JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2014
DATE OF JUDGMENT:	2 July 2014
CASE MAY BE CITED AS:	Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 317	Revision No 1: 14 July 2014

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PRACTICE AND PROCEDURE – Dismissal of proceeding for non-compliance with procedural order – Proceeding dismissed by order of Associate Judge – Appeal to Judge of Trial Division – Further evidence adduced on appeal – Appeal allowed – Order for dismissal set aside – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Civil Procedure Act 2010 ss 25 and 29 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 3.02, 24, 77.06 and 77.06.9 – Supreme Court (Miscellaneous Civil Proceedings Rules) 2008 r 1.07 and O 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Archer, solicitor	Brendan J Archer
For the Defendant	Mr B Carr	Neil McPhee & Associates

HIS HONOUR:

Overview

This is an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 against an order made by an Associate Judge on 11 April 2014 whereby her Honour summarily terminated a proceeding brought by the appellant (“Mainstream”), a building company, against the respondent (“Carr Electrical”), an electrical contractor. By the proceeding, Mainstream applied under s 148 of the VictorianCivil and Administrative Tribunal Act 1998 (“the VCAT Act”) for leave to appeal from an order made by VCAT requiring Mainstream to pay some $35,000 to Carr Electrical on a claim for electrical work done at a commercial building site. By the same proceeding, Mainstream also applied for leave to appeal from a later order of VCAT requiring Mainstream to pay Carr Electrical’s costs of the VCAT proceeding. Mainstream needed a retrospective extension of time in which to bring the application for leave to appeal in respect of VCAT’s substantive order. Power to grant such an extension is conferred on the Court by s 148(5) of the VCAT Act. There was no need for any extension of time to apply for leave to appeal in respect of the (later) costs order.

Under the Rules of this Court, Mainstream was required to file and serve affidavit material in support of its application for leave to appeal by an early date. It fell into default. Further, its application for a retrospective extension of time was unsupported by any affidavit material. The matter then came before Associate Justice Lansdowne at a directions hearing. Her Honour made an order requiring Mainstream to file and serve, by a specified date, any affidavit material – of either kind – on which it intended to rely. The order also provided for a “compliance check” hearing on 11…

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.

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Details

AGLC: Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd [2014] VSC 317
Case: [2014] VSC 317
Decision Date: 2 July 2014

CaseChat Overview and Summary

Mainstream Construction (Aust) Pty Ltd sought to bring a proceeding against Carr Electrical Pty Ltd before the Victorian Civil and Administrative Tribunal. The dispute was based on an alleged breach of contract, with Mainstream claiming damages for the alleged failure of Carr Electrical to complete construction work to the required standard. The matter was dismissed by an Associate Judge of the Tribunal due to Mainstream's non-compliance with a procedural order. Mainstream subsequently appealed this decision to a Judge of the Trial Division of the Supreme Court of Victoria.

The central legal issue was whether the Trial Division Judge had the authority to allow new evidence to be adduced on appeal and, if so, whether this new evidence warranted the setting aside of the order for dismissal. The appeal hinged on the interpretation of the relevant statutory provisions, including sections of the Victorian Civil and Administrative Tribunal Act 1998, the Civil Procedure Act 2010, and the Supreme Court (General Civil Procedure) Rules 2005 and 2008. The question was whether the Trial Division Judge had discretion to permit additional evidence under the circumstances and, if so, whether such evidence was sufficient to warrant a reconsideration of the original decision.

The Trial Division Judge found that the statutory framework allowed for the consideration of new evidence on appeal, and that the additional evidence presented by Mainstream was compelling enough to warrant setting aside the order for dismissal. The Judge emphasised the importance of fairness and the need to ensure that parties had an opportunity to fully present their case. The appeal was allowed, and the order for dismissal was set aside, allowing Mainstream to pursue its claims against Carr Electrical. This decision underscored the importance of procedural compliance but also highlighted the need for flexibility in the interests of justice.

Orders