Victorian Civil and Administrative Tribunal|2003-04-10|Before: Croom-Johnson J

Wurzel v Francis Ryan & Ors [2003] VCAT 470 (10 April 2003)

Fair Trading Act 1999 - jurisdiction -s.107(2) - meaning of "related to a personal injury" - lost opportunity case based on alleged negligence or breech of contract.

Medium Neutral Citation [2003] VCAT 470

1. This matter involves a somewhat complicated set of facts, based upon an injury sustained by the applicant, Renee Wurzel, on 21 December 1989. The applicant was so injured when paragliding whilst on a holiday in Fiji. She wished to take proceedings against those organising the paragliding, such proceedings to be based on negligence and/or breach of contract. Accordingly, upon her return to Melbourne, she engaged local solicitors who subsequently advised the applicant to retain Fijian lawyers.

2. In June 1991, the applicant retained a firm of solicitors in Fiji, that firm being called Messrs Howards. Pursuant to Fijian law, the limitation period for the issuing of proceedings concerning the injuries suffered expired on 24 December 1992. Messrs Howards had not issued proceedings by that date. In March 1993, the applicant retained the respondent. Without going through the details of the subsequent proceedings in which the applicant was prevented from bringing any action out of time, no proceedings were issued within time by the respondent against Messrs Howards in relation to their failure to issue proceedings. In other words, the applicant has twice been victim of the limitation period operating in relation to her potential claim. Firstly, it is alleged that Messrs Howards did not issue within time. Secondly, it is alleged that the respondent did not, within time, issue against Messrs Howards on the basis of their failure to issue. The applicant now seeks to litigate the claim as against the respondent before this Tribunal, and seeks so to do on the basis of this Tribunal's jurisdiction to hear matters that are a "fair trading dispute" within the meaning of the Fair Trading Act 1999.

3. As preliminary points, the respondent has raised two jurisdictional issues. The first of these is that the subject accident and the failure by the respondent to take proceedings occurred before the commencement of operation of the Fair Trading Act and therefore does not fall within it. The second is based on s.107(2) of that Act which reads:-

"For the purposes of sub-section (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but does not include a dispute or claim related to a personal injury."

It is submitted that the present dispute or claim does relate to a personal injury. If that be so, the Tribunal's jurisdiction pursuant to s.108 does not exist.

4. The bulk of the argument before me related to the second of these points. I shall deal with it at the outset.

5. The applicant submits that this claim is not one which falls within the meaning of s.107(2) because it is not one related to a personal injury. Rather, it is submitted, it is a "lost opportunity" case based upon professional negligence and/or breach of contract. A detailed submission was presented by Mr McCormick on behalf of the applicant. If Mr McCormick's submission is correct, the dispute before me is a fair trading dispute within the meaning of the Act and therefore this Tribunal has jurisdiction.

6. I accept the basic proposition that an action such as this is not a claim for damages in respect of personal injuries. Mr McCormick referred to various authorities in this regard, including Ackbar v C F Green & Co Ltd (1975) 1QB 582. He referred, in particular, to the words of Croom-Johnson J at p.588 where he states:-

"In the end if one asks the question here 'what is this action all about?', one gets the answer that it is about an alleged breach of contract by the defendants, as a result of which the plaintiff lost the chance or right to recover his loss either from the driver or his own insurer. I do not think that the damages sought in this action consist of or include damages in respect of personal injuries."

7. However, the wording contained in s.107(2) of the Fair Trading Act is different. The exclusion does not refer to a dispute or claim in respect of a personal injury, but one related to a personal injury. The legislature could have selected the words "in respect of", or could have worded the exclusion in a manner such as "but does not include a personal injury dispute or claim". If it had, the situation would have been much clearer, and the submissions on behalf of the applicant may well have had almost irresistible force. However, the legislature chose to use the words "related to". It is the meaning of those words, and the breadth or narrowness of the interpretation to be applied to them, which lies at the heart of this dispute.

8. Mr McCormick referred to some English authorities, and submitted that ultimately the Tribunal should come back to the question posed by Croom-Johnson J in Ackbar, namely, "What is this application all about?". Mr McCormick submitted that the only possible answer to such question is that the application is about an alleged breach of contract and/or negligence by the respondent, as a result of which there has been a lost chance by the applicant. Several authorities in which the meaning of words such as "related to", "in relation to", "in connection with" and the like, were discussed during argument. In essence, Mr McCormick's submission was that such words must be viewed in the context of the statute in which they appear, and interpreted accordingly. The exclusion contained in s.107(2) should be interpreted narrowly in the sense of a direct and immediate relationship - see Ausfield Pty Ltd v Leyland Motor Corp of Australia Ltd (No. 2) [1977] FCA 6; (1977) 14 ALR 457. Mr McCormick argued that the intention of the legislature was clearly only to exclude claims that bear a direct and immediate relationship to personal injuries. In the present case, the claim is some two steps removed. He referred to the potential availability of a jury to hear a personal injuries case as placing such a case in a different category, but I am not convinced that such argument has great persuasive value in relation to the interpretation of this provision. He also referred to the unfortunate history of this particular case, and the intention that this Tribunal should be a place where litigants can come in order to obtain expeditious and cost-effective justice.

9. There was subsequently forwarded to me by the solicitors for the applicant the decision of the Court of Appeal of New Zealand in Carter Holt Harvey & Anor v Union Incorporated (2002) NZCA 268. In particular, I was referred to paragraph 13 of that decision. However, upon examination, it seems to me that, in paragraph 13, the Court of Appeal is doing no more than stating what was said by the Court at first instance, and its own ruling is somewhat more complicated. In any event, I did not find it to be of significant assistance.

10. Ms Newcombe, on behalf of the respondent, submitted that the words "related to" have a broad meaning and the present case falls within the exclusion. She submitted that it is the personal injuries suffered by the applicant that lie at the heart of the claim. It may well be that such injuries represent the measuring stick for the quantum of damages, but a "trial within a trial" would be necessary in order to determine the quantum of damages, and that inner trial would of necessity involve witnesses and evidence of the type usually found in a personal injuries claim. Therefore, she submitted, this claim clearly "related to a personal injury", and accordingly fell within the exclusion contained in s.107(2). Therefore it is not a fair trading dispute within the meaning of s.107, and does not fall within the jurisdiction of this Tribunal as set out in s.108.

11. In my opinion the position advanced by Ms Newcombe is correct. In my opinion the words "related to a personal injury" are sufficiently broad to cover this claim, and the exclusion therefore operates. I have arrived at this conclusion with considerable regret. As was pointed out on her behalf, the applicant has had a most unfortunate time, both generally and at the hands of the legal profession. I also agree with Mr McCormick that it is desirable that this Tribunal be in a position to make available justice that is both expeditious and cost-effective. However, this Tribunal is a creature of statute and its jurisdiction is founded upon the Act which creates it and upon various enabling Acts. One such enabling Act is the Fair Trading Act 1999. The words of the legislature contained in s.107(2) of that Act cannot be ignored or interpreted in such a way as to bend them beyond their apparent meaning. In considering the meaning of the words in question, I have had regard to and basically adopted the approach set out in the following cases:-

(a) In re Hamilton-Irvine and the Company's Act 1985 94 ALR 428 at 433, Beaumont J considered the meaning of the word "related" and referred in particular to the definition contained in the Macquarie Dictionary to the effect that "related" means "associated; connected". He referred to the need for a "requisite nexus or association".

(b) In Hatfield v Health Insurance Commission [1987] FCA 286; 77 ALR 103 at 107 Davies J referred to various decisions including Ausfield referred to above and stated that the words are subject to the context in which they are used, to the words with which they are associated, and to the objects or purpose of the statutory provision in which they appear. After discussing the various cases Davies J referred to a discussion concerning the meaning of the similar term "in connexion with" and quoted McFarlane J in re Nanaimo Community Hotel Ltd (1944) 4 DLR 638 who stated "the phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had".

(c) In Colakovski v Australian Telecommunications Corporation [1991] FCA 152; 100 ALR 111 at 119, Lockhart J stated "The words 'relating to' or 'in relation to' are of the widest import ...".

(d) By coincidence, in the same volume there is reported IBM Australia Limited v National Distribution Services Limited 100 ALR 361, a decision of the Court of Appeal of the Supreme Court of New South Wales. At p.377 Clarke JA 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".

(e) In another decision of the New South Wales Court of Appeal, namely Attrill & Others v Richmond River Shire Council (1995) 38 NSWLR 545, Kirby P said at page 554, "The language used deploys the classic phrases of wide connection. These include 'in relation to', 'in respect of'. In this circumstance, the Court has no authority to narrow the language by a judicial gloss unless the narrowing can be adopted comfortably with the apparent purpose of the provision, derived from the words used or the structure and obvious intention of the section".

(f) I have had particular regard to the decision of the Full Court of the Supreme Court of Victoria in Stateside Credit Corporation Pty Ltd & Another v Hudson [1989] VicRp 49; (1989) VR 519 and the remarks contained therein. Whilst there is again discussion concerning the necessity to view the use of such words in context, it is said at page 553, "The expression 'relating to' has wide connotation, embracing not only 'of' and 'over' but also 'concerning', 'touching' and 'about'...". At page 525 it is stated, "It follows that the referee correctly found that a nexus - of substance and not tenuous - existed ...".

12. Adopting the general approach set out in the cases referred to above, and whilst being conscious of the necessity to view the words under discussion in context, it seems to me that the words 'related to' are generally to be interpreted broadly. Further, there is a sufficient nexus of substance between the claim which is being brought and a personal injury. The claim is concerning or is about a personal injury. It has to do with a personal injury. I find it difficult to envisage how it could be litigated without there being considerable evidence concerning the applicant's personal injuries. As was pointed out in argument, the claim is really about three things - the original negligence and injuries suffered; the alleged negligence of Howards; and the alleged negligence of the respondent. The starting point and primary essential ingredients are the establishment of original negligence and the personal injuries suffered as a result.

13. In summary, I am of the opinion that the exclusion contained in s.107(2) operates. If that be so, this claim is not a fair trading dispute within the meaning of the Fair Trading Act 1999. Accordingly, this Tribunal has no jurisdiction to deal with the matter pursuant to that Act.

14. This finding makes it unnecessary for me to deal with arguments concerning the retrospective operation of the Act. As I indicated during the hearing, I would have taken some considerable persuasion to depart from the approach adopted by Beach J in Vamot Pty Ltd v Tempacoe Pty Ltd (2000) VSC 251 wherein he said, "... having regard to the provisions of the Fair Trading Act 1999 as they now stand, in particular the provisions of s.108, which provision I consider to be retrospective and which would apply therefore to the present dispute between the parties ...". This approach was subsequently followed by Member Vassie in Pham v Miramu Holdings Pty Ltd (2001) VCAT 2447 and by Deputy President Macnamara in Cambridge Coordinates Pty Ltd v Vikings Press Pty Ltd (2001) V.Conv.R. 58-553. However, in the present case, argument concerning this was not advanced at great length. Giving the above ruling, there is no need for me to make any determination in respect of it, save to state the obvious that the respondent may have had to argue with particular force or agility in order to get around the words of Beach J referred to above.

15. In summary, I am of the opinion that this Tribunal does not have jurisdiction pursuant to the Fair Trading Act 1999 to entertain this claim.

Fair Trading Act 1999

Wurzel v Francis Ryan & Ors [2003] VCAT 470

At a glance

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Judgment (28 paragraphs)

Wurzel v Francis Ryan & Ors [2003] VCAT 470 (10 April 2003)

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Legislation Cited (2)

Cases Cited (2)