VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST                                                VCAT REFERENCE NO. C4991/2021
CATCHWORDS
Application for the proceeding to be struck out under s 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) – whether the Supreme Court is a more appropriate forum – whether the Tribunal should have a ‘high degree of satisfaction’ before granting an application – whether the complexity, value or likely hearing duration are relevant considerations in determining an application – whether there is an onus on the applicant – approach to the exercise of the discretion – VCAT less able to grapple with complex matters than a court – summary of principles to be applied – elements of a proceeding that may prompt consideration of whether there is a more appropriate forum	
FIRST APPLICANT	Antony Philip Plunkett 	
SECOND APPLICANT	Third King Pty Ltd (ACN 601 337 062)	
FIRST RESPONDENT	Portier Pacific Pty Ltd (ACN 622 365 453) 	
SECOND RESPONDENT	Uber Pacific Vof, being an unlimited partnership established in the Netherlands, registered at the Amsterdam Chamber of Commerce under number 64787850	
THIRD RESPONDENT	Uber Pacific Holdings Bv	
FOURTH RESPONDENT	Uber Pacific Bf, being a private limited company established in the Netherlands, registered at the Amsterdam Chamber of Commerce under number 65851307	
FIFTH RESPONDENT	Porter Pacific Vof, being an unlimited partnership established in the Netherlands, registered at the Amsterdam Chamber of Commerce under number 65861922	
SIXTH RESPONDENT	Uber Bv, being a private limited incorporated under the laws of the Netherlands	
SEVENTH RESPONDENT	Uber Management B.V.	
TWELTH RESPONDENT	Uber Australia Pty Ltd	
WHERE HELD	Melbourne	
BEFORE
		Justice Woodward, President	
HEARING TYPE	Hearing	
DATE OF HEARING	23 August 2023	
DATE OF ORDER	23 August 2023	
DATE OF WRITTEN REASONS	5 March 2024	
CITATION	Plunkett v Portier Pacific Pty Ltd (Civil Claims) [2024] VCAT 205	
APPEARANCES	A Foster, solicitor for the applicant
A Strahan KC; P Tiernan, counsel for the respondents	
REASONS
Orders
1	At the conclusion of the in-person hearing in this proceeding on 23 August 2023, I made remarks and orders as follows:
BACKGROUND
A.	On 13 April 2023, the respondents made an application pursuant to s77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”), that this proceeding be struck out and the matter referred to the Supreme Court of Victoria.
B.	The relevant subject matter of the proceeding comprises a claim by the applicants against the respondents alleging misleading and deceptive conduct and unconscionable conduct pursuant to the Australian Consumer Law and Fair Trading Act 2012 (Vic), in connection with the commencement and operation of restaurant businesses in Sydney and Melbourne.
C.	At the conclusion of submissions, I indicated to the parties that to avoid any further delay in the progress of the proceeding, I would make orders and deliver oral reasons immediately. However, I noted that I intended to deliver written reasons in due course that would develop and supplement those oral reasons.
ORDERS
1.	Pursuant to s77(1) of the VCAT Act the whole of proceeding number C4991/2021 (“the proceeding”) is struck out. 
2.	Pursuant to s77(3) of the VCAT Act, the proceeding is referred to the Supreme Court of Victoria. 
3.	I direct the Principal Registrar of the Tribunal to cause the VCAT file for the proceeding to be conveyed to the Prothonotary of the Supreme Court of Victoria. 
2	These are the reasons foreshadowed in paragraph C of the background remarks above. 
Background to the application
3	At the time of writing, s77 of the VCAT Act provides as follows:
(1)	At any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.
(2)	An order under subsection (1) may be made on the application of a party or on the Tribunal’s own initiative.
(3)	If the Tribunal makes an order under subsection (1), it may refer the matter to the relevant tribunal, court, person or body if it considers it appropriate to do so.
4	Until an amendment to the VCAT Act that commenced on 10 October 2023, the current sub-section (2) was found in sub-section (4) and sub-section (2) provided that the power under subsection (1) was exercisable only by a judicial member of VCAT. The amendment now gives that power to a presidential member or a senior member who has been an Australian lawyer for not less than 5 years (see s77(5)).
5	This is an application by the respondents for orders to the effect of those numbered 1 and 2 above. As the respondents have noted in their initial written submissions (undated, titled “Reasons for Seeking Orders”), the applicants’ claim in the proceeding is substantial – they allege sums due of $1,365,984, plus damages and interest. The respondents further submit in support of their application that:
This is a complex commercial dispute involving several international parties. It is unsuited for resolution before this tribunal. The protracted interlocutory steps taken to date, which have done little more than identify the correct parties, have already consumed significant resources of the tribunal and the parties. The level of resources required to accommodate this proceeding is now set to escalate as the parties litigate the substance of a wide-raging commercial dispute. Part of the dispute relates exclusively to business interests outside of Victoria. The litigation is not well suited to resolution in VCAT and is suited to the sort of case management that the Commercial Court of the Supreme Court of Victoria routinely offers for complex commercial disputes of this nature.
The history of this litigation (set out below) demonstrates that the Applicants' decision to bring hotly contested international commercial litigation in a tribunal not designed for that purpose was unwise; it has led to significant and unnecessary costs being incurred and the conduct of proceedings has necessarily been inefficient and protracted. For the reasons that follow, the Respondents contend that the dispute would be more appropriately dealt with by the Supreme Court of Victoria, and seek appropriate orders effecting a transfer to that Court without delay.
6	The history of the proceeding summarised in the respondents’ submissions demonstrates that it has indeed had a difficult and protracted path through VCAT. To date, seven versions of the points of claim have been filed on behalf of the applicants and it now appears the applicants have conceded an eighth version is necessary, which will recast the allegations that have previously been made and discontinue the proceedings against a number of respondents (namely, the third, fourth, sixth and seventh respondents). 
7	I am satisfied that the difficulties that the matter has encountered through the interlocutory stages will continue to impact the proceeding. My assessment and observation is that this case will require active case management of the kind that is certainly available at the Supreme Court of Victoria, and not available at that level of sophistication at this Tribunal.
8	I note that any decision in relation to the orders proposed is assisted by the recent decision by the Supreme Court of Appeal in Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191 (“Krongold No 2”), as any doubts regarding referral power no longer exist, and that the proceeding will continue based on the existing documents that currently constitute this proceeding before the Tribunal.
Applicants’ submissions
9	The applicants’ submissions against an order under s77 can be summarised as follows:
a.	The claims raised by the applicants fall squarely within the jurisdiction of the Tribunal, namely a consumer and trader dispute (s182 Australian Consumer Law and Fair Trading Act 2012 (Vic) (“ACLFT Act”) and ss 18 and 21 of the Australian Consumer Law (Victoria)). These provisions operate as laws of Victoria and VCAT is an appropriate forum to consider the claims, as expressly provided for in s8 of the ACLFT Act.
b.	No substantial complexities arise in the claims. They involve representations made by representatives of the Uber parties to the applicants, inducing them to invest monies and suffer losses following the representations which proved to be false. 
c.	There are no issues of Commonwealth or Netherlands law to be determined, the claims being grounded in Australian consumer law, regularly applied in VCAT proceedings and considered by VCAT.
d.	VCAT was the chosen forum by the applicants. There can be no challenge to the Tribunal’s jurisdiction and VCAT is likely to deal with the matter with much lower expense to the applicants and a greater speed of providing a hearing than a transfer to the Supreme Court.
10	In their oral submissions, the applicants spent some time outlining the nature of the claims advanced in the proceeding in relation to the 4 to 5 kilometre radius the applicants allege was to be provided by the respondents in relation to the operation of the UberEats app. The applicants took me to a number of aspects of the claim to illustrate that, fundamentally, it is a straightforward application in respect of misleading and deceptive conduct and unconscionable conduct under the Australian Consumer Law (Victoria), of the kind that is frequently seen at VCAT.
11	In relation to the respondents’ reliance on the potential interstate and international elements of the claims, the applicants submitted that, while some of the participants were in NSW, the representations were made in Victoria. The interstate aspects only informed matters of arithmetic and the losses occasioned by the applicants in pursuing their business based on the nature of the support that the applicants expected to receive. To the extent that there was a suggestion of any federal matters in the applicants’ claims to date, these would be removed or withdrawn.
12	The applicants emphasised that VCAT was an appropriate forum and that the applicants were entitled to the benefit of the informality and low-cost associated with proceedings at VCAT. The Tribunal should not be beguiled by well-resourced respondents seeking to create the impression that there was greater complexity to the proceeding.
13	In response to my question to the applicants about the likely duration of the case, the applicants submitted that it would likely be a five-day case, particularly once streamlined as proposed. Among other things, the applicants asserted that expert evidence would not be required to explain the operation and effect of the algorithms underpinning the UberEats app.
14	On that basis, the applicants submitted that the case management issues were largely resolved, orders should be made dismissing claims against certain respondents and the proceeding could thereafter continue as a simple misleading and deceptive conduct claim.
Respondents’ submissions
15	In submissions in reply, the respondents argued that the complexity of the proceeding was not confected. The respondents were part of a complex corporate structure, comprising a number of overseas entities. The respondents were not obliged to facilitate being sued and the applicants had a responsibility to understand the nature of the various contracts they had entered, identify the appropriate respondents, and bring the proceeding appropriately.
16	The respondents submitted that the applicants had failed to grapple with the complexity of the respondents’ corporate structure and had a responsibility to bring pleadings that articulated the claims they sought to pursue. The respondents took me to the paragraphs of the existing points of claim that demonstrated the applicants’ failure to date to articulate viable causes of action. They asserted that the applicants’ difficulties in this regard would be exacerbated by the removal or dismissal of claims against certain existing respondents, as proposed by the applicants. They said it was far from clear what would be left of the claims against the continuing respondents once the proposed amendments were made.
17	The respondents argued that, in these circumstances, there was little doubt that the applicants’ problems in formulating their claims would persist. VCAT does not have the resources or capacity to provide the necessary case management to deal with these ongoing problems and, unless transferred, the matter would continue to be a huge burden on the resources of VCAT.
18	The respondents referred to Teen Entertainment Enterprise Network Pty Ltd v A&H Natoli Pty Ltd (Civil Claims) [2022] VCAT 1500 as an example of what can happen where a complex proceeding remains at VCAT, without the benefit of the level and consistency of case management provided by the Commercial Court of the Supreme Court. In that case, significant procedural issues were not adequately case managed in the interlocutory stages, the proceeding went on appeal to the Supreme Court and then was remitted to VCAT for a complete rehearing.
19	Finally, the respondents pointed to several aspects of the proceeding which they say gave rise to a real likelihood that the proceeding would raise a federal matter at some point in the future. These included the heavy reliance on conduct in NSW, the involvement of respondents resident in the Netherlands and key contracts that include governing law clauses likely to require interpretation in accordance with the law of the Netherlands.
20	While there is some force in this final submission, to my mind the form that the proceeding may ultimately take is presently too speculative and should not be a factor in my decision. But that is not to say that there may not be other cases where the likelihood of a federal matter being raised is sufficiently high to warrant a striking out and referral. As the authorities on s77 discussed below make clear, ‘each application must be viewed on its merits and consideration given to the prevailing circumstances’.
Relevant principles
21	There is some inconsistency in the authorities dealing with the question whether complexity and resourcing are relevant factors to be considered in exercising the discretion conferred by s77 of the VCAT Act.
22	In Commonwealth Bank of Australia v Slaveska [2008] VCAT 2072, at [33]–[35], after setting out the text of s77(1), Judge Harbison VP observed as follows:
It is fair to say that applications under s77 have always been very carefully considered. It would be unfortunate if an application under s77 was used as a tactical device to delay a hearing, or to put an impediment in the way of a matter being heard on its merits in the cheapest most appropriate forum.
The importance of this is underscored by the fact that a s77 application can only be heard by a judicial member.
Various judges have previously commented that a high level of satisfaction is required before a s77 order will be made. The onus of proof of the appropriateness of such an order is on the party who applies for it.
23	In the later decision of Camillo Concrete Structures Pty Ltd v Baulderstone Pty Ltd [2010] VCAT 285, at [15]–[20], Harbison J expanded on her earlier findings, including by conveniently summarising the principles emerging from a number of earlier decisions, as follows:
I was referred to several well known cases in this Tribunal in which observations have been made about the appropriate use of the power under s77. In particular, I was referred to the observations of Kellam J (as he then was) in Bentley v Cash Resources Australia Pty Ltd [2002] VCAT 1399, a case in which His Honour found the case also to involve a substantial amount of money and some complexity. He said:
“A case of this dimension is likely (as has already been demonstrated) to severely stretch the judicial resources of the Tribunal.”
Although Justice Kellam did not ultimately agree to transfer the proceeding, he made the following comment in the course of giving judgment:
“In my view, if a subject matter is complex, involves difficult issues of fact and law, and requires pleadings and case management processes which are more typical of processes adopted by the Supreme Court, an argument may well be advanced that such a case should be struck out and referred to the Supreme Court.”
This passage was referred to with approval by His Honour Judge Bowman in Koster v Giuliano [2004] VCAT 1046. Once again, His Honour dismissed the application pursuant to s77, but indicated that he agreed with these observations, adding that –
“There may well be matters of such complexity and difficulty that, in the circumstances prevailing, an application pursuant to s77 will be successful. However, I repeat that His Honour was not laying down rules of law or practice and his observations were just that – observations. Clearly, each application must be viewed on its merits and consideration given to the prevailing circumstances.”
However, since 2004 there have been many occasions in which this Tribunal has declined to use its power under s77 to transfer applications issued at the Tribunal to other jurisdictions.
The power is not to be used lightly. Applicants have a right to utilise the procedures of this Tribunal. It should not be thought that an application, otherwise appropriately within the jurisdiction of the Tribunal, will be transferred just because the subject matter involves some complexity or the case involves several different parties
The remarks of Kellam J must be placed in the context of the case management pressures existing in the Civil Claims List of the Tribunal at the time the remarks were made. This was recognised to be the case by Judge Bowman in Maryvell Investments v Sigma Constructions Pty Ltd [2006] VCAT 1599 where he said this at paragraph 27:
“Kellam was in no way saying that complex commercial matters brought pursuant to the Fair Trading Act should automatically be referred elsewhere, or that this Tribunal lacked the capacity to deal with them. Obviously each application must be dealt with on its merits and consideration must be given to the prevailing circumstances.”
24	To my mind, these pronouncements apparently qualifying the scope of the discretion in s77 do not sit comfortably with findings that:
a.	the discretion is conferred ‘in wide terms’, and must be exercised ‘taking into account the circumstances of the particular case’ (Waldron v Nicholas (unreported, VCAT, Ginnane J, 16 September 2011) at [4]);
b.	the discretion is ‘broad’ (Harrison v Merkat Investments Pty Ltd [2013] VCAT 1499 at [11]); and
c.	‘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 …’ (Dragon Image Pty Ltd v NP Distribution Pty Ltd [2005] VCAT 448 at [4], per Bowman J).
25	There can be no doubt that:
a.	the power must be exercised judicially;
b.	this includes an obligation to act rationally and reasonably and to pay regard to material considerations and to ignore irrelevant considerations; and
c.	parties interested in the application should be accorded procedural fairness.
26	But statements that ‘a high level of satisfaction is required’, ‘the power is not to be used lightly’ and ascribing an onus to one party or the other, should be treated with caution. They risk constraining the discretion in a way that, in my view, was not intended by the legislature. 
27	On the matter of onus, if a party initiates an application, that party will necessarily carry the weight of establishing a proper basis for the orders being sought. And clearly the adjudicating member or judge should be astute to ensure that it is not being used as a tactical device to delay a hearing (see Slaveska at [34]). However, describing that burden as imposing an ‘onus’ on a moving party is problematic, particularly given that s77(2) (formerly s77(4)) expressly provides that the order can be made on the Tribunal’s own initiative.
28	It is increasingly common since the decisions in Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361 and Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226, for the parties or the Tribunal to raise whether the subject matter of the proceeding involves or may involve a federal matter and would therefore be more appropriately dealt with by a court. The question has also arisen in recent years with some regularity, where the size or complexity of the matter, or anticipated length of the hearing, is likely to severely strain the resources of the Tribunal. This has largely occurred in response to listing and case management backlogs that developed during the COVID-19 pandemic and are proving difficult to shift.
29	Against that background, speaking of an ‘onus’ has significant potential to confuse what would otherwise be a straightforward application of the principles applicable to the exercise of a discretion. For example, if the question of a more appropriate forum arises during a directions hearing, perhaps following remarks by the Tribunal and one party latches onto the suggestion, while the other party opposes it, who then bears the onus? Or where the Tribunal of its own initiative seeks submissions on the question, and the parties take opposing positions, where does any onus then lie?
30	In my judgment, once an application is properly made and the Tribunal’s discretion under s77 is enlivened, the process then shifts to one of weighing the relevant factors and determining which way the balance tilts. That process is best described in a passage from Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253 at [107], where Perry J noted that, while the test for staying proceedings on forum non conveniens grounds is different:
[T]he nature of the discretion conferred by s77(1) is appropriately encapsulated in the description by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay of the power to stay proceedings in a court on these grounds as discretionary ‘in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.’
31	On the issue of whether complexity, value and resourcing can be relevant to the determination of an application under s77, in Seachange Management Pty Ltd v Bank of Western Australia Ltd [2010] VCAT 1904 (“Seachange”) a decision delivered a month after Harbison J’s decision in Camillo, Judge Hampel VP echoed even more forcefully some of Harbison J’s remarks, holding at [24]–[25] that:
I do not consider the complexity of the claim or the amount of it make the County Court the more appropriate forum because Parliament has evidenced a clear intention that VCAT be given jurisdiction to hear and determine claims of this nature, complexity and amount. There is no basis for contending that VCAT is any more or less able to grapple with such claims as are made by Seachange than the County or Supreme Courts.
Nor do I consider the strain that a long and complex case, as Seachange’s expanded claim makes it likely to be, on VCAT’s resources should influence a decision about which is the more appropriate forum. If strain is placed on the resources of a Court or Tribunal by the listing of cases it has jurisdiction to hear, that may be a matter which bears on a litigant’s choice of forum. It may provide a basis for submissions to the executive arm of government for allocation of further resources to the tribunal. But it should not in my view bear on the Tribunal’s consideration of more appropriate forum. Delay in hearing and determining cases due to a strain on its resources is not a proper basis for a Court or Tribunal to decline to hear and determine a matter.
32	I must respectfully disagree with both Harbison J and Hampel J on this issue. In my view, the principles stated by Kellam J and Bowman J and quoted by Harbison J are to be preferred. These are (in effect) that each application must be viewed on its merits and consideration given to prevailing circumstances, which may include where:
a.	the dimension of the case is likely to severely stretch the resources of the Tribunal; and
b.	the subject matter is complex, involves difficult issues of fact and law, and requires pleadings and case management processes which are more typical of processes adopted by a court.
33	The Court of Appeal in Krongold No 2 at [69] held:
No different construction of s77 is called for because the section allows for referrals to a variety of bodies, only some of which are courts. The effect of a referral will be a product of both s77 and the powers and functions of the receiving body. For example, some administrative bodies may have a power to decline to deal with a matter falling within their authority. Such a decision may be based on matters of resourcing, competing priorities or other factors influenced by a particular statutory setting. On the other hand, as already observed, a court cannot decline to exercise jurisdiction once it is validly invoked.
34	Although this passage is referring to an administrative body that is a potential receiving body pursuant to an order by VCAT under s77(3), to my mind the sentiment is equally applicable to VCAT itself. In my view, s77 is precisely the type of power to which the Court of Appeal is referring. Namely, one that entitles VCAT to decline to deal with a matter falling within its authority, based on matters such as ‘resources, competing priorities or other factors influenced by a particular statutory setting’.
35	Clearly, Parliament has evinced an intention to invest VCAT with jurisdiction in a wide variety of matters. But it has also evinced a clear intention by s77 to confer on VCAT an unequivocal and unfettered discretion to determine that the subject matter of particular proceedings would be more appropriately dealt with by another tribunal, a court or any other person or body.
36	In this respect, contrary to the parallel drawn between the two in Seachange, in my view there is a clear distinction between VCAT and a court. As the Court of Appeal in Krongold No 2 made plain, the first task of the receiving court is to ask itself whether it has jurisdiction in respect of the referred matter, having regard to the nature of the dispute and perhaps the identity of the parties. But once that question is answered in the affirmative: ‘the Court is required, in the sense of being under a duty, to exercise jurisdiction in respect of it’. The same is not true of VCAT.
37	Further, I am not persuaded that it follows from the fact that Parliament has conferred VCAT with particular jurisdiction, that VCAT is as appropriate a forum to determine complex or high value claims within that jurisdiction as, for example, the County or Supreme Courts. There are two reasons for this.
38	First, to my mind, Parliament’s intention is more nuanced than simply saying conferral of jurisdiction equates to an intention that VCAT should exercise that jurisdiction. For example, VCAT has unlimited jurisdiction in domestic building disputes, but it does not follow that Parliament intended VCAT to hear and determine claims relating to multi-million dollar residential developments, with multiple parties, several expert witnesses and hearings running for weeks.
39	Support for this can be found in the Second Reading Speech in the Victorian Legislative Assembly on 9 April 1998. In discussing the need for professional advocates, the Minister noted that they may be beneficial in ‘complex cases, such as those found in planning and credit jurisdictions … However, in other jurisdictions such as small claims, residential tenancies and domestic building disputes, the role for professional advocates may be more limited’ (emphasis added). 
40	Second, in my experience, as a former County Court Judge, a Supreme Court Judge and President of VCAT, there are good reasons for contending that VCAT is less able than the courts to grapple with complex claims. These include:
a.	VCAT’s registry does not have the staffing numbers or skill levels relative to caseload, to triage and closely manage large multi-party cases – in particular it lacks personnel equivalent to the court’s highly skilled division lawyers and judicial registrars;
b.	members at all levels are not provided with associates or similar dedicated staff to assist with dealing with party enquiries and demands, assist in directions or final hearings and provide assistance in drafting written reasons and associated legal research;
c.	VCAT’s member support officers or bench clerks can be available to assist with some hearings, in their respective capacities, but they will not necessarily have any background in the matter or familiarity with the parties and their representatives;
d.	at best there will be one member support officer or bench clerk for a hearing, which is sometimes not enough for managing, for example, concurrent remote evidence from several expert witnesses;
e.	members generally do not have the benefit of transcripts for hearings, and certainly not for interlocutory hearings, and nor do they yet have the same level of IT tools, systems and support;
f.	the nature of VCAT’s civil jurisdiction means that if one or more members is unavailable for weeks to conduct a lengthy hearing and then write detailed reasons, the capacity of the Tribunal to manage its smaller but equally important high-volume work is significantly impaired;
g.	the nature of VCAT’s work is such that it is often not possible to ensure that the same member case-manages and then hears a particular matter, so that each member touching the file must familiarise or re-familiarise themselves with the background before each interlocutory hearing;
h.	this is not only very inefficient, it can also lead to inconsistent or conflicting interlocutory rulings, often resulting in additional directions hearings;
i.	it is not as easy to secure the ad-hoc assistance of County Court judges who are VCAT Vice Presidents to sit in VCAT as may have been envisaged at the time VCAT was established;
j.	the County Court is also dealing with a heavy workload, comprising a residual COVID-19 pandemic backlog as well as an increase in initiations, and there are other difficulties in arranging for judges to hear VCAT cases;
k.	in particular, when judges of either the County or Supreme Court preside in VCAT matters, they cannot call on the assistance of other officers and support staff from their courts (such as judicial registrars, division lawyers and secretarial staff, who are not VCAT employees);
l.	in relation to the current “prevailing circumstances”, VCAT has between 70,000 and 80,000 initiations each year;
m.	at the time the COVID-19 pandemic and associated lockdowns began in March 2020, the vast majority of VCAT’s case files were paper files, which dramatically impaired VCAT’s capacity to transition to remote hearings;
n.	this resulted in substantial backlogs, particularly in the Residential Tenancies, Civil Claims, Building and Property and Guardianship Lists, which still exist today; and
o.	in some lists (notably Building & Property) the earliest VCAT can presently list a multi-day hearing is not before March 2025. 
41	Having regard to the analysis above, I would summarise principles applicable to consideration of the application of s77 of the VCAT Act, as follows:
a.	the power must be exercised judicially, reasonably and having regard to material considerations and ignoring irrelevant considerations;
b.	the discretion is conferred in wide terms, is unfettered and must be exercised taking into account the particular circumstances of proceeding;
c.	in particular, the discretion is not constrained by the need for a high level of satisfaction or similar qualifications, and nor is its exercise assisted by imposing an onus on the moving party or a party arguing in favour of a striking out and referral;
d.	the exercise of the discretion involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression;
e.	the appropriate test is not whether it is clear that VCAT is an inappropriate forum, but is a less stringent test, namely, whether the subject matter of particular proceedings would be more appropriately dealt with by another tribunal, a court or any other person or body;
f.	parties interested in the application should be accorded procedural fairness, which would be achieved in most cases by providing for limited written submissions;
g.	delay in hearing and determining cases due to a strain on its resources may not be proper basis for a Court to decline to hear and determine a matter, but the same is not true of VCAT; and
h.	legal or factual complexity, substantial sums or a lengthy hearing (or any combination of these) can be a proper basis for a striking out and referral under s77.
42	In my view, one or more of the following elements would ordinarily prompt consideration of whether the subject matter of a proceeding would be more appropriately dealt with by the County or Supreme Court: 
a.	with respect to civil proceedings not in VCAT’s exclusive jurisdiction, where claims and counterclaims are together significantly in excess of the Magistrates’ Court’s $100,000 jurisdictional limit, and certainly where the claims exceed the County Court’s historical jurisdictional limit of $500,000;
b.	where the hearing of the proceeding (including any closing submissions) is estimated to last 10 days or longer;
c.	where the proceeding involves multiple parties, and particularly where there are third-party claims, counterclaims and claims for apportionment, such that the proceeding will benefit from regular case management by a single judicial officer;
d.	where other factors (such as a history of frequent interlocutory applications) suggest that the proceeding will benefit from regular case management by a single judicial officer; and
e.	where the proceeding involves novel points of law or particularly complex and detailed facts, which might be tested by assessing whether there is a likelihood of appeal regardless of outcome.
Application of principles to this case
43	Applying the considerations above to the circumstances of this case, I am satisfied that this proceeding should be struck out and referred to the Supreme Court of Victoria. 
44	First, the applicants’ claim is well in excess of $1 million.
45	Second, I do not accept the submission of the applicants that the factual substratum of the proceeding is not complex. I agree with the respondents that the corporate structure of the respondents will create significant factual complexity and the contracts governing the relationship of the parties are far from straightforward. I am also doubtful that the claim can be resolved without a good understanding of the programming and algorithms governing the operation of the UberEats app, and unpacking this will almost inevitably involve expert evidence. 
46	Third, in my view the estimate of a 5 day hearing is optimistic given the complexities referred to above. A hearing duration closer to 10 days is more likely.
47	Fourth, the number of interlocutory hearings in this case to date have already imposed a significant burden on the Tribunal. This burden is illustrated by the fact that the time spent by each member on each of those interlocutory hearings could have been spent hearing and determining a small (under $15,000) consumer and trader dispute. This is the core work of VCAT’s civil claims list and it is currently suffering a significant backlog. The progress of this proceeding to date is a strong sign that it will benefit from regular case management by a single judicial officer.
48	Finally, the subject matter of the proceeding is a contractual dispute and alleged misleading and deceptive conduct and unconscionability arising from commercial dealings between the applicants’ former business entities and the respondents. I am satisfied that the subject matter of the proceeding falls squarely within the Supreme Court’s jurisdiction having regard to the nature of the dispute, and that the Supreme Court has the powers to make orders of the kind sought by the applicants. 
49	On the question of costs, despite the difficult progress of the proceeding through the Tribunal, this is a no cost jurisdiction and I see no reason to enter into the question of costs on this application. I therefore say nothing on the question of costs and defer to the Supreme Court on what (if any) rulings it may make on costs in due course, including in respect of the progress of the proceeding to date.

Justice Woodward
President