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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.