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Krongold Constructions (Aust) Pty Ltd v Thurin

Krongold Constructions (Aust) Pty Ltd v Thurin

Case [2023] VSCA 191 17 August 2023

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0032

KRONGOLD CONSTRUCTIONS (AUST) PTY LTD (ACN 103 839 149)	Applicant
v
DAVID THURIN & ORS	Respondents
(ACCORDING TO THE ATTACHED SCHEDULE)

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25–26 May 2023
DATE OF JUDGMENT:	17 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 191

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CONSTITUTIONAL LAW – Federal jurisdiction – Victorian Civil and Administrative Tribunal (‘VCAT’) lacking jurisdiction to hear and determine federal matter – Referral of matter by VCAT to Supreme Court under Victorian Civil and Administrative Tribunal Act 1998, s 77 – Whether referral invokes jurisdiction of Supreme Court to hear and determine referred matter – Referral power exists where VCAT considers subject matter of proceeding more appropriately dealt with by different entity – Requires assessment as to whether subject matter in jurisdiction of receiving court – Distinction between ‘proceeding’ and ‘subject matter’ does not bear on legal effect of referral to a court – No constitutional impediment to treating referral as providing means by which jurisdiction of a court is invoked – Referral under s 77 to Supreme Court invokes jurisdiction of the Court without need for further initiating process.

LIMITATION OF ACTIONS – Building dispute proceeding referred from VCAT to Supreme Court – Proceeding in VCAT commenced within limitation periods in Building Act 1993, ss 134 and 134A – Whether referral to Supreme Court constitutes bringing of action – Parties in VCAT on notice of subject matter within limitation period – Referral process designed to bring action to conclusion in appropriate forum – Referral not bringing of action – Limitation periods do not bar claims.

JURISDICTION – Third parties to proceeding in VCAT referred to Supreme Court – Order by VCAT for third party joinder not for purpose of VCAT determining its jurisdiction – Joinder order involved invalid exercise of federal judicial power – Subsequent conduct of third parties a consequence of joinder order, not a submission to jurisdiction independently of it – Referral cannot give legal effect to invalid exercise of federal judicial power – Referral did not invoke jurisdiction of Supreme Court in relation to third parties – Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146, distinguished.

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Counsel
Applicant:		Mr JAF Twigg KC with Dr K Weston-Scheuber and Mr M Hosking
First and Second Respondents:		Mr MG Roberts KC with Dr CO Parkinson KC and Mr N Guenther
Third Respondent		Mr KJ Naish
Fourth Respondent		Mr PG Cawthorn KC with Mr AE Klotz
Attorney-General for the State of Victoria		Ms R Orr KC, Solicitor-General for the State of Victoria, with Ms E Smith and Mr S Crock
Attorney-General of the Commonwealth		Mr G Hill SC with Mr T Wood
Solicitors
Applicant:	Krongold Group of Companies
First and Second Respondents:	Herbert Smith Freehills
Third Respondent	DLA Piper Australia
Fourth Respondent	Meridian Lawyers
Attorney-General for the State of Victoria	Victorian Government Solicitor
Attorney-General of the Commonwealth	Australian Government Solicitor

BEACH JA
MCLEISH…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Krongold Constructions (Aust) Pty Ltd v Thurin

Details

AGLC: Krongold v Thurin [2023] VSCA 191
Case: [2023] VSCA 191
Decision Date: 17 August 2023

CaseChat Overview and Summary

Krongold Constructions (Aust) Pty Ltd brought an action against Thurin in the Victorian Civil and Administrative Tribunal (VCAT) to resolve a building dispute. Thurin subsequently sought to refer the matter to the Supreme Court, raising questions about VCAT’s jurisdiction to hear the matter, the effect of the referral on limitation periods, and the invocation of the Supreme Court’s jurisdiction over third parties. The Supreme Court was tasked with determining whether VCAT's referral mechanism effectively transferred jurisdiction to itself, whether the referral constituted a new action for limitation purposes, and whether the referral could validate an earlier invalid exercise of federal judicial power.

The court examined the nature of VCAT’s referral process under the Victorian Civil and Administrative Tribunal Act 1998, section 77, and found that a referral invoked the Supreme Court's jurisdiction without requiring an additional initiating process. The distinction between a proceeding and the subject matter did not affect the legal consequence of the referral. The court held that the referral did not constitute a new action for limitation purposes, as the limitation periods had already been satisfied in VCAT, and the referral was designed to bring the action to conclusion in the appropriate forum. Additionally, the court concluded that the referral could not validate the earlier invalid exercise of federal judicial power by VCAT in ordering the joinder of third parties, distinguishing it from the case of Herald and Weekly Times Pty Ltd v Victoria.

The Supreme Court held that the referral by VCAT invoked its jurisdiction over the proceeding, but the limitation periods did not bar the claims as they were satisfied in VCAT. The referral did not constitute a new action for limitation purposes. Furthermore, the referral did not validate the earlier invalid exercise of federal judicial power by VCAT in ordering the joinder of third parties. Consequently, the Supreme Court could not exercise jurisdiction over the third parties involved in the dispute. The court ordered that the matter proceed in the Supreme Court without the third parties.

Orders