McIntyre v Van Der Sluys
[2024] VSC 484
•19 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 00785
BETWEEN:
| DAWN MCINTYRE | Appellant |
| v | |
| ADRIAN VAN DER SLUYS T/A AV BUILDERS | Respondent |
---
JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 July 2024, further written submissions filed on 23 July 2024 |
DATE OF JUDGMENT: | 19 August 2024 |
CASE MAY BE CITED AS: | McIntyre v Van Der Sluys |
MEDIUM NEUTRAL CITATION: | [2024] VSC 484 |
---
JUDICIAL REVIEW — Appeal from magistrate’s decision to refuse an application under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘Act’) for the extension of a 10 year limitation period in s 134 of the Building Act 1993 (Vic) — Appellant initially commenced proceeding in the Victorian Civil and Administrative Tribunal alleging that building works completed by the respondent were defective — Proceeding later commenced in Magistrates’ Court due to federal subject matter — Whether the magistrate erred in concluding that the appellant’s late making of the application was not attributable to additional steps she was required to take — Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42 referred to — Whether the learned magistrate failed to take into account relevant considerations when exercising discretion under s 57D(1)(c) of the Act — Morrison-Gardiner v Car Choice Pty Ltd (2004) 43 MVR 153 and Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1 referred to — Whether the magistrate failed to give adequate reasons — Whether to remit the proceeding to the Magistrates’ Court or exercise discretion — Discretion re-exercised — Relevance of potential claim against solicitors to the exercise of discretion — Tsiadis v Patterson (2001) 4 VR 114 referred to — Appeal allowed and extension to limitation period granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Rollnik of counsel | Budgen Allen Graham Lawyers |
| For the Respondent | Mr D Cafari of counsel | Griffin Law Firm |
HER HONOUR:
Introduction and background
These reasons concern an appeal on a question of law pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) from the orders made by the Magistrates’ Court of Victoria at Broadmeadows on 22 January 2024. On that day, a magistrate dismissed the appellant’s application to extend the limitation period under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
The appellant, Ms Dawn McIntyre, is the registered proprietor of a property in Strathmore (‘property’). The respondent, Mr Adrian Van Der Sluys, is a builder who owned and operated a building and construction company, AV Builders.
The background facts in this proceeding are not in dispute. On or around 11 March 2011, the parties entered into a contract of sale for the construction of a double-storey house on the property for $875,000 (‘building works’). On 31 January 2012, an occupancy certificate was issued in respect of the building works. Pursuant to s 134(1) of the Building Act 1993 (Vic) (‘Building Act’), the time in which an action may be brought against Mr Van Der Sluys expired 10 years after the occupancy permit was issued, that is, on 31 January 2022.
On or around 28 January 2022, Ms McIntyre commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) alleging that the building works were defective (‘VCAT proceeding’).
The VCAT proceeding was issued approximately two years after Ms McIntyre received a building notice from the City of Moonee Valley on or about 14 January 2020 (‘building notice’). The building notice stated that the ‘masonry wall located adjacent to the north title boundary…has severe cracks throughout the structure, which may pose a danger to the life, safety or health of any member of the public within the vicinity of the masonry wall…’. Ms McIntyre’s points of claim in VCAT also referred to the following alleged defects in the building works carried out by Mr Van Der Sluys:
1.Doors and gates not closing correctly due to separation of walls from the house (Southern gate and laundry door).
2. Poor state of tiling.
3. Gaps between the pool and the decking.
4. Poor state of the drive way and crossing.
5. Gap between the garage and Electrical Installation Box.
6. Door handles not fitted properly to aluminium internal doors.
On 1 July 2022, Mr Van Der Sluys disclosed to VCAT and Ms McIntyre that he resides in New South Wales. As the dispute now involved federal subject matter, it could not be determined by VCAT. On 31 August 2022, VCAT made orders by consent that the VCAT proceeding be withdrawn.
On 26 July 2023, Ms McIntyre commenced a proceeding in the Magistrates’ Court pursuant to Part 3A of the VCAT Act (‘Magistrates’ Court proceeding’). The points of claim filed in the Magistrates’ Court proceeding were identical to those filed in the VCAT proceeding. Following the first directions hearing on 29 November 2023 (‘November 2023 hearing’), Ms McIntyre made an application under s 57D of the VCAT Act in the Magistrates’ Court proceeding seeking an extension of the 10 year limitation period in s 134 of the Building Act (‘extension application’).
The Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Vic) (‘Amendment Act’) inserted Part 3A into the VCAT Act to allow proceedings involving federal subject matter and thus outside the jurisdiction of VCAT to be brought in the Magistrates’ Court.
Section 57B of the VCAT Act provides as follows:
(1)The following persons may apply to the Magistrates' Court under this section—
(a)a person who is entitled to apply to the Tribunal in its original jurisdiction, or would have been so entitled if the Tribunal had jurisdiction to exercise judicial power to resolve controversies involving federal subject matter;
(b)a person whose application to the Tribunal in its original jurisdiction was, before, on or after the commencement of this Part, struck out, dismissed, rejected or withdrawn on the ground that the Tribunal had no jurisdiction to exercise judicial power to resolve controversies involving federal subject matter;
(c)a person who was a party to a proceeding in the Tribunal in which an order of the Tribunal was set aside by a court, on an appeal or review commenced on or before the date on which the Justice Legislation Amendment Act 2023 receives the Royal Assent, on the ground that the Tribunal had no jurisdiction to exercise judicial power to resolve controversies involving federal subject matter.
(2)The Magistrates’ Court may hear and determine an application made under this section if satisfied that—
(a)the application raises, or there is some doubt as to whether it raises, a controversy involving federal subject matter; and
(b)resolution of that controversy would involve, or there is some doubt as to whether it would involve, an exercise of judicial power; and
(c)the Tribunal would have had original jurisdiction enabling it to determine an application involving the same subject matter if the application did not raise a controversy involving federal subject matter the resolution of which would involve an exercise of judicial power.
…
(4)Subject to section 57D, any limitation period that would apply to the making of an application to the Tribunal applies to the making of an application to the Magistrates' Court under this section.
(5)The Magistrates' Court may strike-out, dismiss or reject an application if the Court is not satisfied under subsection (2).
Section 57D(1) of the VCAT Act provides as follows:
The Magistrates’ Court may extend any limitation period that applies to the making of an application under section 57B so as to allow the application to be made and determined, if satisfied that—
(a)the application involves the same subject matter as an application to the Tribunal that was struck out, dismissed, rejected or withdrawn for lack of jurisdiction; and
(b)the late making of the application is attributable to additional steps the applicant was required to take to have the matter determined by the Court because the application to the Tribunal was struck out, dismissed, rejected or withdrawn; and
(c) it is fair and reasonable to extend the limitation period.
The Amendment Act was enacted in 2021 following a series of High Court and Court of Appeal decisions0F[1] to the effect that only courts could exercise judicial power to resolve disputes involving federal subject matter, which includes, among other things, disputes between residents of different states and territories.
[1]See Burns v Corbett (2018) 265 CLR 304 and Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361.
The Explanatory Memorandum for the bill which ultimately became the Amendment Act explained the provisions which are at the heart of the current appeal, as follows:
New s 57B(1)(a) provides that a person may apply to the Magistrates' Court if they are entitled to apply to the Tribunal in its original jurisdiction or would have been entitled to apply to the Tribunal in its original jurisdiction if the Tribunal had jurisdiction to exercise judicial power to resolve controversies involving federal subject matter.
New s 57D seeks to prevent disadvantage to parties if the limitation period which applies to their claim has expired and this can be related to their matter raising, or potentially raising, a controversy involving federal subject matter.[2]
[2]Explanatory Memorandum, Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Bill 2021 (Vic).
In her second reading speech introducing the bill, the relevant minister stated as follows:
In developing these reforms, a central objective has been to ensure that federal jurisdiction matters can be heard in a way that is as accessible, low cost and user friendly as possible. The framework in the Bill is deliberately broad, to give the Magistrates’ Court and VCAT the appropriate flexibility to manage these proceedings, with these objectives in mind. At the same time, the Bill also retains the independence and integrity of the Magistrates’ Court as a ‘court of the State’. This is essential to ensure the Magistrates’ Court can validly hear and determine federal jurisdiction matters.
…
In hearing and determining these federal jurisdiction matters, the Magistrates’ Court will have the same functions and powers that VCAT would have had, in addition to its existing functions and powers. The Bill also seeks to ensure consistency between VCAT processes and the Magistrates’ Court’s processes for handling federal jurisdiction matters where appropriate. For example, the same rules relating to legal representation will apply in these matters as apply in VCAT. Like VCAT, the Court will not be bound by rules of evidence under the Evidence Act 2008 (Vic) in federal jurisdiction matters (unless it decides to adopt those rules) and the privilege against self-incrimination will not apply. This promotes fairness and consistency by ensuring that the procedure in relevant Magistrates’ Court hearings, and the treatment of parties, are consistent with VCAT practice wherever possible.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2021, 1788.
Section 57E of the VCAT Act provides as follows:
Time limits for dealing with applications
(1)Any time limits for dealing with an application that would apply to the Tribunal if an application that is the subject of a substituted proceeding had been an application to the Tribunal apply to the Court, with any periods being reckoned from the time the application was made to the Court.
(2)Despite subsection (1), if a substituted proceeding involves the same subject matter as an application to the Tribunal that was struck out, dismissed, rejected or withdrawn for lack of jurisdiction, the Magistrates’ Court must—
(a) have regard to that fact in observing any time limits; and
(b) hear and determine the proceeding as expeditiously as possible.
(3)If an application to the Tribunal involves the same subject matter as an application to the Magistrates' Court under section 57B that was struck out, dismissed, rejected or withdrawn because the Court was not satisfied as referred to in section 57B(2), or withdrawn before the Court had determined whether or not it was satisfied as referred to in section 57B(2), the Tribunal must have regard to that fact in observing any time limit that applies to the Tribunal in dealing with the application.
Note
See also section 98(1)(d) as to the requirement for the Tribunal to determine a proceeding speedily.
Mr Van Der Sluys relied upon the terms of s 57E of the VCAT Act in support of his contention that ‘time is of the essence’ when making applications under s 57D(1) of the VCAT Act.
The decision under review
The extension application was heard and determined by a magistrate on 22 January 2024. Before the learned magistrate, counsel for Ms McIntyre said that the delay between the withdrawal of the VCAT proceeding and commencement of the Magistrates’ Court proceeding was caused by Ms McIntyre’s solicitors, not by any fault on the part of Ms McIntyre.
Counsel for Ms McIntyre submitted that, as a general principle, a party should not be prevented from pursuing their claim where the fault or delay has been caused by their solicitor. Ms McIntyre should not be shut out from bringing the Magistrates’ Court proceeding as she would suffer substantial detriment if that were to occur. Counsel for Ms McIntyre referred to the decision of Kellam J in White v Dortenzio,1F[4] where his Honour stated as follows:
I am satisfied that the application to set aside the default judgment was made promptly, it having been filed on 24 September 2004 being the day after service of the default judgment. Further, I am satisfied that an explanation as to the delay in filing and serving the defence has been given, it being that the solicitor for the wife was endeavouring to resolve the matter. Although the solicitor for the wife should, in my view, have acted with more alacrity, notwithstanding his desire to settle the proceedings without incurring further costs, any default was due to his conduct rather than that of the wife herself. As stated in Collins Book Depot Pty Ltd v Bretherton:2F[5]
‘In general where default is due to the carelessness of a party’s solicitor, the party is not penalised to the extent of being shut out from litigating his claim or defence.’3F[6]
[4][2004] VSC 381.
[5][1938] VLR 40.
[6]White v Dortenzio [2004] VSC 381 [9].
In response, counsel for Mr Van Der Sluys submitted that no explanation for the 11 to 12 month delay in issuing the Magistrates’ Court proceeding had been provided by Ms McIntyre. The only explanation provided was that the delay was attributable to Ms McIntyre’s solicitors. Counsel for Mr Van Der Sluys submitted that no explanation was provided by Ms McIntyre as to what additional steps she was required to take, other than simply filing the Magistrates’ Court proceeding.
Counsel for Mr Van Der Sluys submitted that the decision in White v Dortenzio4F[7] relates to setting aside applications under r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) where the solicitor has failed to file a defence. The extension application related to an entirely different set of circumstances concerning the expiry of a 10 year limitation period in circumstances where there was severe prejudice to Mr Van Der Sluys by reason of the delay. If Ms McIntyre had filed the extension application within a month or two of the withdrawal of the VCAT proceeding, there would have not been a problem.
[7]Ibid.
Counsel for Mr Van Der Sluys submitted that the solicitors acting for Ms McIntyre have been negligent, and suggested that Ms McIntyre would be able to bring a proceeding against her solicitors in negligence.
In his submissions in reply, counsel for Ms McIntyre submitted that there had been neglect on the part of Ms McIntyre’s solicitors in filing the extension application, and that this was the only additional step required to be taken. The decision in White v Dortenzio5F[8] is a general statement of principle in situations where a default is caused by a solicitor, analogous to the present case.
[8]Ibid.
The learned magistrate gave an ex tempore judgment refusing the extension application, as follows:
HER HONOUR: I mean, in my view, the case of White v Dortenzio, whilst it stands for a very well-established principle, it ought to be distinguished, and that’s because with an extension of time application there are a number of factors that need to be taken into account, and certainly that’s an extension of time in terms of applying for a default judgment, it’s a different piece of legislation, different factors that need to be considered by the court in determining those applications, the wording in s 57D is different, it’s very specific, and in my view it’s much more narrow than the factors that the court needs to consider when a party applies to set aside a default judgment. Section 57D(1) of the VCAT Act sub-s1(b) says the court may extend a limitation period if ‘the late making of the application is attributable to additional steps the applicant was required to take to have the matter determined … because the application to the Tribunal was struck out, dismissed, rejected or withdrawn’. I agree with Mr Cafari that the only additional step that the applicant was required to take was to issue proceedings in this court. It’s clear here that - the limitation period had already expired, hadn’t it, before - - -
MR CAFARI: It had, and that was - the Act is a saving grace for those situations because it’s not - - -
HER HONOUR: Yes. I mean, it seems really clear on the face of it the late making of the application is not attributable to the steps the applicant was required to take, it’s attributable to the applicant’s or plaintiff’s negligence. And even if I was wrong about that, I don’t consider that it’s fair and reasonable to extend the limitation period when the applicant's solicitors have sat on their hands for 11 months. There’s really no explanation for why that’s the case. In circumstances where the applicant has - is able to make a claim against the applicant’s solicitors for what they’ve admitted as their negligence, in my view, this section is just – it’s not a section that's analogous in any sense to the extension of or the considerations of when default judgment has been entered. You’re just comparing apples and oranges. And I’m not persuaded that the ratio in White v Dortenzio does apply to s 57D of the VCAT Act. As I say, it’s a much more narrow provision. It’s designed to deal with the very common occurrence of where matters are either struck out, dismissed, rejected by VCAT, that when they’re issued in this court they will already be out of time or there will be some provision that they haven't been able to comply with, which is a limitation. It’s designed to cure that. But I just can’t see how the solicitors’ negligence and delay of 11 months, that this case or this particular section is broad enough to cover those circumstances. So for those reasons the applicant’s application to extend the limitation period under s57D of the VCAT Act is refused.
Her Honour then proceeded to make the following orders:
1.The application for an extension of the limitation period made by the applicant under s 57D of the [VCAT Act] is refused.
2.The applicant pay the Respondent’s costs in respect of the application fixed at $6,050.00. Stay of 30 days.
The notice of appeal
Section 57C(4) of the VCAT Act provides that a party to a proceeding brought in the Magistrates’ Court pursuant to s 57B of the VCAT Act:
may appeal against an order of an interim or interlocutory nature made by the Magistrates’ Court in the proceeding in the same way as a party may appeal against a final order made by the Magistrates’ Court.
Section 109 of the Magistrates’ Court Act 1989 (Vic) provides that a party to a civil proceeding in the Magistrates’ Court may appeal from a final order on a question of law.
In her notice of appeal dated 21 February 2024, Ms McIntyre seeks the following relief:
1. The appeal is allowed.
2.The learned magistrate’s order (orders 1 and 2, save for the 30-day stay) be set aside.
3.The application for an extension of a limitation period made by the appellant [applicant] in the Magistrates Court of Victoria (proceeding number P11630743) under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 is granted.
4.(Alternatively to order 3 above): The application for an extension of the limitation period in s 134 of the Building Act 1998, made by the appellant [applicant] under s 57D of the Victorian Civil and Administrative Tribunal Act 1998, is granted, such that the appellant’s [applicant’s] action against the respondent in proceeding number P11630743 in the Magistrates Court of Victoria is within time and not statute-barred.
5. The respondent pay the appellant’s [applicant’s] costs of:
(a) her application in the Magistrates’ Court below; and
(b) this appeal.
The grounds of appeal relied upon by Ms McIntyre are as follows:
2.The learned magistrate erred in law in finding that the applicant [appellant] failed to satisfy the requirements of s 57D(1)(b) of the VCAT Act because at the time that the matter was withdrawn from VCAT, the 10-year limitation period had already expired and thus upon the applicant [appellant] making the application to (i.e., commencing proceedings in) the Magistrates’ Court under section 57B(1)(b) of the VCAT Act, section 57D(1)(b) was satisfied.
3.The learned magistrate erred by failing to exercise her discretion under s 57D(1)(c) of the VCAT Act because her Honour failed to take into account a material consideration in exercising her discretion, namely:
(a)the prejudice to be suffered by the applicant [appellant] if the application for an extension of the limitation period was refused;
(b)the lack of material prejudice to be suffered by the respondent if the application for an extension of the limitation period was granted; and
(c)the prejudice that would be suffered by each party, if any, and the matters pertinent to a consideration of whether it was fair and reasonable to extend the limitation period in the circumstances.
4.The learned magistrate erred by failing to give reasons, or adequate reasons, for her decision, including by failing to refer to the fact that the applicant’s [appellant’s] claim in the Magistrates’ Court would be statute barred, and would fail if the applicant’s [appellant’s] application for an extension to the limitation period were denied and failing to refer to, (and consider), the prejudice the applicant [appellant] would suffer if her application for an extension to the limitation period were denied.
(numbering in original).
The evidence
Ms McIntyre relied upon affidavits affirmed by her solicitor Ms Eve Whitmore on 28 February 2024 (‘first Whitmore affidavit’), 16 April 2024 (‘second Whitmore affidavit’), and 24 May 2024 (‘third Whitmore affidavit’), and the exhibits to those affidavits. In the first Whitmore affidavit, Ms Whitmore provided a brief summary of the background to the proceeding and exhibited the following documents:
(a) Ms McIntyre’s points of claim in the VCAT proceeding, and the orders made by consent granting Ms McIntyre leave to withdraw the VCAT proceeding;
(b) an affidavit of Timothy Graham affirmed 29 November 2023;
(c) an affidavit of Eve Walker affirmed 18 January 2024;
(d) an affidavit of Isabelle Griffin sworn 19 January 2024;
(e) an affidavit of Eve Walker affirmed 21 January 2024; and
(f) the orders made by the learned magistrate on 22 January 2024 refusing the extension application.
The first Whitmore affidavit included a number of documents which were objected to by Mr Van Der Sluys (‘excluded exhibits’). The objection was made on the basis that the excluded exhibits were not before the learned magistrate at the hearing of the extension application. The excluded exhibits were redacted in the court book filed with the Court, and at the hearing of the appeal, counsel for Ms McIntyre stated that Ms McIntyre no longer sought to rely upon the excluded exhibits.
The second Whitmore affidavit exhibited the transcript of the hearing of the extension application before the learned magistrate on 22 January 2024. The third Whitmore affidavit exhibited the affidavits before the learned magistrate on 22 January 2024.
Mr Van Der Sluys relied upon the affidavits affirmed by his solicitor Ms Isabella Griffin on 26 March 2024 (‘first Griffin affidavit’), 9 April 2024 (‘second Griffin affidavit’), and 16 May 2024 (‘third Griffin affidavit’), and the exhibits to those affidavits. In the first Griffin affidavit, Ms Griffin deposed as to the background to the proceeding, and noted that the excluded exhibits were not before the learned magistrate at the hearing of the extension application. Exhibited to the first Griffin affidavit were the orders of the Magistrates’ Court made on 29 November 2023 and 22 January 2024, and correspondence between the parties regarding the excluded exhibits, which I do not need to address in these reasons.
The second Griffin affidavit deposed further as to the excluded exhibits. The third Griffin affidavit deposed as to the late filing of Ms Whitmore’s affidavit of 18 January 2024 in the Magistrates’ Court proceeding and correspondence exchanged between the parties regarding the disputed exhibits to the first Whitmore affidavit. Exhibited to the third Griffin affidavit was a transcript of the November 2023 hearing, email correspondence between the parties regarding the late filing of the affidavit of Ms Whitmore affirmed on 18 January 2024, and email correspondence between the parties regarding the excluded exhibits.
Of particular relevance to the current appeal is the evidence before the learned magistrate at the hearing of the extension application on 22 January 2024, being the documents referred to in paragraphs 28(b) to (d) of these reasons.
In his affidavit of 29 November 2023, Mr Graham deposed as to the following, uncontroversial matters:
(a) the contract between Ms McIntyre and Mr Van Der Sluys;
(b) that the occupancy certificate was granted on 31 January 2012;
(c) on 24 May 2020, Ms McIntyre obtained a report from Allen Karlovic Soil Engineering;
(d) that the Chief Dispute Resolution Officer of Domestic Building Dispute Resolution Victoria issued a ‘Certificate of conciliation – Dispute not suitable’ certificate on 7 May 2021;
(e) Ms McIntyre issued the VCAT proceeding on 28 January 2022;
(f) on or about 1 July 2022 Mr Van Der Sluys advised VCAT that he lives in Moama, New South Wales; and
(g) Mr Graham deposed as follows:
This proceeding involves the same subject matter as the VCAT proceeding.
The VCAT proceeding was issued within 10 years of the date of the certificate of occupancy. This application in this Court was issued outside the 10 year limitation period from the issue of the certificate of occupancy. The late making of this application was due to the proceeding first being issued in VCAT and then that proceeding being withdrawn and the requirement to commence this application in this Court.
In her affidavit of 18 January 2024, Ms Whitmore deposed as follows under the heading ‘Delay in Commencing Proceeding’:
On or around 14 January 2020, the plaintiff received a building notice from the City of Moonee Valley which provided that the ‘masonry wall located adjacent to the north title boundary (Glenview Road) had severe cracks throughout the structure, which may pose a danger to the life, safety or health of any member of the public within the vicinity of the masonry wall at 8 Prefect Street, Strathmore (Property).
Between 14 January 2020 and on or around 18 May 2021, I am instructed by the plaintiff's husband, Mr Wayne McIntyre, that he made numerous attempts to arrange for the defendant to inspect the Property’s defective masonry walls and undertake the necessary rectification works.
The parties were unable to resolve the dispute themselves, resulting in their attendance at a conciliation conference with Domestic Building Disputes Victoria on 7 May 2021. As described in the Graham affidavit, legal proceedings were commenced in VCAT shortly thereafter.
On 31 August 2022, VCAT made orders granting, inter alia, the plaintiff with leave to withdraw her claim against the defendant.
The plaintiff filed an application with the Magistrates’ Court on or around 26 July 2023.
The proceeding in the Magistrates Court involves the same subject matter as the proceeding which had been commenced at VCAT. The claim in the Magistrates Court and the claim that was issued at VCAT are between the same parties and concern the same alleged building defects at the Property arising from the same contract between the plaintiff and the defendant.
The delay that occurred between the withdrawal of the VCAT proceeding on 31 August 2023 and the commencement of the Magistrates Court proceeding on or around 26 July 2023 was not caused by any conduct of the plaintiff. The delay was caused by the plaintiff’s solicitors.
Further, there has been a delay in complying with the orders of 29 November 2023. The solicitor who was handling this matter on 29 November 2023 subsequently left the employment of Bugden Allen Graham on or about 5 December 2023. That solicitor did not attend to preparation of the affidavit that was ordered to be filed by the plaintiff at the hearing on 29 November 2023. It is for this reason that the plaintiff's affidavit was not filed by 20 December 2023 as required by the orders dated 29 November 2023.
The plaintiff has not been responsible for any of the delays that have occurred in this matter. Our firm is responsible for these delays. I apologise on behalf of my firm for any inconveniences they may have caused.
Under the heading ‘Financial and Emotional Consequences’, Ms Whitmore deposed as follows:
On or around 1 November 2023, the plaintiff received a quotation from TechniBlock Pty Ltd to complete the underpinning rectification works in the amount of $79,850 (plus GST).
I am instructed that the plaintiff expects it will cost approximately an additional $30,000 to complete associated rectification works as the underpinning will need to be taken on the inside of the wall.
If the Court does not grant leave for the plaintiff to pursue her claim in this proceeding, I am instructed by the plaintiff’s husband that the plaintiff will experience financial hardship and will not be able to comply with Moonee Valley City Council's building notice. If the plaintiff is unable to comply with the building notice and complete the required rectification works, the Property’s structural integrity will remain unstable and continue to 'pose a danger to the life, safety or health' of the plaintiff and her husband.
Further, movement in the Property’s foundations has aesthetically damaged the Property. For example, there is a significant amount of cracking in the Property’s plasterwork. There is no indication that the movement in the Property will settle in the foreseeable future. This means that any efforts to repair these visible cracks is of no utility.
The plaintiff and her husband are senior citizens who reside in the Property in dispute. I am further instructed that the dispute has been an emotionally stressful situation for the plaintiff which has resulted in her losing sleep at night and making it difficult for her husband to run his business.
Ms Whitmore exhibited to her affidavit the following documents:
(a) the building notice;
(b) a contract between Ms McIntyre’s husband and Techniblock Pty Ltd dated 1 November 2023 for underpinning works at the property, with a contract price of $79,850; and
(c) the report prepared by Allen Karlovic Soil Engineering dated 24 May 2020.
Mr Van Der Sluys relied upon an affidavit of Ms Griffin of 19 January 2024 in opposition to the extension application. Ms Griffin deposed, relevantly, as follows:
On 31 August 2022, Member Marks made Orders in the VCAT Proceeding giving the Plaintiff (then Applicant) leave to withdraw the proceeding. All parties were aware or should have been aware that this matter could not continue in the VCAT as of 1 July 2022.
On or about 26 July 2023, the Plaintiff commenced the current proceeding in by way of a Form 10A and Points of Claim. The Form 10A gives and electronic address for service as: [email protected], which is the email address of Mr Timothy Graham.
The Points of Claim:
a. Does not particularise the Plaintiff's Claim;
b. Does not state the quantum of damages sought; and
c. Has an email address of [email protected].
On 21 September 2023 at 4:44pm, Mr Griffin sent email correspondence to Mr Matthew White (“Mr White”) of Bugden Allen Graham Lawyers, solicitors for the Plaintiff. The said correspondence read:
“I confirm that I act on behalf of the Defendant in this matter. As explained I have recently received the Substituted Complaint in this matter which I am instructed was served in recent weeks, I am uncertain on what date it was served and or when a Defence is due. If you could provide particulars of service it would be appreciated. In respect of the actual claim, whilst I observe it is pleaded in a basic manner that would accompany a debt type proceeding it is impossible without receiving expert reports to respond in any meaningful manner or in a manner which complies with the Civil Procedure Act obligations.
It would be expected that your client has some form of report upon which the grounds are based and what it is said has caused the alleged defects especially given that the occupancy permit was issued in 2012. Generally it takes some 8-12 weeks to obtain an expert report in Victoria. Unfortunately, we cannot engage an expert to respond to the claim without the particulars.
I understand from the paperwork that this matter was previously issued in the VCAT, accordingly could you please provide the VCAT application and any expert evidence filed in that jurisdiction.
I suggest that a consent Order should be filed in terms akin to that in the VCAT permitting the service and filing of expert reports by your client and then the filing of a defence and expert reports by my client.
I await your response.”
On 11 October 2023 at 3:13pm, I sent email correspondence to Mr White, to which Mr Timothy Graham (“Mr Graham”) was copied. The said correspondence enclosed a Notice to Produce and read:
“We refer to our correspondence of 21 September 2023 in which we seek the production of various documents. twenty days have no elapsed with no response. We therefore enclose a Notice to Produce.
Furthermore, we note that the Magistrates’ Court Civil Procedure Rules 2020 require that a Claim “contain the necessary particulars of every fact or matter”. The Points of Claim in this proceeding is void of material facts. For example, your particulars of damage or defects are to say at best scant, and not capable of a meaningful response. To suggest that a door handle is loose 12 years after installation and wear borders on an absurdity. Drive ways and crossover; what is wrong with the crossover? What is wrong with the drive way? These are fundamental questions that should be pleaded in a positive manner that outlines what the fault is and how it is said to be the responsibility of our client. No quantum has been provided, therefore, the jurisdiction of the Magistrates’ Court to hear and determine the proceeding is not established, there can be no ability to compromise or settle the claim, or even to work out what Rules may apply (e.g. arbitration).
At this juncture, you have not even established that the Magistrates’ Court has the ability to determine this matter.
This is an open letter and will be relied upon generally.”
Ms Griffin then deposed as to the failure of Ms McIntyre to comply with the orders made by the learned magistrate at the November 2023 hearing, and the correspondence between the solicitors for the parties regarding that issue.
In relation to the prejudice said to have been suffered by Mr Van Der Sluys as a consequence of Ms McIntyre’s delay in issuing the Magistrates’ Court proceeding, Ms Griffin deposed as follows:
As a result of the Plaintiff's delay in bringing this proceeding has prejudiced the Defendant as follows:
a.The ten year liability period under section 134 of the Building Act 1993 has passed;
b. The ability to join other parties has been lost;
c. Records have been destroyed;
d. The recollection of witnesses has eroded;
e.Employees employed by the Defendant are no longer employed by him;
f.The ability to obtain accurate expert reports as to cause and effect is limited if not lost; and
g. The Plaintiff has failed to mitigate her loss and has contributed to same.
I am instructed by Mr Van Der Sluys and verily believe that he did not undertake demolition work of the garage, and that plumbing works were also undertaken by the Plaintiff. Any apportionment or contribution claims against the Plaintiff’s trades has also been severely prejudiced by the continued delay in bringing this proceeding.
The Building Notice exhibited at pages 1 to 2 of Ms Walker’s affidavit, at 5.1 requires that the Plaintiff show cause why she “should not engage a registered Structural Engineer to assess and provide a report ... “ within 30 days of the date of the Notice. the 30 days expired on 14 February 2020.
The parties’ submissions
Ms McIntyre referred to the well-known principles of statutory construction referred to in the following statement of the plurality of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:6F[9]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”… Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…7F[10]
[9](1998) 194 CLR 355.
[10]Ibid 381-382.
Ms McIntyre also referred to the decision in SZTAL v Minister for Immigration and Border Protection,8F[11] where the High Court stated as follows:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.9F[12]
(citations omitted).
[11](2017) 262 CLR 362.
[12]Ibid [14].
Ms McIntyre submitted that the text of s 57D(1)(b) of the VCAT Act is clear and unambiguous. The literal meaning of the words used in the statute accords with their legal meaning. Ms McIntyre submitted that the proper approach to s 57D(1)(b) of the VCAT Act is to consider what step preceded the Magistrates’ Court being seized of jurisdiction in the matter, and to then determine whether the late making of the extension application was attributable to that step. In the present case, commencing the Magistrates’ Court proceeding was the only additional step involved in invoking the jurisdiction of the Magistrates’ Court, which in turn necessitated the extension application by reason of the expiry of the limitation period.
Ms McIntyre submitted that Part 3A of the VCAT Act is remedial in nature. Its purpose is to assist parties to progress their dispute where VCAT does not have jurisdiction due to the involvement of federal subject matter, notwithstanding the expiry of a limitation period.
Ms McIntyre submitted that the learned magistrate erred in her construction of s 57D(1)(b) of the VCAT Act. First, the fact that the only additional step that Ms McIntyre was required to take was to issue the Magistrates’ Court proceeding is irrelevant. Once that step was taken, regardless of when, the application under s 57B of the VCAT Act would be and was late. Accordingly, s 57D(1)(b) is satisfied. Secondly, the learned magistrate conflated two separate issues, being the additional step that Ms McIntyre needed to take and the length of time it took to take that step when forming the view that the late making of the extension application was attributable to Ms McIntyre’s solicitors’ negligence, not the additional step required to bring the claim within the jurisdiction of the Magistrates’ Court. Any delay in taking that step, and the cause of any delay, may be relevant to considering whether it was fair and reasonable to grant the extension application under s 57D(1)(c) of the VCAT Act, but not to whether the requirements of s 57D(1)(b) of the VCAT Act are satisfied.
Ms McIntyre submitted that even if there had been no delay on the part of Ms McIntyre’s solicitors in issuing the Magistrates’ Court proceeding, the application under s 57B of the Act would still be made late, because the lateness of the application was referrable to the expiry of the limitation period. It still would have been late if the Magistrates’ Court proceeding had been issued the day after the VCAT proceeding had been withdrawn.
Accordingly, the learned magistrate was in error in attributing the late making of the application to the alleged negligence of Ms McIntyre’s solicitors.
Ms McIntyre submitted that s 57D(1)(c) of the VCAT Act provided the magistrate with discretion to extend a limitation period if it is fair and reasonable to do so. In exercising that discretion, which must be exercised judicially, the learned magistrate was required to consider the following matters:
(a)(object of the Act) the object of s 57D of the VCAT Act to prevent disadvantage to parties if the limitation period which applies to their claim has expired;
(b)(prejudice to appellant) the fact that if the extension were not granted, the applicant’s claim would be statute-barred;
(c)(strength of claim) the strength of the plaintiff’s case, including the fact that the appellant received a building notice from the City of Moonee Valley identifying “severe cracks throughout the structure, which may pose a danger to the lift, safety or health of any member of the public within the vicinity of masonry wall at [the appellant’s house constructed by the respondent];
(d)(prejudice to appellant) the appellant, and her husband, are elderly citizens who will experience financial hardship if they are unable to recover the costs of the rectification works from the respondent – expected to be in the order of $120,000 – and may not be able to comply with the building notice;
(e)(explanation for delay) the length of, and explanation for, the delay; and
(f) (prejudice to respondent) the possible prejudice to the respondent.
Ms McIntyre referred to two decisions of the Queensland Court of Appeal involving applications for extensions of limitation periods in support of her contention that the objects of the relevant legislation are of critical importance to the determination of whether it is fair and reasonable to extend a limitation period. First, she referred to the following statement of McMurdo P in Morrison-Gardiner v Car Choice Pty Ltd,13F[13] where his Honour said:
I am confident the legislature intended the words of s 57(1) and (2) of the Act to have their plain meaning. It makes sense that the legislature enacted this section recognising that in setting up the scheme a claimant’s rights to bring an action in the courts for personal injuries arising from a motor vehicle accident within the limitation period have been diminished, and so intending that where a claimant, before the end of the period of limitation. gives notice or applies for leave to bring a proceeding based on a motor vehicle accident claim under Pt 4 Div 3. a court should have a discretion to extend the time for bringing the proceeding, notwithstanding the expiration of the limitation period. In exercising that discretion, a court would, of course, be cognisant of the objects of the Act and of the general considerations apposite to any extension of a limitation period as discussed in Brisbane South Regional Health Authority v Taylor.14F[14]
[13](2004) 43 MVR 153.
[14]Ibid [11].
Further, in Ward v Wiltshire Australia Pty Ltd,15F[15] her Honour identified the following matters as relevant considerations which should be taken into account when determining whether to extend a limitation period:
Ms Ward has the onus of showing why the discretion under s 57(2)(b) should be exercised in her favour. Factors relevant to the present application include the length of the delay: the reason for the delay before the expiration of the limitation period: the reason for the subsequent delay; the strength of Ms Ward’s claim: whether the respondents would be prejudiced by the granting of the application and the related question of whether a fair trial will be possible: as well as the legislative intent evident from s 57(2)(b) in its legislative context. The overriding consideration is the interests of justice.16F[16]
[15](2008) 51 MVR 1.
[16]Ibid [4].
In relation to the discretionary considerations, Ms McIntyre submitted that the learned magistrate:
(a)did not consider the object of the VCAT Act (in particular, the new Part 3A and s 57D) and how that object should impact the exercise of her discretion;
(b)acknowledged that she had not read any of the affidavits prior to that hearing.
(c)did not consider, in any detail, the 29 November 2023 Graham Affidavit;
(d)only considered the evidence in so far as it concerned “the delay in issuing the proceedings in the Magistrates’ Court” and did not consider evidence concerning the prejudice [Ms McIntyre] would suffer if an extension were not granted; and
(e) did not consider any possible prejudice to [Mr Van Der Sluys].
Ms McIntyre submitted, in relation to the relevant factors identified by McMurdo P in Ward v Wiltshire Australia Pty Ltd,17F[17] as follows:
[17]Ibid.
(a) the 11 month period between the withdrawal of the VCAT proceeding and the issue of the VCAT proceeding is not unduly excessive;
(b) there was no relevant delay before the expiry of the limitation period, because the VCAT proceeding had been commenced within time;
(c) the responsibility for the 11 month delay lay at the feet of Ms McIntyre’s solicitors, not Ms McIntyre personally;
(d) Ms McIntyre has a strong prima facie case supported by evidence, such as the building notice and the soil engineer’s report;
(e) no material prejudice has been identified by Mr Van Der Sluys;
(f) a fair trial is still possible; and
(g) the remedial nature of the Amendment Act, which has as its object the prevention of disadvantage to parties in the position of Ms McIntyre.
In relation to the relevance of the availability of a potential claim by Ms McIntyre against her solicitors to the question of whether it is fair and reasonable to extend the limitation period, Ms McIntyre referred to the decision of the Court of Appeal in Tsiadis v Patterson,18F[18] where the Court held that, while the possibility that any prejudice to an applicant for an extension of a limitation period could be ameliorated by a recovery action against their solicitors is a relevant factor to take into account, it is not determinative, and the weight to be given to that factor will be different in each case.
[18](2001) 4 VR 114.
In the current case, contrary to the findings of the learned magistrate, there is no admitted negligence on the part of Ms McIntyre’s solicitors. Accordingly, the learned magistrate proceeded on an erroneous assumption. Further, it is apparent from the transcript of the hearing that the learned magistrate had not read, and did not read, the affidavits relevant to the question of whether Ms McIntyre had a good prima facie case, or to the question of prejudice. The learned magistrate focused solely on the issue of delay.
Should the Court determine to exercise the discretion granted under s 57D(1)(c) of the VCAT Act, Ms McIntyre submitted, in summary, as follows:
(a) the object of s 57D of the VCAT Act is to prevent disadvantage to parties where a matter has been excluded from VCAT’s jurisdiction;
(b) Ms McIntyre will be prejudiced if the extension application is not granted, as her claim will be statute-barred;
(c) Mr Van Der Sluys has not identified any material prejudice if the extension application is granted. In response to each of the contentions concerning the prejudice to Mr Van Der Sluys set out in the first Griffin affidavit, Ms McIntyre submitted as follows:
(i)The fact that the defendant will not be able to rely upon a limitation defence should be given little or no weight in circumstances where the whole point of s 57D is to ensure that parties in VCAT are not disadvantaged by the fact that their dispute must be transferred to a court. Put differently, the only reason the respondent may obtain a limitation defence is because VCAT does not have federal jurisdiction (and, in this case, the 10-year limitation period expired before the application was withdrawn by order from VCAT).
(ii)The assertion that the ability to join other parties has been lost is not correct at least in relation to claims for contribution against third parties – see s 24(4)(ii) of the Wrongs Act 1958 (Vic). In addition, the respondent is likely to be able to bring a proportionate liability defence, and no time limit to such a defence applies. On this basis, it is not clear that any prejudice arises on this point.
(iii)No records, allegedly destroyed, have been identified by the respondent. This broad assertion should be given no or little weight – even if records have been destroyed, the respondent does not explain how the (allegedly) destroyed records would assist the defendant.
(iv)The 11-month period between the withdrawal of the claim from VCAT and the institution of the claim in Magistrates’ Court is unlikely to have a material effect on witnesses’ memories in the context where the works were undertaken over 10 years ago in any event. This assertion should be given little weight in circumstances where the works were undertaken over 10 years ago.
(v)No employees who are allegedly no longer employed have been identified by the respondent. This broad assertion about prejudice stemming from employees allegedly no longer employed should be given no or little weight – even if employees have left employment with the respondent, the respondent has not explained how this causes prejudice.
(vi)The 11-month delay in filing the proceeding in the Magistrates’ Court should not materially affect the ability to obtain expert reports, any more so (or not much more so) than filing and serving the initial claim just prior to the expiry of the 10-year limitation period (which is permitted by law). Accordingly, this point should be given little or no weight.
(vii)Mitigation by the appellant of her loss is not a matter that causes or could be said to cause the respondent prejudice. This item is irrelevant and should be ignored.
Accordingly, Ms McIntyre submitted that this Court should set aside the orders made by the learned magistrate, and make an order extending the limitation period under s 57D(1) of the VCAT Act.
In relation to the submission that the learned magistrate failed to give adequate reasons, Ms McIntyre referred to the decision of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd,19F[19] where his Honour stated as follows:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given…20F[20]
(citations omitted).
[19](1987) 10 NSWLR 247.
[20]Ibid 280.
Ms McIntyre accepted that the learned magistrate did not need to give detailed reasons for her decision. However, she submitted that the matters material to determining whether it is fair and reasonable to exercise a discretion must be given at least some consideration. In the present case, the learned magistrate gave no consideration to the matters related to prejudice, and as such, the reasons were inadequate.
In response, Mr Van Der Sluys submitted that, when determining a question of statutory construction, there are limits to the use which may be made of extrinsic materials. Mr Van Der Sluys referred to the decision in Lacey v Attorney-General (Qld),21F[21] where the High Court stated that ‘the minister’s words, however, cannot be substituted for the text of the law, particularly where the minister’s intention, not expressed in the law, affects the liberty of the subject.’22F[22] The High Court made a similar observation in Saeed v Minister for Immigration and Citizenship,23F[23] stating that ‘[s]tatements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.’24F[24]
[21](2011) 242 CLR 573.
[22]Ibid [61].
[23](2010) 241 CLR 252.
[24]Ibid [31].
Mr Van Der Sluys accepted that the purpose of s 57D of the VCAT Act is clear and unambiguous and that Part 3A of the VCAT Act is remedial in nature. However, following the withdrawal of the VCAT proceeding, given that the limitation period had expired, time was then ‘of the essence’ for Ms McIntyre to make the extension application. Ms McIntyre bore the onus of satisfying the Magistrates’ Court that the late making of the extension application was attributable to additional steps she was required to take, and her counsel acknowledged this onus at the November 2023 hearing.
Mr Van Der Sluys submitted that the proper construction of s 57D(1) of the VCAT Act needs to be considered in the context and circumstances of this particular case. In the current case, the VCAT proceeding was issued in the days prior to the expiry of the 10 year limitation period in s 134 of the Building Act, which is a ‘guillotine’ provision. In those circumstances, once the VCAT proceeding had been withdrawn, the solicitors for Ms McIntyre were on notice that they needed to issue the Magistrates’ Court proceeding swiftly. Ms McIntyre’s contention that the proceeding can be brought at any time is in complete disregard of s 134 of the Building Act, and is also inconsistent with the terms of s 57E of the VCAT Act, which requires the Magistrates’ Court to hear and determine any proceeding transferred to it under Part 3A of the VCAT Act as expeditiously as possible.
Mr Van Der Sluys submitted that there was no evidence to explain any additional steps Ms McIntyre was required to take in order to issue the Magistrates’ Court proceeding. The making of an application pursuant to s 57B of the VCAT Act is not an ‘additional step’ within the meaning of s 57D(1)(b): it is a given. Mr Van Der Sluys submitted that Ms McIntyre’s argument that her application would be late ‘regardless of when it was undertaken’ is remarkable, and, taken to its logical extreme, any extension application could be made years later. Such an interpretation would not promote the purpose or object of the Amendment Act.
In relation to the exercise of the learned magistrate’s discretion, Mr Van Der Sluys referred to the authorities regarding when a superior court can interfere with the exercise of a discretion, noting that a mere difference of opinion is insufficient to disturb the exercise of a discretion.
In relation to the specific discretionary factors, Mr Van Der Sluys submitted, in summary, as follows:
(a) the object of s 57D of the VCAT Act is to prevent disadvantage to both parties;
(b) Ms McIntyre ignores the prejudice to Mr Van Der Sluys. The VCAT Act was amended to provide a ‘lifeline’ to applicants where the limitation period has expired. Ms McIntyre has not filed evidence as to the quantum of her alleged claim. Any prejudice to Ms McIntyre was caused by her solicitors and their liability has been established;
(c) the strength of Ms McIntyre’s claim is negligible. No report has been prepared by a structural engineer and no building permit has been obtained for any remedial work. Contrary to the requirements of the building notice, a report was obtained from a geotechnical engineer and this report failed to assess the structural stability of the masonry wall;
(d) there was no material before the Magistrates’ Court in relation to the age and financial position of Ms McIntyre and her husband;
(e) Mr Van Der Sluys has been prejudiced as the limitation period in s 134 of the Building Act has expired, the ability to join other parties has been lost, records have been destroyed, the recollection of witnesses has eroded, some of his employees have left his employ, and the ability to obtain accurate expert reports as to cause and effect has diminished;
(f) the learned magistrate did consider the object of the VCAT Act; and
(g) the learned magistrate considered the affidavit of Timothy Graham affirmed on 29 November 2023 at the November 2023 hearing.
Mr Van Der Sluys submitted that the delay in issuing the Magistrates’ Court proceeding was compounded by the neglectful conduct of the VCAT proceeding. There were no expert reports filed in VCAT compliant form. Notwithstanding the requirements of the building notice, it seems that no structural engineer’s report has been obtained by Ms McIntyre. These matters, along with the fact that many of the defects referred to in the geotechnical engineer’s report relate to works which were not carried out by Mr Van Der Sluys, are also relevant to the merits of Ms McIntyre’s claims. Even if the Magistrates’ Court proceeding got underway now, it would still take about eight months for the parties to obtain expert reports and proceed to mediation. Also relevant to the learned magistrate’s exercise of discretion under s 57D(1)(b) of the VCAT Act was the failure of Ms McIntyre’s solicitors to explain their negligence or neglect.
As for the question of prejudice, the absence of a proper expert report is relevant. Counsel for Mr Van Der Sluys submitted as follows:
Now, let’s assume that there was a proper expert report, there would then be issues of contribution against potentially the architects who didn’t design or failed to put in drainage in the garage floor which seems to be one of the major issues of defect. So we’ve got the architects, potentially the engineers who - so the list goes on and on and on. Now, for those people the prejudice now becomes even more extreme in that if this appeal is allowed, there is no material before the court, Magistrates’ Court. There is no proper expert reports.
The appellant has to start from scratch. It has to obtain a structural engineer’s report. It has to obtain a building expert report as to quantum. Those reports, if one were to start today, would take three to four months. Once they're handed over to the respondent, the respondent would then need another three to four months to reply.
If parties are joined, then they will need an appropriate amount of time for a building which is currently 12 years old. A building where they were on notice, having been served with a building notice. Now, no one knows that's happened to that building notice.
Mr Van Der Sluys submitted that in considering whether the extension application should be granted, and in particular the issue of prejudice, it is necessary to consider the whole of the period since the expiry of the limitation period, not just the 11 month period between the withdrawal of the VCAT proceeding and the issue of the Magistrates’ Court proceeding.
In reply, Ms McIntyre submitted that s 57B of the VCAT Act does not state that ‘time is of the essence’ in making an application under that section and this assertion is not supported by any provision in Part 3A of the VCAT Act. Ms McIntyre repeated that the additional step referred to in s 57D(1)(b) of the VCAT Act was satisfied by the filing of the application under s 57B, and Mr Van Der Sluys’ submission that this application is not an additional step is plainly incorrect. Such a construction of s 57D(1)(b) would completely defeat the purpose of the Amendment Act. To have the justiciable controversy between the parties heard and determined, the making of the application was necessary. The words ‘late making of the application’ in s 57D(1)(b) of the VCAT Act do not invite an assessment of the period of time it took to make the extension application.
Ms McIntyre rejected Mr Van Der Sluys’ characterisation of the amendment to the VCAT Act as providing a lifeline to applicants. The purpose of s 57D, as noted in the Explanatory Memorandum, was to prevent disadvantage to those excluded from VCAT’s jurisdiction after the expiry of any relevant limited period, and to protect parties in the situation of Ms McIntyre.
In relation to Mr Van Der Sluys’ submissions regarding the absence of expert reports and the uncertainties around the quantum of Ms McIntyre’s claim, Ms McIntyre submitted that these considerations are not relevant to the disposition of the appeal.
Ms McIntyre submitted that the submissions made by Mr Van Der Sluys as to the issue of prejudice were speculative, and without an evidentiary foundation. No orders had been made during the VCAT proceeding for the filing and service of expert report before the withdrawal of the VCAT proceeding. What expert evidence is available shows that Ms McIntyre has a ‘strong, non-colourable, prima facie case’.
Ms McIntyre rejected Mr Van Der Sluys’ submission to the effect that the learned magistrate knew the object of the Amendment Act, saying that there was nothing in the evidence to support that proposition.
As for any alleged negligence by Ms McIntyre’s solicitors, Ms McIntyre submitted that her solicitors’ admission of responsibility for the delay in the filing of the Magistrates’ Court proceeding did not amount to an admission of negligence.
During the course of the hearing, I raised with the parties the potential impact of the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore25F[25] (‘GLJ’) and subsequent decisions of the Court of Appeal which considered and applied the Court’s decision in GLJ26F[26] upon the disposition of this appeal. In particular, the submissions of both parties in relation to the learned magistrate’s conclusion under s 57D(1)(c) (if any conclusion was in fact reached) proceeded on the assumption that any appeal from the learned magistrate’s conclusions should be determined in accordance with the principles laid down by the High Court in House v R27F[27] and Norbis v Norbis28F[28] (‘discretionary standard’).
[25](2023) 414 ALR 635.
[26]Ibid. See in particular Connelly v Transport Accident Commission [2024] VSCA 20 and Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 (‘DZY’).
[27](1936) 55 CLR 499.
[28](1986) 161 CLR 513.
Both parties availed themselves of the opportunity to file further written submissions. In her written submissions, Ms McIntyre referred to the following passage of the majority’s reasons in GLJ:29F[29]
The reasoning in House v R applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a “discretion” is “apt to create a legal category of indeterminate reference”, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”. The line separating discretionary decisions (in which appellate review is confined to the House v R standard) and other decisions (in which the “correctness standard” applies) was identified as that between [on the one hand] questions lending “themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions” in which event “it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance”, and [on the other hand] questions: to which there is but one legally permissible answer, even if that answer involves a value judgment.30F[30]
[29](2023) 414 ALR 635.
[30]Ibid [16].
Ms McIntyre submitted that, having regard to the text, context and purpose of s 57D(1) of the VCAT Act, the correctness standard applies, and:
so this court should decide the ‘fair and reasonable’ question for itself without any necessity to consider whether the decision below was ‘plainly wrong’ or reasonably open in the circumstances.
Ms McIntyre relied upon the recent decision of the Court of Appeal in Trustees of the Christian Brothers v DZY31F[31] (‘DZY’) in support of her contention that the correctness standard applies to her Honour’s determination of whether it was fair and reasonable to grant the extension application. In that case, the Court was considering a provision of the Limitations of Actions Act 1958 (Vic) allowing claimants in historic sexual abuse cases to apply to set aside settlement agreements entered into in a different legal landscape, where the Court is ‘satisfied that it is just and reasonable to do so’. In DZY,32F[32] the Court stated as follows:
The legal rule does not describe a range of legally permissible outcomes. It is a rule that leads to binary outcomes. Adopting the language of GLJ, either it is just and reasonable that the parties should not be bound by a previous judgment or settlement, or it is not.33F[33]
[31][2024] VSCA 73.
[32]Ibid.
[33]Ibid [96].
Ms McIntyre submitted as follows:
Given the application of the correctness standard with regard to s 57D(1)(c) of the VCAT Act, question [2] above essentially falls away. If this Court accepts the appellant's construction of s 57D(1)(b), then this Court should move to consider s 57D(1)(c), and the relevant facts and circumstances, which are not in dispute, and answer the question of whether it is fair and reasonable to extend the limitation period. If the answer to that question is “yes”, the appeal will succeed.
Mr Van Der Sluys submitted that, while the matters for determination in s 57D(1)(a) and (b) of the VCAT Act require a “yes or no” answer, and invite an evaluation rather than the exercise of a discretion, s 57D(1)(c) is an example of the kind of decision considered by the High Court in Norbis v Norbis34F[34] (and referred to in GLJ35F[35]) as involving ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’.36F[36] Mr Van Der Sluys submitted that the question of whether it was fair and reasonable to grant the extension application was a matter where there is room for reasonable differences of opinion, and thus the discretionary standard applies.
[34](1986) 161 CLR 513.
[35](2023) 414 ALR 635.
[36]Norbis v Norbis (1986) 161 CLR 513, 518.
In the days prior to the delivery of these reasons, when preparation of these reasons was well advanced, the parties sent through the decision of Garde J in Thurin v Krongold Constructions (Aust) Pty Ltd37F[37] (‘Thurin’) as being relevant to, among other things, the proper construction of s 57D(1)(b) of the VCAT Act. His Honour’s reasons in Thurin38F[38] were delivered on 16 February 2024, that is, after the learned magistrate heard and determined the extension application, but prior to the hearing of this appeal. The judgment was not accompanied by any further submissions, and its relevance to the issues in this appeal will be discussed later in these reasons.
[37][2024] VSC 42.
[38]Ibid.
Consideration
This appeal raises three issues:
(a) whether the learned magistrate erred in concluding that Ms McIntyre did not satisfy the requirements of s 57D(1)(b) of the VCAT Act;
(b) whether the learned magistrate failed to take into account relevant considerations and took into account irrelevant considerations when exercising her discretion under s 57D(1)(c) of the VCAT Act; and
(c) whether the learned magistrate failed to give adequate reasons.
The second and third grounds of appeal set out above can be dealt with quite promptly. Ms McIntyre does not take issue with the fact that her Honour gave ex-tempore reasons, but submitted that the learned magistrate failed to refer to the factors relevant to the exercise of her Honour’s discretion under s 57D(1)(c) of the VCAT Act.
However, it seems that the learned magistrate formed the view that she did not need to consider whether granting the extension application would be ‘just and reasonable’, to which the discretionary factors would be relevant, because she did not consider that Ms McIntyre satisfied the requirements of s 57D(1)(b). Once she had reached that conclusion (rightly or wrongly), it was not necessary for her to consider the matters relevant to s 57D(1)(c), given that each of sub-clauses (a), (b) and (c) are cumulative.
As a corollary, given that she did not consider the matters relevant to s 57D(1)(c) of the VCAT Act, it was not necessary for the learned magistrate to give reasons referring to those matters. It is plain from her Honour’s reasons why she reached the conclusion that she did in relation to whether Ms McIntyre had satisfied the requirements of s 57D(1)(b). Ms McIntyre takes issue with the conclusion her Honour reached in that regard, but her Honour’s reasoning process was transparent.
As for her Honour’s reasons with respect to whether it was fair and reasonable to grant the extension application (s 57D(1)(c) of the VCAT Act) it is tolerably clear from what her Honour said that, if she was wrong about her conclusion with respect to s 57(1)(b), the overwhelming consideration in support of her alternative finding that it would not be fair and reasonable to grant the extension application was the delay in issuing the proceeding in the Magistrates’ Court, and the lack of a proper explanation for the delay. Again, the issue is not the transparency of the reasoning process, but what the reasons disclose.
The critical issue in this appeal is whether the learned magistrate erred in finding that ‘…the late making of the [extension] application is not attributable to the steps the applicant was required to take, it’s attributable to the applicant’s …negligence’.
I agree with Ms McIntyre’s submissions that, having regard to the text, context and purpose of s 57D(1)(b) of the VCAT Act:
…the proper approach is to look at what steps preceded the Magistrates’ Court being seized of jurisdiction in the matter. In that case, that step was the commencement of proceedings in that Court. Then the next step is to ask if the late making of the application was attributable to that step. In this case, it was ‘late’ (in that by that time, the limitation period in s 134 of the Building Act 1993 (had expired).
I agree that the learned magistrate incorrectly conflated the concepts of ‘lateness’ and ‘delay’. Whether a step has been taken ‘late’ is a binary concept. That is, a person may have taken a step prior to a specific time (in the current case, prior to and including the last day of the relevant limitation period), in which case, they would not be ‘late’, or after that time, by which point they would be ‘late’. How late they were in taking the particular step does not alter the fact that, after the relevant deadline had expired, they were, axiomatically, ‘late’. Used in this context, the word ‘late’ is synonymous with the word ‘overdue’, or the phrase ‘out of time’.
Delay, however, is measurable along a continuum. Each day after the relevant deadline has passed is delay. However, what the parties and the learned magistrate were concerned with, and what the learned magistrate based her conclusion upon, was what was arguably unacceptable delay. That this was the issue underpinning her Honour’s finding to the effect that Ms McIntyre had failed to satisfy the requirements of s 57D(1)(b) is highlighted by Mr Van Der Sluys’ submission before the learned magistrate to the effect that it would not have been a problem if Ms McIntyre issued her proceeding in the Magistrates’ Court only a month or two after the proceeding was discontinued in VCAT. That is, Mr Van Der Sluys was aggrieved by the extent and degree to which Ms McIntyre was late in issuing her proceeding in the Magistrates’ Court, not the fact that she was necessarily, by reason of the expiry of the limitation period, ‘late’.
Accordingly, the plain meaning of the word ‘late’ means that the text of s 57D(1)(b) supports a conclusion that the late making of the extension application was attributable to the need to commence the proceeding in the Magistrates’ Court, such as to enliven the court’s jurisdiction to entertain the extension application, because the limitation period had expired while the VCAT proceeding was on foot.
I agree with the submissions advanced by Ms McIntyre to the effect that there is no ambiguity in the text of s 57D(1)(b). However, if there was any such ambiguity, I also agree that the context and purpose of the relevant provisions support the construction of s 57D(1)(b) advanced by Ms McIntyre. While I accept Mr Van Der Sluys’ submissions to the effect that one should not rely too heavily upon extrinsic materials when engaging in the exercise of statutory construction, that submission carries less force in circumstances such as the present, where the Amendment Act was clearly enacted to deal with a very specific, and no doubt pressing problem. The mischief that the Amendment Act was enacted to remedy was the fact that VCAT, being the primary venue for the resolution of domestic building disputes in this State, did not have jurisdiction to determine a significant minority of those disputes if they involved federal subject matter.
Indeed, Ms McIntyre’s claim was a paradigm example of the mischief the Amendment Act was enacted to address, being a routine domestic building dispute which could not be determined by VCAT because Mr Van Der Sluys lives in a town in New South Wales a few kilometres from the Victorian border, and, following the issue of the proceeding in VCAT within time, the limitation period had expired.
It is clear from the scheme of the Amendment Act that the purpose of introducing Part 3A into the VCAT Act was, as stated by the Minister, to prevent disadvantage to people in the position of Ms McIntyre, and to enable them to move their proceedings across to courts with jurisdiction in a relatively seamless manner. Accordingly, while Ms McIntyre faced the hurdle of making an extension application after she commenced the Magistrates’ Court proceeding, one would expect that Parliament had not intended that the hurdle be set very high. One certainly could not, given the purpose of the Amendment Act, read into s 57D(1)(b) words that are not there, such as words to the effect that ‘time is of the essence’, as contended for by Mr Van Der Sluys. It would have been open to Parliament to include a time limit within which parties seeking to transfer their claims from VCAT to the Magistrates’ Court needed to commence the proceeding in the Magistrates’ Court, but it chose not to do so.
I also agree with Ms McIntyre’s submission to the effect that the relevant step for the purposes of s 57D(1)(b) was the bringing of the application under s 57B of the VCAT Act. I agree that in circumstances such as those applicable in the current case, where the limitation period has expired prior to the termination of the VCAT proceeding, an applicant in the position of Ms McIntyre will always meet the requirements of s 57D(1)(b) of the VCAT Act,[39] because the late making of the application is attributable to the step required to have the matter determined in the Magistrates’ Court, being the making of the application under s 57B of the VCAT Act.
[39]The position might be different in the alternative scenario propounded by counsel for Ms McIntyre, such as where the limitation period expired after the discontinuance of a proceeding in VCAT, but before the issue of a proceeding in VCAT. However, that scenario is unlikely to occur now following the enactment of s 77 of the VCAT Act.
My conclusions as set out above have been reinforced since becoming aware of the decision of Garde J in Thurin.40F[40] In that case, his Honour was also concerned with a domestic building dispute, where a proceeding had been commenced in VCAT, but following the attempted joinder of a further defendant and a third party, which would have the consequence of invoking federal jurisdiction, the proceeding was referred to this Court pursuant to s 77(3) of the VCAT Act.
[40][2024] VSC 42.
In Thurin,[41] Garde J considered a provision of the VCAT Act which was also enacted in response to appellate decisions working through the consequences of the earlier decisions which held that VCAT had no jurisdiction to adjudicate disputes involving federal subject matter. The decision in Thurin[42] followed two Court of Appeal decisions involving the same parties (‘Court of Appeal decisions’), who were parties to a proceeding concerning a major domestic building dispute in VCAT in 2018 (‘original VCAT proceeding’).[43] The jurisdictional issue arose after both the applicant and respondent sought to join as respondents and/or third parties certain entities whose involvement in the proceeding would cause the original VCAT proceeding to involve federal subject matter.
[41]Ibid.
[42]Ibid.
[43]Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187; Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191.
(d) the actual or potential prejudice to either party of granting or dismissing the extension application;
(e) the merits of the substantive claims and defences in the proceeding; and
(f) the availability of alternative remedies against third parties, including, in the current case, Ms McIntyre’s solicitors.
The transcript of the hearing of the extension application shows that the learned magistrate did not take into account the following relevant matters: the purpose of the Amendment Act, the potential prejudice to Ms McIntyre by the dismissal of the extension application (or for that matter, any prejudice to Mr Van Der Sluys should the extension application be granted), any pre-proceeding delay attributable to Mr Van Der Sluys, or the merits of Ms McIntyre’s claim against Mr Van Der Sluys. These are all relevant matters, and in my view, there is a real prospect that the learned magistrate’s decision may have been different had she considered those matters.
The learned magistrate said during the course of the hearing that she had not read the affidavits prior to the commencement of the hearing, and that she was only interested in the evidence regarding delay.[61] Given the learned magistrate’s finding that Ms McIntyre had not fulfilled the requirements of s 57D(1)(b) of the VCAT Act by reason of her (erroneous) conclusion regarding the reason why Ms McIntyre’s application was ‘late’, this lack of consideration was understandable, but, by failing to take into account a number of relevant considerations, including the object of the Amendment Act and issues concerning prejudice, and proceeding on the erroneous assumption that Ms McIntyre’s solicitors had admitted liability for negligence, her Honour erred in law.
[61]Counsel for Mr Van Der Sluys submitted that the learned magistrate had reviewed the affidavit of Mr Graham (see paragraph 34 of these reasons) at the November 2023 hearing, but Mr Graham’s affidavit did not advance any evidence relevant to the delay or the question of prejudice.
Disposition
Accordingly, the appeal will be allowed. The question which remains is whether I should simply set aside the orders made by the learned magistrate dismissing the extension application, and remit the question of whether it is fair and reasonable to grant the extension application back to the Magistrates’ Court, or to make my own decision in substitution for the orders made by the Magistrates’ Court.
Section 109(6) of the Magistrates’ Court Act 1989 (Vic) provides that this Court ‘…may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law’.
I consider that, in the current case, I should finally determine the question of whether to grant the extension application on the basis of the evidence currently before the Court. Delay is a relevant matter in this proceeding, and further delay should be avoided. If the extension application was to be remitted to the Magistrates’ Court, there may be argument about whether the parties should be permitted to adduce further evidence. I am in no worse position than the Magistrates’ Court to determine the matter: indeed, I have had the benefit of extensive argument on the question of whether it is fair and reasonable to grant the extension application during the course of the hearing of the appeal.
The relevant matters are set out in paragraph 118 of these reasons, and will be considered in turn below.
Turning first to the purpose of the Amendment Act, I repeat the observations I have made regarding the context and purpose of the Amendment Act in paragraphs 91 to 93 of these reasons. I agree that s 57D(1)(c) should be construed beneficially. While I accept that Ms McIntyre bears the onus of establishing that it would be fair and reasonable to grant the extension application, I repeat my earlier observation that Parliament does not seem to have intended that the bar be set particularly high.
That conclusion is consistent with the observations of Garde J in Thurin[62] regarding the purpose of the legislation enacting s 77 of the VCAT Act, particularly in the context of the mischief that the legislation was intended to remedy, in particular, the observations reproduced at paragraph 104 of these reasons.
[62][2024] VSC 42.
In Thurin,[63] Casper made the following submissions in support of its contention that it would not be fair and reasonable to grant an extension of time:
[63]Ibid.
(a) the proposed proceeding is well out of time.
(b)the Thurins have not acted with dispatch to bring a proceeding against Casper;
(c)the onus of showing that it is fair and reasonable to extend time is on the Thurins; an
(d)where a trial is conducted long after the events which gave rise to the dispute, the risk to justice becomes greater.
Casper’s main points were:
(a)it is almost 15 years since a certificate of occupancy was issued concerning the Thurins’ residence;
(b)the failure of the pipework occurred in 2012 and 2015 which were four and seven years after the certificate of occupancy was issued;
(c)the Thurins issued court proceedings in October 2017 against Swan Hardware;
(d)the Thurins did not issue proceedings against Krongold until 22 May 2018
(e)Krongold raised the alleged contribution of Swan Hardware and Casper in their points of defence;
(f)the Thurins did not progress the VCAT proceeding against Casper after the joinder order in August 2018 but progressed claims against Krongold to enforce an expert determination; and
(g) no explanation for the Thurins’ delay has been given.[64]
[64]Ibid [105]-[106].
His Honour concluded as follows:
I am satisfied that it is fair and reasonable to extend the time for the Thurins to claim against Casper under s 77(4)(c) in this proceeding for the following reasons:
(a)the parties (including Casper) are well prepared for trial with expert reports and witness statements prepared and filed;
(b)expert witness conclaves have been conducted and tender bundles collected and prepared for trial;
(c)Casper fully and actively participated in the VCAT and court proceedings;
(d) Casper is a necessary and proper party to the court proceeding;
(e)the jurisdictional challenges and resulting delays that have occurred are not the fault of any party;
(f)VCAT is the jurisdiction principally responsible for the resolution of domestic building disputes.45 It is not surprising that the Thurins made their claim in VCAT;
(g)while time has passed, Casper has not shown that it has suffered any particular prejudice as a consequence of delay;
(h)the Thurins have acted promptly in bringing the application for an extension of the limitation period and the joinder of Casper since the VCAT proceeding was struck out and the Amendment Act commenced; and
(i)it is highly desirable and in the interests of justice that those parties against whom claims are made by other parties remain involved in the dispute.[65]
[65]Ibid [108].
While the question of whether it is fair and reasonable to grant an extension of time will vary according to the context and circumstances of the particular case, there are some useful comparisons that can be made between the current case and the situation in Thurin:[66]
[66]Ibid. I note that the hearing before Garde J was held two days after the learned magistrate heard and determined the extension application, such that the relevant timeframes are directly comparable.
(a) in Thurin, the relevant works were carried out in 2007 and 2008, while in the current case, the relevant works were carried out in 2011;
(b) the Thurins issued the original VCAT proceeding (against one party only) some five years and two years after the relevant alleged defects were discovered. In the current case, the VCAT proceeding was issued some two years after the discovery of the defects;
(c) in Thurin, the certificate of occupancy was issued in 2008, in the current case, the certificate of occupancy was issued in 2012;
(d) the original VCAT proceeding in Thurin was well advanced, with expert reports and witness statements having been filed, and expert witness conclaves concluded. In the current case, the Magistrates’ Court proceeding is still at a relatively early stage; and
(e) in Thurin, Garde J concluded that ‘the jurisdictional challenges and resulting delays… are not the fault of any party’,[67] while in the current case, the responsibility for the delay between the withdrawal of the VCAT proceeding and the issue of the Magistrates’ Court proceeding has been accepted by Ms McIntyre’s solicitors.
[67]Ibid.
Accordingly, to the extent that it is necessary and/or appropriate to make comparisons between the facts and circumstances of the current case and those in Thurin,[68] I note that the works carried out in Thurin predated the works in the current case by some three to four years, and the period of pre-proceeding delay in Thurin was arguably greater than in the current case.
[68]Ibid.
On the other hand, the original VCAT proceeding in Thurin[69] was more advanced than in the current case, and Garde J made no finding that attributed fault to any party for any delay.
[69]Ibid.
Turning now to the disposition of the extension application in this proceeding, as for the length of the delay in issuing the Magistrates’ Court proceeding, and the explanation for the delay, I accept that the length of the delay between the withdrawal of the VCAT proceeding and the commencement of the Magistrates’ Court proceeding, being over 11 months, tells against granting the extension application. This is so particularly given that the VCAT proceeding was issued shortly before the expiry of the 10 year limitation period, although I accept that an explanation has been provided for the delay between the discovery of the alleged defects in January 2020 and the issue of the VCAT proceeding in January 2022. That explanation has not been directly contradicted by Mr Van Der Sluys.
I also accept that the explanation provided by Ms McIntyre’s solicitors regarding the reasons for the delay was scant, to say the least. However, it is clear from the evidence that the fault for the delay cannot be attributable to Ms McIntyre personally. And, while there was a suggestion in the evidence that Mr Van Der Sluys bore some responsibility for the delay leading up to the issue of the VCAT proceeding, he could not be held in any way responsible for the delay in issuing the Magistrates’ Court proceeding.
Overall, the somewhat inadequate explanation for the delay is a neutral factor when determining whether it is fair and reasonable to grant the extension application. Further, the length of the relevant delay, being 11 months, represents less than 10 percent of the limitation period prescribed by Parliament in the Building Act.
As for the question of prejudice, the prejudice to Ms McIntyre of dismissing the extension application is clear: she will have lost the opportunity to pursue her claims in relation to the alleged defects at her property. That she may also have an opportunity to ameliorate that prejudice by making a claim against her solicitors is also a relevant matter, which will be discussed further later in these reasons. While there is an assertion in the evidence that rectifying the defects will cause Ms McIntyre financial hardship, there is no detailed evidence concerning her financial position. However, I consider that it is reasonable to infer that most homeowners would find the requirement to spend in the order of $80,000 on rectification works burdensome.
As for the prejudice to Mr Van Der Sluys, I largely agree with the submissions of Ms McIntyre that the prejudice to Mr Van Der Sluys by reason of the delay between the termination of the VCAT proceeding and the commencement of the Magistrates’ Court proceeding is more illusory than real. I can accept as a general proposition that Mr Van Der Sluys is prejudiced by being exposed to a claim in respect of a property where the certificate of occupancy was granted over 12 years ago, particularly in circumstances where the claim itself seems somewhat lacking in particularity, at least based upon the evidence before me.
However, the evidence establishes that Mr Van Der Sluys has been on notice of Ms McIntyre’s claim since 2020. While it is not entirely (or at all) clear from the evidence as to what level of engagement the parties had in the conciliation process referred to in the evidence, there must have been some level of engagement. The VCAT proceeding was on foot for more than six months before it was withdrawn. While the inaction of Ms McIntyre’s solicitors after the termination of the VCAT proceeding must have offered Mr Van Der Sluys some hope that the claim would go away, there was no real basis for assuming that it would go away. This is not a case where Mr Van Der Sluys learnt, for the first time, in July 2023, that Ms McIntyres’s claim was on foot. He has had ample opportunity to contact insurers, contractors and former employees, and to consider whether to bring contribution proceedings against third parties, at least up until a few weeks ago, given that the Magistrates’ Court proceeding was on foot for six months prior to the hearing and determination of the extension application. That Mr Van Der Sluys chose not to identify and join third parties in the twelve month period following the issue of the Magistrates’ Court proceeding is a matter which was totally within his control.
In any event, while I have not had the benefit of full argument on the matter, and the relevant chronology of events is somewhat different, it seems to me that the decision of Garde J in Thurin[70] opens up at least the possibility that Mr Van Der Sluys could seek an extension of time to bring contribution claims against third parties. And, I agree with the observation made by counsel to the effect that there does not appear to be any time limit upon the joinder of defendants for the purposes of asserting a defence under the proportionate liability scheme, which may ameliorate any prejudice to Mr Van Der Sluys.
[70][2024] VSC 42.
As for the merits of Ms McIntyre’s claim, based upon the limited evidence available, it is difficult to conclude other than that Ms McIntyre has a prima facie claim to which Mr Van Der Sluys may well have bona fide defences. The existence of a prima facie claim is a factor weighing in favour of granting the extension application, although the lack of particularity in the points of claim and the relative paucity of expert evidence does lessen the weight of this factor. However, the fact that the proceeding will largely be decided upon expert evidence lessens the likelihood that the passage of time will compromise a fair trial.
Finally, the decision of the Court of Appeal in Tsiadis v Patterson50F[71] makes it clear that, while the potential for a party seeking an extension of a limitation period to bring a claim against their solicitors is a relevant consideration in determining whether to grant an extension of time, it is not determinative.
[71](2001) 4 VR 114.
It is not necessary for me, for the purpose of determining whether it is just and reasonable to extend time, to reach a concluded view as to whether Ms McIntyre’s solicitors acted negligently. There are, of course, grounds for reaching such a conclusion, given the almost certain existence of a duty of care owed by Ms McIntyre, the admissions made by the solicitors regarding the cause of the delay in bringing the Magistrates’ Court proceeding, and the likelihood that Ms McIntyre will suffer damage if the extension application is not granted on the grounds of the delay in bringing the Magistrates’ Court proceeding.
However, I could not be satisfied that the availability of a potential remedy against her solicitors would put Ms McIntyre in as advantageous a position as if she were to be permitted to proceed with her claims against Mr Van Der Sluys. Here, the observations made by Buchanan JA in Tsiadis v Patterson51F[72] are apposite:
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd. v. Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.52F[73]
[72]Ibid.
[73]Ibid [28].
These remarks are particularly pertinent in circumstances where, if the extension application is not granted, Ms McIntyre will lose the opportunity to pursue her claims against Mr Van Der Sluys in a low cost jurisdiction, and would be forced to bring her claim against her solicitors in another jurisdiction, with potentially adverse cost consequences, and a lesser prospect of making a full recovery, given that, even if she was successful in any professional negligence claim, any recovery from her solicitors would need to be discounted to reflect the chance that she may not have been successful in her claim against Mr Van Der Sluys.
Accordingly, while the value of a potential claim against Ms McIntyre’s solicitors is a relevant factor to take into account, it is not determinative.
On balance, the relevant factors weigh in favour of the grant of the extension application. Ms McIntyre has, at least on its face, a bona fide claim against Mr Van Der Sluys. The delay between the termination of the VCAT proceeding and the commencement of the Magistrates’ Court proceeding is not her fault. The prejudice suffered by Mr Van Der Sluys as a consequence of the period of relevant delay is more illusory than real, given that he has been on notice regarding Ms McIntyre’s claim since 2020, and there is little probative evidence to support a conclusion that there cannot be a fair trial. In contrast, the prejudice to Ms McIntyre is material, and would not necessarily be fully ameliorated by pursuing a claim against her solicitors. Finally, and importantly, it is clear that the purpose of the Amendment Act was to facilitate the relatively smooth transfer of claims involving federal subject matter from VCAT to the Magistrates’ Court, and to avoid undue disadvantage to claimants in the position of Ms McIntyre.
Accordingly, I propose to make the following orders:
1. The appeal is allowed.
2. Paragraphs 1 and 2 of the orders made on 22 January 2024 in the Magistrates’ Court (proceeding number P11630743) be set aside.
3. The application for an extension of a limitation period made by the appellant [applicant] in the Magistrates Court of Victoria (proceeding number P11630743) under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is granted.
I shall seek further submissions from the parties on the question of costs in due course.
0
13
0