answer to the first question being "no", I repeat that the proceeding or matter is at an end before this Tribunal.

(c) The above is also consistent with the wording of s.77(1). It reads:-

"At any time, the Tribunal may make an order striking out all, or any part, of a proceeding...if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a Tribunal (other than The Tribunal), a court or any other person or body."

It is to be noted that what is considered by the Tribunal is the subject-matter of the proceeding. In other words, what the Tribunal considers is the content of the proceeding, which would embrace such things as complexity, quantum, and the like, as referred to above. If the Tribunal considers that such subject-matter would be more appropriately dealt with elsewhere, it may make the order striking out the proceeding, and it may make a referral pursuant to s.77(3). This is a considerably different proposition from referring a matter where there is a want of jurisdiction. In addition, it seems to me that the words "other than the Tribunal", appearing in the context which they do, arguably infer a capacity on the part of the Tribunal to deal with the proceeding or matter. What the wording seems to me to be saying is that there are a number of courts or tribunals, including the Tribunal, which could deal with the proceeding, but, given the subject matter of the proceeding, it is more appropriate that it be dealt with by a court or tribunal other than the Tribunal.

(d) Where there is a want of jurisdiction, it seems to me that it is a dismissal, rather than a striking out, which represents the appropriate order. This is because it is not simply a matter of removal from a list with an inherent right to reinstatement or restoration. I have already discussed this in (a) above. In the present case, the respondent has sought a dismissal for want of jurisdiction. That seems to me to be the appropriate order. Unlike s.75 of the VCAT Act, s.77 does not contemplate a dismissal.

(e) The whole intent of s.77 seems to me to be to provide the opportunity for use of a more convenient or appropriate forum. It does not appear to have been intended for use as a vehicle for the referral of proceedings where no jurisdiction has been found to exist.

8. For the above reasons, it seems to me that the application pursuant to s.77 must fail. The other formal order in relation to Application No. C192 of 2003 is that such application is dismissed. The reason for its dismissal is the want of jurisdiction.

9. On the basis of my finding of want of jurisdiction, and regardless of the outcome of the submission relating to s.77, the respondent has sought an order for its costs. Apart from any general consideration of costs following the event, it was pointed out on behalf of the respondent that this application had been rejected pursuant to s.71 of the VCAT Act, such rejection being on the basis of s.107(2) of the Fair Trading Act, the very basis upon which the applicant failed before me.

10. However, as was submitted on behalf of the applicant, she had applied for a review of that decision pursuant to s.107(2) of the VCAT Act, and ultimately the application was accepted. As discussed above, Member Vassie ordered that there be a preliminary hearing in relation to the application. Accordingly, the jurisdictional argument took place.

11. Nothing in this sequence of events seems to me to attract the exercising of my discretion in favour of the respondent on the question of costs. Pursuant to s.109 of the VCAT Act, the starting point is that each party bear its own costs. Costs can be ordered against a party pursuant to s.109(2), the Tribunal having regard to the matters set out in s.109(3). It was urged upon me by the respondent that I should have regard to s.109(3)(e) - "any other matter the Tribunal considers relevant" - and make an order accordingly. I am against the respondent in this regard. Whatever reluctance may have existed concerning the original acceptance of the application, ultimately it was determined that the Tribunal should accept the application, and that there should be a preliminary hearing. That preliminary hearing concerned jurisdictional points, one of which was quite unusual. It is also to be remembered that the other jurisdictional point - retrospective operation of the Fair Trading Act - was the first point raised by the respondent, and in relation to that I have found for the applicant. In summary, I have not been persuaded that I should exercise my discretion in relation to costs in favour of the respondent. What could be described as the normal position in relation to costs should prevail. Each party should bear its own costs. They should lie where they fall, and I will make no order in relation to them.

12. I should add that this includes the costs incurred as a result of the matter being heard over two sitting days. It was suggested by the respondent that I should at least order that the applicant pay costs incurred as a result of the matter proceeding into a second day. This was said to result from the applicant producing submissions not previously seen by the respondent. I do not accept this proposition. The matter was adjourned over to the next sitting day for a variety of reasons, including the affording of an opportunity to those on each side to prepare further argument in relation to s.107(2) of the Fair Trading Act and also for my convenience. At that time, there was running before me another matter which was proceeding in "fits and starts". The present matter did not consume any great amount of time on either of the days that it was listed before me. Those attending were present only for a short time. I shall not make any order in relation to costs that may have been incurred as a result of the matter being listed, however briefly, on two sitting days instead of one.

13. In summary, as stated, I make no order as to costs.