Nettleton v Vero Insurance Limited
[2008] VSC 554
•8 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6962 of 2008
| SUE NETTLETON | Plaintiff |
| v | |
| VERO INSURANCE LIMITED and THE COUNTY COURT | Defendants |
---
JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2008 | |
DATE OF JUDGMENT: | 8 December 2008 | |
CASE MAY BE CITED AS: | Nettleton v Vero Insurance Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 554 | |
---
ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Error of law on the face of the record – Judicial review as alternative to appeal.
STATUTORY INTERPRETATION – Domestic building dispute – Meaning of “arising between” – Domestic Building Contracts Act 1995, ss 53, 54, 57 and 59A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Andrew | Noble Lawyers |
| For the First Defendant | Mr D. Klempfner | Rodriguez Lawyers |
| For the Second Defendant | No appearance |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
The relevant provisions of the Act................................................................................................. 3
Is the plaintiff’s claim a domestic building dispute?................................................................. 5
Does the County Court proceeding arise wholly or predominantly from a domestic building dispute?................................................................................................................................................ 9
Error of law on the face of the record........................................................................................... 11
Was there jurisdictional error?...................................................................................................... 12
The discretionary consideration.................................................................................................... 12
Conclusion......................................................................................................................................... 15
HIS HONOUR:
Introduction
On 23 November 2000, Vero Insurance Limited, the first defendant, issued a policy of domestic builder’s warranty insurance in respect of building works to be carried out by Falcon Court Developments Pty Ltd at Lot 83 Valepark Drive, Donvale. The builder performed the works to the point where an occupancy permit was issued. Subsequently, Mrs Sue Nettleton, the plaintiff, purchased the property. On 21 April 2005, she made a claim under the policy alleging that the building works that had been performed were defective. This claim was not resolved to the satisfaction of Mrs Nettleton and, on 23 January 2008, she commenced a proceeding in the County Court against Vero seeking damages; alternatively, indemnity under the policy.
On 22 April 2008, Vero issued a summons in the County Court proceeding seeking that the proceeding be stayed in accordance with s 57(2) of the Domestic Building Contracts Act 1995 (“the Act”). The summons came on for hearing before a judge of the County Court on 11 June 2008 and judgment in favour of Vero staying the proceeding was given on 17 June. In this proceeding, the plaintiff seeks to quash the decision staying the County Court proceeding. She contends that in staying the proceeding under s 57(2) of the Act, the County Court fell into jurisdictional error and/or committed an error of law on the face of the record.[1] The issues that arise in this case are:
(a) whether the County Court committed an error of law on the face of the record and/or a jurisdictional error (which issues involve the interpretation and proper construction of ss 54 and 57 of the Act); and
(b) if an error of law or jurisdictional error was committed, then whether the plaintiff should be denied relief on discretionary grounds (specifically on the basis that there was an avenue of appeal open to the plaintiff which it is said she should have exercised).
[1]Whilst the originating motion only refers to jurisdictional error, the trial of this proceeding was conducted on the basis that the plaintiff also contended that the error identified by her as a jurisdictional error also constituted an error of law on the face of the record.
The County Court, the second defendant, did not participate in this proceeding. It took a Hardiman approach.[2] For the reasons given below, there will be judgment for the plaintiff and the decision of the County Court made on 17 June 2008 will be quashed.
[2]R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
The relevant provisions of the Act
Sections 53, 54 and 57 of the Act are found in Sub-division 1 of Division 2 of Part 5 of the Act. Section 53 of the Act empowers the Victorian Civil and Administrative Tribunal (“the Tribunal”) to make any order it considers fair to resolve a domestic building dispute. The expression “domestic building dispute” is defined in s 54 of the Act. Section 54 of the Act provides:
“54. What is a domestic building dispute?
(1) A "domestic building dispute" is a dispute or claim arising—
(a) between a building owner and—
(i) a builder; or
(ii) a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an architect—
in relation to a domestic building contract or the carrying out of domestic building work; or
(b) between a builder and—
(i) another builder; or
(ii) a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an insurer—
in relation to a domestic building contract or the carrying out of domestic building work; or
(c) between a building owner or a builder and—
(i) an architect; or
(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson—
in relation to any design work carried out by the architect or building practitioner in respect of domestic building work.
(2) For the purposes of sub-section (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury.
(3) A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out.”
Section 57 of the Act is the section under which the County Court stayed the plaintiff’s proceeding. Section 57 relevantly provides:
“57. Tribunal to be chiefly responsible for resolving domestic building disputes
(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.
(2) The Court must stay any such action on the application of a party to the action if-
(a) the action could be heard by the Tribunal under this Subdivision; and
(b) the Court has not heard any oral evidence concerning the dispute itself.
(3) …
(4) …
(5) …
(6) …”
Section 59A of the Act is found in Sub-division 2 of Division 2 of Part 5 of the Act. Section 59A provides:
“59A. Disputes concerning insurance claims
(1) The Tribunal has jurisdiction to hear and determine any dispute concerning an insurance claim concerning domestic building work or an insurer's decision on such a claim.
(2) The Tribunal may make any order it considers fair to resolve a dispute referred to in subsection (1).
(3) The Tribunal may hear and determine a dispute under this section on the application of-
(a) a party to the dispute; or
(b) the Director acting on behalf of one or more building owners who are parties to the dispute.”
The expression “insurance claim” is not defined in the Act.[3] Further, there is no equivalent of s 57 in Sub-division 2 entitling a party to ask for a stay if an action could have been heard by the Tribunal under Sub-division 2.[4]
[3]Although the term “insurer” is defined in s 3(1) of the Act.
[4]Cf s 57(2)(a) and the reference to Sub-division 1 therein.
Is the plaintiff’s claim a domestic building dispute?
Central to the resolution of this proceeding is the question of whether the plaintiff’s claim is a domestic building dispute. Vero contends that it is and the plaintiff contends that it is not. It is common ground between the parties that the plaintiff is a “building owner” within the meaning of s 54 of the Act.[5] Further, it is common ground that Vero is an insurer within the meaning of s 54. Neither party occupies any other capacity (builder, building practitioner, sub-contractor or architect). On a literal reading of s 54(1), the plaintiff’s claim is not a domestic building dispute. The dispute she has with Vero is a dispute between a building owner and an insurer. This relationship is not mentioned in any of the paragraphs of s 54(1).
[5]See s 54(3).
The County Court, following a submission made by counsel for Vero, relied upon the High Court’s decision in Dickinson v Motor Vehicle Insurance Trust[6] to give the word “arising” in s 54(1) a “wider meaning”[7] so as to categorise the plaintiff’s claim as a dispute between a building owner and a builder. Dickinson is but one of a long list of cases in a line of authority going back to The Government Insurance Office of New South Wales v King[8] and Government Insurance Office of NSW v R.J. Green & Lloyd Pty Ltd[9] concerning the meaning of “caused by or arising out of the use of a motor vehicle” and cognate expressions. Those authorities concern the interpretation of expressions containing the word “arising” in the context of compulsory third party motor vehicle insurance schemes and comprehensive no fault benefits schemes for victims of motor car accidents.
[6](1987) 163 CLR 500.
[7]See the judgment below at paragraph [17].
[8](1960) 104 CLR 93.
[9](1966) 114 CLR 437.
There is a large number of cases dealing with the interpretation and proper construction of expressions containing the word “arising”. For example, there are the authorities in the line of authority referred to above. Further, there are authorities dealing with the expressions “arising from”, “arising in relation to”, “arising under” and “arising in respect of”. There is no obvious reason why one would choose, to the exclusion of others, the authorities that deal with the expression “arising out of” in the limited context of third party motor vehicle insurance and compensation. The context of those cases is very different from the present context. There is no authority that suggests that the word “arising”, when used across the variety of possible contexts, universally has a wide[10] meaning. For example, as Tadgell J said in Exford Pines v Vlado’s:[11]
“[I]t is relevant to notice that several influential decisions contain dicta indicating that the concept expressed in the words ‘a dispute arising under the contract’ tends to be regarded as a narrower concept than that expressed, for example, in the words ‘a dispute arising in connection with’ (or ‘in relation to’ or ‘arising out of’) the contract.”
[10]Or, to use the words of the judgment below, a “wider” meaning.
[11][1992] 2 VR 449 at 452.
Similarly, very little assistance can be derived from the arbitration clause cases, of which Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc[12] is one. Whilst in those cases, the expressions in arbitration clauses containing the word “arising” (in the Hi-Fert case the expression was “arising from”) have been given wide meanings – equivalent to “arising out of” or “arising in connection with”, it is the context in which the expression is found which gives it its meaning. For example, to use the words of Tamberlin J in Hi-Fert[13]:
“Consistently with the authorities…, particularly Francis Travel, it is clear that the current thrust of authority favours the adoption of a broad interpretation of arbitration clauses such as the present. The Courts favour a one-stop adjudication of all disputes if this can be accommodated consistently with the language of the clause. The difficulties with a fragmented approach are manifest in the …authorities.
In my view, the words ‘arising from’ in the present case, should be construed to convey a meaning equivalent to the expression ‘arising out of’ or ‘arising in connection with’.”
The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.[14]
[12](1996) 71 FCR 172.
[13]At FCR 181.
[14]Per Brennan CJ and Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112;Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2, [69] – [71] and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 280 [11].
In O’Grady v Northern Queensland Co Limited,[15] the High Court had to consider s 80 of the Mining Act 1968 (Qld). Section 80(1) relevantly provided:
[15](1990) 169 CLR 356.
“(1) … a Wardens Court shall have jurisdiction to hear and to determine all actions, suits and proceedings arising in relation to mining or to any mining tenement. Without limiting the generality of the foregoing jurisdiction of a Wardens Court such a court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to the following matters:
…
(g) any matter arising between miners in relation to mining …
…”
Whilst the High Court did not deal explicitly with the meaning of the expression “arising between” in paragraph (g), it did deal with the meaning of the word “arising” in the phrase “arising in relation to”. Toohey and Gaudron JJ (with whom Dawson J agreed) said:[16]
[16]At CLR 373.
“The word ‘arising’ is commonly found in statutes; a glance at any legal dictionary will show that to be the case. Naturally, the word takes its meaning from the context in which it appears. Its significance in s 80(1), we think, is to point up the need for an issue to presently exist in relation to mining or a mining tenement in order to attract the jurisdiction of a Wardens Court.”
A little further on in Their Honours’ judgment they said:[17]
“[J]urisidiction is not conferred on a Wardens Court by the opening words of s 80(1) unless there is a matter which in truth has arisen in relation to mining or a mining tenement and which does not present some merely remote or hypothetical question for the court to determine. Although ‘in relation to’ is an expression of broad import, in context with ‘arising’ it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion.”
[17]At CLR 374.
As was noted by Toohey and Gaudron JJ, the word “arising” is commonly found in statutes. Indeed, the expression “arising between” is a relatively common one in statutes and other significant documents. During the course of argument, I was taken to various documents containing the expression, including Article 103 of the Treaty of Versailles, Article VII of the General Treaty on Arbitration between Chile and Argentina, Article 11 of the Treaty of Peace between the Republic of China and Japan, s 9(1) of the Local Government Act 1989, s 13.01 of a Standard form building works contract, Article 9 of a Treaty between Nepal and India concerning the integrated development of the Mahakali River, a council regulation between members of the International Association of Conference Interpreters and a standard form mediation clause proffered by a body named ADR Group. Notwithstanding the wide use of the expression “arising between”, there is very little authority that assists in its interpretation. In Downey v Trans Waste Pty Ltd,[18] Dawson J looked at the question whether a dispute “arising between an employer and one or more of his employees” included a dispute between an employer and a former employee (that is, one who had been sacked). His Honour concluded that the language of the relevant provision encompassed dealing with disputes which involved dismissal and therefore a dispute between an employer and an employee had to encompass disputes between employers and former employees (that is, those who had been dismissed).[19] All that this decision shows is that context is important. The decision provides no support for Vero. Similarly, such other authorities as there are that have dealt with statutory provisions containing the words “arising between“ do not provide any support for a “wider” interpretation to be given to the provision because it contains the word “arising”.[20] In the end, one is left with the approach taken by the High Court in O’Grady (supra).
[18](1990) 172 CLR 167.
[19]See CLR p.179.
[20]See for example Slonim v Fellows (1984) 154 CLR 505; Norths Limited v McCaughan Dyson Capel Cure Limited (1988) 12 ACLR 739; Zeus & Ra Pty Ltd v Nicolaou (2003) 6 VR 606 and World Rentals & Sales v Volvo Construction Equipment Rents Inc 517 F.3d 1240 (11th Circuit 2008). If anything, the last case is positively against Vero’s submissions. In that case, the words “arising between” appeared in an arbitration clause (“arising between Franchisee and Franchisor”). The United States Court of Appeals 11th Circuit held (at p.1246) that “the applicable arbitration clause unambiguously limit[ed] its reach only to disputes between … [the identified parties]”.
Vero accepts that if the word “arising” was deleted from s 54(1), then its dispute with the plaintiff would not be a domestic building dispute. It contends that the insertion of the word “arising” gives s 54(1) a wider operation to encompass the present dispute as a dispute arising between a building owner and a builder. It also contends that if its construction of s 54(1) is not accepted, then no meaning is given to the word “arising”. This, it concludes, would be contrary to well-recognised authority to the effect that a court must strive to give meaning to every word of a statutory provision.[21] Against this, it must be said that, had the Parliament intended to define as a domestic building dispute a dispute between a building owner and an insurer, it would have been a simple matter to insert “(v) an insurer” in s 54(1)(a). This was the course that was taken by Parliament in s 54(1)(b)(iv) when it defined a domestic building dispute to be constituted by a dispute between a builder and an insurer.
[21]See for example Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] and Williams v Oataway (2005) 11 VR 529 at paragraphs [18] – [20].
The fallacy in Vero’s argument is that the word “arising” is given no meaning in s 54(1) unless it is given the “wider” meaning referred to in paragraph [17] of the judgment below. The word “arising” in s 54(1) should be given its ordinary English meaning. That is, it is synonymous with “coming into existence”, “occurring” or “originating”. The fact that the Parliament has used two words when one might have done (albeit less elegantly) is not to the point. The intention of Parliament is clear. Had Parliament intended to include within the ambit of a domestic building dispute a dispute between a building owner and an insurer, it could have so provided in express terms. It follows that the plaintiff’s claim against Vero is not a domestic building dispute.
Does the County Court proceeding arise wholly or predominantly from a domestic building dispute?
In order to be entitled to a stay under s 57(2) of the Act, Vero must establish:
(a) The County Court proceeding arises wholly or predominantly from a domestic building dispute;
(b) the County Court proceeding could be heard by the Tribunal under Sub-division 1 of Division 2 of Part 5 of the Act; and
(c) the County Court has not heard any oral evidence concerning the dispute.
There is no dispute concerning the third requirement. The County Court has not heard any oral evidence. The question is whether the County Court proceeding arises wholly or predominantly from a domestic building dispute and whether the proceeding could be heard by the Tribunal under Sub-division 1.
Vero’s principal argument was that the dispute between it and the plaintiff is a domestic building dispute. I have found against Vero on this issue. Vero’s next submission is that the County Court proceeding arises wholly or predominantly from a domestic building dispute, being a dispute between the plaintiff and the builder, Falcon Court Developments Pty Ltd. In support of this submission, Vero relies upon paragraphs 3, 4, 6, 7 and 8 of the statement of claim in the County Court proceeding. If one looked at s 57(1) in isolation, the point is arguable. However, s 57(2) provides that a stay can only be ordered if the proceeding could be heard by the Tribunal under Sub-division one. The section in Sub-division one which gives the Tribunal jurisdiction is s 53(1). That section provides that the Tribunal may make orders “to resolve a domestic building dispute”. That is, to resolve a domestic building dispute as defined by s 54. The dispute between the plaintiff and Vero is not a domestic building dispute. Therefore, any proceeding in relation to the dispute is not one that can be heard by the Tribunal under Sub-division one. In fact, any such proceeding is one that can be heard by the Tribunal under Sub-division 2.[22] It follows that the County Court was wrong to stay the plaintiff’s proceeding. The requirements of s 57(2)(a) were not met. Further, construing s 57(1) in the context of the balance of s 57 (and more particularly in the light of s 57(2)), the County Court proceeding was not one that arose wholly or predominantly from a domestic building dispute. It arose wholly or predominantly from a dispute between a building owner and an insurer.
[22]See s 59A.
In further support of its arguments, Vero relied upon a passage in the Attorney-General’s Second Reading Speech in relation to s 57. The Attorney-General said:
“The public policy rationale for [s 57] is the intention to provide a single, inexpensive, time efficient and expert forum for the resolution of domestic building disputes. Domestic building disputes are a special category of dispute where timeliness of resolution is critical, and where less formal proceedings are more likely to reach the heart of the matter than the full panoply of the law. Therefore, a party to the dispute should be able to have the option of taking advantage of the benefits offered by the tribunal if a matter is brought before the courts for resolution.”[23]
The difficulty for Vero in relying on this passage is that the passage presupposes the existence of a “domestic building dispute”. The dispute between Vero and the plaintiff is (as I have already found) not a domestic building dispute. In any event, it is the words of the statute (ss 54 and 57) that have paramount significance, not the non-statutory words of a Second Reading Speech.[24] The existence of the statement set out above in the Second Reading Speech does not alter the proper construction of s 57 in the context of the Act as a whole. The requirements that the proceeding arise wholly or predominantly from a domestic building dispute and that the proceeding could be heard by the Tribunal under Sub-division 1 were not met.
[23]Cf Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217.
[24]See Stingel v Clark (2006) 226 CLR 442 at 458 [26] per Gleeson CJ, Callanan, Heydon and Crennan JJ and Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ.
Error of law on the face of the record
The reasons for judgment of the County Court are incorporated in the record.[25] It follows that, for the reasons given above, the County Court’s construction and application of ss 54 and 57 of the Act constituted an error of law on the face of the record.
[25]See s 10 of the Administrative Law Act 1978 and Thompson v His Honour Judge Byrne [1998] 2 VR 274 at 280 and Palmer Tube Mills v Semi [1998] 4 VR 439 at 452.
Was there jurisdictional error?
The law as to what constitutes jurisdictional error in relation to an inferior court is set out in Craig v South Australia.[26] The relevant passage in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ is well known. It does not need to be set out here. The error of law committed by the County Court caused the primary judge to decline to exercise the jurisdiction which the Court had to hear and determine the plaintiff’s claim against Vero. This constituted a jurisdictional error amenable to correction by judicial review.[27]
[26](1995) 184 CLR 163 at 176 – 180.
[27]See Atlas v DPP (2001) 3 VR 211 at paragraph [71].
The discretionary consideration
Vero contends that even if an error of law on the face of the record or a jurisdictional error has been committed, the plaintiff should be denied relief on discretionary grounds. The substance of Vero’s argument is that the plaintiff had a right of appeal under s 74 of the County Court Act 1958 and should have exercised that right rather than seeking judicial review. The principal authority relied upon by Vero is the Court of Appeal’s decision in Kuek v Victoria Legal Aid[28]. In that case a solicitor had brought complaints against Victoria Legal Aid alleging that he was contractually entitled to amounts greater than those he had actually been paid. The complaints were dismissed. By an Originating Motion the solicitor sought leave from a Master under s 109(4) of the Magistrates’ Court Act 1989 to appeal out of time against the dismissal of the complaints. In the alternative, he also sought judicial review on the basis of an alleged error of law on the face of the record. Warren J (as her Honour then was) dismissed the Order 56 application. Her Honour found that none of the grounds relied upon were made out. Her Honour then considered s 109 of the Magistrates’ Court Act and determined that in any event, in the alternative, she would decline to exercise the discretion sought by the solicitor.
[28](2001) 3VR 289.
On appeal, the Court of Appeal said[29]:
“[T]his court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 – or at all events may not raise with any real chance of success – a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s 109. In other words, if the proper course is an appeal under s. 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means of appealing from the decision of a Magistrate…”
[29]At paragraph [16].
A difference between the present case and Kuek is that in Kuek the plaintiff had a right of appeal (albeit a right limited to a question of law). In the present case the plaintiff does not have a right of appeal. The decision staying the County Court proceeding was interlocutory[30]. Section 74(2D) of the County Court Act provides that an appeal does not lie to the Court of Appeal from a judgment or order of the County Court in an interlocutory application. Accordingly, the plaintiff would have needed (and does need) leave to pursue an appeal under s 74. Further, Kuek can be distinguished from the present case on the basis that in Kuek the plaintiff sought to escape the time limit for appeal by the unmeritorious device of attempting to characterise as an application for prerogative relief for jurisdictional error a question of law which should properly have been agitated by way of appeal[31]. Additionally, this proceeding is concerned with jurisdictional error and in that respect stands in contrast to those cases dealing with alleged errors of law that ought properly be the subject of appeal[32].
[30]See generally Tampion v Anderson (1973) 48 ALJR 11; Little v State of Victoria (1998) 4VR 596; Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70 (reversed on a different point in Puttick v Tenon Ltd [2008] HCA 54) and Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 86 FCR 374.
[31]Cf DPP v Verigos [2004] VSC 97 per Nettle J (as his Honour then was) at [39].
[32]Again, see DPP v Verigos, supra at [40].
The issue of whether an alternative remedy to judicial review should result in relief under Order 56 being denied on discretionary grounds was considered by the Court of Appeal again in Garde‑Wilson v Legal Services Board[33]. In that case Nettle JA noted that the existence of a statutory right of appeal or review before a tribunal with jurisdiction to determine all questions of fact and law within the remit of the original decision‑maker is a powerful discretionary consideration against the grant of prerogative relief[34]. Dodds‑Streeton JA stated that whilst there is a discretion to refuse relief by way of judicial review, “the opponent bears the onus persuading the court to exercise the discretion against the applicant for relief”[35]. Her Honour also said that the existence “of an adequate alternative remedy is not … necessarily determinative”[36]. In addition her Honour noted that Kuek “turned on the concurrence of substantially identical remedies by way of judicial review and pursuant to specific legislation, in circumstances where the legislation prescribed conditions which had not been satisfied”[37].
[33][2008] VSCA 43.
[34]Nettle JA at [8].
[35]Dodds-Streeton JA at [99].
[36]Ibid.
[37]Dodds-Streeton JA at [111].
In a slightly different context Bongiorno J had to consider whether prerogative relief should be refused in Atlas v DPP[38] because what was sought to be done in that case had the effect of fragmenting the criminal process. His Honour said[39]:
“As I have noted, the fragmentation of the criminal process which occurred when the primary judge adjourned the trial before him at the plaintiff’s request to enable this challenge to his ruling to be undertaken might have constituted a discretionary ground for the refusal to grant an order in the nature of prerogative relief. However, for the reasons already advanced, the circumstances are such that the error made by the primary judge should be corrected, and corrected as soon as possible, so that the plaintiff’s trial can proceed without further interruption. As no other discretionary bar to relief is apparent there is no impediment to the plaintiff’s obtaining the relief which he seeks.”
In his Honour’s judgment it was immaterial whether one analysed the error in that case as jurisdictional or an error of law on the face of the record.
[38](2001) 3 VR 211.
[39]At [74].
This proceeding has been argued in full. I have found that an error of law has been committed. The error is jurisdictional. It would be wasteful to refuse the plaintiff the relief she seeks. A proceeding which concerns alleged defective building work performed a number of years ago would be further delayed by requiring the plaintiff to seek leave out of time to appeal. Additionally, I note s 29 of the Supreme Court Act requires every court to “exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided”. Kuek is distinguishable on the grounds set out above. Vero has not persuaded me that I should exercise my discretion against the plaintiff. Indeed, I am satisfied that I should exercise my discretion in favour of the plaintiff. Further, I would have done so even if I had only been satisfied that an error of law on the face of the record had been committed, rather than a jurisdictional error.
Conclusion
Accordingly, and for the reasons given above, the following orders will be made:
(1)An order that the decision of the County Court of Victoria of 17 June 2008 whereby the plaintiff’s proceeding in that Court was stayed and the plaintiff ordered to pay the defendant’s costs, be removed into this Court and quashed.
(2)An order that the defendant’s summons filed 22 April 2008 seeking to stay the plaintiff’s proceeding be remitted to the County Court of Victoria to be determined according to law.
I will hear the parties on the question of costs.
5
23
0