Case Note: Plunkett v Portier Pacific Pty Ltd (Civil Claims) [2024] VCAT 205

Case Note: Plunkett v Portier Pacific Pty Ltd (Civil Claims) [2024] VCAT 205

This case note was written by Eve Whitmore, an Associate in our Melbourne office (and peer reviewed by Tim Graham).

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On 5 March 2024, President of the Victorian Civil and Administrative Tribunal (VCAT), Justice Woodward, handed down his written decision in the case of Plunkett v Portier Pacific Pty Ltd.[1] Justice Woodward provided clarity on the application of section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) in matters which involve multiple parties, potentially lengthy hearings, and complex or high-value claims.

Justice Woodward’s decision comes in the wake of cases such as Krongold Constructions (Aust) Pty Ltd v Thurin [2023][2] and Meringnage v Interstate Enterprises Pty Ltd [2020][3], which have resulted in parties to VCAT proceedings increasingly questioning whether the subject matter of proceedings involve matters outside of VCAT’s jurisdiction. As a result, there has been a growing need for contemporary authority on the principles guiding VCAT’s authority to refer matters to courts under section 77 of the VCAT Act.

Background

The Applicants alleged the Respondents[4] had engaged in misleading, deceptive and unconscionable conduct under the Australian Consumer Law and Fair Trading Act 2012 (Vic) in connection with the commencement and operation of restaurant businesses in Sydney and Melbourne. The quantum of the Applicants’ claim was $1,365,984.00 plus damages and interest.

Throughout the proceedings, the Applicants had filed seven Points of Claim and had discontinued the proceedings against the Third, Fouth, Sixth and Seventh Respondents.

Despite the proceeding’s protraction and admitted necessity for the Applicants to file Further Amended Points of Claim, the Applicants submitted, among other things, that:

• their claims fell squarely within VCAT’s jurisdiction (namely, the dispute was a consumer and trader dispute);[5]
• no substantial complexities arose in the claim;
• no issues of Commonwealth or Netherlands law had been determined;
• the final hearing would likely involve 5 sitting days; and
• the case management issue had been largely resolved.

Notwithstanding this, Justice Woodward ordered pursuant to sections 77(1) and 77(3) of the VCAT Act that the proceeding be struck out and referred to the Supreme Court of Victoria.

Basis for VCAT’s Decision

Justice Woodward’s decision that VCAT was not the appropriate forum for the proceeding was largely based on the findings that:[6]

• discretion under section 77 is conferred ‘in wide terms’ and must be exercised ‘taking into account the circumstances of the particular case’[7];
• VCAT has ‘broad’[8] discretion under section 77;
• ‘the appropriate test … is not whether it is clear that this Tribunal is an inappropriate forum … but is a less stringent test, namely whether there is a more appropriate forum …’[9]; and
• the principle that ‘each application must be viewed on its merits and considerations’ is to be applied, which may include where the dimensions of the case will likely stretch VCAT’s resources, and the subject matter is complex and requires robust case management procedures.

The case law with respect to the application of section 77 is inconsistent.[10] However, given Justice Woodward’s concurrent position on Victoria’s Supreme Court and the judicial authority relied upon, his decision in Plunket v Portier Pacific holds significant persuasive value.

Conclusion

The decision in Plunkett v Portier Pacific serves as a significant precedent in clarifying the principles governing applications under section 77 of the VCAT Act. It underscores the broad discretion of the VCAT in assessing the suitability of tribunals or courts as a forum for resolving disputes characterised by complexity, high value, or lengthy hearings. The outlined factors provide valuable guidance for parties and practitioners navigating jurisdictional considerations in civil claims before VCAT.

[1] (Civil Claims) [2024] VCAT 205 (‘Plunkett v Portier Pacific’).

[2] VSCA 191.

[3] VSCA 30.

[4] Which included international companies such as Porter Pacific Vof and Uber B.V..

[5] Section 182 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and sections 18 and 21 of the Australian Consumer Law (Victoria).

[6] Plunkett v Portier Pacific, paragraph [24].

[7] Waldron v Nicholas (unreported, VCAT, Ginnane J, 16 September 2011) at [4].

[8] Harrison v Merkat Investments Pty Ltd [2013] VCAT 1499 at [11].

[9] Dragon Image Pty Ltd v NP Distribution Pty Ltd [2005] VCAT 448 at [4].

[10] Plunkett v Portier Pacific, paragraph [21]; as demonstrated by Judge Kirton’s responsive decision in Koolio Pty Ltd v Owners Corporation 1 PS618397Y (Building and Property) [2024] VCAT 273.