Jones v Pun

[2024] VCC 1256

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-01584

SHANE MICHAEL JONES	First Plaintiff
and
BUILDSURE PTY LTD (ACN 084 353 211)	Second Plaintiff
v
YONG PUN	First Defendant
and
ASCENSION NO 2 PTY LTD (ACN 620 026 002)	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE WISE
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	15 August 2024
CASE MAY BE CITED AS:	Jones & Anor v Pun & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1256

REASONS FOR JUDGMENT
---

Subject:Courts Case Transfers – whether power to transfer proceedings where court lacks jurisdiction over subject matter of dispute.

Catchwords: s89(4) Retail Leases Act 2003 (Vic) –– dispute over jurisdiction – where matter involves federal jurisdiction – Retail tenancy dispute involving federal matter – s57B Victorian Civil and Administrative Tribunal Act 1998 –– jurisdiction of Victorian Civil and Administrative Tribunal – transfer of proceedings – s16(1)(b) of Courts (Case Transfer) Act 1991 (Vic) –– jurisdictional limits of Magistrates’ Court – authority to hear and determine dispute – implications of monetary jurisdiction – transfer under s17 – referral to designated judicial officer.

Legislation Cited:      Competition and Consumer Act 2010 (Cth); Retail Leases Act 2003 (Vic); County Court Civil Procedure Rules 2018 (Vic); Trade Practices Act 1974 (Cth); Victorian Civil and Administrative Tribunal Act 1998; Courts (Case Transfer) Act 1991 (Vic)

Cases Cited:Jones & Anor v Pun & Anor [2024] VCC 1167; Whiley Investments (Qld) Pty Ltd v Pet’s Paradise Franchising (Qld) Pty Ltd [2009] VSC 144; Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226.

Judgment:Case referred to the designated judicial officers under s17 of the Courts (Case Transfer) Act 1991 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J McIntyre	Verduci Lawyers
For the Defendants	No appearance

HIS HONOUR:

1Following trial, I delivered reasons in this matter in Jones & Anor v Pun & Anor [2024] VCC 1167, in which I held that there is a genuine controversy between the parties that the plaintiff’s claim in this proceeding is a retail tenancy dispute within the meaning of s81(1)(a) of the Retail Leases Act and is therefore not justiciable in this Court, pursuant to s89(4) of the Retail Leases Act.

2The consequence of that finding is that, all other things being equal, the plaintiffs’ claim should be dismissed with costs.

3Before doing so, I gave the plaintiffs the opportunity to file written submissions and address me as to whether some other course might be available to dispose of the matter.

4The plaintiffs have filed a written submission and addressed me today on an alternative course that they propose.

5The plaintiffs accept that this proceeding cannot be determined by the Victorian Civil and Administrative Tribunal (“VCAT”) by reason of the fact that the claim includes a matter falling within federal jurisdiction, reserved for determination by courts established under Chapter III of the Australian Constitution.  VCAT is not such a court and therefore cannot entertain this dispute.

6The plaintiffs’ submission is that rather than dismissing this proceeding I have power to transfer the proceeding to the Magistrates’ Court of Victoria (“MCV”) under s21 of the Courts (Case Transfer) Act 1991 (Vic) (“Case Transfer Act”).

7It is my view that I have such power to make that referral.

8To understand why this is so, one must commence with a few bedrock propositions:

(a) I have already held that s89(4) of the Retail Leases Act applies to this claim;

(b) s89(4) provides that this dispute is not justiciable before:

“... any other tribunal or a court or person acting judicially.”

(c)   The consequence of that provision is not simply that the County Court of Victoria does not have jurisdiction to entertain this dispute: it also means that the MCV does not have jurisdiction either.

9In order to make an individual transfer of this proceeding to the MCV, s16 of the Case Transfer Act sets out the criteria to be applied.  It provides:

“16    Criteria for transfer

(1)A proceeding may only be transferred under this Part if in the opinion of the designated judicial officers—

(a)   the transferor court does not have exclusive jurisdiction to hear and determine it; and

(b)   the transferee court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance; and

(c)   it is just and convenient that it be transferred.

(2)A proceeding must not be transferred to the Magistrates’ Court if a party has elected, or the court in which it is pending has ordered, that it be heard and determined with a jury.”

10As I have said, by force of s89(4) of the Retail Leases Act, the MCV does not have authority to hear this proceeding. So the starting proposition, therefore, is that there is no power in this Court to transfer this proceeding to the MCV.

11The question, though, now becomes to what extent is this landscape affected by the passage of Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”).

12Part 3A was inserted into the VCAT Act to deal with certain proceedings that might otherwise have fallen within the exclusive jurisdiction of VCAT, save for the fact that the matter includes a question which attracted federal jurisdiction.  Because VCAT is not a Chapter III Court, it is unable to hear and determine any federal matter.

13So a retail tenancy dispute is not justiciable in a court (s89(4)) and can only be determined in VCAT.  Yet, if that dispute includes a federal matter, then VCAT cannot determine it.

14Under those circumstances, a dispute having those characteristics had no forum for determination. In order to avoid that consequence, Part 3A was inserted into VCAT Act which makes provision for those matters to be dealt with, in the first instance, by the MCV.

15The cornerstone provision of the scheme in Part 3A is s57B.

16It provides that certain persons may apply to the MCV under that section.  It then enumerates three circumstances that describe the persons who may apply:

(a)   a person who would have been entitled to apply to VCAT in its original jurisdiction, if VCAT had jurisdiction to exercise judicial power to resolve controversies involving federal subject matter;

(b)   a person whose application to the tribunal (VCAT) in its original jurisdiction was struck out, dismissed, rejected or withdrawn on the ground that the tribunal had no jurisdiction to exercise judicial power to resolve controversies involving federal subject matter;  

(c)   a person who was a party to a proceeding in the tribunal in which an order of the tribunal was set aside by a court on an appeal or review commenced on or before a particular date in 2023 on the ground that the tribunal had no jurisdiction to exercise judicial power to resolve controversies involving federal subject matter.

17It is clear that neither subparagraphs (b) or (c) apply to the plaintiffs in this proceeding. However, s57B(1)(a) does apply so as to give the plaintiffs the right to apply to the MCV to determine this dispute. In this sense, by reason of Part 3A of the VCAT Act the MCV has been invested with jurisdiction to hear and determine the cause or matter that is the subject of this proceeding. In other words, notwithstanding that s89(4) prima facie deprives the MCV of jurisdiction to deal with a retail tenancy dispute, if that dispute involves a federal matter such that VCAT cannot entertain it, the MCV has been vested with that jurisdiction. The question for me now becomes whether that is sufficient to satisfy the mandatory criteria in s16 of the Case Transfer Act.

18The relevant criterion in issue is that in s16(1)(b) of the Case Transfer Act: are the designated judicial officers to whom the question of transfer must be referred, able to form the opinion that the MCV has the “authority to hear and determine” the proceeding?

19Section 16(1)(b) was considered by Davies J in Whiley Investments (Qld) Pty Ltd v Pet’s Paradise Franchising (Qld) Pty Ltd [2009] VSC 144. Her Honour was dealing with an application for judicial review of a Magistrate’s refusal to refer four debt recovery proceedings commenced in the Magistrates’ Court of Victoria under s17 of the Case Transfer Act for consideration for transfer to the Supreme Court of Victoria. Her Honour considered the criterion in s16(1)(b) in passages at paragraphs [17] to [22].

20Her Honour said at paragraph [17]:

“Secondly, the criterion in paragraph (1)(b) is that the transferee court has authority to hear and determine ‘it’, being the proceeding that is sought to be transferred.  This raises for consideration the meaning of the expression ‘proceeding’ as used in the context of the Case Transfer Act.”

21At paragraph [18], her Honour considered the meaning of the word “proceeding”.  Even though it was not defined, she noted that it was, on authority, capable of a variety of meanings which takes its colour from the statutory context in which it is used.  She noted that:

“The expression ordinarily refers to the ‘method permitted by law for moving a Court or judicial officer to some authorised act’; ‘the means or vehicle by which the subject matter of a dispute [is] brought before [a] court for adjudication’.”

22She further considered, on authority, that it was used in the sense of a legal proceeding:

“... ‘as a generic expression to embrace what was formerly comprehended individually and respectively by the expression ‘action’, ‘cause’ and ‘matter’.”

23She said:

“It is plain, in my view, that ‘proceeding’ is used in the same sense in the context of the Case Transfer Act, that is, as the action or cause initiated by the appropriate process. The scheme of the Act, which provides for the transfer of civil proceedings, bears out that the Act is concerned with transferring, as between courts, the action or cause.”

24At paragraph [22] she said:

“The criterion that the transferee court have the authority to hear and determine the proceeding is thus a requirement that the action be within the jurisdiction of the court.”

25Therefore, if it is the case that the MCV has the “authority to hear and determine” the “cause” or “matter”, then the criterion in s16(1)(b) will be satisfied.

26Returning then to s57B of the VCAT Act, it provides to the MCV jurisdiction to deal with applications made by certain persons.  Those include persons who would have been entitled to apply to VCAT in its original jurisdiction if it had had jurisdiction to exercise judicial power to resolve “federal subject matter”.

27The use of the word “matter” in that subsection is used in the same sense as “action”, “cause” or “matter”, being a justiciable controversy.  The Court of Appeal in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 discussed the meaning of “matter” in Chapter III of the Constitution:

“[47]The meaning of ‘matter’ in Ch III of the Constitution was confirmed in Palmer v Ayres:

A ‘matter’, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding — ‘controversies which might come before a Court of Justice’ (emphasis added).  It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy.  What comprises a ‘single justiciable controversy’ must be capable of identification, but it is not capable of exhaustive definition.  ‘What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’.

The requirement that, for there to be a ‘matter’, there must be an ‘immediate right, duty or liability to be established by the determination of the Court’ reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary.  A matter can exist even though a right, duty or liability has not been, and may never be, established.

[48]    As this passage makes clear, a ‘matter’ is a controversy, being the subject matter of a dispute which may be litigated in a legal proceeding.  It encompasses all claims made within the scope of the controversy, whether or not those claims are ultimately established.”

28It seems to me that Davies J in Whiley at paragraph [19] used the expression in the same sense and should be so understood where her Honour referred to the “action or cause” in paragraph [21].

29This necessarily leads to the conclusion that the designated judicial officers of the courts (that is, the County Court and the MCV) are capable of forming the opinion that this proceeding may be transferred to the MCV and that the MCV has the “authority” to hear and determine it.  

30There are four further issues that arise for consideration.

31First, given that this Court has held that it does not have jurisdiction to hear and determine the dispute, does it nevertheless have power to transfer the case under the Case Transfer Act?

32Thurin v Krongold Constructions (Aust) Pty Ltd held that notwithstanding that VCAT did not have power to hear and determine the relevant dispute that was the subject of that proceeding, it nevertheless had power under s77 of the VCAT Act to strike out the proceeding and refer the proceeding to another court.

33At paragraph [132] the Full Court found that:

“In our view, this passage [referring to a passage in the case of Citta] is addressing the implied powers of a court or tribunal that lacks jurisdiction, and not the scope of State legislative power to confer additional powers on a court or tribunal to deal with that circumstance. But in any event, the implied powers are said to extend to ‘everything which is incidental’ to the power to determine jurisdiction. In our view, that readily extends to a power to decline to exercise jurisdiction and to refer the proceeding to a body having jurisdiction. There is, in any event, no constitutional reason why such a power could not be legislatively conferred, because its exercise involves no adjudication of the controversy that lies outside jurisdiction, and therefore no exercise of federal judicial power. It would therefore be open to the Parliament of Victoria to empower VCAT to dismiss a proceeding for want of jurisdiction, or to transfer it to a court or other body having jurisdiction, including in cases where the reason VCAT lacks jurisdiction is because the matter is one in federal jurisdiction.”

34The Full Court continued to hold at [143]-[144] that s77 of the VCAT Act was an exercise of State legislative power to clothe VCAT with the ability to transfer proceedings, even in circumstances where it had no jurisdiction.  They noted at paragraph [152] that the decision to refer a matter did not constitute VCAT hearing and determining any part of the cause or action or matter (which it did not have jurisdiction to do). 

35The Court’s discussion of VCAT’s power to refer a matter either under its implied powers or under s77 of the VCAT Act appears to me to apply equally to this Court’s power under the Case Transfer Act.  The Case Transfer Act is an Act of State legislative power giving to this Court power to transfer cases from this Court to another court. In doing so, this Court does not exercise jurisdiction to determine the dispute of which it is deprived of jurisdiction by reason of s89(4) of the Retail Leases Act. I otherwise have implied power to do this as an incident to determining the question of whether this Court has jurisdiction to hear and determine this matter.

36Under those circumstances, I am satisfied that I have power to refer this case to be considered by the designated judicial officers for transfer under the Case Transfer Act.

37Secondly, the Magistrates’ Court of Victoria has a general civil jurisdictional limit of $100,000. The claim in this proceeding is substantially in excess of that. Does this affect the question of whether the MCV has “authority” to hear this dispute for the purposes of s16(1)(b) of the Case Transfer Act?

38Section 57C(2) of the VCAT Act gives to the MCV all the powers that would have been exercised by VCAT if it had had the jurisdiction to deal with the dispute, in respect of an application commenced under s57B of the VCAT Act. The scheme of the Act seems to be that for any claim which is commenced by application under s57B of the VCAT Act, the MCV’s monetary jurisdiction is, by force of s57C(2), the same monetary jurisdiction as that of VCAT. Under a claim such as this under the Retail Leases Act, VCAT has an unlimited monetary jurisdiction.  Therefore, the designated judicial officers can be satisfied that the MCV’s monetary jurisdiction is unlimited and, in that sense, has authority to entertain this dispute.

39Thirdly, it must be noted that what is transferred under the Case Transfer Act is the “cause” or “action” or “matter”.  That is, it is not the proceeding per se, being the court process by which the cause, action or matter is to be determined that is transferred.

40It is likely that in order to trigger the jurisdiction under Part 3A of the VCAT Act the plaintiffs will be required to commence an application under s57B.

41Once the MCV determines under s57B(2) to hear and determine an application commenced under that section, the process to be followed thereafter is dictated by s57C. I express no view about what that course might or should be.

42Fourthly, I note that s23 of the Case Transfer Act provides that:

“23    Only one transfer possible

A proceeding that has been transferred to a court under this Part or Part 2 is not capable of being transferred under this Part, whether to the original transferor court or to the other court.”

43I note that the plaintiffs have suggested that it may be their intention to apply to have the matter transferred back to the County Court once a proceeding is properly constituted in the MCV. Whether this can be done, utilising s57J of the VCAT Act (which gives the MCV power to transfer a substituted proceeding to the Supreme Court or the County Court) (and noting the effect of s57K), is a matter that I am not seized of at present, so I make no comment about whether that is possible or not.

44Under those circumstances, I intend to make an order under s17 of the Courts (Case Transfer Act), referring the matter to a designated judicial officer of this court to consider whether to transfer this proceeding to the Magistrates’ Court of Victoria.

- - -

Certificate

I certify that these 9 pages are a true copy of the Reasons for Judgment of His Honour Judge Wise delivered on 15 August 2024.

Dated: 19 August 2024

Associate to His Honour Judge Wise