Independent Cement & Lime Pty Ltd v VCAT [2000] VSC 355

"We act for Independent Cement and Lime Limited. The purpose of this facsimile is to put the Tribunal on notice that ICL has instructed us to make application in the above proceeding to be joined as a party pursuant to section 60 of the Victorian Civil and Administrative Act 1998. We propose to make the application tomorrow before Member Lothian."

21. On 31 March counsel for ICL appeared before the Tribunal seeking an order pursuant to s.60(1) of the VCAT Act that the ICL be joined as a party to the proceeding. Having heard the application and what was put by the existing parties, the Tribunal on same day refused the application giving oral reasons which she later confirmed in writing pursuant to s.117. Her decision and her reasons as set out in the formal order of the Tribunal are as follows:

"Decision: I confirm my earlier decision that ICL's application to be joined pursuant to s.60 of the Victorian Civil and Administrative Tribunal Act fails. Reasons: The proposed joinder does not confer any potential right on ICL, and neither does it put ICL at risk of having an order, other than a costs order, made against it. There is a risk that a finding might be made that the cement used on the Dana Court project was defective, but that decision will not bind ICL if it is not a party to this proceeding. For this reason I have given substantial consideration to allowing ICL to be joined on its own motion. However, against this risk I balance the certainty that the applicant will suffer loss by reason of the hearing being longer and more complex."

25. On 4 April 2000 ICL commenced this proceeding by originating motion seeking injunctive, prerogative and other relief. The Tribunal, as the firstnamed defendant, has informed the court that it will abide its order. Simonds Homes has not appeared. Counsel appeared for Mr Wagg opposing the application of ICL.

28. When the case came on for hearing before me, counsel for ICL informed me that their client sought only relief in the nature of the certiorari quashing the order of the Tribunal of 31 March and remitting the application of ICL to her for her to determine in accordance with law. They sought their relief on the basis that the Tribunal fell into jurisdictional error and that there was an error of law apparent on the face of the record. It was not suggested that the order was vitiated for some procedural irregularity, fraud or any improper purpose or the like.

31. The Tribunal is permitted by s.60 to order that a person be joined to an existing proceeding. The section is in the following terms:

"60. Joinder of parties: (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 he 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."

35. It was contended that the application of ICL to be joined might be justified on any of the three grounds set out in sub-s.(1). It was said that ICL was a person which "ought to be bound by or have the benefit of an order of the Tribunal in the proceeding" since it was the manufacturer of the cement whose condition was a matter in issue. It was said that ICL was a person whose "interests are affected by the proceeding" inasmuch as it stood to suffer commercial disadvantage from the publicity which might attend an adverse finding as to its product. I was referred in this respect to s.5 of the VCAT Act, but it seems that this definition of "interests" concerns the standing of a person to seek to have the Tribunal review a decision under Part 3 Division 3. Finally it was said that it was desirable that ICL be joined as a party so that it might present evidence and argument in support of its product and to avoid further litigation, with the possibility of inconsistent findings. I was told that, in the event that Simonds Homes failed on the ground that the cement was bad it might sue ICL in the court. It was put that such a finding that any of these three circumstances existed enlivened the jurisdiction of the Tribunal under s.60.

38. I approach s.60 with considerable caution. Like many of the provisions of the VCAT Act it is clearly intended to confer wide powers on the Tribunal. Furthermore, given the variety of circumstances in which the Tribunal exercises its jurisdiction, it may operate differently in those differing types of proceedings. I am mindful that it operates under a legislative regime which encourages and even directs if to proceed informally, economically and without undue formalism. This said, I have been told that proceedings in the Domestic Building List are accompanied by a greater formality than its other lists. The pleadings in the present proceeding demonstrate this. I am told too that it is not uncommon for there to be discovery ordered.

41. My starting point must be the expressed reasons for the decision. Furthermore, in an attack based on want of jurisdiction, I may look at the circumstances which bear upon the basis for this attack.[2] Accordingly, I have been taken to passages in the transcript, especially those which show how the application before the Tribunal was presented. These passages show first that the Tribunal accepted that the case was one where an application by ICL brought at an earlier stage might have been successful. The Tribunal appears to have found that one or more of the preconditions in s.60(1) had been made out. Her decision was therefore arrived at on an application of her undoubted discretion.

44. Secondly, it appears from the positions adopted by counsel for Simonds Homes and ICL that they had a large community of interest in resisting Mr Wagg's criticisms of the cement. Counsel for Simonds Homes before the Tribunal rejected any suggestion that his client might join ICL as a party - as a defendant to its counterclaim, referred to in the terminology of the Tribunal as a joined party. There appears to have been a keen awareness in counsel and also in the Tribunal of the implications of s.131 of the Building Act.

47. Thirdly, there seems to have been a surprising reluctance on the part of the Simonds Homes to call ICL technical witnesses as part of its own case, as it had called Mr Byrne as a witness some days earlier. It contented itself by supporting ICL's application. Perhaps it wanted to keep open the option that it might be able to cross-examine a friendly expert called by ICL.

50. Fourthly, the Tribunal appears to have been affected by a concern that Mr Wagg, who had been before it for some six days, should not be caught up in some wider dispute in which the technical quality of ICL's product generally was under investigation. Debate before the Tribunal proceeded on the basis that the new party would have to give discovery and provide a formal statement of its position. Further interlocutory steps were contemplated, including a compulsory conference. The proposed subsequently resumed hearing date was said to be 7 June. Counsel for ICL both before me and before the Tribunal sought to argue that it could participate in the Tribunal hearing without these procedural steps. The Tribunal member thought otherwise and I agree. In a case of this kind it would be very desirable for all parties to know exactly what it was that ICL wanted and what documentary material it had regarding the quality or otherwise of its product. Furthermore, insofar as ICL sought an order as to the condition of its cement, this might amount to a declaration which by reason of s.124 of the VCAT Act, could not be granted by the Tribunal as constituted. If this were so the hearing would have to start again before a presidential member. At one stage the Tribunal appeared to have offered counsel for ICL the order for joinder which he sought on condition that his client indemnify Mr Wagg against his costs thrown away by reason of the joinder. ICL declined to agree to this, offering to pay the costs on a more qualified basis.

53. The result of my examination of the circumstances of the making of the order to which counsel for ICL referred to me is that I am satisfied that the Tribunal did not fall into jurisdictional error. She found the jurisdictional facts in favour of ICL. Her decision, as I have mentioned, was made on discretionary considerations.

56. I turn now to the nonjurisdictional grounds of attack. In so doing I put out of my mind all of the evidence to which I have been referred other than that of the record. In this case the record comprises the pleadings before the Tribunal, its decision, and the reasons given for this. To my mind I should not look further.

59. What counsel for ICL said on this point was that the decision of the Tribunal was not reasonable in the Wednesbury sense of that term, that the Tribunal had regard to matters which were irrelevant and that it failed to have regard to relevant matters. The reasons for the Tribunal appear to be three. First, if ICL were joined this could not confer upon it a potential right. This is clearly correct. It did not stand to obtain from the Tribunal any order which might assist it. Indeed it protested that it did not seek such an order. Nor would it be exposed in such circumstances to any risk other than the risks of a costs order.

62. Second, if it were not joined it would not be legally affected by a decision made in a proceeding to which it was not a party. Against this the impact of the proposed joinder on one at least of the parties before the Tribunal was inevitably adverse. Mr Wagg would be faced with delay, extra interlocutory costs and extra hearing costs in a trial in which he would be pitted against a fresh and apparently substantial and determined adversary. I cannot say that the exercise of discretion on this basis is unreasonable in the sense I have mentioned. All of the matters which appear from the reasons seem to me to be matters relevant for the exercise of the discretion conferred by s.60.

65. I cannot say either that the Tribunal failed to consider the other matters mentioned by counsel for ICL, most of which, in any event, appear to have been determined in its favour in her consideration of the jurisdictional matters.

68. Accordingly, the application will be dismissed.

[1] Hansard Vol.426 Legis.Assembly p.695.

[2] Craig v. South Australia [1995] HCA 58; (1995) 184 CLR 163 at 174-6.