Supreme Court judge rules that contribution claims are not within VCAT’s jurisdiction
Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2023] VCAT 233
A builder of a warehouse, Vaughan Constructions Pty Ltd (Vaughan), was one of a number of applicants who had commenced a proceeding in VCAT against Melbourne Water Corporation (MW), after significant defects appeared in the building. Vaughan claimed that the defects were caused by a flow of water resulting from the construction of a drain owned, managed and operated by MW, for which MW was liable pursuant to s 157 of the Water Act 1989 (Vic).
Vaughan claimed that MW was liable to contribute to any damages awarded against it in a related Supreme Court proceeding in which the owner of the land on which the warehouse is located was the plaintiff and Vaughan was a defendant.
Reeds Consulting Pty Ltd (Reeds) was added as a respondent to the VCAT proceeding and sought to join a number of additional parties to the VCAT proceeding so that it could claim contribution from them under Part IV of the Wrongs Act 1958 (Vic). One of those proposed parties, AS James Pty Ltd, opposed the application for reasons including that the proposed claim for contribution may not be within VCAT’s jurisdiction.
In the course of the judgment, Justice Delany, sitting as an Acting Member of VCAT, decided that whilst s 23B of the Wrongs Act creates a freestanding statutory cause of action for the recovery of contribution, whether VCAT has jurisdiction to determine such a cause of action turned on whether the Tribunal is a ‘court’ for the purposes of Part IV.
Justice Delany considered the words in ss 23B and 24 of the Wrongs Act and noted that the context in which ‘court’ must be construed in Part IV of the Wrongs Act, including references to ‘judgment’ and ‘writ’ (neither of which applies to VCAT), supports a construction of ‘court’ in Part IV which does not include VCAT.
Delany J drew attention to the history of amendments to the Wrongs Act, including Part IVAA in which Parliament made a deliberate choice to include ‘tribunal’ in the definition of ‘court’ for the purposes of that Part.
His Honour also found that VCAT’s jurisdiction in s 19 of the Water Act ‘in relation to all causes of action arising under’ s 16 of that Act did not apply to contribution claims because the independent cause of action in Part IV of the Wrongs Act does not ‘arise under’ any of the specified sections of the Water Act.
His Honour also rejected an argument that VCAT’s implied incidental power to do everything to give effect to or facilitate its express statutory power afforded it jurisdiction to make orders for contribution.
Implications of the decision
The decision in Vaughan Constructions has been widely interpreted as authoritatively holding that VCAT cannot hear any claims for contribution under Part IV of the Wrongs Act whatsoever.
It should be noted, however, that the enabling enactment relied on by Vaughan in its claim against MW was the Water Act: [33]. His Honour (at [79]) appeared to leave open the possibility that another enabling enactment may contain an implied power for VCAT to make orders for contribution. Vaughan Constructions did not consider, for example, whether VCAT has jurisdiction to make orders for contribution under the Domestic Building Contracts Act 1995 (Vic) which, having regard to ss 53 and 54 of that Act, may be wide enough to include such orders.
It also remains to be seen if parliament will amend the Wrongs Act to avoid the “considerable inconvenience” which Delany J acknowledged may be caused to many proceedings currently before VCAT as a result of the interpretation of ‘court’ in Part IV of that Act.
