CPA Australia Ltd v Storai - [2015] VSC 442

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 5771

CPA AUSTRALIA LTD	Plaintiff
v
ROBERT JOHN STORAI	Defendant

---

JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2015
DATE OF JUDGMENT:	25 August 2015
CASE MAY BE CITED AS:	CPA Australia v Storai
MEDIUM NEUTRAL CITATION:	[2015] VSC 442

---

COMPETITION AND CONSUMER LAW – unconscionable conduct – operation of complaint and discipline system of accountancy body – whether involved supply of ‘services’ - whether any services supplied ‘in trade or commerce’ – appeal – Victorian Civil and Administrative Tribunal declaration of fair-trading jurisdiction in relation to operation of system – whether an error of law – Competition and Consumer Act 2010 (Cth), Sch 2 (the Australian Consumer Law), s 21(1), Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1).

---

APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr F O’Loughlin	Ian Cunliffe Legal
For the defendant	In person

HIS HONOUR:

Introduction

CPA Australia Ltd is a professional accounting organisation that operates a system for the certification of its members. Certification represents competence and integrity in the market for the provision of accounting services. Complaint and discipline procedures are integral to the system. As a certified member of CPA, Robert Storai was the subject of three complaints. After a hearing before the CPA disciplinary tribunal, two were found proven and he was severely reprimanded.

Separately, Mr Storai issued an application in the Victorian Civil and Administrative Tribunal claiming damages in the sum of $250,000 against three CPA employees. In that application, he relevantly alleged that those employees (not CPA) had acted unconscionably contrary to s 21(1) of the Australian Consumer Law in relation to the provision of services in trade and commerce. The alleged conduct concerned the investigation of the complaints and the conduct of the disciplinary hearing.

On the application of the employees and CPA (as a joined party), VCAT struck out Mr Storai’s proceeding, subject to a right of reinstatement, upon the basis that it could not succeed against the employees. It was accepted that, in the reinstated proceeding, he would formulate a claim against CPA that, contrary to s 21(1), it had acted unconscionably in relation to the conduct of the disciplinary hearing. Therefore VCAT considered the parties’ submissions as to whether it would have jurisdiction in relation to that claim. As now relevant, VCAT declared that it had that jurisdiction.

Pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), CPA now appeals against that declaration. It contends that VCAT erred in law in deciding that the operation of the disciplinary tribunal system constituted a ‘service’ that was provided ‘in trade or commerce’ to Mr Storai, as specified in s 21(1). Voluntarily, Mr Storai has not exercised the right of reinstatement pending the result of the appeal.

Proceeding before CPA disciplinary tribunal

Three complaints against Mr Storai were referred to the CPA disciplinary tribunal:

(1)A complaint…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read CPA Australia Ltd v Storai and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSC 442
Decision Date: 25 August 2015

CaseChat Overview and Summary

In the matter of CPA Australia Ltd versus Storai, the dispute arose from the operation of the complaint and discipline system of the accountancy body. The respondent, Storai, sought a declaration from the Victorian Civil and Administrative Tribunal (VCAT) that it had fair-trading jurisdiction over the operation of this system. The primary focus of the case was whether the services supplied by CPA Australia Ltd, in the context of its complaint and discipline system, constituted the provision of services within the meaning of the Australian Consumer Law and whether these services were provided in the course of trade or commerce.

The legal issues before the court were whether the complaint and discipline system operated by CPA Australia Ltd involved the supply of services and if any services supplied were indeed provided in trade or commerce. The respondent argued that the system constituted the supply of services, and as such, the tribunal had fair-trading jurisdiction over it. The appellant contested that the system did not involve the supply of services, and therefore, the tribunal lacked jurisdiction.

The court held that the operation of the complaint and discipline system by CPA Australia Ltd involved the supply of services, specifically the provision of a forum for the investigation of complaints against members. The court found that these services were supplied in trade or commerce, and as such, the tribunal had fair-trading jurisdiction over the system. The court further determined that the tribunal’s declaration was not an error of law. It ruled that the tribunal had correctly interpreted the Australian Consumer Law and applied it to the facts of the case.

The court dismissed the appeal and upheld the tribunal’s declaration of fair-trading jurisdiction over the operation of CPA Australia Ltd’s complaint and discipline system. The final orders of the court were that the appeal be dismissed, with costs to be paid by the appellant.

Orders