Myers v Kew Hebrew Congregation Inc
[2023] VSC 684
•23 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03861
| YAACOV (HEBREW NAME) JOHN B MYERS | Appellant |
| v | |
| KEW HEBREW CONGREGATION INC | Respondent |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2023 |
DATE OF JUDGMENT: | 23 November 2023 |
CASE MAY BE CITED AS: | Myers v Kew Hebrew Congregation Inc |
MEDIUM NEUTRAL CITATION: | [2023] VSC 684 |
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CONSUMER LAW — Appeal from the Victorian Civil and Administrative Tribunal — Claim struck out for want of jurisdiction under consumer law — Claim against incorporated association misconceived — No consumer and trader dispute established for ‘services’ — Orders sought by claimant beyond Tribunal’s jurisdiction — Definition of ‘services’ — No ‘services’ established provided by reference to the aims and objects of the association’s constitution — Religious, educational, social and cultural characteristics of the association’s activities — Payment of membership alone does not create a consumer contract — ‘services’ must be conferred ‘in trade or commerce’ — Incorporated association disputes properly brought in Magistrates’ Court — Leave to appeal refused — Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Sigma Constructions Pty Ltd v Maryvell Investments Pty Ltd (2004) 22 VAR 279; ALDI Foods Pty Ltd v Transport Workers Union [2020] FCAFC 231 referred to — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75 — Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 182, 183, 184, 185 — Australian Consumer Law s 2 — Associations Incorporation Reform Act 2012 (Vic) s 67.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms F Bentley | HWL Ebsworth Lawyers |
HER HONOUR:
INTRODUCTION
On 10 August 2022, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) heard and determined Dr Myers’ application for relief under the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘ACLFTA’) by striking it out for want of jurisdiction.[1] Dr Myers[2] brought the proceeding in the Tribunal against the Kew Hebrew Congregation Incorporated (‘the KHC’) seeking various orders relating to decisions made by the KHC’s committee (‘the Committee’) which he alleged infringed his right to services under the ACLFTA.
[1]Myers v Kew Hebrew Congregation Inc (Civil Claims) [2022] VCAT 1147 (‘Myers’).
[2]The VCAT proceeding was made on behalf of several applicants but only appealed by Dr Myers.
The respondent, the KHC, is a corporation registered under the Associations Incorporation Reform Act 2012 (Vic) (‘the AIR Act’). Dr Myers is a member of the KHC and pays membership fees to it.
It appeared to the Tribunal that the principal grievance raised by Dr Myers related to the proposed development of land at 53 Walpole Street, Kew (‘the land’).[3] Dr Myers complained about his access to and the administration of the land, arguing that the KHC was denying him access to services. Dr Myers alleged that the KHC refused his access to the land (to sleep at the premises overnight to allow him to properly observe the Sabbath on the following day) and denied him access to Torah Scrolls. Dr Myers also claimed a lack of transparency in the KHC’s financial records and financial reporting to members.
[3]Myers (n 1) [12].
There are two registered proprietors who hold the land on trust. The terms of the trust are set out in an original trust deed dated 12 August 1949 (‘the trust deed’). The trust deed expresses purposes of religious, educational or other charitable purposes beneficial to the Jewish community of Melbourne.
The Beth Nachman synagogue stands on one part of the land. The Norman Smorgon Hall stood on another part of the land until it was demolished in December 2021. Until a date in April 2020, the trustees had leased the synagogue and facilities ancillary to the synagogue to the KHC for a nominal rent. Part of the land, including the site of the former Norman Smorgon Hall, is now in the possession of an organisation called Giant Steps, which proposes to develop it into a school for autistic children. The trustees are in possession of the remainder of the land.
The KHC has a committee. At the KHC annual general meeting held in 2021, the present committee members were elected to replace previous committee members.
The Tribunal observed that, from the initiating application and further written material, it was not easy to discern exactly what claims were being made against the KHC.[4] The Tribunal further observed that the principal grievance appeared to be the proposed development on the land for purposes other than the furtherance of the Jewish community’s interests, as the applicants saw them to be.[5] The Tribunal was asked to make orders that would limit the development and restore facilities that the demolition process had removed. The demolition, and consequent limitation of access to what was the former Norman Smorgon Hall, prevented the access previously enjoyed by the members.
[4]Ibid [11].
[5]Ibid [12].
The applicants asked the Tribunal to make orders:[6]
[6]Ibid [14].
(a) requiring the committee to comply with the terms of the trust set out in the trust deed by calling a halt to the Giant Steps development;
(b) to revoke the appointment of the committee members and to restore as committee members those who were replaced at the annual general meeting;
(c) to require the trustees to resign;
(d) to require the KHC to provide up-to-date financial statements to the members;
(e) to require the KHC to convene an annual general meeting; and
(f) to prohibit the KHC and the trustees from restricting their ‘rights to unencumbered worship’.
The KHC brought an application pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) to summarily dismiss the proceeding. This application was supported by written and oral submissions and by affidavit material which contested some of the allegations. The affidavit material included an affidavit from one of the trustees[7] and from the president of the KHC.[8]
[7]Affidavit of Jeffrey Mahemoff dated 10 February 2022.
[8]Affidavit of Rodney Ian Goldbloom dated 10 February 2022.
Pursuant to s 75 of the VCAT Act, the Tribunal ordered the proceeding be struck out for want to jurisdiction under s 183 of the ACLFTA or otherwise to hear and determine it, alternatively for want of power under s 184 of the ACLFTA to make the orders sought by the applicants. Dr Myers sought written reasons and those reasons were delivered on 5 October 2022.[9]
[9]Myers (n 1).
Dr Myers seeks leave to appeal the decision of the Tribunal pursuant to s 148 of the VCAT Act. Leave to appeal may be granted only if the Court is satisfied that the appeal has a real prospect of success. The application must be brought within 28 days of the Tribunal’s decision. Dr Myers’ application was not made within time and an extension of time is required to be granted as a preliminary matter.
Dr Myers explained that he misunderstood the date from which time ran, being a later date than the Tribunal’s order made 10 August 2022, believing it was the date of the costs application. The extension of time was not opposed by the respondent and I made an order allowing the extension of time at the commencement of the hearing.
The Tribunal’s Reasons
The relevant part of the Tribunal’s reasons commences at paragraph 22 where the Tribunal sets out its jurisdiction to hear and determine a ‘consumer and trader dispute’, defined in s 182(1) of the ACLFTA. Insofar as the definition is relevant to this proceeding, the Tribunal found that it is a dispute or claim arising between a purchaser of services and a supplier of services in relation to a supply of services. Per s 3(2) of the ACLFTA, the definition of ‘services’ has the same meaning as it has in the Australian Consumer Law (Victoria) (‘the ACL’).[10]
[10]By virtue of ss 7 and 8 of the ACLFTA, the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applies as a law of Victoria.
The Tribunal said that there was no other source of jurisdiction for the Tribunal which could possibly be applicable and that the applicants did not claim that there was any other.[11]
[11]Myers (n 1) [22].
As set out by the Tribunal at paragraph 23, the ACL defines ‘services’ so far as the definition is relevant to this proceeding as follows:
services includes:
(a)any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
(b)without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i)…
(ii)a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii)…
(iv)…
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
At paragraph 24, the Tribunal said:
For any right, benefit, privilege or facility to come within paragraph (a) of the definition of ‘services’, it must be one that is, or is to be, provided, granted or conferred ‘in trade or commerce’. For it to be provided, etc, ‘in trade or commerce’, the provision, etc. must be ’in the course of … activities or transactions which, of their nature, bear a trading or commercial character.’
The Tribunal supported this view by reference to the High Court’s decision in Concrete Constructions (NSW) Pty Ltd v Nelson[12] and the Victorian Court of Appeal decision in Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd[13] which decided that the test is applicable to the definition of ‘services’ in the ACL and hence in the ACLFTA.[14]
[12](1990) 169 CLR 594, 604 (‘Concrete Constructions’).
[13](2004) 22 VAR 279, [22] (‘Sigma Constructions’).
[14]Myers (n 1) [24].
The KHC constitution describes the KHC as ‘the Congregation’. The Tribunal extracted clause 4 of the KHC’s constitution, which sets out its Aims and Objects:
4.Aims and Objects
The aims and objects of the Congregation shall be to:
(a)Establish and maintain a centre for the pursuits of the tenets of Orthodox Judaism
(b)Establish and maintain a centre for the spiritual, cultural, social and recreational activities of the Jewish residents of Kew and the surrounding districts
(c)Foster and promote Jewish religious education amongst the Jewish youth of Kew and the surrounding districts
(d)Affiliate with any Jewish organisation having similar aims and objects and which may advance aims and objects of the Congregation
(e)Assist with and participate in social, cultural, philanthropic, charitable and other public movements
(f)Do all such things as are incidental to or conducive to the attaining of any or all of the above claims[15] and objects.
[15]‘Claims’ is a typographical error in the Tribunal’s reasons which should read as ‘aims’.
The Tribunal said at paragraphs 25–8 that from clause 4 of the KHC’s constitution:
[25]… it is clear that whatever rights, benefits, principles or facilities that the [KHC] confers on or provides to its members do not happen in the course of activities that of their nature bear a trading or commercial character. Rather, its activities have religious, educational, social and cultural characteristics. The fact that the applicants and other members pay membership fees does not alter these characteristics. Any proposition that the [KHC] provides ‘services’ within the meaning of paragraph (a) of the definition is absolutely untenable.
[26]As for paragraph (b)(ii) of the definition, it is true that there is a contractual connection between the [KHC] and its members. The AI Reform Act in s 46 provides that the rules of an incorporated association are taken to constitute the terms of a contract between the association and its members. It does not follow, however, that the contract is ‘for or in relation to’ the provision of, or the use or enjoyment of facilities for, recreation or instruction (let alone for amusement or entertainment). Whatever the [KHC] does, if anything, by way of enabling recreation or instruction, it does as a function of its beneficent aims and objects, not out of any contractual obligation.
[27]Whether the conferring of benefits under a contract of the kind described in paragraph (b)(ii) of the definition of ‘services’ also must be conferred ‘in trade or commerce’ to be within the definition of ‘services’ is a question that has not been authoritatively amended by a court. For reasons I have given elsewhere,[16] I favour the view that there is no ‘in trade or commerce’ requirement in paragraph (b). If that view is wrong and there is such a requirement, then for reasons given in paragraph 25 above the requirement has not been met. If the view is correct, the reasoning in paragraph 26 is applicable. Either way, the applicants could not and did not bring their case within the definition of ‘service’, and so could not and did not demonstrate that the proceeding came within the definition of a ‘consumer and trader dispute’ in the ACLFT Act s 182.
[28]Accordingly the Tribunal had no jurisdiction to hear and determine the proceeding, which was ‘misconceived’ for that reason, and it ought to have been and was struck out summarily under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 for want of jurisdiction.
[16]Vida v Sideris [2019] VCAT 490.
The Tribunal went on to determine whether a second reason for summary dismissal was open, being whether the jurisdiction of the Tribunal under ch 7 of the ACLFTA conferred upon the Tribunal any power to make orders of the kinds the applicants were seeking.
The Tribunal said at paragraph 30 that s 184(2) of the ACLFTA sets out what the Tribunal may do in relation to a ‘consumer and trader dispute’. By ss 184(2)(a)–(k), the ACLFTA sets out 11 different things that the Tribunal may do or order. This includes order the payment of a sum of money,[17] make an order in the nature of specific performance of a contract,[18] or declare that a debt is or is not owing,[19] or order a party to do or refrain from doing something.[20]
[17]ACLFTA s 184(2)(b).
[18]Ibid s 184(2)(f).
[19]Ibid s 184(2)(i).
[20]Ibid s 184(2)(k).
The Tribunal then said at paragraph 31:
Nothing in s 184(2) empowers VCAT to revoke the appointment of a member of a committee of an incorporated association, to require such an association to provide accounts or financial statements, or to require the association to convene a general meeting, or to do any other of the things that, so far as one could tell, the applicants were seeking to have VCAT do. Even if the trustees were to become parties to the proceeding – an impossibility, because there was no ‘consumer and trader dispute’ with them – there is no power conferred upon VCAT under s 184(2) to require trustees to resign or to comply with the terms of the trust.
The Tribunal then made reference to the jurisdiction of the Magistrates’ Court under s 67 of the AIR Act as the appropriate course for members of an association with a grievance against it, there being no recourse to VCAT.[21]
[21]Myers (n 1) [32].
Questions of Law and Grounds of Appeal
Dr Myers listed seven questions of law in his proposed notice of appeal as set out below: [22]
[22]The capitalisation of certain terms in the proposed notice of appeal have been retained in the Questions as set out in this paragraph.
(a) Question 1: Did the Senior Member incorrectly find that these proceedings are unjustified according to s 75 of the VCAT Act for want of jurisdiction under s 183?
(b) Question 2: Did the Senior Member err in saying that s 75 of the VCAT Act gave them the ability to strike out the proceeding for want of power under s 184 to make the orders sought?
(c) Question 3: Was the Senior Member obliged to provide reasons upon request?
(d) Question 4: Was there apparent bias in allowing the respondent to give submissions on information surrounding Giant Steps and did not allow submissions from the applicant?
(e) Question 5: Did the Senior Member err by not recognising that the aims and objectives (a)–(f) in the KHC’s Constitution are services as defined in authority?
(f) Question 6: Did the Senior Member err by not considering that the term is unconscionable, harsh or oppressive?
(g) Question 7: Did the Senior Member err by considering that the Committee of Management of the KHC does not make decisions and is therefore not a party, or an effective party, to the Consumer Trade agreement and therefore is not bound to make decisions to fulfil the Constitutional requirements by which it is elected i.e. to act according to and to ensure the conditions of the Trust Deed and Deed, that ensure the property remains a Trust property, which together with conditions in the original Constitution empower the Committee to ensure, which guarantees membership is unencumbered under a Trust, sheltered from imposed ‘harsh’ conditions of ‘ownership’?
These propositions were expanded upon by Dr Myers in his submissions both in writing and orally. I have referred to his propositions by reference to these questions rather than grounds for consistency.
Respondent’s submissions
In its submissions to the Court, the respondent set out the background to the dispute and the findings of the Tribunal.
The respondent’s submissions on the merits of the application for leave to appeal before the Court were, in summary, as follows.
(a) In relation to Question 1, there was no legal error by the Tribunal in its application of the High Court’s decision in Concrete Constructions.
(b) The Tribunal was correct in its characterisation of the dispute between Dr Myers and the KHC as not bearing a commercial character such as to fall within the meaning of a ‘small claim’ or a ‘consumer and trader dispute’. The identification of the nature of the dispute was set out in paragraph 12 of the Tribunal’s decision. The Tribunal identified that the dispute was primarily about the development of the land for purposes other than the furtherance of interests of the Jewish community, being land which the KHC has no legal rights over and no say as to its development.
(c) In terms of the Tribunal’s jurisdiction, ch 7 of the ACLFTA confers jurisdiction on the Tribunal to hear and determine a ‘consumer and trader dispute’ as defined in s 182.
(d) There is plainly no supply of goods in issue. The question is whether there was any supply of services. ‘Services’ is defined in s 2 of the ACL. The Tribunal correctly understood what was meant by ‘in trade or commerce’ for the purposes of the definition of ‘services’ in accordance with the interpretation of the High Court in Concrete Constructions.[23]
[23]In Sigma Constructions (n 13) [22], the Victorian Court of Appeal said that the statement made by the High Court of Australia in Concrete Constructions (n 12) may be taken as a safe guide to the meaning of the same expression used in the Fair Trading Act 1999 (Vic).
(e) There needs to be a link between the matters complained of and ‘services’ provided by the KHC ‘in trade or commerce’. It was not enough that the KHC received membership fees — that does not automatically render it a company or association acting ‘in trade or commerce.’ The test is to look at the conduct complained of and what is the basis of the dispute in relation to services provided ‘in trade and commerce’.[24]
[24]See ALDI Foods Pty Ltd v Transport Workers’ Union [2020] FCAFC 231 (‘ALDI Foods’).
(f) There is nothing in the Aims and Objects in the KHC’s constitution which relates to the creation of an obligation for the provision of services that bear any kind of commercial or trading character.
(g) The fact that there is a contract created between a member of an incorporated association by reason of s 46 of the AIR Act does not automatically mean that the contract was for, or in relation to, the provision of or use or enjoyment of facilities for recreation or instruction. This is particularly so where the KHC has no right to those facilities.
(h) Whatever the KHC does, it does as a function of its beneficent aims and objects and not out of any contractual obligation to provide that use or enjoyment to its members. Accordingly, there is nothing in the conduct of the KHC which amounted to the provision of services within the meaning of the relevant legislation to Dr Myers such that his complaints about the administration of the land and his access to it would amount to a ‘consumer and trader dispute’.
(i) In relation to Question 2, the Tribunal is a creature of statute and only has the jurisdiction provided by legislation. Section 184 of the ACLFTA sets out the power in the Tribunal in relation to a ‘consumer and trader dispute’ and the Tribunal’s powers are only validly invoked in relation to such a dispute. Section 184 is not some standalone section which allows the Tribunal to do anything it desires. The relief sought by Dr Myers was related to the trustees of the trust being proprietors of the land, the administration of the KHC requiring the association to provide up‑to‑date statements and other matters relating to its administration. These matters are more appropriately dealt with by the Magistrates’ Court pursuant to s 67 of the AIR Act.
(j) Whilst s 184 confers broad powers on the Tribunal, it may only make an order where there is some legal basis for doing so.[25] The orders sought were not of the nature of orders that could be made pursuant to this section. The Tribunal, having no jurisdiction, was correct to strike out the proceeding pursuant to s 75 of the VCAT Act.
[25]Teen Entertainment Enterprise Network Pty Ltd v A & H Natoli Pty Ltd [2020] VSC 388, [39].
(k) In relation to Question 3, written reasons were provided by the Tribunal as requested.
(l) In relation to Question 4, there was no question of bias or lack of opportunity to be heard. Dr Myers was given an opportunity to make submissions in respect of Giant Steps that there is no evidence that the Tribunal in any way prohibited Dr Myers or the other applicants from making any submissions they wish to make about the Giant Steps project.
(m) In relation to Question 5, the Tribunal did not fail to appropriately apply the definition of ‘services’ as alleged by Dr Myers.
(n) Questions 6 and 7 were difficult to follow and, on the face, do not disclose an error of law.
(o) As a final point, the respondent submitted that the Tribunal was correct in striking out the proceeding under s 75 of the VCAT Act because no cause of action that would sound in relief was identified. The proceeding was lacking in substance and misconceived in any event, and there would be no utility in rehearing the matter irrespective of jurisdiction.
ANALYSIS
Leave to Appeal Refused
The Court must be satisfied that there is a real prospect of success before it grants leave to appeal.
For the reasons which follow, I am not satisfied that there is any error of law identified in the question or grounds of appeal raised by Dr Myers. The claim brought before the Tribunal was correctly and lawfully summarily dismissed as ‘misconceived’, there being no ‘consumer and trader dispute’ identified which enlivened the jurisdiction of the Tribunal nor one which could be the subject of the relief sought by Dr Myers.
I accept the clear and helpful analysis provided by the respondent in its written and oral submissions.
I will deal with each of the seven questions raised by Dr Myers briefly as I have found no error in the Tribunal’s reasoning, the key parts of which I have set out above in paragraphs 13–23.
Questions or Grounds raised
In relation to Question 3, as written reasons were provided by the Tribunal on 5 October 2022,[26] this question of law is redundant.
[26]Myers (n 1).
Question 4 raised a natural justice question of whether Dr Myers was given a reasonable opportunity to be heard, specifically, in respect of the Giant Steps proposal.
I am not persuaded that Dr Myers was prevented or refused a reasonable opportunity to be heard as he was given the opportunity to put his case in his own manner and method. In any event, my observation is that the Giant Steps development proposal is a peripheral factor in the complaints about the withholding of services. The development proposal may be the primary reason why Dr Myers brought the proceedings, but I cannot see any factual or logical connection between more material being provided on this topic and a claim brought pursuant to the ACLFTA. I am not satisfied that this question of law and the grounds identified to substantiate it have any merit.
I accept the submission made on behalf of the respondent that the key consideration in the application was the determination by the Tribunal of whether there were services in issue which fell within the definition of ‘services’ under the ACL. This required consideration of the services which were identified by Dr Myers as being prevented or withheld, and whether they could be properly categorised as ‘services’, being any rights, benefits, privileges or facilities that are provided, granted or conferred ‘in trade or commerce’, given the definition applicable and the authorities which have interpreted that concept.[27]
[27]See Concrete Constructions (n 12); Sigma Constructions (n 13); ALDI Foods (n 24).
Insofar as Questions 1 and 2 raise the exercise of jurisdiction to strike out a proceeding for want of jurisdiction or want of a power to make the orders sought, Dr Myers accepted that the Tribunal has that power. However, he rejects the finding that the Tribunal should have been satisfied that his claim fell foul of that provision.
The Tribunal correctly sets out the power to strike out a proceeding in paragraphs
18–21 of its reasons. The Tribunal was correct to exercise its discretion to strike out the proceeding for want of jurisdiction. First, because the Tribunal found there was no claim which could fall within the relevant definition which would give the Tribunal jurisdiction. Second, even if the claim was within jurisdiction, there was no power to grant the relief that he sought. The application for relief was misconceived.
The Tribunal’s reasons, especially at paragraphs 22–28, sets out clearly the basis of its findings.
In respect of Question 2, paragraphs 29–31 sets out the Tribunal’s reasoning. I cannot find fault with any aspect of that reasoning and I am not satisfied that the proper characterisation of the complaint was in error.
Following from the reasoning in respect of ‘services’, I do not accept that the Tribunal erred in its analysis in interpreting the KHC constitution.
The term ‘services’ in the legislation is not exhaustive, but read in the context of the legislation (which is intended to protect a consumer), the ‘services’ as alleged by Dr Myers do not fall within that categorisation.
I reject the proposition contained in Question 6 that s 185 of the ACLFTA provides a standalone power for the Tribunal to make any order it considers fair in respect of a contract. The Tribunal was considering an application for summary dismissal under s 75 of the VCAT Act. It was not a hearing of the substantive merits of Dr Myers’ application. The remedy for a term that is ‘unconscionable, harsh or oppressive’ in s 185 of the ACLFTA is only invoked if there is a proven consumer dispute under the ACLFTA. As the Tribunal’s jurisdiction was not invoked by the claim made by Dr Myers, the question of relief does not arise. There is no substance to Question 6.
The issue raised by Question 7 is difficult to follow. This question was not further articulated in a manner that I found in any way comprehensible despite my best endeavours. To the extent that it appears to make claims about the KHC not making a decision or being party to a ’Consumer Trade agreement’, this does not change the factual matrix before the Court such that the jurisdiction of the Tribunal was enlivened as there was no ‘consumer dispute’ raised for the Tribunal to determine.
CONCLUSION
There is no real respect of success in the purported questions of law, the matters raised by the proposed notice of appeal or by way of the oral submissions put to the Court by Dr Myers. The propositions raised by Dr Myers are without legal merit. I refuse leave to appeal.
The respondent has sought an order for costs. I will provide the applicant an opportunity to make submissions in writing within 14 days of from delivery of my judgment as to why the Court should not make the costs order in favour of the respondent.
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