Although it’s trite to say the pandemic has had an impact on Victoria’s courts and tribunals, the difficulties experienced at the Victorian Civil & Administrative Tribunal have been profound.
The Tribunal was under the microscope last week in a decision by Judge Burchell of the County Court of Victoria in Impresa Construction v Oxford Building & Ors [2021] VCC 1146.
Traditionally, the VCAT has been the primary forum for domestic building disputes, having near-exclusive jurisdiction to hear a wide range of domestic building disputes under s 57 of the Domestic Building Contracts Act 1995 (DBCA).
Those familiar with s 57 know all too well that any case within its ambit was liable to be transferred to VCAT from any other court, no matter the stage (so long as it was prior to oral evidence) or cost or disruption to the parties.
Impresa was such a case. With an imminent trial approaching, the County Court was forced to vacate the trial to hear an application to uplift the matter to the VCAT under s 57.
There were two major issues for consideration in Impresa.
The first concerned whether the DBCA applied at all with respect to (a non-standard) contract between a builder and sub-contractor for domestic building work. Judge Burchell’s decision (finding that the Act did not apply in this case) was well reasoned and is worth a read on that point alone.
But it was her Honour’s comments in obiter that demanded the most attention.
Neither party having made the argument, her Honour reasoned of her own motion that while the VCAT remains critically under-resourced, it may be open to parties to argue that VCAT is not presently equipped to hear relevant matters so as to defeat an application made under s 57.
Her Honour went on to say that the public policy rationale behind s 57 was ‘frustrated’ and that the purpose of the DBCA, to “enable disputes involving domestic building work to be resolved as quickly, as efficiently and as cheaply as is possible having regard to the needs of fairness” was not advanced by uplifting cases to the VCAT, when (citing public reports):
- it cannot commit to time lines;
- parties are contacted 8-10 weeks from commencement of an application with the proposed next steps;
- hearings from October 2021 are being vacated; and
- interlocutory hearings are being fixed some 8 months into the future.
Her Honour concluded that a much needed injection of resources was required to make it possible for VCAT to fulfil its role and provide a timely service in the resolution of disputes.
For cases presently before the Tribunal time will tell whether it will, on application under s 77 of the Victorian Civil and Administrative Tribunal Act 1998, permit appropriate matters to be referred out to the better resourced courts for the same reason.
In the meantime, the Impresa decision may offer some welcome guidance for parties to domestic building disputes faced with ongoing delays.
For guidance on your building issue, contact Peter Lettieri or Jessica Seferis.
