First Plaintiff v First Defendant

STATUTES - Interpretation - Use of endnotes - Whether 'must' imperative - Domestic Building Contracts Act 1995 ss 6, 57.

1 The plaintiffs ('the Radojevics') seek judicial review of a decision of the Magistrates' Court of 4 July 2017 dismissing an application pursuant to s 57 of the Domestic Building Contracts Act 1995 ('DBC Act') for a stay of the proceeding.

2 The Radojevics commenced an action against the first defendant ('JDA') in the Magistrates' Court on 30 November 2016 seeking damages for alleged breaches of contract between the parties for the provision of architectural services by JDA in respect of design and proposed domestic building work in connection with four residential apartments to be built on the Radojevics' land. JDA defended the action and counter-claimed for unpaid fees.

3 On 23 June 2017, the Radojevics sought a stay of the Magistrates' Court proceeding pursuant to s 57 of the DBC Act or in the alternative, an adjournment of the proceeding. The Magistrate dismissed the application for the stay and the proceeding was adjourned for the completion of interlocutory steps.

4 On 2 August 2017, the Radojevics commenced this proceeding in this Court seeking to judicially review and quash the Magistrate's decision refusing a stay. JDA then applied to have this judicial review proceeding stayed or dismissed as 'inutile' or as an abuse of process. On 15 September 2017, I dismissed JDA's application.[1] On 3 November 2017, upon the Radojevics' application, the Magistrates' Court proceeding was transferred to the County Court of Victoria under the Courts (Case Transfer) Act 1991 because the quantum of their claim now exceeds the Magistrates' Court jurisdiction.

5 The final hearing of the Radojevics' application for judicial review orders was heard in this Court on 6 November 2017.

6 The Radojevics made their stay application to the Magistrate under s 57 of the DBC Act which states:

VCAT to be chiefly responsible for resolving domestic building disputes

(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.

(2) The Court must stay any such action on the application of a party to the action if -

(a) the action could be heard by VCAT under this Subdivision; and

(b) the Court has not heard any oral evidence concerning the dispute itself.

(3) This section does not apply to any matter dismissed by VCAT under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.

(4) If an action is stayed under this section, any party to the action may apply to VCAT for an order with respect to the dispute on which the action was based.

(5) If a person applies to VCAT under subsection (4) VCAT must notify the Court and on such notification the Court must dismiss the action.

(6) Subsection (5) does not apply if VCAT refers the matter to the Court under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998.

7 The Magistrate's task was to determine the Radojevics' stay application. They argued that s 57 applied to the dispute and was mandatory in terms and that the Magistrate was obliged to grant the stay. No oral evidence concerning the dispute had been heard by the Court at the time they made that stay application.

8 JDA opposed the stay arguing that because of s 6(1)(e), the DBC Act did not apply to the work in dispute. That paragraph excludes from the Act:

(e) design work carried out by an architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson.

9 However, s 6(1)(e) has an end note that was not drawn to the Magistrate's attention. The note states:

1. S. 6(1)(e): Although such design work is not domestic building work for the purposes of this Act, as a result of paragraph (1)(c) of the definition of domestic building dispute in section 54, disputes concerning such design work may be dealt with by VCAT.

10 Section 54(1)(c) states:

54 What is a domestic building dispute?

(1) A domestic building dispute is a dispute or claim arising -

...

(c) between a building owner or a builder and -

(i) an architect; or

(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson -

in relation to any design work carried out by the architect or building practitioner in respect of domestic building work; ...

11 In dismissing the Radojevics' application, the Magistrate said that:

Mr Moloney's argument I think is the telling one when he says, 'Section 6 not only comes before s 54, but more importantly it sets out to define alongside s 5 which the jurisdiction of VCAT is given to it by this Act in relation to domestic building contract disputes.' It marks out the jurisdiction by reference to language. Language which is then capable of some interpretation by reference to various sections in the Act, and of course the purpose announced by parliament in s 1 of the Act.

I regard s 6 to be the leading provision, and I regard s 54 to be the subordinate provision of those two. I do so not only because of the words of s 6 which purport to apply the section to the entirety of the Act, but because also s 6 refers to work not dispute.

In other words, it does not apply to the work which leads to the dispute, but which is fundamental to the dispute. It drills down even further in other words, it drills down past the dispute to describe an exclusion, or an exemption from the operation of this Act being design work by architects, and therefore I dismiss the application.[2]

12 The Magistrate referred to the Radojevics' argument based on the distinction between 'design work' in s 6(1)(e) and 'design work ... in respect of domestic building work' which appears in the definition of 'domestic building dispute' in s 54. The Magistrate considered that s 54 was in direct conflict with s 6(1)(e) and that in accordance with the High Court's decision in Project Blue Sky Inc v Australian Broadcasting Authority[3] the question was whether the provisions could be reconciled by identifying a leading provision and subordinate provision.

13 The Radojevics' grounds for judicial review that were pressed were that in making the decision to dismiss the application for a stay pursuant to s 57 of the DBC Act, the Magistrate made a jurisdictional error of law and an error of law on the face of the record. The error alleged was the adoption of an incorrect interpretation of s 57.

14 The Radojevics submitted that s 57(1) applied if the dispute before the Court was a domestic building dispute as defined in the DBC Act. They did not dispute that JDA's work was design work performed by an architect and therefore by operation of s 6(1)(e) did not fall within the definition of 'domestic building work'. However, they submitted that the critical issue was whether s 54(1)(c) applied to the work and whether the dispute was 'a domestic building dispute' and in that event a stay application could be made. The key point of the Radojevics' case was therefore the distinction between the term 'domestic building dispute' and 'domestic building work'. They submitted that a dispute between an owner and an architect in relation to design work was a domestic building dispute and that the Court's power in s 57 to grant a stay applied to such a dispute. If the dispute arose wholly or predominantly from a domestic building dispute, the matter could be heard by the Victorian Civil and Administrative Tribunal ('VCAT') and as no oral evidence concerning the dispute had been heard by the Court, and it was obliged to stay the proceeding once the Radojevics made such an application.

15 The Magistrate erred by construing s 54(1)(c) by reference to the definition in s 6(1)(e). The only question for the Magistrate was whether the dispute before him arose wholly or predominantly from a domestic building dispute as defined in s 54 of the DBC Act and he had not determined that issue correctly. The Magistrate therefore fell into jurisdictional error and made an error on the face of the record.

16 JDA's work was design work performed by an architect within the meaning of s 6(1)(e), and the dispute was not a 'domestic building work dispute'. However, by operation of s 54(1)(c) of the DBC Act, the dispute was a 'domestic building dispute' and so fell within s 57.

17 The end note to s 6(1)(e) was significant. Although as provided in s 36(3) of the Interpretation of Legislation Act 1984 (Vic), notes are not part of the Act, they can be used as an aid in the construction of the Act and it was appropriate to do so in this instance.

18 Meaning and effect must be given to the words 'in respect of' in s 54(1). The design work was carried out 'in respect of domestic building work', namely, the construction of four residential apartments by a registered builder on land owned by the Radojevics. Both the claim and counterclaim issued in the Magistrates' Court fell within s 54(1).

19 The exclusion of 'design work' from 'domestic building work' in s 6 was because Parliament intended that the statutory warranties contained in the DBC Act not apply to contracts regarding 'design work'.

20 JDA's submission that s 57A could be relied on as an aid in construing s 57 was inappropriate, as if s 57A was otherwise relevant to the determination of the stay application, it applied to 'domestic building work disputes' not 'domestic building disputes'.

21 JDA submitted that s 57 did not confer exclusive jurisdiction on VCAT. It merely indicated a parliamentary intention that VCAT should be 'chiefly responsible' for hearing such matters. JDA's claim for payment did not create a 'domestic building dispute', but was a claim for fees owed for design work and s 57 did not apply to it. Section 57(2)(a) was not satisfied as the action, including the counterclaim, could not be heard by VCAT.

22 JDA also submitted that even if s 57(2)(a) was satisfied, the word 'must' in s 57(2)(b) was to be interpreted as 'may'. Parliament's intention was illustrated by s 57A, which prohibited commencement of an action 'in a court' unless there was a certificate of conciliation granting leave to bring the proceeding in a Court.

23 The decision in Berry v Melbourne Magistrates' Court[4] applied to this case. The Magistrate came to the same conclusion as the Court in Berry as to the meaning and effect of s 6(1)(e). In making that ruling he did not commit any jurisdictional error.

24 The Magistrates' Court was entitled to consider the conduct of the party seeking the stay. That conduct included the Radojevics bringing the case in a Magistrates' Court, seeking discovery and providing affidavits, failing to comply with the provision of particulars and not filing expert statements. The Radojevics then, seven months after commencing the proceeding, sought to stay it. Their conduct breached the overarching purposes and obligations of the Civil Procedure Act 2010 ('CPA'). The Radojevics had taken advantage of the leave granted to them to amend their claim to increase its quantum so that it exceeded the jurisdiction of the Magistrates' Court.

25 If the action was stayed, the counterclaim would also be stayed, and VCAT would not have jurisdiction to hear it. The Magistrate correctly concluded that JDA did not have standing to bring a claim against the Radojevics that could be heard by VCAT.

26 The relevant provisions of the DBC Act are as follows:

1 Purpose

The main purposes of this Act are -

(a) to regulate contracts for the carrying out of domestic building work; and

(b) to provide for the resolution of domestic building disputes and other matters by the Victorian Civil and Administrative Tribunal; and

(c) to require builders carrying out domestic building work to be covered by insurance in relation to that work.

domestic building contract means a contract to carry out, or to arrange or manage the carrying out of, domestic building work other than a contract between a builder and a sub-contractor;

domestic building dispute has the meaning set out in section 54;

domestic building work means any work referred to in section 5 that is not excluded from the operation of this Act by section 6.

4 Objects of the Act

The objects of this Act are -

(a) to provide for the maintenance of proper standards in the carrying out of domestic building work in a way that is fair to both builders and building owners; and

(b) 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; and

(c) to enable building owners to have access to insurance funds if domestic building work under a major domestic building contract is incomplete or defective.

5 Building work to which this Act applies

(1) This Act applies to the following work -

(a) the erection or construction of a home, including -

(i) any associated work including, but not limited to, landscaping, paving and the erection or construction of any building or fixture associated with the home (such as retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas); and

(ii) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage to the home or the property on which the home is, or is to be;

(b) the renovation, alteration, extension, improvement or repair of a home;

(c) any work such as landscaping, paving or the erection or construction of retaining structures, driveways, fencing, garages, workshops, swimming pools or spas that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;

(d) the demolition or removal of a home;

(e) any work associated with the construction or erection of a building -

(i) on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act 1987; and

(ii) in respect of which a building permit is required under the Building Act 1993;

(f) any site work (including work required to gain access, or to remove impediments to access, to a site) related to work referred to in paragraphs (a) to (e);

(g) the preparation of plans or specifications for the carrying out of work referred to in paragraphs (a) to (f);

(h) any work that the regulations state is building work for the purposes of this Act.

(2) A reference to a home in subsection (1) includes a reference to any part of a home.

6 Building work to which this Act does not apply

(1) This Act does not apply to the following work -

...

(b) any work in relation to a farm building or proposed farm building (other than a home);

(c) any work in relation to a building intended to be used only for business purposes;

(d) any work in relation to a building intended to be used only to accommodate animals;

(e) design work carried out by an architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson;2

(f) any work involved in obtaining foundations data in relation to a building site;

(g) the transporting of a building from one site to another.

(2) This Act or a provision of this Act does not apply to any work that the regulations state is not building work to which this Act or that provision (as the case requires) applies.

27 As set out above, the endnote to s 6(1)(e) states:

1. S. 6(1)(e): Although such design work is not domestic building work for the purposes of this Act, as a result of paragraph (1)(c) of the definition of domestic building dispute in section 54, disputes concerning such design work may be dealt with by VCAT.

54 What is a domestic building dispute?

(1) A domestic building dispute is a dispute or claim arising -

(a) between a building owner and -

(i) a builder; or

(ii) a building practitioner (as defined in the Building Act 1993); or

(iii) a sub-contractor; or

(iv) an architect -

in relation to a domestic building contract or the carrying out of domestic building work; or

(b) between a builder and -

(i) another builder; or

(ii) a building practitioner (as defined in the Building Act 1993); or

(iii) a sub-contractor; or

(iv) an insurer -

in relation to a domestic building contract or the carrying out of domestic building work; or

(c) between a building owner or a builder and -

(i) an architect; or

(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson -

in relation to any design work carried out by the architect or building practitioner in respect of domestic building work; or ...

1. VCAT to be chiefly responsible for resolving domestic building disputes

(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.

(2) The Court must stay any such action on the application of a party to the action if -

(a) the action could be heard by VCAT under this Subdivision; and

(b) the Court has not heard any oral evidence concerning the dispute itself.

....

57A Certain actions not to proceed in a court without certificate of conciliation or leave

(1) A party to a domestic building work dispute may not commence an action in a court arising wholly or predominantly from the dispute unless -

(a) the chief dispute resolution officer has issued a certificate of conciliation to the party certifying that the dispute -

(i) was not suitable for conciliation; or

(ii) was not resolved by conciliation; or

(b) the party has been granted leave by the court to bring the proceedings.

(2) This section does not apply to proceedings for an order in the nature of an injunction.

29 Section 57 is located within Part 5 headed 'VCAT Jurisdiction' and Division 2 headed 'Proceedings before VCAT' and Subdivision 1 headed 'Domestic building disputes'. It enables an application for a stay to be made by a party when an action has been commenced in a court 'arising wholly or predominantly from a domestic building dispute', that could be heard by VCAT under Subdivision 1, and the court has not heard oral evidence concerning the dispute. As indicated by the headings of the DBC Act to which I have referred, the provisions appear intended to direct 'domestic building disputes' to VCAT.

30 Section 54(1)(c) expressly refers to 'design work' of an architect or building practitioner. Paragraph (c) is phrased somewhat differently to the preceding subsections (a) and (b), in that it adopts the phrase 'in respect of' domestic building work; it does not refer to a domestic building contract; and links the phrase 'carrying out' to the design work, rather than the domestic building work. The express reference to 'disputes' in relation to 'design work carried out by an architect' follows, and differs from the words of s 54(1)(a), which encompass disputes between a building owner and an architect 'in relation to a domestic building contract or the carrying out of domestic building work'. This suggests that s 54(1)(c) is directed toward something other than a dispute 'in relation to a domestic building contract or the carrying out of domestic building work'.

31 Section 53 gives VCAT broad powers in resolving 'building disputes', including 'domestic building disputes',[5] and s 54 defines 'domestic building disputes'.

32 Section 3 states 'domestic building work means any work referred to in s 5 that is not excluded from the operation of this Act by section 6'. The words of ss 5 and 6 are clear, setting out the 'building work' to which the Act does and does not apply, which in turn determines the content of the definition of 'domestic building work' applicable to s 54.

33 The Magistrate was required to interpret a number of sections of the DBC Act.

34 The High Court has described the correct approach to statutory construction as follows:

the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [6]

35 Where two statutory provisions conflict, Gummow J described the correct approach to their statutory interpretation as:

[T]he Court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In A.M.P. Inc. v Utilux Pty Ltd (1972) RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.[7]

36 This statement was cited by the High Court in Project Blue Sky[8] as supporting the following propositions:

Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

...

Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.[9]

37 As a general principle, all words in a statutory provision must be given meaning and effect: 'no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.[10] In accordance with the Interpretation of Legislation Act 1984, footnotes and endnotes are not considered part of an Act.[11] They may, however, by reason of s 36(4) of that Act be used in the interpretation of a provision of an Act.[12]

38 Subsequent amendments can sometimes assist in the interpretation of an Act.[13] But, there are limits to their utility, as they can only be used when the words of the provision are ambiguous,[14] and care must be taken to ensure that in the later provision, the legislature is not just removing possible doubts.[15] If 'the words of the earlier statute are clear, little assistance can be taken from the later statute'.[16]

39 The authorities suggest that there is no need to have regard to s 57A as a later amendment in construing s 57. The terms of s 57 are not ambiguous and in any event, s 57A really deals with a different subject, namely 'domestic building work disputes' and conciliation prior to commencement in a court.

40 The main purposes of the DBC Act are set out in s 1, namely, to regulate contracts for the carrying out of domestic building work; to provide for the resolution of domestic building disputes and other matters by VCAT; and to require builders carrying out domestic building work to be covered by insurance in relation to that work. The objects of the Act include, inter alia, 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'.[17]

41 As appears from the specific provisions already considered, the structure of the DBC Act is quite detailed and specific. The Act comprehensively sets out a legislative scheme intended to achieve its identified purposes and objects. Indeed, in this regard the Attorney-General referred to the relevant bill as constituting a 'comprehensive and integrated package'.[18]

42 Section 57(1) applies if a person starts any action arising wholly or predominantly from a 'domestic building dispute'. That term is defined in s 54(1) to include a dispute or claim in relation to any design work carried out by the architect or building practitioner in respect of domestic building work. Domestic building work means any work referred to in s 5 that is not excluded from the operation of the DBC Act by s 6.

43 There is a conflict between the inclusion of the dispute between a building owner and an architect in relation to design work under s 54(1)(c) and the fact that building work does not include such design work. It is necessary for the Court to attempt to reconcile those conflicting provisions.

44 In my opinion, s 54 intends to give VCAT jurisdiction to resolve such disputes. The note to s 6 reinforces that view. I therefore accept the Radojevics' submissions for the following reasons.

45 The question of whether the relevant action arises 'wholly or predominantly from a domestic building dispute' and could be heard by VCAT under Subdivision 1 of Division 2 Part 5, requires determination of whether the work of the architect and associated claim for unpaid fees was 'design work' within the scope of s 54.

46 Prima facie, a difficulty in construction appears to arise as s 6(1)(e) excludes from the Act's application 'design work carried out by an architect', yet s 54(1)(c) contemplates 'domestic building disputes' as including a dispute 'in relation to any design work carried out by the architect or building practitioner in respect of domestic building work'.

47 The approach adopted by the Magistrate resulted in s 54(1)(c) having no application, because the work the subject of the dispute was not covered by the DBC Act as s 6(1)(e) provides. While his Honour referred to the general principle that the Court should give effect to all of the language of the Act, he adopted the approach of determining the leading and subordinate provisions, as there was 'no apparent purpose for the conflicting sections other than a purpose shared by both'.[19]

48 However, with respect, the correct approach was to seek to alleviate the conflict 'by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions'.[20] The construction adopted by the Magistrate, gave no effect to s 54(1)(c) and it is improbable that the legislature 'could have intended to insert a provision which has virtually no practical effect'.[21] This is particularly so given the comprehensive and specific nature of the Act as a whole, and the provisions in question. Section 54(1)(c) has a number of important textual indicators. It specifically refers to 'design work' that is carried out 'in respect of' domestic building work. It does not refer to a 'domestic building contract'.

49 These factors suggest that Parliament intended to draw a distinction between design work as 'domestic building work', to which s 6(1)(e) makes clear that the DBC Act does not apply and disputes as to design work in relation to domestic building work, which can be heard by VCAT. The endnote, while not part of the Act, directs the reader toward a construction that reconciles s 6(1)(e) and s 54(1)(c) rather than applying one to the exclusion of the other. Particular reference is made to the application of the DBC Act to disputes regarding design work. If the distinction between 'design work' and 'disputes' in relation to 'design work in respect of .... domestic building work' is maintained, s 6(1)(e) still has a purpose in excluding 'design work' per se from the application of other sections of the Act where there is no 'dispute' such as in Part 2, while directing 'disputes' in relation to 'design work... in respect of domestic building work' toward VCAT. By this path, the purposes of ss 54(1)(c) and 57 of directing such dispute to VCAT are achieved.

50 The dispute must be 'in relation to any design work carried out by an architect or building practitioner in respect of domestic building work'. Applying the ordinary meaning of the text, there appears to be no reason why 'in relation to' cannot encompass a claim for an unpaid debt 'in relation to' work carried out by an architect 'in respect of domestic building work'. The Radojevics contend that the relevant 'domestic building work' was the construction of four residential apartments by a registered builder, which would fall into s 5(1)(a). I accept that submission.

51 JDA placed particular reliance on the decision of Gillard J in Berry v Melbourne Magistrates' Court.[22] His Honour determined a judicial review application challenging a Magistrate's decision not to stay a claim by architects for fees for service under s 57 of the DBC Act. Gillard J's decision considered whether the Magistrate had made a jurisdictional error or error of law on the face of the record. His Honour stated:

As 'domestic building work' is work referred to in s 5 that is not excluded by s 6 from the operation of the Act (see s 3), there appears to be a direct contradiction between the provisions of section 6 [(1)](e) and section 54(1)(c). How can they be reconciled? In seeking to answer the question, it is necessary to confine the deliberation to the issue before the Magistrate.[23]

...

The question for the learned Magistrate was to decide whether the work, which was the subject of the dispute or claim by the Architect, was design work, and if, on the material placed before the Court, it answered that description, the Act did not apply and the Court did not have power under s 57 to stay the proceeding.[24]

...

If the Magistrate did make an error in ruling that section 6[1](e) included the operation of the Act, it was an error made within jurisdiction. It was not one of those errors which is amenable to a prerogative-type writ. As was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Cohen: 'adopting an incorrect interpretation is not always synonymous with jurisdictional error'.[25]

...

If the work, the subject of the proceeding, answers in substance the description of 'design work by an architect', then that is the end of the matter. The Act no longer applies and no stay can be granted under s 57. The work does not have to be wholly design work and the section applies if the majority of the work answers that description.[26]

52 Gillard J recognised that VCAT did have jurisdiction to hear a dispute between an architect and building owner in relation to design work, as provided for in s 54. However, in that case, the argument before the Magistrate was confined to the question of whether the work of the architect fell within s 6(1)(e) as 'design work'. There was no analysis of the relationship between s 6(1)(e) and s 54. Although Gillard J recognised the potential conflict between the two provisions, he expressly limited his consideration to the issues before the Magistrate as the passages that I have quoted indicates.

The Act must be construed and applied to make it work in a practical fashion, and the issue of the application of s 6 should not be a drawn out contested hearing. If the work, the subject of the proceeding, answers in substance the description of "design work by an architect", then that is the end of the matter. The Act no longer applies and no stay can be granted under s 57.[27]

54 However, those comments need to be viewed in light of his Honour's identification of the specific issue he was determining. The issue of the conflict between s 6(1)(e) and s 54(1)(c) was identified, but not considered. The dispute in that case was whether the architect's work was design work and Gillard J held that the Magistrate did not err in deciding that it was. The argument put before the Magistrate was that, properly construed, the architect's work was not 'design work' for the purposes of the DBC Act. In the case before me, the issue is whether the dispute is a 'domestic building dispute' for the purposes of the Act, not whether the work of the architect is 'design work'.

55 As the point raised before me was not argued in Berry, I do not consider that it is authority that decides this case.

56 Even if the circumstances satisfy s 57(1) and s 57(2)(a) and (b), JDA submitted that the word 'must' in s 57(2) should be construed as 'may'. This was because of the surrounding provision that was later added to the DBC Act, s 57A, and the obligations imposed on parties by the Civil Procedure Act 2010.

57 It was suggested that some guidance on the meaning of 'must' in s 57 could be gained from surrounding circumstances particularly those introduced by the Building Legislation Amendment (Consumer Protection) Act 2016 ('the amending Act'), relevant parts of which commenced on 26 April 2017. When introducing the amending bill to Parliament, the Attorney-General stated that the bill was 'the first tranche of reform to Victoria's building system that will ... deliver clear and accessible pathways for consumers to resolve disputes and ensure that their homes are built to the required standard'.[28]

58 The amending Act repealed the previous Part 3A which provided for conciliation of 'domestic building disputes', where the definition of such disputes did not include disputes defined in s 54(1)(b), that is, disputes between a builder and another builder, or a building practitioner, or a sub-contractor, or an insurer. There was no analogous express exclusion in s 54(1)(c) concerning domestic building disputes. The amending Act also substituted Part 4 for a new Part 4, which defines a 'domestic building work dispute' and then creates a scheme of referral and conciliation, as well as assessment of domestic building work.

59 Sections s 56 and s 57A introduced specific requirements regarding 'domestic building work disputes'. The latter prevents a party to a domestic building work dispute from making an application to VCAT unless they have a certificate of conciliation.

60 JDA submitted that in light of s 57A, the word 'must' in s 57 should be read as 'may'. The word 'must' interpreted as containing an imperative could not stand alongside s 57A which introduces the requirement that a party to a domestic building dispute may not commence an action in a court arising wholly or predominantly from the dispute unless it has obtained the certificate of conciliation.

61 JDA did not submit that the scheme created by ss 44, 56 and s 57A applied in the current circumstances, it was only referred to as an interpretative tool for s 57.

62 Alternatively, JDA submitted that reading 'must' in s 57 as an imperative, would create a labyrinth for 'domestic building work disputes', and lead to a complicated system that would not achieve the intended purpose of resolving disputes 'quickly and efficiently', or improving the operation of the DBC Act, as intended by the amending Act and when read in accordance with the overarching purposes and obligations created by the CPA. JDA contended that s 57A was inconsistent with the suggestion that it was Parliament's intention to funnel all disputes into VCAT.

63 In reply, the Radojevics submitted that the distinction between s 57A as to 'domestic building work disputes' and s 57's reference to 'domestic building disputes' must be given effect. That is, s 57A using the words 'domestic building work dispute' has different work to do than the defined term 'domestic building dispute' which forms part of s 57.

Analysis of the submissions about whether s 57 confers a discretion

64 Prima facie, the use of 'must' in s 57(2) suggests that the Court has no discretion once s 57(1) and (2)(a) and (b) are satisfied. It is rare that the word 'must' does not impose an unqualified obligation.[29] That is, the term is used in the imperative sense. In Victorian statutes the word 'must' is often used in place of the word 'shall' to convey a positive obligation.[30] Section 45 of the Interpretation of Legislation Act 1984 deals with the meaning of the words 'may' and 'shall'. Prima facie, the use of 'must' in s 57(2) suggests that the Court has no discretion once s 57(1) and (2)(a) and (b) are satisfied. In an earlier decision, Habersberger J appeared to consider that 'must' in s 57 was imperative.[31]

65 Determining whether a provision is imperative or affords some discretion falls to be determined by ordinary principles of statutory construction.[32]

66 Most of the surrounding provisions, namely ss 53, 55, 58 and 59, use the word 'may' suggesting that the use of 'must' was an intentional distinction to create an obligation. Notably, ss 56 and 57 use the word 'must'. Section 57A uses the words 'may not'. In those provisions the legislature appears to direct that: a certificate of conciliation is required to bring a 'domestic building work dispute' in VCAT (s 56) and VCAT is to be chiefly responsible for the resolving 'domestic building disputes' (s 57). That is, a distinction is drawn between those provisions which appear to direct the proceeding away from a particular forum where 'must' is adopted, and those that discuss when VCAT can hear the proceeding and the orders that it can make where 'may' is used.

67 Section 57A appears to add to s 57. Section 57 does not prevent a party from pursuing the matter in court, but on application by a party, the proceeding is stayed to allow conciliation and proceedings in VCAT to be pursued. While this may render ineffective the leave provided by the Court under s 57A, it can only follow an application of a party, and on one view appears to reflect Parliament's intentions for VCAT to be 'chiefly responsible for resolving domestic building disputes'. While this construction must now be read in the context of s 56, which requires the issue of a certificate of conciliation for domestic building work disputes prior to commencing proceedings in VCAT, arguably both provisions align with the objects of the DBC Act to, inter alia, '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' ( s 4 (b)). Moreover, one of the aims of the amending Act was to 'give the parties to the dispute greater incentives to resolve disputes earlier and more cost effectively'.

68 The specificity and detail of the Act following recent reforms, the language and purpose of the provision, and the use of 'may' in surrounding provisions, suggest that the word 'must' in s 57 must be read as imperative. The purpose of s 57, that VCAT be chiefly responsible for resolving domestic building disputes and the purpose and objects of the DBC Act will be promoted by an imperative construction to the word 'must' in s 57.

69 I am satisfied that if a stay is granted that VCAT will have jurisdiction to hear and determine both the claim and counterclaim under s 54(1)(c) of the DBC Act. The words 'in relation to' contained in paragraph (c) are wide.

70 If a stay is granted, but the Radojevics do not promptly commence proceedings in VCAT, then JDA can apply to lift the stay.

Discretion in granting judicial review remedies

71 Judicial review remedies are discretionary. For instance, they can be refused for the applicant's delay, because of the applicant's conduct or because the remedy would lack utility. The Radojevics' actions in commencing a proceeding in the Magistrates' Court, in taking a number of steps in it, in seeking to stay the proceeding, in challenging the Magistrate's refusal to grant a stay, in amending the quantum to take the claim outside the Magistrates' Courts jurisdiction and then transferring the case to the County Court, were all said to be matters that should cause the discretion to be exercised against granting judicial review remedies. The Radojevics' actions were also said to breach the overarching purposes and obligations of the CPA. JDA's counsel submitted that the amendment of the claim to seek an amount that exceeded the Magistrates' Court jurisdiction was 'a deliberate decision to make sure that the Magistrates' Court could not proceed with the matter'.[33]

72 The Radojevics' explanation for these steps was that after a change of solicitor, their new solicitor considered that VCAT was the appropriate forum for their claim.

73 I accept that the provisions of the CPA apply to the Radojevics' application under s 57. Their actions have certainly hampered the facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute. Under s 47 of the CPA, the court can give case management directions to achieve the overarching purposes. However, I do not consider that the provisions of the CPA can remove the rights given by s 57 of the DBC Act to the Radojevics.

74 The Radojevics took steps that the DBC Act permitted them to take. The subsequent delays are a result of challenges to the Magistrates' decision. JDA has challenged the Radojevics' right to obtain a stay. I do not consider that the Radojevics' conduct justifies the refusal of relief. But their conduct is likely to be most relevant to the question of costs to the Magistrates' Court and the County Court proceedings. It is clear that the granting of a stay under s 57 does not prevent those Courts awarding the costs of the proceeding.

75 Disputes about jurisdiction are arid and should be unnecessary. I repeat my observations made in the first judgment. It is unclear why Parliament has enabled a part to make a stay application up until oral evidence concerning the dispute is called. That provision is not consistent with the overarching purpose of the CPA nor with the second object contained in s 4(b) of the DBC Act.

76 The right given by s 57(2) to a party, including the party who commenced the action, to seek its stay of the action at any time until oral evidence concerning the dispute is called is not conducive to the quick, efficient and cheap resolution of the dispute. Parliament should reconsider s 57 to determine whether amendments are required to make it consistent with the objects of the DBC Act and the purposes of the Civil Procedure Act.

77 Accordingly, the Magistrate erred in jurisdiction and by error of law on the face of the record in his interpretation of s 57.[34] I will hear the parties as to the appropriate orders that follow.

78 I add the following. In my opinion, the Radojevics were entitled to obtain a stay under s 57 of the DBC Act of the action they commenced in the Magistrates' Court and which has been transferred to the County Court. However, as I am hearing a judicial review proceeding, that application will have to be made again to the County Court. The County Court, when granting the stay, will also be able to deal with the costs of the action.

[1] Radojevic v JDA Design Group Pty Ltd [2017] VSC 554.

[2] Transcript of proceedings, Radojevic v JDA Architects (Magistrates' Court, 2017-1315, Magistrate Braun, 4 July 2017) ('Magistrates' Court transcript'), 43.

[4] [2001] VSC 228.

[6] Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 [47]; and see SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405, 410 [14].

[7] Minister for Resources and Anor v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574 (Hill and Cooper JJ agreeing).

[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ('Project Blue Sky').

[10] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414; see D C Pearce and R S Geddes, Statutory Interpretation in Australia (2014, 8th ed, Lexis Nexis)('Pearce and Geddes').

[11] Interpretation of Legislation Act 1995 (Vic) s 36(3).

[12] Pearce and Geddes, above n 9, 204-5, [4.57].

[14] Allina Pty Ltd v Federal Commissioner of Taxation [1991] FCA 78; (1991) 28 FCR 203, 212 [42].

[15] Ibid; Doughty v Martino Developments Pty Ltd [2010] VSCA 121 [32].

[16] Allina Pty Ltd v Federal Commissioner of Taxation [1991] FCA 78; (1991) 28 FCR 203, 212; and see R v Seiders; R v Somsri [2008] NSWCCA 187 [126]-[127].

[18] State of Victoria, Parliamentary Debates, Legislative Assembly, 24 October 1995, 695.

[19] Magistrates' Court transcript, 42.

[20] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382.

[21] Minister of State for Resources v Dover Pty Ltd [1993] FCA 366; (1993) 43 FCR 565, 574 (Gummow J).

[22] [2001] VSC 228 ('Berry').

[28] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2015, 5541 (Mr Richard Wynne, Attorney-General).

[29] Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 [10] (Basten JA).

[30] Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 445-6 (Tadgell JA).

[31] Presser v Ocean View Properties Pty Ltd [2006] VSC 143 [44].

[32] See Pearce and Geddes, above n 9, [11.9].

[33] Transcript of proceedings, Radojevic v JDA Design Group (Supreme Court of Victoria, S CI 2017 03017, Ginnane J, 29 August 2017) 62.

[34] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 [28].