The problem of contribution solved

On 3 October 2023, the Victorian Parliament passed the Justice Legislation Amendment Bill 2023. The Bill received the Royal Assent on 10 October 2023. The Justice Legislation Amendment Act 2023 (JLAA) amends, among other things, the Wrongs Act 1958 to address problems faced by parties with matters involving claims for contribution under Part IV following the decision in Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [2023] VCAT 233.

In Vaughan Constructions, Justice Delany of the Supreme Court of Victoria, sitting as an Acting Member of the Tribunal, held that the Tribunal does not have jurisdiction to determine claims for contribution brought pursuant to Part IV of the Wrongs Act. The decision turned on the absence of a definition of ‘court’ in Part IV.

The JLAA amends the Wrongs Act in three important ways:

First, the JLAA amends[1] s.23A(3) of the Wrongs Act to include the following definitions:

1. court includes VCAT;
2. judgment, in relation to VCAT, includes decision, order and declaration; and
3. the existing definition of writ now includes an “application to VCAT”.

Second, the JLAA amends s.24(2) and (2B) of the Wrongs Act to substitute “proceeding” for “trial”.

Third, while the amendments to the Wrongs Act will apply on and after the commencement date of the JLAA (10 October 2023) regardless of whether the damage in question occurred before, on or after the commencement date, the JLAA also operates to validate past decisions of the Tribunal.[2] It includes new transitional provisions that validate decisions, orders or declarations made or purportedly made by the Tribunal under Part IV before the commencement date, operating as if the amendments were in place at the time the decision, order or declaration was made. Importantly, these curative provisions do not apply where:

1. the relevant order was quashed, overturned or reversed by the County Court or the Supreme Court (including the Court of Appeal) before the commencement date (10 October 2023) on the ground that the Tribunal had no jurisdiction to make a decision, order or declaration in respect of contribution under Part IV; or
2. the relevant order is the subject of an appeal or a review which includes the ground that VCAT had no jurisdiction to make a decision, order or declaration in respect of contribution under Part IV that had been commenced but not determined before the commencement date (10 October 2023).

These amendments will no doubt come as welcome relief to parties presently before the Tribunal involving claims for contribution, and those facing doubts over the validity of past decisions of the Tribunal that include decisions under Part IV of the Wrongs Act.

[1] By s.68 of the JLAA.

[2] By way of new s.28AAB of the Wrongs Act.