VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
civil claims LIST	
vcat reference No. C1812/2023	
CATCHWORDS	
Section 75 Victorian Civil and Administrative Tribunal Act 1998; whether the matters the subject of the proceeding were also the subject of a previously-issued proceeding in the County Court; circumstances justifying a compensatory order under section 75(2) by way of an order for indemnity costs.	

APPLICANT	Casualife Australia Pty Ltd ACN: 638 041 022	
RESPONDENT	Ani Commercial Storage Pty Ltd ACN: 641 819 258	
WHERE HELD	Melbourne	
BEFORE	R Buchanan, Member	
HEARING TYPE	Section 75 Hearing	
DATE OF HEARING	11 May 2023	
DATE OF ORDER	11 May 2023	
DATE OF REASONS	21 June 2023	
DATE OF CORRECTION	26 June 2023	
CITATION	Casualife Australia Pty Ltd v Ani Commercial Storage Pty Ltd (Civil Claims) [2023] VCAT 702	

Order
Findings
1.	The goods which are the subject of this proceeding and the relief sought are also the subject of a proceeding by the applicant against the respondent, in the County Court at Melbourne number CI-22-05656.
2.	The VCAT proceeding is vexatious and is an abuse of process.
Orders
1.	Each party has leave to be represented by a legal practitioner.
2.	The proceeding is dismissed.
3.	The applicant must pay the respondent’s costs to be assessed by the Victorian Costs Court on an indemnity basis under the County Court scale.

R Buchanan
Member			

APPEARANCES:		
For Applicant	Mr J Guss, solicitor	
For Respondent	Ms S Dhanji of counsel	

reasons
Introduction
1	This case is about goods held in a warehouse. The applicant owns the goods, while the respondent runs the warehouse. The applicant seeks an order requiring the respondent to release the goods to the applicant.
Background
2	By its Points of Claim, the applicant alleges as follows:
a)	The parties entered into an agreement on 31 July 2020, by which the respondent agreed to provide warehousing services to the applicant. In broad terms, those services involved receiving goods, storing them and, upon request, preparing the goods for dispatch.
b)	Since about 1 February 2023 the respondent has refused to dispatch the applicant’s goods or to allow the applicant to remove the goods.
This proceeding
3	On 23 March 2023, the applicant issued the present proceeding, seeking orders for:
a)	“Immediate delivery up of the applicant’s goods or alternatively access for collection”; and
b)	Damages, interest and costs.
4	The proceeding was listed for an injunction hearing on 20 April 2023.
5	As is the Tribunal’s usual course, the Tribunal undertook service of both the application and notice of the injunction hearing on the respondent, using the respondent’s address provided by the applicant in its application.
6	At the injunction hearing before me on 20 April 2023 the applicant sought an ex parte order for delivery up of the goods. It was, however, apparent that the address for the respondent provided by the applicant was incorrect and the injunction hearing was adjourned.
7	The Tribunal then notified the respondent about the proceeding and on 24 April 2023 the Tribunal gave the respondent leave to apply for an order under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for an order that the proceeding be summarily dismissed or struck out.
8	The section 75 application was heard on 11 May 2023 and I made an order dismissing the proceeding. These written reasons for that decision were requested by the respondent.
The County Court proceeding
9	On 23 December 2022 the applicant issued a proceeding against the respondent in the County Court, by which it sought:
a)	Access for collection and removal of the applicant’s goods at the respondent’s premises;
b)	Alternatively an order for delivery up of the applicant’s goods at the respondent’s premises; and
c)	Damages, interest and costs.
Two parcels of goods
10	In the County Court proceeding, by its Amended Statement of Claim dated 7 February 2023, the applicant referred to two parcels of its goods in the possession of the respondent.
11	The first parcel, which the Amended Statement of Claim refers to as “the ex Dandenong goods”, had been in the possession of a third party warehousing business and had passed from that third party into the possession of the respondent. 
12	The second parcel, referred to as “other goods”, which the applicant’s Amended Statement of Claim of 7 February 2023 said was the subject of a contract made on or about 31 July 2020 between the applicant and respondent. It is the “other goods” which were the subject of the present proceeding in this Tribunal, when this proceeding was issued on 23 March 2023. 
Section 75 application – submissions
13	In support of its application for an order under section 75, the respondent submitted that:
a)	The parties are the same in both proceedings;
b)	The subject matter of the present Tribunal proceeding is also the subject of a proceeding in the County Court; and
c)	The same issues are raised in both proceedings.
14	The applicant, in opposing the respondent’s application, made two basic submissions:
a)	That the subject matter of the two proceedings was not the same; and
b)	That in relation to the other goods, the Tribunal was seized of exclusive jurisdiction by reason of section 187 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
The same parties, subject matter and issues
15	That the parties in both proceedings are the same is self-evident, and despite the applicant’s submission to the contrary, it is equally clear that the two proceedings have the same subject matter and raise the same issues. The applicant’s Amended Statement of Claim in the County Court proceeding refers, in paragraph 4, to both parcels of goods:
… The Plaintiff and the defendant on or about 31 July 2020 entered into a 3PL agreement in respect to other goods than the Plaintiffs ex Dandenong goods (the plaintiff current goods(which is still operating although in December 2022 a dispute has arisen as to whether purported terms and conditions said by the defendant to be dated 22 April 2022 apply thereto after that date, the plaintiff contending that they do not.
16	The relief which the applicant seeks in the County Court proceeding is possession of all its goods in the respondent’s possession. The applicant makes no distinction between the two parcels of goods.
17	Relevantly, it is plain that the respondent was of the view that both parcels of goods were the subject of the County Court proceeding. The respondent’s Defence and Counterclaim to the applicant’s Amended Statement of Claim in the County Court proceeding is dated 3 April 2023 – in other words, before the applicant’s present proceeding in this Tribunal was brought to the respondent’s notice. In that pleading, the respondent said, in response to paragraph 4 of the Amended Statement of Claim quoted above, that the 22 April 2022 contractual terms referred to in paragraph 4 extended to “all goods belonging to the Plaintiff that were in the Defendant’s possession”.
18	The respondent’s Defence and Counterclaim went on to claim that the 22 April 2022 contractual terms created a lien over all of the applicant’s goods in the respondent’s possession and asserted that the respondent was entitled to exercise that lien by reason of the applicant’s having “fallen into arrears in relation to stock other than the ex-Dandenong goods stored by [the applicant]”. The reference to “stock rather than the ex-Dandenong goods” is, of course, a reference to the parcel of goods (the “other goods”) which is the subject of the present Tribunal proceeding.
19	It is relevant that the respondent’s claim to a lien over all of the applicant’s goods in the respondent’s possession was known to the applicant prior to its launching the present Tribunal proceeding. In an email from the respondent’s solicitor to the applicant’s director, Joseph Guss, on 9 March 2023, the solicitor said as follows:
The question in this matter will be what terms and conditions apply in relation to the current stock. You have raised this matter in the Amended Statement of Claim filed in the County Court (paragraph 4). As you know, [the respondent]’s position is that the terms and conditions apply to both the current stock and the stock the subject of the County Court proceeding by virtue of the lien clause.
20	In view of the matters which I have set out above, I found that the subject matter of the two proceeding is the same, namely the parcel which I have referred to as the other goods.
21	In addition, I found that the issue in the two proceedings is the same, namely whether the respondent enjoyed a lien over the other goods. It is true that the respondent has not filed Points of Defence in the present Tribunal proceeding, but it is reasonable to assume that, having claimed such a lien over the other goods in the County Court proceeding, the claim would also have been made over the other goods in the present Tribunal proceeding.
Exclusive jurisdiction?
22	The applicant argued that the proceeding in this Tribunal was a consumer trader dispute within the meaning of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘the Act’) and that, accordingly, section 187 of that Act conferred exclusive jurisdiction on this Tribunal.
23	The applicant did not, however, bring its claim under the Act. The Points of Claim made no reference to the Act and the application itself characterised the claim, under the heading of “Problem”, provided on the application form, merely as, “Breach of Contract/Detinue/damages for breach”.
24	In any event, even if the applicant had brought its claim under the Act, the Tribunal would not have had exclusive jurisdiction, as Section 187 provides as follows:
(1) 	… the issues in dispute are not justiciable at any time by a court unless—
(a) 	the proceeding in that court was commenced before the application to VCAT was made and that proceeding is still pending …
25	The applicant’s Amended Statement of Claim was dated 7 February 2023, well before the issue of the present proceeding in this Tribunal on 23 March 2023. As that pleading embraced all of the applicant goods, including the other goods, it was clear that prior to the issue of the present proceeding, all of the issues in dispute between the parties in relation to the subject matter of the present Tribunal proceeding were before the County Court. Accordingly, section 187 could not have conferred exclusive jurisdiction on this Tribunal.
26	In view of those findings and, in the absence of any rational reason why the present Tribunal proceeding had been brought or should continue, I found that the present Tribunal proceeding was vexatious and an abuse of process and ordered that the proceeding be dismissed.
Compensation 
27	On the application of the respondent, I ordered that the applicant should pay the respondent’s costs, on an indemnity basis. 
28	Section 75(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that if the Tribunal makes an order dismissing a proceeding under section 75, the Tribunal:
… may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
29	The power under section 75(2) is compensatory, not merely a power to award costs. In Naylor v Oakley Thompson & Co [2008] VCAT 2074, the Tribunal observed that:
… The purpose of an order under s 75(2) is to provide compensation that is referable to the party’s costs, expenses, loss etc. The scope of an award of compensation is broader than the costs that may be ordered under section 109 “in order to discourage a meritorious claim”.
30	I ordered that the applicant compensate the respondent by paying the respondent’s costs on an indemnity basis. I so ordered for a number of reasons.
31	First, that Mr Guss, the applicant’s director, is also a solicitor and acted on behalf of the applicant in both this proceeding and the County Court proceeding. Mr Guss is an experienced practitioner and the matters which I have canvassed above should have been obvious to him.
32	Secondly, were matters revealed in the submissions by the respondent. Those submissions were supported by documents tendered by the respondent and were not challenged by the applicant. Those submissions were to the following effect.
33	That on 8 March 2023 the applicant wrote to the respondent’s solicitor seeking his consent to issue proceedings in relation to the other goods in the Magistrates’ Court.
34	On 9 May 2023 (in the email from which I have quoted, above) the respondent’s solicitor replied as follows:
We are instructed not to consent the jurisdiction of the Magistrates’ Court. The question in this matter will be what terms and conditions apply in relation to the current stock. You have raised this matter in the Amended Statement of Claim filed in the County Court (paragraph 4). As you know, [the respondent]’s position is that the terms and conditions apply to both the current stock and the stock the subject of the County Court proceeding by virtue of the lien clause. 
As such, there is clearly an overlap of parties, issues and questions. The quantum appropriately invokes the County Court’s jurisdiction, and the overlap and complexity of issues indicate that the County Court is the appropriate jurisdiction.
35	If nothing else, the respondent’s reply on 9 May 2023 should have alerted the applicant to the perils which were attached to issuing the present proceeding in this Tribunal.
36	A third reason for awarding compensation by way of costs on an indemnity basis was the applicant’s disingenuous conduct. On 20 April 2023, at the first return of the current VCAT proceeding (at which he sought an ex parte order for the release of the applicant’s goods), Mr Guss told me that the applicant had not attempted to serve its application on the respondent because it relied on the Tribunal’s practice of serving such applications itself. Yet the address for the respondent provided by the applicant was incorrect and, consequently, the respondent had not received notice of the application or the injunction hearing on 20 April 2023, at which the applicant was applying for ex parte orders.
37	Also relevant on this point was what the respondent had to say in its submissions, on the subject of service:
Despite the Applicant being aware that instructing solicitors have been engaged by the Respondent and despite the Applicant corresponding with the Respondent’s instructing solicitors about the subject matter of this injunction application for the purposes of a Magistrates’ Court proceeding, the Applicant did not serve the VCAT injunction application on the Respondent’s instructing solicitors. The Applicant did not even make enquiries as to whether the instructing solicitors could accept service.
38	While in the present case, the power to make a compensatory order, residing in section 75(2), is wider than the ordinary power to award costs, in view of the matters which I have set out above, the remarks made by Sheppard J in the well-known case of Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233, are informative.
In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on an indemnity basis or some other basis whether here or in England. The test has been variously put. 
… [I]t is useful to note some of the circumstances which would be thought to warrant the exercise of the discretion. I instance the making of allegations of fraud, knowing them to be false and the making of irrelevant allegations of fraud … evidence of particularly misconduct that causes loss of time to the Court and to other parties … the fact that the proceedings were commenced or continued for some ulterior a motive … or in wilful disregard of known facts or clearly established law. (emphasis added).

R Buchanan
Member