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[1999] VCAT 29
Victorian Civil and Administrative Tribunal
1999-05-21
Original judgment source is linked above.
Domestic building - Proposed joinder of Applicants -
Exclusion of "personal injury" - Domestic Building Contracts Act 1995
1. Jurisdiction existing under s60 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to make orders joining Erica Hannagan and Precision Interconnect Australia Pty Ltd as parties to the proceeding as additional Applicants on the Counter Claim such are joined as, respectively, Second and Third such Applicants accordingly.
2. The action is maintainable, except as regards anxiety, by the Applicant on the Counter Claim and by the additional Applicants on the Counter Claim considering the terms of s54(2) of the Domestic Building Contracts Act 1995.
4. I direct the Registrar to re-list this proceeding at the next convenient Directions Hearing after 18 June 1999.
1. On 11 February 1999 I set down for separate hearing the following questions:
"(a) having regard to s60 of the Victorian Civil and Administrative Tribunal Act 1998 whether jurisdiction exists to make orders and if so whether orders ought to be made joining Erica Hannagan and Precision Interconnect Australia Pty Ltd as parties to this proceeding as additional Applicants on the counter claim;
(b) having regard to the provisions of the Domestic Building Contracts Act 1995 whether any action is maintainable by the Applicant on the counter claim and by the additional Applicants on the counter claim (if added) considering the terms of s54 (2) of the same."
2. Such hearing took place on 12 April 1999. At the conclusion of such hearing I reserved my decision and gave liberty to the parties to file any further submissions by 23 April. Further submissions were filed, late.
a) jurisdiction does exist under s60 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to make orders joining Erica Hannagan and Precision Interconnect Australia Pty Ltd as parties to the proceeding as additional Applicants on the Counter Claim as, respectively, Second and Third such Applicants;
b) the action is maintainable, with the qualification I note below, by the Applicant on the Counter Claim and by the additional Applicants on the Counter Claim considering the terms of s54 (2) of the Domestic Building Contracts Act 1995.
"(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -
a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or
b) the person's interests are affected by the proceeding; or
c) for any other reason it is desirable that the person be joined as a party.
2. The Tribunal may make an order under sub-section (1) on its own initiative or on the application of any person."
5. The discretion given by s60 is very large. There is nothing in its terms which confines its application to the addition of Respondents. Indeed, it could prove very inconvenient if this were so. I am satisfied that, in a proper case, it is appropriate to order under s60 that a party be added as an Applicant. Within the terms of the question raised for separate hearing, I am quite satisfied that the Tribunal has jurisdiction so to order.
6. I have considered the terms of the proposed Points of Claim (as I believe I am entitled to do) asserting alleged rights of action by Erica Hannagan (as Second Applicant) and Precision Interconnet Australia Pty Ltd (as Third Applicant). I have considered those in the light of affidavit material and in the light of the submissions made by each side. I am satisfied that this is a proper case where I should exercise my discretion to join both such proposed additional Applicants as Second and Third Applicants and, accordingly, I do so. I rely upon each of the paragraphs of s60(1) in this regard. I decline to adopt any practice or procedure applicable to courts of record which would or may lead to a contrary result. See s98(1)(b). I should add that on this question it is not a matter of me deciding, at this point, whether the actions of the additional Applicants will necessarily succeed. All I need to be satisfied about, I consider, is that there is a strong argument, at prima facie level, that they will succeed. I am satisfied that this is so at that level.
7. The second question for separate hearing raises s54(2) of the Domestic Building Contracts Act 1995 which says:
"For the purpose of sub-section (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury."
Essentially the argument of the Respondent, as I understood it, is that any injury at all, including any mental injury of any description, is a "personal injury" and is excluded from jurisdiction under s54 (2). This argument was opposed by the Applicant. I was referred to various authorities by each side said to be relevant to the point. Those authorities included Burke v Lunn [1976] VicRp 22; [1976] VR 268 and Clarke v Shire of Gisborne [1984] VicRp 77; [1984] VR 971.
8. The jurisdiction-conferring provisions of the Domestic Building Contracts Act 1995, I think, should be given a liberal construction. I refer to remarks of Byrne J. in Green Hill Homes Pty Ltd v Domestic Building Tribunal [1998] VSC 34. I comment, though, that it is not clear to me that the same approach should be adopted to the Act's jurisdiction-excluding provisions. However, I am able to formulate my views on the meaning and effect of s54 (2) without reliance upon any such principle.
9. In Cable v Rogers (1625) 3 Blust 311 at 312 Dodderidge J said that the word "injury" is a general and large word. In the first place, as regards s54 (2), I have no doubt that the words "personal injury" include physical injury. This, I regard, as their obvious application. But I do not consider that s54(2) is limited to its obvious application. In the second place, therefore, I consider that the words "personal injury" include mental injury as well. Usually, of course, mental injury is spoken of in terms of mental illness. There is nothing in the Act which would exclude mental injury or illness from the concept of "personal injury". Indeed, as Windeyer J. observed in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 382 at 391, 403, the law, "marching with medicine but in the rear and limping a little", has, "cautious step by cautious step", come to accept that mental illness, for example, that occasioned by nervous shock, is as much a real injury caused to a person as conventional bodily damage. It seems to me to be correct to say, therefore, that mental injury is included in "personal injury" under s54(2).
10. On this basis, any claim for physical or mental injury is excluded from the jurisdiction. Any such claim, if it is to be brought, even if it arises out of a domestic building dispute, must be brought elsewhere than in the Tribunal in the exercise of its jurisdiction under the Domestic Building Contracts Act 1995. In short, I regard as excluded from the jurisdiction by s54(2) any personal injury claim at all, whether for physical or for mental injury, able to be brought really in the courts.
11. In either case, however, the exclusion in s54 (2) is limited to whatever constitutes an "injury". As regards any personal injury, it is any claim "related to" that injury that is excluded by that provision. However what constitutes an "injury" in the familial sense for this purpose is not defined in the Act. Definitions of that expression in other Acts, of course, cannot be used. No definitive guidance (except on specific points) is given by any of the authorities which were cited to me. I should mention here that I reject the argument that a claim for personal injury arising out of defective work is a claim related to that work and not to that injury.
12. Normally an injury is something requiring medical or other specialist attention. Normally also, to establish either its existence or its exact character, expert evidence, of a medical or other specialist kind, will need to be called. The need to call evidence of a psychiatric nature in a case of mental injury or illness will usually be obvious. Post-traumatic stress disorder, for example, is a "psychiatric condition" (Re Slattery (1998) 52 ALD 90 at 105) for which evidence of a psychiatric nature is required. Although one injury can cause another injury (the physical injury of a leg break, for example, may cause the mental injury of depression) an "injury" as such must be distinguished from the factors giving rise to it. The cause must not be confused with the effect. The two are separate. Those factors which cause an injury (if any of them are not themselves an injury) do not, therefore, fall within the concept of "injury". They are productive of the injury but they are not themselves the injury. They precede the injury because they cause it. They lead to an injury but they are not "related to" it in any familial sense.
13. In the case of mental injury, for example, it may be that the injury is an anxiety state but what caused that state (if not itself an injury) will not be included. It may be that that state has been caused by worry or disappointment or frustration but I would not regard any of them as included in the exception in s54 (2) because I would not regard any of them as constituting an "injury" at all. This becomes even clearer if one uses the word "illness" instead of the word "injury" in the expression "mental injury". Similarly with inconvenience: inconvenience may be the cause of stress but stress is not itself an injury. Nor is distress. Of course, stress or distress may lead to a post-traumatic stress disorder (which is a recognised psychiatric condition: see Re Slattery, above) which is a species of mental injury or it may induce some other state qualifying as a mental injury. However stress itself or distress is not an injury but is, rather, what may induce an injury. In the case of inconvenience it is plainer still that no "injury" is involved. In this regard, it is important too, I think, to distinguish between mental anguish or suffering and mental injury. Any mental injury may have associated with it mental anguish or suffering of one kind or another, and to a greater or lesser degree. But it cannot be said, as was contended on behalf of the Respondent, that wherever there is mental anguish or suffering there is also mental injury. If this were so, it would include, for example, emotional hurt. Emotional hurt can cause mental anguish and suffering. Yet emotional hurt can hardly be regarded as a mental "injury" and, thus, as a personal injury.
Even less can it be regarded as a mental illness. In this regard, I note the decision of Smith J in Graham v Robinson [1992] I VR 279 at 281 who, in the context of s3 of the Magistrates Court Act 1971, said that the expression "personal injury" in that provision "does not extend beyond physical injury and mental illness to include emotional hurt". Although worry was considered to be a personal injury in Gagolinscy v Hamilton City Corporation [1975] 1NZLR 150, neither do I, with respect, regard that decision as correct (on the analysis I have adopted) nor do I regard myself as bound to follow that decision. It simply does not seem right in principle at all to say that worry can constitute a mental injury. Everyone worries from time to time and I think it would be quite wrong to regard worry itself as mental injury or mental illness.
14. I do not wish to be taken as saying, by any of this, that any condition whatever which is claimed in the Tribunal in the Domestic Building List, which is not within the concept of personal injury, will necessarily be compensible or, if compensible, will necessarily be compensible beyond a very modest sum. Whether something is to be compensated or not will still depend upon the facts of the case, upon the evidence called and upon the application of relevant principles including the rule in Hadley v Baxendale [1854] EngR 296; (1854) 9 Exch 341. Nor should I be taken as saying that the boundary between what is a "personal injury" and what is not will necessarily be clear in every case. Indeed the situations where any compensation will be awarded in the Tribunal in that List in respect of non-pecuniary loss may be few and far between.
15. Accordingly, I rule that the action is maintainable by the Applicant on the Counter Claim and the additional Applicants on the Counter-Claim considering the terms of s54(2) of the Domestic Building Contracts Act 1995, except as regards anxiety which I regard as a personal injury.
16. My rulings on the questions are set out in para 3.
17. I reserve the question of costs. I direct the Registrar to re-list this proceeding at the next convenient Directions Hearing after 18 June 1999.
# Henley Arch Pty Ltd
Hannagan \[1999\] VCAT 29
(1970) 125 CLR 382