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2 This appeal challenges the answers provided by a Vice-President of VCAT to two preliminary questions raised before him in proceedings by a builder challenging a requirement made under s.44 of the Housing Contracts Guarantee Act 1987, as amended by the Housing Contracts Guarantee (HIH) Act 2001, to require the builder to make payments to the Fund to the amount of $100,000 which was paid to the owner with whom the builder had been contracted to perform building work.

3 The reasons for decision of the Vice-President reflect the fact that the Tribunal had some anxiety about dealing with the case in the way which had been proposed, but acceded to the joint request of the parties and their assertion that, by answering the preliminary questions, the early resolution of the case could be assured.

4 Having had the two questions answered adversely to its interest, the Fund sought leave to appeal. That application came before a bench comprising Chernov, J.A. and myself on 14 November 2003. Both the appellant and the first respondent were represented before the Court and extensive written and oral arguments were presented. The respondent opposed the grant of leave by presenting substantive arguments as to the merits of the grounds of appeal, but, as I recall, on both sides there was agreement that the issues raised by the appeal necessitated early resolution. On behalf of the appellant it was argued that the appeal raised a question of general importance in the building industry.

5 It is rare that leave would be granted where the issues of appeal involve hypothetical questions and interlocutory orders. I gave reasons for decision in this case which fully set out the circumstances in which the application for leave came before the Court and the basis of the decision to grant leave.

6 Since leave was granted a number of significant changes have occurred in the appeal. In the first place, the grounds of appeal have been amended to raise a new ground of appeal challenging the jurisdiction of the Tribunal to have heard the proceedings at all. The doubt about jurisdiction was said to have been raised by virtue of the decision in the Trial Division of the court delivered after leave had been granted.[1] Mr Foxcroft fairly raised that issue, although he argues that the decision is distinguishable and that the Tribunal did in fact have jurisdiction. In the course of argument today it has emerged that, as to at least one of the two questions raised on the appeal, there is real doubt about jurisdiction. This leads me to the second change to the situation concerning the appeal.

7 When leave was granted it was assumed that the issues on the appeal would be fully argued by counsel appearing on both sides. Since the grant of leave, however, the first respondent has advised that he will no longer be represented on the appeal. His solicitor appeared as a matter of courtesy today and advised that his client has no funds to take part in the appeal.

8 Had it been known that the respondent would not be represented on the appeal, the decision as to the grant of leave may well have been different. Had we known that a jurisdiction issue would be raised and that a decision as to the Tribunal's jurisdiction would be sought without the Tribunal itself having an opportunity to consider the challenge to its jurisdiction and to deliver a judgment on the question, then, for my part, I do not consider that leave would have been granted.

9 Having heard argument today, I am firmly persuaded that this is no longer an appropriate vehicle for a grant of leave and for resolution of the preliminary questions raised on the appeal. I appreciate that time has been lost in resolution of questions of law which are of importance to the appellant in the performance of its public duty, but there are very good reasons why courts are reluctant to deal with hypothetical and interlocutory appeals, and the character and circumstances of the appeal have now so radically altered that in my view the grant of leave to appeal should be rescinded.