Section 108 Fair Trading Act, 1999 and chains of suppliers

Section 108 of the Fair Trading Act, 1999 gives VCAT the power to hear and determine consumer and trader disputes, defined by s. 107 (so far as is relevant to this note) to mean a claim in negligence, nuisance or trespass in relation to a supply of services arising between a purchaser and supplier of services. In Wizardry Kennels v Paul Hamilton [2006] VCAT 2368, Judge Bowman found that he had no jurisdiction to entertain a claim by a purchaser against a person in the chain of supply with whom he did not have a contract.The applicant bought some greyhound semen from a Western Australian. It was rendered useless in transit. The vendor provided the semen to a vet in Western Australia from whom he had purchased the use of an insulated canister and the purchaser arranged for an animal breeding service to pick it up from there and transport it to Melbourne by a courier. The applicant suggested the vet had forgotten to put liquid nitrogen in the cannister used to keep the sperm frozen and sought damages for its loss.

Judge Bowman made findings of fact in order to determine jurisdiction. He found that there was no contract between the purchaser and the vet: his contracts were with the vendor and the animal breeding service, and the result was that the dispute was not a consumer and trader dispute and VCAT had no jurisdiction. More accurately, the animal breeding service did not supply services to the purchaser. His Honour said:

“14. … It may well be that, as asserted by [the animal breeding service], fault, in the form of negligence, can be sheeted home to [the vet]. However, that would be fault on the part of what could be described as a third party. It is not fault on the part of a person who is to supply goods or services to the entity now making a claim against it.”

At [11] his Honour had said “Whilst the relevant provisions of the Fair Trading Act do not specifically require the existence of a contract, the nature of consumer and trader disputes may be such that a contract frequently, if not invariably, lies at the heart of the dispute. However, it is not spelt out as statutory prerequisite.”

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