Radojevic v JDA Design Group Pty Ltd & Anor (No 2) - [2017] VSC 796

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03017

DRAGAN RADOJEVIC	First Plaintiff
IVANA RADOJEVIC	Second Plaintiff
v
JDA DESIGN GROUP PTY LTD (trading as JDA Architects) (ACN 129 609 008)	First Defendant
MAGISTRATES' COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2017
DATE OF JUDGMENT:	21 December 2017
CASE MAY BE CITED AS:	Radojevic v JDA Design Group Pty Ltd & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 796

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JUDICIAL REVIEW — Dispute between building owners and architect — Owners’ damages claim and architect’s fees counterclaim in Magistrates’ Court — Owners’ application for stay of Magistrates’ Court proceeding on basis that VCAT had jurisdiction to determine domestic building dispute — Stay application dismissed — Whether jurisdictional error — Whether error of law on face of record — Whether judicial review remedies should be refused in exercise of discretion — Domestic Building Contracts Act 1995 ss 1, 4, 5, 6, 54, 57, 57A.

STATUTES — Interpretation — Use of endnotes — Whether ‘must’ imperative — Domestic Building Contracts Act 1995 ss 6, 57.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A C Blair	Prior Law
For the First Defendant	Mr M Lapirow	Davies Moloney

HIS HONOUR:

Background

The plaintiffs (‘the Radojevics’) seek judicial review of a decision of the Magistrates’ Court of 4 July 2017 dismissing an application pursuant to s 57 of the Domestic Building Contracts Act 1995 (‘DBC Act’) for a stay of the proceeding.

The Radojevics commenced an action against the first defendant (‘JDA’) in the Magistrates’ Court on 30 November 2016 seeking damages for alleged breaches of contract between the parties for the provision of architectural services by JDA in respect of design and proposed domestic building work in connection with four residential apartments to be built on the Radojevics’ land. JDA defended the action and counter-claimed for unpaid fees.

On 23 June 2017, the Radojevics sought a stay of the Magistrates’ Court proceeding pursuant to s 57 of the DBC Act or in the alternative, an adjournment of the proceeding. The Magistrate dismissed the application for the stay and the proceeding was adjourned for the completion of interlocutory steps.

On 2 August 2017, the Radojevics commenced this proceeding in this Court seeking to judicially review and quash the Magistrate’s decision refusing a stay. JDA then applied to have this judicial review proceeding stayed or dismissed as ‘inutile’ or as an abuse of process. On 15 September 2017, I dismissed JDA’s application.[1] On 3 November 2017, upon the Radojevics’ application, the Magistrates’ Court proceeding was transferred to the County Court of Victoria under the Courts (Case Transfer) Act 1991 because the quantum of their claim now exceeds the Magistrates’ Court jurisdiction.
[1]Radojevic v JDA Design Group Pty Ltd [2017] VSC 554.

The final hearing of the Radojevics’ application for judicial review orders was heard in this Court on 6…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] VSC 796
Decision Date: 21 December 2017

CaseChat Overview and Summary

The plaintiffs, Radojevic, brought an action against the defendants, JDA Design Group Pty Ltd and another, in the Magistrates' Court of Victoria. The dispute arose from a domestic building contract, with the plaintiffs seeking damages for alleged defects in the construction of their home and the defendants counterclaiming for unpaid fees. The plaintiffs subsequently applied to the Supreme Court to stay the Magistrates' Court proceedings, arguing that the Victorian Civil and Administrative Tribunal (VCAT) had exclusive jurisdiction to determine the dispute under the Domestic Building Contracts Act 1995. The court was tasked with determining whether the Magistrates' Court had jurisdiction over the matter, and if not, whether the application for a stay should be granted.

The primary legal issue was whether the Magistrates' Court had jurisdiction to hear the dispute or if VCAT had exclusive jurisdiction. This required an interpretation of sections 6 and 57 of the Domestic Building Contracts Act 1995, particularly the use of the word "must" in the context of VCAT's jurisdiction. The court also needed to consider whether the error, if any, was jurisdictional or a mere error of law on the face of the record, and whether the exercise of discretion should result in the refusal of judicial review remedies.

The court found that the use of "must" in section 6 of the Act was not imperative, and therefore, VCAT did not have exclusive jurisdiction. This meant that the Magistrates' Court could hear the dispute, and the application for a stay was dismissed. The court held that even if there was an error of law, it was not a jurisdictional error. Furthermore, the court exercised its discretion not to grant judicial review remedies, finding that the application for a stay was not the appropriate course of action.

The court ultimately dismissed the application for a stay, affirming that the Magistrates' Court had jurisdiction to hear the dispute between the parties. No further orders were made.

Orders