First Applicant v Second Applicant

1 On 31 October 2024 the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal') allowed the respondent, Ms Margaret Singleton, to amend her points of claim. The applicants in this matter, East Gippsland Building Permits Pty Ltd and Mr Brian Douglas Ross ('the Ross Parties') seek leave to appeal that decision.

2 For the reasons that follow, I would grant leave but dismiss the appeal.

Factual Background to Commencement of Proceedings

3 On 11 June 2009 Ms Singleton entered into a contract with builders Geoffrey G Lawrence and Jeanette M Lawrence ('the Builders') for construction of a home on land situated at 51 Seaview Parade, Kalimna, Victoria.

4 The Builders engaged East Gippsland Building Permits Pty Ltd (ACN 070 499 633) ('East Gippsland Building Permits') to provide building surveying services. Brian Douglas Ross, the company's director, was the individual building surveyor responsible for carrying out four mandatory inspections required to enable the relevant building permits to be issued for works carried out by the Builders.

5 Construction work commenced shortly after Mr Ross issued a building permit on 3 September 2009. During the build Ms Singleton formed the view that there were issues with the building project including visible deviations and suspected non-compliance with approved plans. Despite these expressed concerns an occupancy permit was issued on 10 January 2011, signalling the completion of the home's construction.

6 During the build, Ms Singleton had engaged a building consultant who carried out a number of inspections and subsequently provided a report outlining a range of alleged defects, including:

(a) accessibility issues which would limit Ms Singleton's husband's ability to navigate the home with his wheelchair (upon which he was dependent following a stroke he suffered in 1999);

(b) drainage discharge to a creek at the rear of the property rather than the front which required remedial work; and

(c) general poor workmanship resulting in issues relating to site excavation, the slab, brickwork, chimney, tiling, sewerage and fittings.

7 Ms Singleton went on to make complaints about the Builders and Ross Parties to the Victorian Building Authority and Consumer Affairs Victoria. Separately, in 2012, she commenced a proceeding in VCAT against the Builders claiming damages for breaches of contract and defective building work. The parties settled that proceeding and terms were executed on 22 May 2012.

8 On 31 August 2020 Ms Singleton commenced a VCAT proceeding against the Ross Parties, filing her initial points of claim on that date. In those points of claim, Ms Singleton alleged that the Ross Parties owed a duty of care and skill when exercising building certification functions and that they had breached that duty causing loss and damage. In essence, the claim was that had the Ross Parties acted reasonably and competently, then the non-compliant and defective works would have been identified and orders made for rectification prior to relevant permits being issued.

9 The claim alleged that the Ross Parties unlawfully engaged unqualified and unregistered persons to undertake the mandatory inspections and had no reasonable grounds to be satisfied that the works complied with the Building Act 1993 (Vic) ('Building Act'), the Building Code of Australia and associated regulations.

10 By VCAT order dated 23 June 2022 the Builders were joined as parties to the proceeding to allow the Ross Parties to raise proportionate liability defences under Part IVAA of the Wrongs Act 1958 (Vic).

11 At the commencement of the proceeding Ms Singleton was self-represented. For a period (referred to below) she was able to obtain legal representation but after some time was unable to afford to continue with legal representation and again became self-represented.

12 As noted above, this appeal concerns a decision on 31 October 2024 to allow Ms Singleton to amend her points of claim ('the October 2024 amendment decision'). The effect of the October 2024 amendment decision was to allow Ms Singleton to allege six additional defects ('the six additional defects') which had been identified in an expert report by building surveyor Samual Perna dated 14 February 2023 ('the Perna Report'). The Perna Report had been served on the Ross Parties on 16 February 2023 and had been used in the pleadings which were extant prior to the October 2024 amendment decision to particularise alleged defects in the work of the Ross Parties. In those extant pleadings some ten defects which had been identified in the Perna Report were included but the six the subject of Ms Singleton's application for amendment, were not.

13 The Ross Parties raise six questions of law and corresponding grounds of appeal. Those six grounds require the answer to three questions:

(a) Did VCAT apply the right test in granting the October 2024 amendment in circumstances where a relevantly identical application had been refused in September 2024 ('the September 2024 amendment decision')?

(b) Was the October 2024 amendment application futile because it raised claims that were statute barred?

(6) Was VCAT's exercise of discretion in allowing the amendment application legally unreasonable?

14 Ms Singleton sought to amend her pleadings by seeking to file an 'amended points of claim' dated 13 May 2022. At a directions hearing on 23 June 2022 the Tribunal:

(a) found that the claims in the proposed amended points of claim were not adequately set out against the Ross Parties;

(b) granted leave to Ms Singleton to file a further proposed amended points of claim; and

(c) suggested to Ms Singleton that she obtain legal advice in order to better particularise her claim.

15 The VCAT proceeding was initially set down for hearing commencing on 22 August 2022 with an estimate of 10 days.

16 In July 2022 Ms Singleton was able to obtain legal assistance and on 26 July 2022 she filed and served further amended points of claim.

17 At a compulsory conference held on 1 August 2022 before Senior Member Aird, Ms Singleton sought to make another application to file amended pleadings. This led to orders being made vacating the hearing listed for 22 August 2022 and re-listing the proceeding for another 10 day hearing commencing on 28 October 2024. A directions hearing was set for 15 September 2022, and a further order made that any proposed amended pleadings be filed at least seven days prior.

18 That deadline was not met and Ms Singleton made an application for an extension of time to enable her to obtain an expert report and file her proposed amended pleadings. This was opposed by the Ross Parties. At the 15 September 2022 directions hearing before Senior Member Kirton the Tribunal granted the extension application. The orders of that day record in "Other Matters" that the Tribunal would assume the amended pleadings would be the "best case available to the applicant and cannot be improved. The applicant did not disagree with this assumption."[1]

19 Ms Singleton served a proposed second further amended points of claim and the Perna Report on 16 February 2023. In this version of the pleadings Ms Singleton clarified her claim as being one against the Ross Parties for a breach of duty at common law and separately against the company for a breach of contract. At paragraph [44], the alleged loss and damage suffered was further particularised and the following ten issues identified:

The Works as completed by the Builder contain defects and/or are non-compliant with the BCA.

The following defects and/or non-compliant Works have arisen because they were approved as part of the Building Permit when they should not have been:

(i) the incorrect location of the legal point of discharge (see Items 8.1 and 8.5 of the Perna Report and Item 6.11 of the expert report of Mr Ken Ryan dated 7 December 2011 (the Ryan Report));

(ii) the retaining wall (see Items 8.3, 8.4 and 8.6 of the Perna Report and Item 6.17 of the Ryan Report);

(iii) the reflective foil in the roof (see Item 8.17.10 of the Perna Report and Page 26 of the expert report of Mr Roy Spencer dated 28 August 2020 (the Spencer Report);

The following defects and/or non-compliant Works have arisen because they were approved as part of a mandatory inspection when they should not have been:

(iv) incorrect siting of the dwelling (see Item 8.2 of the Perna Report and Item 6.26 of the Ryan Report);

(v) the retaining wall (see Items 8.3, 8.4 and 8.6 of the Perna Report and Item 6.17 of the Ryan Report);

(vi) the garage roller door height (see Items 8.3, 8.4 and 8.8 of the Perna Report and Item 6.17 of the Ryan Report);

(vii) missing flashing to the brickwork (see Item 8.11 of the Perna Report and Item 11 of the Ryan Report);

(viii) missing flashing to the windows and doors (see Item 8.17.5 of the Perna Report and Page 27 of the Spencer Report);

(ix) incorrect installation of the air conditioning condenser (see Item 8.17.9. of the Perna Report).

The following defects and/or non-compliant Works have arisen because they were approved as part of the Occupancy Permit when they should not have been:

(x) the missing/incomplete termite barrier (see Item 8.17.6 of the Perna Report and Page 21 of the Spencer Report).

The above 10 items will be required to be rectified at a cost to the Owner. In this regard, the Owner relies on the Ryan Report and the expert report of Mr Douglas Buchanan dated 2 October 2020.

The Owner will also incur loss and damage in the nature of alternative accommodation, removal and storage costs and loss of use and amenity.

Further particulars will be filed in the course of the proceeding.[2]

20 In April 2023 Ms Singleton was no longer able to retain legal representation due to financial constraints and became self-represented.

21 A further directions hearing was held before Senior Member Kirton on 19 July 2023 at which the application to file and serve amended pleadings was considered. The Ross Parties opposed the application and made their own application seeking to strike out the proceeding on the basis that the proposed claims of negligence and breach of contract were not arguable and were statute barred. On 11 August 2023 Kirton SM dismissed the Ross Parties' strike out application and granted Ms Singleton leave to file and serve the second further amended points of claim provided that any claim relating to the Australian Consumer Law and Fair Trading Act 2012 be deleted.

22 The requisite changes were made and the amended version was filed and served on 25 February 2024. On 27 February 2024 the Ross Parties served a request for further and better particulars. In that request, the Ross Parties sought further specification as to the part or parts of the Perna Report relied upon in the pleadings and the loss and damage suffered in respect of the defects listed from (i) to (x) in the claim.

23 On 12 March 2024 a directions hearing was held before Member Bennett in which Ms Singleton was asked about the quantum of her claim in respect of the ten alleged defective and/or non-compliant building works. In response, Ms Singleton stated that a quantity surveyor was going to calculate the quantum on the basis of the items identified in the Perna Report and highlighted that some of those were not included in the ten items listed in the claim.

24 The Tribunal advised Ms Singleton that she was restricted to the matters which had been itemised in her pleadings and that if she wished to include other items in the claim, she would need to apply to the Tribunal for leave to amend.

25 On 18 March 2024 Ms Singleton filed and served a response to the request for further and better particulars which included damages in relation to the six additional defects. By summons dated 27 March 2024 the Ross Parties made an application for an order that this document be removed from the Tribunal file.

26 A compliance hearing was held before Acting Senior Member Nash on 7 June 2024 in which Ms Singleton sought leave to amend her claim. Acting Senior Member Nash rejected the application and in Orders of the same date stated:

G. The applicant subsequently sought to make an application for leave to amend the Second Further Amended Points of Claim. The applicant did not file any Proposed Third Further Amended Points of Claim, nor did she identify any legal basis on which she intended to amend the claim. Rather she simply sought to include additional alleged defects as forming part of the claim for damages. She did not identify the legal basis on which she alleged these new defects were caused by the first and second respondents.

H. The applicant's case currently before the Tribunal is what is set out in the Second Further Amended Points of Claim. She is to confine her evidence and responses to those matters. She is not able to refer to other matters or seek to rely on evidence of other matters that are not included in the pleadings.

I. If the applicant wishes to have other matters included in her claim, she must seek the leave of the Tribunal to do so and in making such an application she must set out the basis of the further claims she wishes to bring and why, as a question of law, she alleges the claims should be made against the first and second respondents. Simply feeling aggrieved about a matter is not a sufficient basis in law to bring a claim.

J. It is important for the applicant to set out the details of any amendments she wishes to make to her Second Further Amended Points of Claim. This is so that the Tribunal and the first and second respondents are able to determine from her proposed amendments whether the claims she wishes to raise are claims that have already been struck out by the Tribunal as disclosing no cause of action against the first and second respondents. The applicant is not entitled to attempt to reagitate matters which have already been determined by the Tribunal.[3]

(emphasis in original)

27 Acting Senior Member Nash granted the Ross Parties' application and directed that the particulars filed on 18 March 2024 be removed from the Tribunal's file. In addition, Ms Singleton was granted leave to file an updated report from quantity surveyor Douglas Buchanan which was to include a calculation of the rectification costs for the ten defects identified in accepted pleadings.

28 On 1 July 2024 Ms Singleton made an application by summons for leave to file and serve the proposed third amended points of claim dated 20 June 2024. This version sought to expand the claim to include the six additional defects and the associated rectification costs. The six additional defects identified in the Perna Report relate to:

(xii) roof trusses not tied to upper storey of building;

(xv) non-compliant stair construction. Differentiation in riser height; and

29 On 2 July 2024 Acting Senior Member Nash made orders listing the hearing of her application for 15 August 2024 and directed Ms Singleton to make clear what amendments she was seeking with an explanation as to why the proposed amendments were not included in previous versions of the points of claim. The orders also made clear that if the application was granted, the hearing commencing 28 October 2024 would likely need to be vacated to allow the Ross Parties time to respond.

30 Member Marks heard the application for leave to amend on 15 and 20 August 2024. On 4 September 2024 the application was dismissed and in written reasons dated 5 September Member Marks indicated that the refusal was based on discretionary grounds, including that:

(a) Ms Singleton had the opportunity to apply to include the six additional defects when making the application for leave to amend her claim in July 2023;

(b) There was a lack of satisfactory explanation for the failure to include, and the delay in seeking, the proposed amendments;

(c) If the application was granted, the hearing listed for 28 October 2024 would have to be vacated which would result in additional interlocutory steps before a final hearing could be commenced; and

(d) The Ross Parties would be prejudiced if the proceeding was delayed both in incurring further costs and Mr Ross personally suffering further stress.

31 The final hearing date on 28 October 2024 was confirmed and Ms Singleton was ordered to rely on the version of her pleadings outlined in the second further amended points of claim filed and served on 25 February 2024.

32 On 28 October 2024 the hearing proceeded before Deputy President Wilson. Though it had been originally listed for ten days, the Tribunal had informed the parties that only four days were available from 28 October 2024 and that the remainder of the hearing could not be accommodated until 2025.

33 On the first day of the hearing preliminary discussions were held regarding the scope of the claim. Ms Singleton acknowledged that only nine of the ten listed defects were relevant as the issue relating to the relocation of stormwater drainage had been subject to a settlement with the Builders. She expressed concern about not being able to address fundamental building issues, some of which were contained in the additional six defects previously sought to be included in the claim. Wilson DP indicated that he was bound to follow the ruling of Member Marks but could deal with the matter if an application was made for leave to amend the claim.

34 Wilson DP then asked Counsel for the Ross Parties to address the Tribunal as to the context of Member Marks' decision. Counsel explained that the accepted pleadings had been prepared by solicitors on the basis of the available Perna Report and an inference could be drawn that the additional six defects had not been included because they were statute barred. This was one of the grounds upon which the Ross Parties had opposed the amendment application made on 1 July 2024, albeit the Tribunal had decided to refuse the application to amend on other discretionary grounds.

35 After hearing from both parties, Wilson DP indicated that he would reserve the decision on whether or not to allow Ms Singleton to amend her pleadings and that he would invite further submissions in the event he disagreed with Member Marks.

36 The balance of the first day of the hearing before the Tribunal was taken up with opening addresses of each party in the course of which Ms Singleton outlined the nature of the claim she wished to advance and counsel for the Ross Parties outlined the nature of its case in response.

37 On 29 October 2024, the second day of the hearing, the Tribunal and parties conducted a view of the house. At the commencement of the hearing on 30 October 2024, Wilson DP stated that he proposed to allow Ms Singleton to make an application for leave to amend her claim and that he would need to be convinced by counsel for the Ross Parties as to why he should not allow the amendment.

38 On 31 October 2024 Wilson DP granted the application for amendment and directed that the proposed third amended points of claim dated 20 June 2024 be accepted for filing and service under the name 'Applicant's Final Amended Points of Claim' dated 31 October 2024. The present appeal relates to this decision.

39 The Tribunal's reasons ('the reasons') for its ruling permitting the amendment are given in transcript of 31 October 2024. Those reasons:

(a) identify the amendment sought; and

(b) provide a summary of the procedural history of the Tribunal proceeding.

40 The Tribunal then describes what had happened in the hearing. Noting that in the course of her opening, Ms Singleton flagged that she wished the Tribunal to consider additional defects that had been identified by her expert building surveyor and that the Tribunal had indicated it would consider the question that had been raised by Ms Singleton and inform the parties whether it would permit an application to amend the points of claim in the manner that she sought.

41 As noted above, on the second day of the hearing the Tribunal conducted a view of the property. The Tribunal describes the decision to conduct a view in these terms:

I did this because I wanted to ensure that if I determined that I should entertain the application and hear Ms Singleton's application to amend her points of claim, there would be opportunity to see the areas that might be affected by the additional items to the extent that it was possible to see them either externally or internally from the building without having to climb ladders or go into confined spaces which the Tribunal does not do on a view.[4]

The Tribunal then describes what happened at the view:

At the view, each party had the opportunity to show me the areas that were visible on inspection outside and inside the house by reference to [a table prepared by the parties]. I repeat what I have said a couple of times, I took no evidence from the parties at the view, as I explained to the parties in the Tribunal on day one of the hearing, the purpose of the view was solely to enable me to understand visually the areas and issues to which the evidence to be presented by witnesses, including expert witnesses, would be directed.

At the view, while I was asked to observe some measurements in different places and indeed I did pace out an area, this was not to receive it as evidence, but rather, to better understand where the various measurements discussed in the expert reports may have been made, and to appreciate the distance in the siting of the house on the block to the adjacent surrounds, including the gully and bushland to the rear, and road sloping and vegetation beyond down to the waterfront at the front.[5]

42 Following his description of the view, the Tribunal Member notes that, at the resumption of the hearing on the third day, he informed the parties that he would entertain an application for amendment to Ms Singleton's points of claim. At that point counsel for the Ross Parties indicated a need to prepare submissions and so the hearing was adjourned until the following day. The Tribunal then heard full argument on 31 October 2024 before giving its ruling.

43 The reasons then traverse in greater detail the September decision not to grant Ms Singleton leave to amend her pleading. The Tribunal then sets out its approach to the consideration of Ms Singleton's application in the following terms:

What is critical in this case where a party appears unrepresented before the Tribunal is that the Tribunal, as it is obliged to do under the Victorian Civil and Administrative Tribunal Act, which I will call the VCAT Act, discharges its statutory obligation to afford a fair hearing to both parties. That the Tribunal might have made a discretionary procedural ruling at one stage based on information and circumstances ... at that time in a proceeding, that does not preclude a reconsideration at a later stage.

I reject completely the suggestion that an application for leave to amend in the circumstances of this case should be rejected as an abuse of process. It was evident from the parts of the transcript, the attempts that were made by Ms Singleton, that she has endeavoured as an unrepresented party as best as she has been able to bring these matters in a form before the Tribunal for final hearing.

It has been unfortunate that it was not able to be done earlier, but I accept based on my review of the materials that she has done what has been within her power to do to try and advance these elements of her claim. [Counsel for the Ross Parties] ... submitted that in exercising the discretion that I have to allow an amendment in circumstances where there has been a previous rejection of an application to amend requires that the Tribunal must find what he terms as exceptional circumstances to justify the late amendment.

As the established authority on amendment of points of claim in this Tribunal make abundantly plain, that is not the legal test. Section 97 of the VCAT Act creates an overarching obligation on the Tribunal in all cases stating that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

What this means is that the Tribunal must apply the law to the facts found by it to be established in a proceeding based on the evidence presented to the Tribunal or as may be admitted as is part of the dispute for determination, part of the legal dispute for determination between the parties.[6]

44 The reasons then reiterate the basal function of pleading being to ensure a fair hearing which permits a party to know the case being advanced against them and emphasise that, subject to complying with the rules of natural justice, the Tribunal is not bound by rules of evidence or practices or procedures applicable to courts of record. The reasons then discuss a number of authorities on the question of pleading and amendment and in particular cite:

(a) Makrenos v Papaioannou[7] where Kaye J said:

In such cases, the guiding principle is that a court should permit amendments in order to enable the real questions in controversy between the parties to be determined upon a full hearing of the case at trial.[8]

(b) Aon Risk Services Australia Ltd v Australian National University ('Aon').[9]

45 Having referred to those cases, the Tribunal set out a range of considerations which would be taken into account on an application to amend pleadings:

(a) The extent of wasted costs that will be incurred because of the amendment;

(b) Whether there is an irreparable element of unfair prejudice caused by the amendment which cannot be adequately compensated whatever costs may be awarded, for example, by inconvenience or stress caused to individuals or inordinate pressures placed upon corporations;

(c) Case management concerns arising from the stage of the proceeding when the amendment is sought, including whether the ground of the amendment will resolve any inefficiencies arising from the vacation of or adjournment of trials and the fact that the Court's time is a publicly funded resource;

(d) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(e) Whether the party seeking an amendment has provided a satisfactory explanation for seeking an amendment at the stage when it is sought.

46 The reasons then reject the submission of the Ross Parties that it was necessary for Ms Singleton to demonstrate exceptional circumstances.

47 The Tribunal then records the proposition that it is the applicant's burden to satisfy the Tribunal that the amendment should be allowed and then proceeds to consider a range of factors including:

(a) That the hearing would not conclude in front of the Tribunal in the October 2024 hearing day allocation and would be adjourned in any event until 2025;

(b) That the applicant had done everything in her power to advance the additional points she wished to raise on the amendment and put them before the Tribunal in a proper form;

(c) That the additional matters raised in the pleading amendment relate to what Ms Singleton perceives to be the safety of her building;

(d) That the fundamental nature of Ms Singleton's case being an allegation of damage flowing from an alleged negligence in inspection by the Ross Parties remained unaltered;

(e) That the amendments were on a 'conventional analysis' particulars of loss;

(f) That it was not in the interests of justice to rule on a preliminary basis whether those aspects of the claim for which amendment was sought were statute barred; and

(g) There was no irreversible prejudice.

48 On this basis, the Tribunal granted Ms Singleton's application.

49 The Ross Parties raised six questions of law with corresponding proposed grounds of appeal. Those questions are:

(1) Whether VCAT erred by allowing the amended application without there being any material change in the circumstances from the September 2024 amendment decision?

(2) Was the amendment application, in the circumstances it was made, an abuse of the Tribunal's process?

(4) Did VCAT err in not requiring an explanation from Ms Singleton as to why she had not included the amendment defects in the proposed second further amended points of claim dated 16 February 2023?

(5) Did VCAT err in law allowing the amendment application as it was futile because it raised claims that were statute barred?

(6) Was VCAT's exercise of discretion in allowing the amendment application unreasonable?

50 Plainly, questions (1) to (4) all raise in some form or other the question of the appropriate test for the Tribunal in considering a second application of an interlocutory nature which is identical to an earlier failed application of the same kind. Question (5) raises specific issues regarding the interaction of amendment to pleadings and statutes of limitation and question (6) raises the discrete issue of unreasonableness.

51 The decision is a decision on a matter of practice and procedure involving the exercise of discretion. The Ross Parties accepted that in order to succeed they needed to demonstrate an error of House v The King[10] type. The questions they raise in their notice of appeal and the accompanying grounds reflect that understanding.

52 As is noted above, the first four questions each depend on a consideration of the appropriate test for amendment in the circumstances which confronted the Tribunal. In effect, the Ross Parties contend, as they did below, that Ms Singleton was required to demonstrate a material change of circumstances or exceptional circumstances in order to succeed in an amendment application which was substantively the same as an earlier failed application. I am satisfied that a review of the authorities makes plain that that is not the test.

53 In DA Christie Pty Ltd v Baker ('Christie')[11] the Court of Appeal overturned a decision of a County Court Judge to allow a second application for an extension of time within which to bring an action under s 23A of the Limitation of Actions Act 1958 (Vic).

54 In that case Brooking JA held that the second application for an extension of time was the subject of an issue estoppel. However, he went on to say:

If the decisions I have cited do not lead to the conclusion that an issue estoppel arose here, then in my view they at least support the conclusion that on the facts of this case the respondent, having not "come fully prepared with proper materials in the first instance", and having not sought any adjournment once the gap in his case became apparent, and having offered no explanation of his failure to put forward the material which was later provided, should not be allowed to vex the appellant with a second application. The judge failed to turn his mind to this question. We are in as good a position as he to determine the question and we should do so adversely to the respondent, and allow the appeal. I agree, with respect, with what Hayne J.A. has written on the subject of abuse of process.[12]

Consideration of the private interest of a respondent to an application under s. 23A in having certainty on the question whether action may be brought against it notwithstanding the expiration of the relevant limitation period, together with consideration of the important public interest in ensuring that judicial determinations are binding, final and conclusive and that there should not be conflicting decisions on the same issue lead me to the view that the circumstances in which second applications under s. 23A may be made after dismissal of an earlier application are limited. So far as presently relevant that limitation is to be imposed by an application of principles concerned with abuse of process and in at least most cases may be resolved by concluding that a second application is an abuse unless there is proof of fraud or it is sought to adduce fresh evidence ...[13]

55 Neither judge in the majority in Christie was laying down a rule of general application in relation to all interlocutory applications where a second application was made in substantively similar or the same terms as an earlier unsuccessful application. Brooking JA said:

It is arguable ... that, questions of practice and procedure being under the control and generally within the discretion of the court in which the action is brought, it is, generally speaking at all events, open to the court to exercise a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may none the less succeed on a second application.

... It has been said that an interlocutory order affecting the procedure of the litigation may be reviewed if circumstances warrant a review during the course of the proceedings. ... We are concerned, not with the ordinary interlocutory application made in the course of litigation, which is governed by the court's own practice and procedure, but with an application under a statute which empowers a court to enlarge a limitation period if it decides, after having regard to the matters mentioned, that it is just and reasonable so to do.[14]

Whether the same considerations apply to interlocutory applications of the kind I have mentioned earlier - those under the control of and generally within the discretion of the court in which the action is brought - is not a matter I have to decide. Nothing I say here should be read as deciding whether the renewal of such an application is an abuse of process.[15]

56 In Christie Charles JA dissented and would have dismissed the appeal.

57 In Nominal Defendant v Manning ('Manning')[16] the New South Wales Court of Appeal considered Christie and declined to follow it. Manning also considered the issue of a second application to extend the time in which to commence an action. In Manning Heydon JA stated:

For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in [Christie] that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988 [(NSW)].

...

Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. [17]

58 In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd ('Tenth Vandy')[18] Hargrave J considered a second application for reinstatement in circumstances where a prior application had been dismissed. His Honour considered Christie and Manning and other authorities and concluded as follows:

As a result, it is my view that the correct approach to apply to second or subsequent interlocutory applications is that stated in Manning and Pierson that "the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case."[19]

59 Tenth Vandy has been applied by Victorian courts subsequently and has been cited with approval in the Court of Appeal.[20]

60 Grounds 1 and 2 of the notice of appeal may be disposed of relatively shortly. They are predicated on the assumption that Ms Singleton was required to show a change of circumstances or special or exceptional circumstances in order for her second amendment application to succeed. As the above analysis shows, this is not an accurate statement of the law. The proper test in relation to such an application is what the interests of justice require in the particular circumstances of the case.

61 In any event, I do not regard it as accurate to describe the circumstances before the Tribunal as not being materially different to those which were before the Tribunal in August and September 2024:

(a) first, it was evident that the matter would not be concluded in October 2024 and the matter was going to be adjourned for some months whether the amendment was granted or not; and

(b) secondly, the Tribunal had, as a result of the view, a clearer understanding of the 'areas and issues to which the evidence to be presented by witnesses, including expert witnesses, would be directed'. Indeed one might infer from the way in which the hearing proceeded, that that clearer understanding contributed to the decision of the Tribunal on 31 October 2024 to invite Ms Singleton to renew her application to amend.

62 For similar reasons I would reject ground 3, that the Tribunal erred in applying the test for an amendment 'simpliciter' rather than a special test for a second identical application on the same material. In truth there is no difference in the ultimate test which is, at the risk of repetition, the interests of justice in the particular circumstances of the case.

63 Ground 4 asserts that VCAT erred in not requiring an explanation from Ms Singleton as to why the defects had not been included in the proposed second further amended points of claim dated 16 February 2022. This ground also fails. A fair reading of the reasons makes plain that the Tribunal considered the question of whether an explanation was required and determined that, in the circumstances, that factor was not determinative of the application for amendment. Rather, the Tribunal placed greater weight on other factors in its exercise of discretion. Properly analysed the fourth ground of appeal is a complaint that the Tribunal did not give sufficient weight to the absence of an explanation for the failure to include the proposed particulars in the 16 February 2022 particulars. A failure to give sufficient weight to a factor is not House v The King type error.

64 The Ross Parties contend that the Tribunal erred in granting Ms Singleton's amendments in circumstances where they were statute barred. In this respect it relies on the provisions of s 134(1) of the Building Act which provides:

134 Limitation on time when building action may be brought

(1) Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.

65 The Ross Parties say that it is common ground that the occupancy permit was granted on 10 January 2011 and, in those circumstances, any building action was barred after January 2021. They contend, in effect, that the proposed amendment falls foul of s 134 of the Building Act because the amendments were sought after 10 January 2021.

66 It is important to observe at the outset that the Tribunal did not determine finally whether the proposed amendments were or were not statute barred. Rather, it determined that it was not in the interests of justice to resolve that question on a preliminary basis in the context of the amendment application. No error of principle is demonstrated in that regard. In Wardley Australia Ltd v Western Australia[21] in the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ their Honours state:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[22]

67 This was not 'the clearest of cases'. Ms Singleton commenced her claim in 2020 before the expiration of the limitation period. If the amendments are permitted and 'relate back' to the commencement of the claim then they are within time and no issue of limitation period arises. The Ross Parties contend that the amendments do not arise from the same substratum of fact as the original claim and so in truth are not an amendment but a new case.

68 The Tribunal's decision leaves it open for the Ross Parties to contend that the amendments raise matters which are statute barred. Plainly, a determination of whether the six additional defects arise from the same substratum of facts as the ten pleaded defects is a decision better made when sufficient is known of any damage sustained by Ms Singleton and 'of the circumstances in which it was sustained to justify a confident answer to the question'.

69 On the face of it, the additional six defects all arise from alleged failures in relation to the grants of permits and the carrying out of inspections by the Ross Parties on the one building project. It is not immediately apparent that they do not arise out of the same substratum of facts as the ten pleaded defects.

70 It suffices for the disposition of the present appeal to state that I am satisfied that it is not clear that the six additional defects do not arise from the same substratum of fact as the original claim and, even if the test is as characterised by the Ross Parties, it was entirely appropriate for VCAT to allow the amendment. However, I am not persuaded that the test for an amendment of a pleading between existing parties is as restrictive as the Ross Parties contend.

71 In their submission the Ross Parties contend that 'the better view' is that s 34 of the Limitation of Actions Act 1958 (Vic) ('Limitation of Actions Act') can apply to an action such as the present. I agree. Section 34 of the Limitation of Actions Act provides as follows:

Abrogation of rule in Weldon v Neal [1887] UKLawRpKQB 161; (1887) 19 Q.B.D. 394

(1) If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.

72 The Ross Parties contend that notwithstanding the terms of s 34 of the Limitation of Actions Act the decisions of Agtrack (NT) Pty Ltd v Hatfield ('Agtrack')[23] and Hepi v Toyota Finance Australia Ltd ('Hepi')[24] both stand for the proposition that an amendment will only be allowed if the new claim arises out of the same facts or substantially the same facts as support the claims already pleaded.

73 The Ross Parties particularly rely on the following portion of the judgment of Ormiston JA in Agtrack:

Here it is necessary to construe the rules only so far as will permit the Court to exercise its discretion unfettered by the view formerly taken in this jurisdiction as to the "rule in Weldon v Neal". There must therefore, in my opinion, be a close connection between the claim which has already been instituted by the filing of the writ with the indorsed statement of claim and the claim which the respondent wishes to add by way of amendment, unless, of course, she wishes, and is able, to call in aid s 34 of the Limitation of Actions Act or its Northern Territory equivalent. In essence, for the discretion to be exercised favourably towards her under the rules, the new claim must arise out of the same facts or substantially the same facts as support the claims already pleaded. In truth, there will then be a mere amendment of an existing claim, albeit in the present case it involves a characterisation of the claim in a different way and in the form of a different cause of action, so long as it is a mere recategorisation (or change of legal theory) of the claim or a restatement in different legal terms of the alleged outcome of the essential pleaded facts.[25]

74 What is immediately evident from that passage is that his Honour's consideration is a consideration of the ambit of the power of amendment under the rules of court without calling 'in aid' s 34 of the Limitation of Actions Act. It does not provide support for the proposition that the only circumstances in which an amendment will be permitted by reference to s 34 of the Limitation of Actions Act is when such an amendment arises from the same facts or substratum of facts.

75 Hepi is a decision which involves the joinder of a new party. The authorities recognise that joinder of a new party after the expiry of a relevant limitation period gives rise to different considerations to the amendment of a document between existing parties.[26]

76 An attempted amendment of a pleading to introduce matters which do not arise out of the same or substantially the same facts may occasion prejudice in the conduct of the other party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise, but it may not. Section 34 of the Limitation of Actions Act should not be read subject to implied limitations which are not present in its text, context or purpose.

77 In the circumstances, I am satisfied that the Ross Parties' proposed ground of appeal 5 is not made out.

78 The Ross Parties' final ground of appeal is that the decision of the Tribunal to permit the amendment was unreasonable. The test for legal unreasonableness is stringent. For present purposes, the principles may be summarised as follows:

(a) The Court will only intervene where the decision 'could not have been reached if proper reasoning had been applied ... in the particular circumstances';[27]

(b) Where a conclusion lacks an evident and intelligible justification it may be considered unreasonable;[28]

(c) 'If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion';[29]

(d) Species of decision which will be unreasonable include:

(i) if only one conclusion is open on the evidence and the decision maker does not come to that conclusion;

(ii) if the decision was simply not open on the evidence; or

(iii) if there is no logical connection between the evidence and inferences or conclusions which are drawn from it.[30]

79 The Ross Parties contend that the Tribunal failed to deal with a number of the considerations raised in Aon including:

(a) Case management concerns;

(b) The fact that the time of the Tribunal is a publicly funded resource, and whether the grant of the amendment would result in inefficiencies arising from a vacation or adjournment of trial;

(c) Whether the grant of the amendment would lessen public confidence in the judicial (and tribunal) system; and

(d) Whether a satisfactory explanation had been given for seeking the amendment at the stage when it was sought.

80 I do not accept that the Tribunal failed to have regard to the matters in (a), (b) and (d) of the previous paragraph. The Tribunal plainly considered the question of the lateness of the amendment and considered the question of its impact on the conduct of the final hearing. The Tribunal also considered Ms Singleton's explanation for why the amendment had come at the stage that it had. I do not regard the failure to expressly consider whether the amendment would lessen public confidence in the tribunal system as being an error of principle in these circumstances. The Tribunal averted to this aspect of Aon in its reasons but in the circumstances of the matter before it, this aspect of Aon plainly had no role to play in a consideration of whether or not to grant the amendment. In short, I am satisfied that there was not only one conclusion which was reasonably open in response to the amendment application. Legal unreasonableness has not been demonstrated.

81 One final matter I should note for completeness is that before the Tribunal and before me the Ross Parties sought to rely on the following evidence from his solicitor with regard to prejudice to Mr Ross' health from a further adjournment of the hearing:

I spoke to Mr Ross this morning about this proceeding, the application by the applicant to amend her pleading, the chance the hearing in October 2024 will be vacated and his current health. Mr Ross told me and I believe it to be true that:

1. He has high blood pressure and takes daily prescription medication to lower his blood pressure;
2. He has Type 2 diabetes and takes daily insulin and prescription medication called metformin for his diabetes;
3. His blood pressure and diabetes worsen when he thinks about or discusses this case.

82 Insofar as that evidence consists of Mr Ross' self-diagnosis of the impact of the proceedings on his health conditions, it is hardly compelling. In any event, the circumstances which confronted the Tribunal were that the hearing was going to be adjourned for some months whether the amendment was granted or not. In electing to seek leave to appeal from an interlocutory decision to grant an amendment Mr Ross has simply extended the number of occasions on which he will have to think about or discuss this case.

83 The Ross Parties' application for leave to appeal should be granted but for the above reasons the appeal should be dismissed.

84 In so concluding, it is appropriate to emphasise a number of matters which emerge from the authorities discussed above:

(a) First, the Tribunal's October 2024 amendment decision was a discretionary decision. I have held that no error has been shown in the exercise of that discretion, but it may be accepted that a differently constituted Tribunal might have exercised its discretion differently.

(b) Secondly, Manning and Tenth Vandy do not stand for the proposition that an unsuccessful applicant for interlocutory relief will always get a 'do over'. In most instances, it will be sufficient, in the exercise of discretion, to dispose of a second identical interlocutory application, that there has been no material change in circumstances and that evidence is relied on which could reasonably have been obtained earlier.

(c) Nonetheless, the test must always be what the interests of justice require. In this case the Tribunal applied that test and no error has been shown in its application of that test.

85 Ms Singleton has succeeded in her appeal. She is unrepresented. The Ross Parties have been unsuccessful. It would seem that, in those circumstances, there should be no order as to costs. Unless within seven days any party notifies my chambers that they seek a different costs order, I will make no order as to the costs of the appeal.

[7] [2008] VSC 83.

[9] [2009] HCA 27; (2009) 239 CLR 175.

[10] (1936) 55 CLR 499.

[11] [1996] VicRp 89; [1996] 2 VR 582.

[16] [2000] NSWCA 80; (2000) 50 NSWLR 139.

[17] Ibid 155-156 [71]-[72] (Heydon JA).

[18] [2006] VSC 170.

[20] Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55; (2010) 28 VR 250.

[21] [1992] HCA 55; (1992) 175 CLR 514.

[23] [2003] VSCA 6; (2003) 7 VR 63.

[24] [2025] VSC 121.

[25] [2003] VSCA 6; (2003) 7 VR 63, 92-93 [52].

[26] Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E [2022] VSCA 105, [109]-[110] (Beach, Niall and Kennedy JJA).

[27] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 573 [83] (Nettle and Gordon JJ).

[28] Minister for Immigration and Citizenship v Li & Anor [2012] HCA 61; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).

[29] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131] (Crennan and Bell JJ).

[30] Ibid 649-650 [135] (Crennan and Bell JJ).