Case Note: Plunkett v Portier Pactific Pty Ltd (Civil Claims) [2024] VCAT 205

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Do you have proceedings at VCAT?

Should your case be referred to a Court instead…

The recent case of Plunkett v Portier Pacific Pty Ltd considered this and was referred to the Supreme Court. 

How did the referral from VCAT to the Court occur

Under section 77 (1) of the Victorian Civil and Administrative Tribunal Act (“the Act”) a proceeding can be struck out (essentially meaning ended at VCAT) and transferred to a Court.

The Tribunal has power to do this when it considers the subject matter of the proceeding would be appropriately with by a court or any other person or body.

The power is therefore very wide and not just limited to referring a case to a court.  In this case the proceedings were referred to the Supreme Court.

This process can be triggered on the application of a party or on the Tribunal’s own initiative.

Why did the referral to Court happen?

This was really because of size and complexity and its subject matter. 

In the relevant case the applicant in the proceedings alleged sums due of $1,365,984 plus damages and interest and was about commercial dealings. 

The respondents also stated in their application that the claim was complex, had multiple international parties and it was unsuited to resolution at the Tribunal.

The Tribunal said that given:

  • Size: the size (well in excess of $1m claimed); and
  • Trial length: likely 10 days; and
  • Commercial and complex: it was a contractual dispute alleging misleading and deceptive conduct and unconscionability arising from commercial dealings and the Tribunal was satisfied that the subject matter falls in the Supreme Court’s jurisdiction; and
  • Costs: on legal costs the Tribunal reminded the parties it was a no cost jurisdiction and saw no reason to provide a view on the question of costs on the application. 

Could this apply to your case?

Maybe your case is more appropriately heard at Court and not at the VCAT.

For a range of reasons this could be the case for you but you still might not want to make such an application. Don’t assume because you have a large case that your case will be referred, or even that it is in your interests to do so. 

BU Lawyers can help.  We have acted in proceedings where applications have been both successful and unsuccessful in section 77 applications.  We offer a no cost 1 hour conference to consider existing proceedings at the VCAT and whether your case is viable for referral.

Author: Blair McNamara

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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