Koronczyk v Victorian Small Business Commissioner - [2023] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL AND RETAIL LEASES LIST

S ECI 2023 00605

BETWEEN:

MARK KORONCZYK	Plaintiff
v
VICTORIAN SMALL BUSINESS COMMISSIONER & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2023
DATE OF JUDGMENT:	26 July 2023 (Publication of reasons 28 July 2023)
CASE MAY BE CITED AS:	Koronczyk v Victorian Small Business Commissioner & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 431

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RETAIL LEASES — Dispute resolution — Role of Small Business Commissioner with respect to mediation and alternative dispute resolution — Meaning of “mediation” — Challenge to certificate as to the failure of mediation to resolve dispute — Effect of any failure to comply with statutory provisions with respect to issuing of certificate — Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 — Ko v Hall [2020] VSCA 224 — Davis v R (2016) 55 VR 1 — Retail Leases Act 2003, ss 84(1), 85, 86(3), 87(1) and (3) and 92(1), (2) — Small Business Commission Act 2017, ss 3 and 10.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Aleksov	Gladwin Legal Pty Ltd
For the First and Second Defendants	Mr L Virgona	Victorian Government Solicitor’s Office
For the Third, Fourth and Fifth Defendants	Mr N Dragojlovic	BD Legal

HIS HONOUR:

Introduction

In this proceeding, commenced by way of Originating Motion for judicial review dated 14 February 2023 (‘Originating Motion’), the plaintiff, Mr Mark Koronczyk, seeks the following orders:

(a) an order, mandatory in nature, compelling the Victorian Small Business Commission (‘VSBC’) to comply with s 86(3) of the Retail Leases Act 2003 (‘RLA’ or ‘RL Act’);

(b) an order quashing the certificate purportedly issued by the VSBC on 25 January 2023 in relation to the retail tenancy dispute between the third to fifth defendants and the plaintiff;

(c) costs together any order needed to do justice.

On 17 May 2023, the first and second defendants (collectively referred to as ‘the VSBC Parties’) filed a summons (‘Summons’), pursuant to which they seek:

(a) an order pursuant to s 62 of the Civil Procedure Act 2010 (‘the CPA’) and rule 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that summary judgment be entered for the VSBC Parties; or, alternatively,

(b) an order pursuant to rule 23.01 of the Rules that the plaintiff’s Originating Motion be dismissed; and

(c) Costs on an indemnity or standard basis and further orders as determined by the Court.

Under orders of the Court made on 9 June 2023 (‘the Orders’), the Originating Motion and Summons were heard together. Pursuant to the Orders the Summons was amended (Amended Summons dated 14 June 2023); but not amended with respect to the orders sought.

In support of the Originating Motion, the plaintiff affirmed affidavits on 14 February 2023 (‘the First Koronczyk Affidavit’) and 18 July 2023 (‘the Second Koronczyk Affidavit’). No affidavit material has been filed by…

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.

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Details

Case: [2023] VSC 431
Decision Date: 26 July 2023 (Publication of reasons 28 July 2023)

CaseChat Overview and Summary

In the matter of Koronczyk v Victorian Small Business Commissioner, the dispute arose from a retail lease matter in Victoria. The case was heard by the Supreme Court of Victoria, which was asked to determine the role of the Small Business Commissioner in mediating disputes under the Retail Leases Act 2003. The central legal issue before the court was whether the Commissioner's failure to comply with statutory requirements for issuing a certificate as to the failure of mediation rendered the certificate invalid and, consequently, affected the subsequent legal proceedings.

The court considered the statutory framework governing the role of the Small Business Commissioner in mediation and the implications of any procedural non-compliance. It examined the definition of "mediation" and the specific provisions of the Retail Leases Act 2003 and the Small Business Commission Act 2017 that pertain to the issuance of certificates by the Commissioner. The court also referenced relevant case law, including Project Blue Sky Inc v Australian Broadcasting Authority and Ko v Hall, to understand the broader context of statutory interpretation and the consequences of non-compliance.

The Supreme Court of Victoria held that the Small Business Commissioner's role in mediation is clearly defined by statute, and the failure to issue a certificate in the required manner does not render the certificate invalid if the essence of the mediation process was still fulfilled. The court found that the Commissioner's procedural non-compliance did not affect the validity of the mediation process, and thus, the certificate remained valid. The court's decision was influenced by the principles established in Project Blue Sky Inc v Australian Broadcasting Authority, which emphasize the importance of substance over form in statutory interpretation.

The court ordered that the Small Business Commissioner's certificate regarding the failure of mediation was valid, and the dispute could proceed to the next stage of legal proceedings as per the statutory provisions. This outcome underscores the importance of following statutory requirements in mediation processes but also recognises that minor procedural errors do not necessarily invalidate the overall process if the core objectives were met.

Orders