Dawn v Carlisle Homes Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0079

DAVID-JON ROBERT DAWN	Applicant
v
CARLISLE HOMES PTY LTD	Respondent

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JUDGES:	NIALL CJ, EMERTON P and GRAY AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2025
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 58
JUDGMENT APPEALED FROM:	[2023] VCAT 660 (Judge Anderson, Vice President)

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BUILDING CONTRACTS – Disputes between builder and building owner – Dispute about completion of building works under major domestic building contract – Domestic Building Contracts Act 1995 ss 11, 40, 42.

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Appeal from tribunal – Objections to jurisdiction on asserted constitutional grounds – No real prospects of success – Application for leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 148.

PRACTICE AND PROCEDURE – Adjournment – Applicant a self-represented litigant who appointed legal representatives the day before the hearing – Application for adjournment to enable review and potential amendment of grounds of the application for leave to appeal – Whether prejudice to self-represented litigant – Whether applicant had impaired ability to present case – Reliance on mental state of applicant – No claim of impaired financial capacity – Reasons for delay not adequately explained – Applicant opposed any undertaking or condition requiring payment of judgment debt owing to respondent as condition of adjournment – Prejudice to respondent – Prejudice to administration of justice and other litigants – Adjournment refused.

PRACTICE AND PROCEDURE – Amendment – Application to rely on proposed amended application for leave to appeal raising matters under the Commonwealth Constitution ss 75(iv), 76(ii) – Asserted constitutional matters did not arise – Application refused.

CONSTITUTIONAL LAW – Asserted matter as to VCAT’s lack of jurisdiction to hear and determine disputes involving residents of different States – Asserted matter as to VCAT’s lack of jurisdiction to hear and determine proceedings involving claims under the Australian Consumer Law in its application as a law of the Commonwealth – Asserted constitutional matters did not arise – the Commonwealth Constitution ss 75(iv), 76(ii) – Judiciary Act 1903 (Cth) s 78B.

Australian Consumer Law and Fair Trading Act 2012, s 8(1).
Charter of Human Rights and Responsibilities Act 2006, ss 8(3), 24.
Civil Procedure Act 2010, s 7.
Commonwealth Constitution, ss 75(iv), 76(ii).
Competition and Consumer Act 2010 (Cth).
Domestic Building Contracts Act 1995.
Domestic Building Contract Regulations 2017, reg 13(1).
Judiciary Act 1903 (Cth), ss 78AA, 78B.
Supreme Court Act 1986, s 14C.
Supreme Court (General Civil Procedure) Rules 2015, r 19.03(4).
Victorian Civil and Administrative Tribunal Act 1998, ss 97, 98(1), 148(1)(a).

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625, applied.

Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3) [2022] VSC 283;