Victorian Civil and Administrative Tribunal|2008-03-13

The Applicant relied upon a number of cases in which the Tribunal has exercised its jurisdiction under the Act in relation to contracts of insurance. On their own, they would not necessarily be conclusive - the presiding members in those cases may have been wrong, given that we do not always have the assistance of counsel when considering jurisdictional points. In my view however, the Tribunal is not in error in considering that Part 9 jurisdiction includes contracts of insurance.

The Tribunal's jurisdiction under the Act is concurrent with the jurisdiction of the Courts as the Second Reading Speech of the 1999 Act points out. With the clear exception set out in the Act, the Tribunal has jurisdiction in relation to most contracts in Victoria. This is contrary to the Respondent's contention that its interpretation of the definition of services must be correct or "otherwise every contract could be dealt with in this Tribunal and it was not Parliament's intention to confer such a wide jurisdiction". In the absence of clear words to the contrary, it appears that it was Parliament's intention to do that.

The Applicant then sought its costs of the strike out hearing.

While the starting point under the Victorian Civil and Administrative Act 1998 section 109 is that each party at VCAT bears its own costs, the Tribunal has discretion to order costs and I will do so here. Section 109(3) lists the matters to which the Tribunal may have regard in reaching such a decision. Paragraph (c) of that subsection provides the Tribunal may take in to account:

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;".

The Respondent argued against a costs order, contending that the matter was shortly argued and properly open to argument, so not vexatious. I agree the application was not vexatious and that the Respondent was entitled to put the arguments it did. However, given that it is easy to discover records of the Tribunal's decisions in which it has exercised jurisdiction over insurance contracts under the Act and that the Respondent's contentions were untenable as a matter of simple statutory construction, it is I consider appropriate to make an order for costs. Without the Respondent's strike-out application, the Applicant would not have been put to the costs of today's hearing. I will order that the Respondent pay the Applicant's costs on the applicable County Court scale.

Davis & Lasker v AAMI Ltd (Civil Claims) [2008] VCAT 572 (13 March 2008)

The Respondent referred me to the case of Geopec Pty Ltd v Ausbuild Constructions Pty Ltd (Civil Claims) [2005] VCAT 2708 (20 December 2005). I understand what the Respondent meant to do there was to show that it accepts that the Act may have a function besides the claims for damages for breach of the Act but to distinguish the present case from Geopec on the grounds that that was a case about the performance of work In that case, Judge Bowman (in one of many helpful contributions to interpretation of the Act) said:

Davis & Lasker v AAMI Ltd

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Judgment (7 paragraphs)

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Cases Cited (2)

Davis & Lasker v AAMI Ltd (Civil Claims) [2008] VCAT 572 (13 March 2008)