Mathew v Millington[2016] QCATA 202

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Ms Mathews enrolled in Beginner Cosmetic Tattoo Diploma Course with Melbourne College of Cosmetic Tattoo on 21 April 2015. Ms Millington was the owner of the College at the time of Ms Mathew’s enrolment. She attended the course from 6 July 2015 to 11 July 2015 and was presented with her diploma at the end of the course. Ms Mathew also agreed to purchase a laser tattoo machine at a cost of $1,000 and paid $450 for accommodation provided by the College.
2. [2]
   Ms Mathew had issues with the course, the machine and the accommodation and made a demand on the College by letter of 31 August 2015 for repayment of the funds she had paid plus airfares, taxis and loss of income during the course.
3. [3]
   She was not satisfied with the response from the College and made an application to the Tribunal in its minor civil dispute jurisdiction on 28 September 2015. The application requested payment to Ms Mathew from Ms Millington of the amount of $9,603.15, pursuant to s 13(2)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), QCAT Act and further or alternatively, an order for damages pursuant to s 236(1) of the Australian Consumer Law (Qld), ACL (Qld). A declaration that the respondent engaged in misleading conduct or conduct likely to mislead in contravention of s 18(1) of the ACL (Qld), pursuant to  s 60 of the QCAT Act.
4. [4]
   The Tribunal listed the application for mediation on 29 October 2015 by notice of 12 October 2015. The Tribunal received an application from Ms Millington and Kelly Stuart, the current owner of the College for attendance at the medication by remote conferencing on 16 October 2015 and later received copies of statements from Ms Millington, Ms Stuart, Ms Judy Maraspin and Ms Helene Glover in respect of the matter. There was also a copy of a response dated 16 September 2015 by Ms Stuart’s and Ms Millington’s to Ms Mathew’s letter of 31 August 2015.
5. [5]
   The mediation was unsuccessful and the application was set down for hearing on 8 December 2015 by notice of hearing dated 13 November 2015. The Tribunal received an application for miscellaneous mattes on 18 November 2016 from David Gonzalez, a legal practitioner representing Lisa Millington, seeking to have the application stayed or transferred to Melbourne as it was said to be the appropriate jurisdiction.
6. [6]
   The grounds for the application to be stayed or transferred were that:

   1. The dispute arose in Melbourne in the State of Victoria
   2. All of the training the subject of the dispute took place in Melbourne in the State of Victoria;
   3. We will be required to call 4 witnesses to appear at the hearing of this matter all of which reside in Melbourne in the State of Victoria;
   4. The cost of bringing 4 witnesses to Queensland which would include air fares and overnight accommodation are excessive;
   5. There is only one party to the proceeding in Queensland and she undertook all of her training in Melbourne.
7. [7]
   Ms Mathew responded to that application by letter of 18 November 2015. She first raised that Ms Millington had not been given leave by the Tribunal to be represented by Mr Gonzalez and that without leave of the tribunal Mr Gonzalez has no standing in the proceeding. The application is then incompetent as it was not signed by Ms Millington.
8. [8]
   Ms Mathew made the following submissions in regard to jurisdiction:-

   1. The tribunal has jurisdiction to hear and decide claims, including a minor civil dispute under s 11 of the QCAT Act, against a respondent who resides outside of Queensland, Hartley v Bennette [2014] QCAT 91 at [15].
   2. The Tribunal also has jurisdiction to hear and decide an action for damages under s 236 of the ACL (Qld), pursuant to ss 20 and 50 of the Fair Trading Act 1989 (Qld).
   3. That on 29 October 2015, Ms Millington attended mediation at the Tribunal. Ms Millington’s attendance at mediation is inconsistent with any challenge to the jurisdiction of the Tribunal and constitutes a waiver thereof, Hartley at [32].
9. [9]
   A learned adjudicator considered the application for dismissal on the papers and by a decision of 30 November 2015 dismissed the primary application for lack of jurisdiction. The order was signed by a delegate of the Principal Registrar of the Tribunal
10. [10]
    The reasons for decision were published on 18 December 2015. The learned adjudicator stated that the application goes well beyond the issue of a respondent residing outside of Queensland. The whole of the dispute is ex-Queensland. He noted that it had been suggested that the respondent’s attendance at mediation is a waiver of any challenge to jurisdiction. He also noted that Hartley v Bennette is relied upon by the Applicant and found that this is not what Hartley says and that Hartley is about irregularity of service and waiver. He held that there is no provision that enables transfer of a tribunal application interstate.
11. [11]
    Ms Mathews made an application on 9 December 2016 for leave to appeal and to appeal the decision of the learned member. Her grounds were that:-

    1. (1)
       The decision of the delegate of the Principal Registrar to dismiss the application for lack of jurisdiction was ultra vires and invalid.
    2. (2)
       The decision of the delegate of the Principal Registrar to dismiss the application for lack of jurisdiction was invalid for want of natural justice.
    3. (3)
       The delegate of the Principal Registrar erred at law in the decision to dismiss the application for lack of jurisdiction.
12. [12]
    An appeal from a decision in the minor civil disputes jurisdiction requires the leave of the appeal tribunal to hear the appeal^[1]. The appeal tribunal will ordinarily grant leave where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error^[2]. The grounds of appeal in this application are framed as questions of law and so if leave is granted I may confirm or amend the decision or set aside the decision and substitute my own decision or return the matter to the tribunal for reconsideration and make any other order I think is appropriate^[3].
13. [13]
    If the questions are of fact or mixed law and fact, if leave is granted then the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal. In deciding the appeal, the appeal the appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision^[4].
14. [14]
    The appeal tribunal made directions for the filing of submissions with the application for leave to appeal and appeal, if leave is granted, to be determined on the papers.
15. [15]
    Ms Mathew in her submissions noted that the decision was made by a learned adjudicator and withdrew ground 1 of her appeal about the decision being ultra vires.

Ground 2 want of natural justice

16. [16]
    Ms Mathew submitted that the decision to dismiss the application “on the papers” and without any prior notice to the applicant amounted to a denial of natural justice. That she was not notified that the Tribunal proposed to hear and determine the question of jurisdiction “on the papers” and not given an opportunity to make submissions before the determination was made. She also raised the issue that Ms Millington had not been given leave to be represented by Mr Gonzalez in accordance with ss 43(2)(b)(iv) of the QCAT Act. That as the application was signed by a non-party it was incompetent and ought not to have been considered. Ms Mathew stated that she had a legitimate expectation that she would be heard in regard to jurisdiction and legal representation at the hearing on 8 December 2015. Further that she would have opposed any application by Ms Millington to be represented where the parties are natural persons.
17. [17]
    Mr Gonzalez submitted on behalf of Ms Millington that Ms Mathew failed to set out the basis upon which the Tribunal denied her natural justice.

Discussion

18. [18]
    The Tribunal in conducting a proceeding must observe the rules of natural justice.^[5] One of the requirements of natural justice is contained in the hearing rule which applies where a Tribunal is empowered to make a decision that will affect the rights, interests or legitimate expectations of a person. The party must be given an adequate opportunity to put evidence and reasoned arguments before the Tribunal in an attempt to seek a favourable outcome^[6].
19. [19]
    Ms Mathews submits that she was not given an opportunity to make submissions before the determination was made. It is clear that the learned adjudicator had regard to her submissions of 18 November 2015, which were filed in response to the application to dismiss. On his reasons, he referred to her submissions about Hartley v Bennette.
20. [20]
    While the Tribunal did not first advise Ms Mathew that it was be making its decision relying on her submissions it is clear that she had made those submissions in response to the application and she did not indicate that she would wish to make any further submissions. I consider that Ms Mathew was given an adequate opportunity to be heard in respect of the application by way of her letter of 18 November and that there is no reasonable argument that the decision is attended by error in that regard.
21. [21]
    Ms Mathew takes the point that Ms Millington was not granted leave to be represented and the application to dismiss was signed by her lawyer and she says thus not properly made. The Tribunal has a discretion to give a party leave to be represented^[7]. One of the grounds for granting leave is where there are complex questions of fact or law.
22. [22]
    In many instances, parties engage lawyers in respect of tribunal applications and the lawyers are the ones who the tribunal’s registry deals with during the course of the application. It is only though with leave of the Tribunal that a party may be represented at a hearing by a lawyer. In this case, Mr Gonzalez advised the Tribunal that he acted on behalf of Ms Millington by the letter, which accompanied the application for dismissal. It can be assumption that he had authority from his client to sign the application on her behalf. In that case, there was no need for a formal grant of leave to represent and the question of leave would only need to arise before a hearing of the application.
23. [23]
    I am not satisfied that there is a reasonable argument that the decision of the learned adjudicator is attended by error in respect of ground 2 and leave to appeal is refused in regard to ground 2.

Ground 3 error in regard to lack of jurisdiction

24. [24]
    Ms Mathew submitted that the learned adjudicator had erred in law in finding that the Tribunal lacks jurisdiction to hear and decide the application. She submitted that the Tribunal has jurisdiction to hear and decide an application for damages under s 236 of the ACL (QLD) pursuant to ss 20 and 50 of the Fair Trading Act 1989 (Qld).
25. [25]
    The learned adjudicator erred at law by misinterpreting and/or misapplying the principles in Hartley v Bennette. In Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost ^[8], Adjudicator Walsh held:

24. [24] Hartley v Bennette is QCAT authority for the proposition that mere residence of an Applicant in Queensland suffices to found personal jurisdiction in a minor civil dispute claim.
25. [25] In that case, Member Gordon found that it mattered not that all the elements of the cause of action arose wholly within another State of Australia so long as the applicant was resident in Queensland when proceedings commenced. Residence alone at the time of commencing proceedings conferred jurisdiction on QCAT to hear and determine a claim that otherwise had no connection with Queensland whatsoever.

26. [26]
    Ms Mathew then submitted that in this case she was ordinarily resident in Queensland at all material times. Furthermore, the misleading representations giving rise to the claim were made to the Applicant when she was in Queensland. Further, that the respondent cannot raise an objection to the Tribunal’s jurisdiction because her attendance at mediation is inconsistent with any challenge to the Tribunal’s jurisdiction and is a waiver thereof, Hartley at [32].
27. [27]
    Mr Gonzalez made submissions on behalf of Ms Millington in respect of the appeal. That the appeal should be disallowed as the decision was correct. That Victoria is the appropriate jurisdiction for the reasons stated above and in addition that the respondent intends to join two other parties who are resident in Victoria.

Discussion

28. [28]
    The decision in Hartley v Bennette^[9] is based on the High Court decision in Laurie v Carroll ^[10]. That case involved an appeal from a decision of the Victorian Supreme Court to allow substituted service in circumstances where the defendant was not a resident of the estate and was outside of the state at the time the writ was issued. Dixon, Williams and Webb JJ stated the law in regard to service as follows:

The action is in personam and it is transitory; and in such an action, the jurisdiction of the Supreme Court of Victoria depends not in the least on the subject matter but upon the amenability of the defendant to the writ expressing the sovereigns command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State. By the federal Service and Execution of Process Act 1901 – 1953, however it may, if endorsed under that statute, elsewhere within the Commonwealth and Territories, the conditions in which this may be done and the consequences being defined by the provisions of the Act^[11].

29. [29]
    The decision in Laurie v Carroll goes on to deal with service outside the State which is available under the Rules of the Supreme Court Act 1928 (Vic) and then states:

It may be that the cause of action which the plaintiffs seek to set up will fall neither within any of the paragraphs of r1 of O. XI nor within any of those of s 11 of the Service and Execution of Process Act 1901-1953. If so, that may explain the importance apparently attached by the parties to this appeal. For except for these extensions of the principle of the common law, it remains true that a writ issues out of the Supreme Court of Victoria does not run outside the State. In addition, in actions in personam this must determine the jurisdiction of the court over the defendant.^[12]

30. [30]
    After quoting the passage in Dicey – Conflict of Laws which is referred to in Member Gordons decision in Hartley v Bennette, the justices of the high court in Laurie v Carroll stated:

It will be noted that in this passage presence within the jurisdiction at the time of service is regarded as essential. The statutory qualification or exception as to out of the jurisdiction was of course not under the author’s consideration in the foregoing passage. But what is of great importance for the purpose of for the purpose of the case in hand is that to insist on the presence of the defendant within the jurisdiction at the time of service is to exclude the possibility of substituted service when he is no longer within the jurisdiction.^[13]

31. [31]
    The justices of the High Court during a long discussion of the relevant law in regard to service noted that:

It must of course be borne in mind that in questions of jurisdiction and conflict of laws each Australian State is to be treated (subject to the Commonwealth Constitution and legislation under it such as the Service and Execution of Process Act) as a distinct and separate country or “law area” and accordingly doctrines developed in England such as that under discussion are applied within the local limits as they would be in England and without regard to the constitutional sovereignty of the Crown in right of other States and Dominions or of the consequence of general British nationality. ^[14]

32. [32]
    Following this the justices in Laurie v Carroll stated the applicable principles as follows:

The hypothesis is that before the issue of an ordinary writ of summons for service within the jurisdiction the defendant has left the jurisdiction definitely, that is to say that he has left it in such a sense that leave to issue a writ for service out of the jurisdiction might properly be given under O.XI, in a case falling within that order, or resort might properly be made to the Service and Execution of process Act, in a case appropriate to that legislation. The better view appears clearly enough to that on that hypothesis the defendant is no longer amenable to the territorial jurisdiction exercised by an ordinary writ of service within the jurisdiction and the want of jurisdiction cannot be overcome by an order for substituted service. His motive for leaving cannot matter. It cannot give jurisdiction. Any other view seems open to the objection, first that it departs altogether from the principles upon which the exercise of English Jurisdiction in actions in personam rests; secondly, that it cannot be reconciled with the doctrine established by authority and dictated by principle, that where the writ may not be served personally, an order for substituted service cannot be made; thirdly, that it ignores the implications of O. XI, r.1; fourthly, that in truth it does not involve a matter of procedure but an extension of jurisdiction. The acceptance of the view stated leaves no room for the order for substituted service in this case.^[15]

33. [33]
    The justices of the High Court in Laurie v Carroll then found that in the circumstances of that case:

Laurie neither by reason of past history nor by reason of present domicile, residence or course of business stood in any general relation to the State of Victoria which would make him naturally or prima facie subject to the jurisdiction of the courts of the State. He was about to leave the State within a short time and all that he can be meant by the inference that he left to evade service is that he accelerated his departure because of the threat of suit. In all these circumstances the substance of the matter was that, unless the case could be brought within O. XI or the Service and execution of process Act, a contingency that must have appeared very dubious, the Supreme Court by ordering substituted service was really asserting a jurisdiction over the defendant Laurie which otherwise it could not possess, save in so far as it arose from the accidental circumstances of his brief visit to Melbourne. These are considerations which show that O IX, r. 2 ought not to have been used. It was invoked by the plaintiffs only for the purpose of giving the Supreme Court of Victoria jurisdiction where otherwise it did not exist. Accordingly, the order for substituted service of the writ of summons ought not to have been made.^[16]

34. [34]
    From this, it is clear that the common law position is that unless the defendant is within the State and can be served whether by ordinary or substituted service there is no jurisdiction. I therefore respectfully disagree with the reasons of Member Gordon in Hartley v Bennette, where he described the common law rule in regard to jurisdiction as “that jurisdiction over an action in personam depended upon the plaintiff being able legally to serve the writ upon the defendant”^[17].
35. [35]
    It is only where the common law is modified by either court rules or the SEPA Act that service of a defendant outside of the State is possible. It is therefore not the case that if the applicant is in Queensland that is sufficient to enliven jurisdiction in the Tribunal and the decision of Adjudicator Walsh in  Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost is with respect also wrong in regard to it being sufficient for jurisdiction that the applicant be resident in Queensland.
36. [36]
    As noted in Laurie v Carroll service may occur between States in accordance with the SEPA Act and I agree with Member Gordon that the Tribunal is a court for the purpose of the SEP Act in accordance with the decision of Judge Horneman-Wren SC in Li v Medical Board of Australia (No 1)^[18].
37. [37]
    The decision of the learned adjudicator was that the application be dismissed for lack of jurisdiction. If the application was properly served under the SEPA Act then the Tribunal had jurisdiction. Sections 15 and 16 of the SEPA Act state that an initiating process issued in a State may be served in another State; service on an individual must be effected in the same way as service of such an initiating process in the place of issue and that service is effective only if copies of the prescribed notices are attached to the process served. 
38. [38]
    There was no irregularity in regard to service raised by the respondent and therefore it can be assumed that the application was properly served in accordance with the SEP Act and there was then no lack of jurisdiction in regard to the application.
39. [39]
    Ms Mathew also raised a separate ground of waiver of any challenge to jurisdiction in respect of Ms Millington attending mediation. The matters raised by the respondent in the application for a stay or transfer do not go to jurisdiction and therefore there is no issue of waiver.
40. [40]
    Mr Gonzalez requested that the application be transferred to Melbourne or stayed. The Tribunal has power to transfer an application to another court or tribunal in accordance with 52 of the QCAT ACT. This power though could only be exercised in regard to transfer to another court of tribunal in Queensland as the Tribunal is part of the cross-vesting arrangements which operates between the States.
41. [41]
    The issues raised by the respondent are then amenable for consideration under s 20 of the SEP Act which allows a person served to apply for a stay of proceedings where there is a court of another State with jurisdiction to determine the  matters in issue between the parties which is the appropriate court to determine those matters.
42. [42]
    For completeness, consideration needs to be given to whether the Tribunal has jurisdiction to hear the application. I note that Member Gordon in v Hartley v Bennette ultimately found that the Tribunal lacked jurisdiction to hear the application in that case as it did not come within any of the jurisdictions the Tribunal has. The Tribunal being created by statute only has those jurisdictions, which are given to it under the QCAT Act or an enabling Act^[19].
43. [43]
    Ms Mathew’s application sought payment under s 13(2)(a)(1) of the QCAT Act or alternatively damages under s 236(1) of the ACL(QLD) and a declaration that Ms Millington engaged in misleading conduct or conduct likely to mislead in contravention of s 18(1) of the ACL (QLD) under s 60 of the QCAT Act.
44. [44]
    An order under s 13(2)(a)(1) of the QCAT Act is one which can be made in a proceeding for a minor civil dispute. The Tribunal has jurisdiction to hear and decide a minor civil dispute under 11 of the QCAT Act. Minor civil dispute is defined in Schedule 3 of the QCAT Act. The Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has applied to the tribunal to deal with the dispute. Relevant persons include a consumer where the claim arises between a consumer and trader as defined in the Act. The Tribunal has jurisdiction to hear minor civil disputes up to the jurisdictional limit of $25,000.00 and the amount claimed is below that amount.
45. [45]
    It has not been asserted on behalf of Ms Millington asserted that there is a lack of jurisdiction in regard to the application as a minor civil dispute.
46. [46]
    The Tribunals has jurisdiction in regard to the ACL (QLD) is in accordance with ss 20 and 50 of the Fair Trading Act 1989, in relation to persons ordinarily resident in Queensland and where the subject of the dispute would be a minor civil dispute for the purpose of the QCAT Act.
47. [47]
    Again, there has been no issue raised on behalf of Ms Millington about the Tribunals jurisdiction to hear a dispute under the ACL (Qld).
48. [48]
    The learned adjudicator incorrectly determined that there was a lack of jurisdiction and did not apply the appropriate test under s 20 of the SEP Act to determine if a stay should be granted. This then involved errors of mixed law and fact, as there were findings to be made in respect of the matters raised by the respondent in the application for a stay.
49. [49]
    I am satisfied that there was an error of mixed fact and law on the part of the learned adjudicator and that leave to appeal should be granted to correct a substantial injustice to the applicant. The decision of the learned adjudicator is set aside.

Hearing of appeal

50. [50]
    As the appeal is on questions of mixed law and fact it is to be determined by way of rehearing based on the material before the learned adjudicator and the written submissions made in the course of the appeal.
51. [51]
    The matters that I am to take into account when considering an application for a stay are found in s 20(4) of the SEP Act as follows:

    1. The places of residence of the parties of the proceeding and of the witnesses to be called in the proceeding; and
    2. The place where the subject matter of the proceeding is situated; and
    3. The financial circumstances of the parties. So far as the court is aware of them; and
    4. Any agreement between the parties about the court or place in which the proceeding should be instituted; and
    5. The law that would be most appropriate to apply in the proceeding; and
    6. Whether a related or similar proceeding has been commenced against the person served or another person

But do not include the fact that the proceeding was commenced in the place of issue.

52. [52]
    The Tribunal’s order may be made subject to such conditions as it considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.^[20]
53. [53]
    The exercise of discretion under s 20 of the SEP Act was considered by Shanahan DCJ in Lenard’s Pty ltd and Anor v Kimart Pty ltd and Others^[21] . Shanahan DCJ stated at that:

20. [20] The power of a court to stay a proceeding pursuant to s 20 “is predicated on the court being satisfied that another State court having jurisdiction to determine “all the matters in issue” between the parties is the “appropriate court” to determine those matters”(St George Bank Limited v McTaggart [2003] 2 Qd r 568 at 571 per McPherson JA). McPherson JA continued at 572,

“[10] in Valkama v Jamieson 919940 11 S.R. (W.A>) 246, 250, His Honour Judge Blaxell in the District Court of Western Australia said of the expression “appropriate court” in s 20 of the Act that, in his view, it is the one with which the action has the most real and substantial connection and can therefore be regarded as the natural forum.”

The test propounded there has been adopted in subsequent District Court decisions including at least one in Queensland.

21. [21]the decisions as to which State court is the appropriate court to determine all the matters in issue requires a consideration of all the matters specified in s 20(4). Those are not an exhaustive code (St George Bank Limited v McTaggart; Willabrae Pty ltd & Others v Bridgestone Australia Limited [2007] QDC 7 at [17]). None of the matters are given any particular weight. 

54. [54]
    The first matter for consideration then is the residence of the parties and the of the witnesses likely to be called in the proceeding, in accordance with SEP Act s 20(4)(a). This is the primary matter which was raised on behalf of Ms Millington in the application for the stay. That is that there will be 4 witnesses on the part of the respondent and they all reside in Victoria and the cost of bringing them to Queensland are excessive. Ms Mathew confirmed that she was ordinarily resident in Queensland.
55. [55]
    There is then a question of convenience in regard to the parties which would weigh in favour of the matter being heard in Victoria. This could be ameliorated though by the respondents and their witnesses being given leave to appear at the hearing by remote conferencing. If at least one of the respondents were to appear in Queensland this would be no less inconvenient then Ms Mathew having to travel to Melbourne for a hearing in that State.
56. [56]
    The next issue is the place where the subject matter of the proceeding is situated, in accordance with SEP Act s 20(4)(b). Mr Gonzalez for Ms Millington submitted that the dispute arose in Melbourne and all of the training the subject of the dispute took place in Melbourne. Ms Mathew submitted that the misleading representations given rise to the claim were made to her when she was in Queensland. These were variously by way of email from the respondent in Melbourne and telephone conversations with representatives of the respondent in Melbourne. I note that part of the claim relates to a digital tattoo device which I would assume is currently located with Ms Mathew in Queensland.
57. [57]
    While it is clear that the dispute relates to matters which took place in Victoria it will be the evidence of the parties and their witnesses which determine the merits of the matter. The place where the subject matter of the dispute took place does not then appear to be determinative of the most appropriate court.
58. [58]
    The question of financial circumstances of the parties, s 20(4)(c) of the SEP Act, was raised by the parties save as to the excessive cost of bringing witnesses to the hearing which has been considered above.
59. [59]
    There is no evidence of any agreement between the parties about the court or place in which the proceeding should be initiated in accordance with s 20(4)(d) of the SEP Act.
60. [60]
    The law in regard to the dispute is the Australian Consumer Law^[22], which is uniform between the States^[23] and therefore there is no particular advantage or disadvantage to either party based on whether the application is heard in Queensland or Victoria. Mr Gonzalez did not raise any issue about the law which was to be applied. The same law would be applied in Victoria as it would be in Queensland.
61. [61]
    There has been no submission that a related or similar proceeding has been commenced against the person served or another person in accordance with s 20(4)(f) of the SEP Act.
62. [62]
    The only matter which weighs in favour of a court or tribunal in Victoria being the appropriate court, is the residence of the parties and witnesses. I am satisfied that any inconvenience can be ameliorated by granting the respondent and her witnesses leave to attend any hearing by remote conferencing.
63. [63]
    I am able to make an order subject to condition in accordance with s 20(5) of the SEP Act.
64. [64]
    I order as follows:

    1. (1)
       The application to stay the application is dismissed.
    2. (2)
       The application is listed for hearing on a date to be advised.
    3. (3)
       The respondent and any other parties joined as respondent and the witnesses of the respondent are granted leave to attend the hearing by remote conferencing.