Limitation of Actions, the Water Act and VCAT

Steedman v Greater Western Water Corporation [2023] VCAT 128

VCAT has found that the time limits in s 5(1) of the Limitation of Actions Act do not apply to claims under s 157 of the Water Act.

The facts

The Applicant, Moira Steedman, claimed damages as a result of a flow of water from the sewerage infrastructure of the Greater Western Water Corporation that occurred in or around 2015. 

On 12 April 2021 Ms. Steedman commenced a proceeding in VCAT pursuant to s 157(1) of the Water Act 1989 (Vic) seeking damages of $207,204.85.  Section 19 of the Water Act conferred jurisdiction on VCAT to determine the cause of action.

The Respondent argued that the claim was statute barred by reason of a 6-year limitation period set by ss 5(1)(a) or 5(1)(d) of the Limitation of Actions Act 1958 (Vic) (Limitations Act).

The decision

The President of VCAT, Quigley J, and Wilson DP determined as a preliminary question that the claim was not statute barred.

The principal reason for the decision was that VCAT was bound by an earlier Supreme Court decision of McDonald J in Lanigan v Circus Oz & Ors [2022] VSC 35 in relation to proceedings brought under VCAT’s original jurisdiction under the Equal Opportunity Act 2010 (Vic).

Section 3(1) of the Limitations Act defines ‘action’ as, “action includes any proceeding in a court of law.” In Lanigan, McDonald J held that VCAT is not a ‘court’ for the purpose of the definition of ‘action’ in s 3(1) of the Limitations Act and that, if he was wrong, s 5(1) did not apply because a proceeding to remedy a contravention of the Equal Opportunity Act 2010 is not an action founded on tort.

The Tribunal also considered the later (and conflicting) decision of M Osborne J in Ajaimi v Giswick Pty Ltd [2022] VSC 131 in which  His Honour held that a contractual claim under the Retail Leases Act 2003 (Vic) brought in VCAT was subject to s 5(1)(a) of the Limitations Act on the basis that the definition of ‘action’ was an inclusive one, which referred to proceedings brought in a court ‘or equivalent’. 

In Steedman, VCAT held that it was bound to follow Lanigan. It did so on the basis that Ajaimi was distinguishable because that case involved a claim for breach of contract, whereas the claim in Lanigan (as in Steedman) was one invoking a statutory cause of action, and was therefore indistinguishable.

Additionally, VCAT held that that the claim under the Water Act is neither an action founded on tort nor one for damages for breach of statutory duty (for the purpose of s 5(1)(a)), nor an action to recover a ‘sum’ recoverable by virtue of an enactment (for the purpose of s 5(1)(d)).  As such, VCAT held that s 5(1) of the Limitations Act did not apply.

Does the Limitations Act apply to VCAT?

Notwithstanding that VCAT distinguished Ajaimi, there appear to be two conflicting decisions of the Supreme Court of Victoria (Lanigan and Ajaimi) as to whether ’action’ in s 3(1) of the Limitations Act includes a proceeding in VCAT.   However, VCAT held that the apparent inconsistency between the two decisions was a matter to be resolved by the Supreme Court or through legislative amendment.