Does the Limitation of Actions Act 1958 (Vic) apply to proceedings at VCAT?

Steedman v Greater Western Water Corporation [2023] VCAT 128

VCAT has applied the doctrine of precedent to resolve conflicting authority on whether or not proceedings brought in the Tribunal are subject to the limitation periods under the Limitation of Actions Act 1958 (Vic) (Limitations Act).

The issue in Steedman v Greater Western Water Corporation [2023] VCAT 128 (Steedman) was whether a claim under the Water Act 1989 (Vic) (Water Act) for damages for the flow of water from sewerage infrastructure onto land was statute-barred pursuant to s 5(1) of the Limitations Act.

Two recent decisions of the Supreme Court of Victoria have taken a different approach to the question of whether or not proceedings before the Tribunal are subject to the Limitations Act.

In Lanigan v Circus Oz [2022] VSC 35 (Lanigan), McDonald J held that a claim under the Equal Opportunity Act 2010 (Vic) in the Tribunal’s original jurisdiction was not subject to s 5(1)(a). His Honour held that the Tribunal is not a “court of law” within the meaning of the definition of “action” in s 3(1) of the Limitations Act: [35]. He further found that the claim was not an action founded on a tort, including an action for damages for breach of statutory duty, for the purposes of s 5(1)(a): [38]-[40].

In Ajaimi v Giswick Pty Ltd [2022] VSC 131 (Ajaimi), M Osborne J decided that s 5(1)(a) applied to statutorily bar part of a claim brought in the Tribunal for a tenant’s loss and damage due to multiple events of water and sewage ingress to the leased premises. Instructively, the definition in s 3(1) of the Limitations Act provides that, unless inconsistent with the context or subject-matter, action includes any proceeding in a court of law. In Ajaimi, the judge construed the definition of “action” as inclusive and not limited to proceedings brought in a court: [179]. In Lanigan, no apparent attention was given to the inclusive aspect of the definition of “action” in s 3(1).    

In Steedman, Quigley P and Richard Wilson DP held that the Limitations Act did not apply because the Tribunal was bound by the earlier decision of Lanigan, an indistinguishable binding precedent: [88]-[96]. But for the doctrine of precedent, the Tribunal would have decided otherwise. The Tribunal expressly noted that if the Tribunal had not been bound by the decision in Lanigan, then by applying the conventional and purposive approach to statutory construction, they “would have been inclined to the view” that the relevant provisions in s 5 of the Limitations Act do apply to legal proceedings brought in the Tribunal’s original jurisdiction which entails the exercise of judicial power of the State of Victoria in inter partes disputes: [78].   

Nevertheless, the Water Act claim in Steedman – “a freestanding statutory cause of action” ([101]) – was considered not to be barred by reason of time: [98]. Interestingly, this would have been the result even if the Tribunal members had followed Ajaimi and decided that the Tribunal was indeed a “court of law” for the purposes of the definition of “action”. In Steedman, the Limitations Act did not bar the “late” claim under the Water Act because s 5(1)(a) was not engaged since the breach of a statutory duty does not extend the coverage of the subsection to causes of action which are not tortious: [109]. Nor is a claim under s 157 of the Water Act an action “to recover any sum recoverable by virtue of enactment” pursuant to s 5(1)(d) of the Limitations Act, as it is not an action to recover anything: [114]. By contrast, s 157 creates a cause of action that imposes a liability to pay damages as compensation for loss suffered: [115]. It is not a cause of action that creates an entitlement to recover a sum or a debt. A sum recoverable by virtue of enactment is a sum which is either a specific sum, or where a statute specifies the mechanism for the calculation of such sum: [112]–[117].    

Whilst the tribunal’s jurisdiction is solely based on statute, namely the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and various other statutes known by s 3 of that Act as “enabling enactments”, Parliament has imposed specific time bars in some of the legislation that confers jurisdiction on the Tribunal: for example, 10 years for building and plumbing actions under s 134 and s 134A of the Building Act 1993 (Vic); 6 years under s 217 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and s 236 of the Australian Consumer Law. Parliament has also amended s 27A(2) of the Limitations Act, which concerns personal injury actions, by providing that a reference to a court in sections 217 and 236 includes a reference to VCAT.    

In view of the importance of the need for consistency between forums, the question of whether the Limitations Act applies to proceedings at VCAT should be resolved either by the Court of Appeal or by Parliament.