Thurin v Krongold Constructions (Aust) Pty Ltd

Case [2022] VSCA 226


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0051
DAVID THURIN First Applicant
and
LISA THURIN Second Applicant
v
KRONGOLD CONSTRUCTIONS (AUST) PTY LTD
(ACN 103 839 49) (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE)
Respondents

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JUDGES: McLEISH, NIALL and WALKER JJA
WHERE HELD: Melbourne
DATE OF HEARING: 1 and 2 September 2022 
DATE OF JUDGMENT: 20 October 2022
First revision (appearances): 20 October 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 226

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CONSTITUTIONAL LAW – Federal jurisdiction – Referral of questions of law by Victorian Civil and Administrative Tribunal – Claim against construction company in respect of building works – Company claimed apportionment and contribution from third party on basis of alleged breaches of Commonwealth law – Whether apportionment and contribution claims mean matter ‘arising under’ law made by Commonwealth Parliament within s 76(ii) of the Constitution – Apportionment and contribution claims brought matter within federal jurisdiction – Irrelevant that third party not joined – Once a federal matter, VCAT lacked jurisdiction to hear and determine – Whether company’s incorporation under Corporations Act 2001 (Cth) means matter ‘arising under’ Commonwealth law – Incorporation under Corporations Act insufficient to attract federal jurisdiction.

STATUTORY CONSTRUCTION – Whether s 77 of Victorian Civil and Administrative Tribunal Act 1998 empowers VCAT to refer proceeding in federal jurisdiction to Supreme Court – Statutory language to be given full meaning – Provision construed to operate to full extent of State legislative power – Referral not an exercise of federal judicial power – Re-enactment presumption inapplicable – Provision empowers VCAT to refer proceeding.

Constitution s 76(ii); Victorian Civil and Administrative Tribunal Act 1998, ss 57B, 57C, 77, 96; Domestic Building Contracts Act 1995, ss 53, 57; Trade Practices Act 1974 (Cth) ss 74B, 74D, 75AF and 75AG; Wrongs Act 1958, ss 23B, 24, 24AE, 24AH, 24AI; Judiciary Act 1903 (Cth) s 39(2); Corporations Act 2001 (Cth) ss 119, 124, 125; Interpretation of Legislation Act 1984, s 6(1).

Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476, Palmer v Ayres (2017) 259 CLR 478, Malecki v Macko [2022] FCA 766, followed; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, explained; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, Edwards v Santos Ltd (2011) 242 CLR 421, Hobart International Airport Pty Ltd v Clarence City Council (2022) 96 ALJR 234, discussed; Qantas v Lustig (2015) 228 FCR 148, Oliver v Nine Network Australia Pty Ltd [2019] FCA 583, Osborn v Bank of the United States 22 US (9 Wheat) 738 (1824), not followed.

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Counsel

Applicants: Mr MG Roberts KC with Dr COH Parkinson KC and
Mr N Guenther
First Respondent: Mr JAF Twigg KC with Ms K Weston-Scheuber, Mr M Hosking and Mr CFE Dawlings
Second Respondent: Mr AE Klotz
Third Respondent: Mr KJ Naish
Attorney-General of the…

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AGLC
Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226
Case
[2022] VSCA 226
Decision Date

CaseChat Overview and Summary

The case of Thurin v Krongold Constructions (Aust) Pty Ltd involved a dispute over building works between the plaintiff and the defendant construction company. The plaintiff sought damages for defects in the construction work, while the defendant claimed apportionment and contribution from a third party, alleging breaches of Commonwealth law. The matter was initially heard by the Victorian Civil and Administrative Tribunal (VCAT), which was challenged by the defendant on the basis of federal jurisdiction. The Court had to determine whether the claims for apportionment and contribution meant the matter arose under Commonwealth law, and whether the defendant’s incorporation under the Corporations Act 2001 (Cth) was sufficient to attract federal jurisdiction. The Court also needed to decide whether a provision in the Victorian Civil and Administrative Tribunal Act 1998 empowered VCAT to refer proceedings in federal jurisdiction to the Supreme Court.

The Court held that the claims for apportionment and contribution brought the matter within federal jurisdiction as they involved Commonwealth law. The Court found that even though the third party was not joined to the proceedings, once a matter was within federal jurisdiction, VCAT lacked the authority to hear and determine it. The Court also held that the defendant’s incorporation under the Corporations Act 2001 (Cth) was not sufficient to attract federal jurisdiction as the matter did not arise under Commonwealth law. Regarding the referral of proceedings, the Court held that the statutory language in the Victorian Civil and Administrative Tribunal Act 1998 should be given full meaning and that the provision in question empowered VCAT to refer proceedings in federal jurisdiction to the Supreme Court.

The Court's decision highlighted the importance of understanding the scope of federal jurisdiction and the limits of state tribunals in matters involving Commonwealth law. The Court’s interpretation of the statutory provision in the Victorian Civil and Administrative Tribunal Act 1998 also underscored the need to construe legislation to operate to the full extent of state legislative power. The final orders of the Court were that the matter was to be referred to the Supreme Court for further proceedings, and VCAT's jurisdiction was deemed invalid for the matters at hand.

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