Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction

It has to be said that De Sarro’s Case [2006] VCAT 1924 is about as boring as they come, a costs dispute about whether a quote of $400 plus GST was for the whole conveyance or only for preparation of the vendor’s statement. Apart, that is, from the unusual feature that Ms De Sarro apparently went through the Professional Standards costs dispute process, got her permission to refer the matter to VCAT, but then decided to proceed to VCAT not on the basis set out in her permission letter under s. 128 of the Legal Practice Act, 1996 (or its correlate in the Legal Profession Act, 2004) but by instituting a proceeding in VCAT’s civil jurisdiction under the Fair Trading Act, 1999.

The solicitor won this contest on the facts, and it seems no one raised the question of whether the solicitor’s services were prepared in trade or commerce.

It seems from the catchphrases noted in Austlii, that the application was pursuant to s. 108 of the Fair Trading Act, 1999. That says VCAT may hear and determine a “consumer-trader dispute”, defined to include a claim in negligence arising between a purchaser (being the person to whom the services are supplied) and a supplier of services, including the performance in trade or commerce of work of a professional nature. VCAT’s powers include ordering in-house mediation, ordering compensation, exemplary damages and interest, ordering payments by way of restitution, rescinding, rewriting, rectifying, or declaring void contracts or terms of contracts, granting injunctions, and ordering specific performance.The real nanny-state horror is s. 109, a kind of candy shop for earnestly creative decision makers, which allows VCAT to go with the fairness vibe of low value or consumer claims. Though an oversimplification, claims for $10,000 or less and claims for services of a kind ordinarily used for personal household or domestic purposes are caught. In these claims, VCAT may “make any order it considers fair” having regard to various factors reproduced below — (a) to (n).

But the really extraordinary thing is that a court which has before it a consumer-trader dispute must stay the proceeding if it could be heard by VCAT and it is satisfied that VCAT would be a more appropriate forum. The statute just says “must”, not “must on the application of a party”. So theoretically, every professional negligence claim in the state (if the trade or commerce requirement is satisfied) is being considered by the relevant court to see whether it would be more suitable in the quick, cheap, no-nonsense jurisdiction of VCAT compared to its own processes which are, by implication, stiflingly slow and expensive.

Wishful thinking, parliament.

In assessing whether a case would be more appropriately before VCAT, the court “must” assess:

(a) whether, having regard to the likely costs and duration of the proceedings and any other matters the court considers relevant, a party is reasonably likely to gain a material advantage if the proceedings are determined by VCAT; and

(b) whether that advantage is outweighed by a material disadvantage that would be reasonably likely to be suffered by another party if the proceedings were determined by VCAT.

The list of factors against which the fairness vibe is to be measured, mentioned above, is as follows:

“(a) the intelligibility of the contract generally, and of the term in particular;

(b) the extent to which the term, and its legal and practical effect, were accurately explaiend to the relevant party before the term was agreed to and the extent to which the relevant party understood the term and its effect;

(c) the relative bargaining power of the parties to the contract;

(d) the consequences to the parties to the contract if the term is complied with or not complied with and the relative hardship of those consequences to each party;

(d) whether or not it was reasonably practicable for the relevant party to reject, or negotiate for a change in, the term before it was agreed to;

(f) the relationship of the term to the other terms of the contract;

(g) whether the relevant party obtained independent legal or other expert advice before agreeing to the term;

(h) whether unfair pressure, undue influence or unfair tactics were used to obtain the relevant party’s consent to the contract or the term;

(i) whether at the time the term was agreed to the relevant party knew, or could probably have found out by asking, that the term would cause any other relevant party hardship;

(j) the conduct of the parties to the contract after the term was entered into;

(k) whether the term is usually found in contracts of that kind;

(l) the justification for the term;

(m) whether the term is unconscionable, harsh or oppressive;

(n) any other factor the Triibunal thinks is relevant.”

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