Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2007] VCAT 1058 | Case summary

This matter comes before me by way of an application by the Respondent, River Street Developments Pty Ltd ("RSD") pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"). The application of RSD is to strike out the whole of the proceeding brought against it by Abigroup Contractors Pty Ltd ("Abigroup") and transfer that proceeding to the Supreme Court of Victoria.
Mr J Delany SC with Mr R Andrew appeared on behalf of RSD. Mr C Scerri QC with Mr J Twigg appeared on behalf of Abigroup. No oral evidence was adduced. Reliance was placed upon affidavits and documentary material. Particularly helpful and concise submissions were made on behalf of each party, and detailed written submissions together with copies of authorities relied upon were made available. I am grateful to all concerned for the manner in which this application was conducted.
As there is some urgency in relation to this ruling, the future and progress of a related Supreme Court interlocutory proceeding being contingent upon it, the reasons for this ruling are perhaps somewhat more truncated than would otherwise have been the case.

Given the possible urgency of the situation, I shall not set out in detail the careful and well prepared arguments advanced by counsel. I shall deal rather with the principal issues upon which the arguments focussed.
As stated, I accept that this is complex litigation involving very considerable quantum. Whilst the argument that these factors militate in favour of a transfer to the Supreme Court was not abandoned, it did not receive undue emphasis. In any event, the complexity and quantum of this proceeding are not factors that persuade me that the application pursuant to s.77 should be successful and the proceeding referred to the Supreme Court. This Tribunal is well experienced in dealing with cases of this nature. Whilst it is not a court of pleadings, documents akin to pleadings are frequently employed in such cases, and indeed documents of this kind have already been filed and served in the present case. There are members of this Tribunal well equipped to hear such a case.
In addition, this Tribunal is effectively the first port of call for proceedings issued under the Domestic Buildings Contracts Act and the Fair Trading Act 1999. The argument that it was the intention of the legislature that cases such as this should primarily be dealt with by this Tribunal seems to me to be an argument of some force. To employ the words used by Gillard J in Ewins v BHP Billiton Limited [2005] VSC 4, for cases such as this, this Tribunal seems to me to be the natural forum based upon connecting factors.
I indicated from the bench that the two arguments that seem to me to be of greatest moment are centred upon the risk of conflicting decisions and the possible want of jurisdiction in either of the competing forums. Counsel essentially agree with this proposition.
Of these two important factors, it seems to me that the jurisdictional argument is marginally the more significant. There is little point in striking out a proceeding here and referring it to another court or body that lacks jurisdiction. Indeed, it seems to me that this is an exercise that should not be undertaken if there is even a risk that the body in question may lack the necessary jurisdiction. In Linton and Vink v Commonwealth Bank of Australia [2004] VCAT 870, a decision of mine to which I was referred, I upheld an application pursuant to s.77 of the Act because I was of the opinion that some doubt existed as to whether this Tribunal could afford the appropriate relief in an action for possession based upon a mortgage. Whilst arguments each way existed, the fact that such a doubt existed persuaded me to refer the matter to the County Court where no such doubt would exist. That approach seems to me to be equally valid if a doubt exists as to whether the court or body to which referral is sought will entertain the proceeding.
The aspect of the present proceeding upon which the jurisdictional argument focussed was the payment sought pursuant to s.53(2)(bb) of the Domestic Building Contracts Act. Mr Scerri argued that this Tribunal has exclusive jurisdiction to make orders with respect to payments into the Domestic Builders Fund pursuant to that section. Mr Delany's argument was based upon the inherent jurisdiction of the Supreme Court and its preparedness, in an appropriate situation, to order a payment into court, that being akin to the payment into the Domestic Builders Fund being sought in the present case. In relation to such payment into court, he referred me to the decision of Deputy Commissioner of Taxation of the Commonwealth of Australia v Hooper [2006] VSC 183. Mr Scerri argued that the decision in Hooper was clearly distinguishable from the present situation and was, in a sense, peculiar to its individual facts.
Despite his best efforts, Mr Delany could not assert with confidence that the Supreme Court possesses the required jurisdiction in relation to the Domestic Building Contracts Act and s.53.2(bb) thereof. That cases can be and are referred back to this Tribunal from the Supreme Court because of jurisdictional concerns cannot be denied. One has only to look back as far as the vexed case of State of Victoria v Bradto Pty Ltd and Tymbook Pty Ltd - a case in which there have been a multitude of rulings, the first being at [2005] VCAT 1872 - in order to find a complex matter which commenced in the Supreme Court but, for jurisdictional reasons, then came to this Tribunal. I appreciate that different legislation was involved in Bradto, but it is one of a number of cases which demonstrate that situations arise in which a perceived lack of jurisdiction in the Supreme Court results in a matter being referred to this Tribunal.
On the basis of the arguments advanced and the material relied upon, it seems to me that a risk exists that the Supreme Court would not entertain an application pursuant to s.53(2)(bb) of the Domestic Building Contracts Act. When all was said and done, and despite Mr Delany's clever and well constructed arguments, ultimately the jurisdiction of the Supreme Court could not be positively asserted. A risk of the Supreme Court refusing to entertain the proceeding exists. There is no doubt but that this Tribunal possesses the necessary jurisdiction. Given that this Tribunal is the appropriate forum for other reasons set out above and below, RSD's application fails.
In arriving at this conclusion in relation to jurisdiction, I should add that I do not accept possible arguments that, if a matter is referred, the appropriate jurisdiction is in some way referred with it. That potential argument seems to me to fall a long way short of removing the jurisdictional risk to which I have referred. Secondly, it was not urged upon me that, pursuant to s.77, part of the proceeding should be referred to the Supreme Court and part remain before this Tribunal. This course of action was not sought, and I can understand why.
I shall also refer briefly to a couple of other factors. It seems to me that, with the application against the non-parties being discontinued before this Tribunal and being pursued in the Supreme Court where jurisdiction exists, the immediate risk of conflicting decisions has been removed. Abigroup can pursue its application pursuant to s.53(2)(bb) of the Domestic Building Contracts Act. It is a measure which, if successful, results in the payment of a sum of money into the Fund pending the resolution of the dispute. What happens thereafter may be the topic for debate on another day. In any event, I am satisfied that there is no immediate risk of conflicting decisions, and, in any event, if such a risk existed it would be outweighed by jurisdictional considerations.
I am also of the view that other factors advanced by Mr Scerri also militate in favour of the proceeding remaining before this Tribunal. The proceeding has already advanced a considerable distance. Factors referred to by Warren J, as she then was, in Rogan & Ors v Rushton (Qld) Pty Ltd & Ors [2002] VSC 375, such as costs, delay and inconvenience, also favour Abigroup's position in resisting this application.
In summary, RSD's application pursuant to s.77 of the Act is dismissed. I shall hear the parties in relation to any ancillary orders that are required and shall reserve liberty to apply.

Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd

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Judgment (3 paragraphs)

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Cases Cited (1)

Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd (Domestic Building) [2007] VCAT 1058 (15 June 2007)