Can lawyers sue and be sued under the Fair Trading Act, 1999?

It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke [2007] VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another.

Where an element of the cause of action is conduct in trade or commerce, for example the Fair Trading Act, 1999‘s prohibitions on unconscionable conduct and the prohibition on misleading and deceptive conduct, they are not available in lawyer-client disputes, because in the provision of their professional services to or on behalf of clients, lawyers do not engage in trade and commerce. But what about ‘consumer-trader disputes’ under ss. 107ff? The operative provision simply says ‘The Tribunal may hear and determine a consumer and trader dispute’. It is a grant of common law jurisdiction on VCAT, restricted only by the classes of people in their relationship to one another whose disputes the grant relates to. A consumer and trader dispute is a dispute between a supplier and a consumer, that is someone who supplies goods or services or both, and someone to whom they are supplied. It is as simple as that. Unlike other consumer protection statutes, ‘consumer’ means nothing more than a recipient of a supply of goods or services or both. There need be no contractual relationship, and no payment or other consideration. So far, no trade or commerce requirement. That, if it exists, is hidden away in the definition of services:

‘”services” includes any rights (including rights in relation to, and interests in real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce …’

The question is, does the first ‘includes’ mean ‘means’ or ‘includes’? That is, should it be read to mean:

‘”services” means  what the dictionary says it means, and furthermore, to avoid confusion, we wish to make it quite clear that it includes rights etc. granted or conferred in trade or commerce…’

or

‘”service” means any rights etc. that are, or are to be, provided, granted or conferred in trade or commerce…”

A layperson might think the answer obvious, but legislative draftsmen often use ‘includes’ to mean ‘means’. I have been involved in a matter which does not seem to have been considered since in which it was decided that ‘includes’ means ‘includes’, so that anything which falls within the ordinary definition of services (and lawyers clearly provide services to their clients) is within the consumer and trader dispute definition. To put it more simply, VCAT recognised, in my case, that it has an unlimited common law professional negligence jurisdiction which extends even to solicitors and doctors even though they do not engage in trade and commerce as defined by the Fair Trading Act, 1999. Many cases between lawyers and clients have sailed through VCAT’s consumer and trader disputes jurisdiction, the point apparently not considered.

There is authority which conflicts with that in my case. In Winnett v South East Water Ltd [2007] VCAT 1064, Deputy President Steele said, at [12]:

‘the charges of which the Applicant complains were service charges, rather than charges for goods. Accordingly, the dispute will not fall within the definition of “consumer and trader dispute” unless the services were provided in trade and commerce, which is a qualification imposed by the definition of services.’

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