1. The Applicant alleges that she suffered loss and damage as a result of a flow of water from the sewerage infrastructure of the Greater Western Water Corporation (formerly known as City West Water) that occurred on or around 18 February 2015.
2. On 12 April 2021, she commenced a proceeding in the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to s 157(1) of the Water Act 1989 (Water Act) seeking damages in the sum of $207,204.85 plus interest and costs.
3. Section 19 of the Water Act (extracted below at [18]) confers jurisdiction on the Tribunal to determine the cause of action.
4. The Respondent, now known as the Greater Western Water Corporation, denies liability and raises a limitations defence, arguing that the claim was statute barred by reason of the 6-year limitation period set by s 5(1)(a) or (d)[1] of the Limitation of Actions Act 1958 (Limitations Act).
5. The Tribunal has been asked to consider as a preliminary question whether the cause of action under the Water Act is one which is subject to the Limitations Act.
6. Whilst this question is one of statutory interpretation for the Tribunal to determine, the question falls to be considered in light of two recent decisions of the Supreme Court of Victoria which took potentially conflicting views of the applicability of the Limitations Act in proceedings before the Tribunal.

1. On 9 February 2022, the Supreme Court handed down the decision of Lanigan v Circus Oz & Ors (Lanigan)[2] in which his Honour Justice McDonald held that claims for compensation for harassment and victimisation under the Equal Opportunity Act 2010 (Vic) (EO Act) when brought in the Tribunal are not subject to s 5(1)(a) of the Limitations Act.
2. McDonald J found that the Limitations Act does not extend to proceedings brought under the Tribunal's original jurisdiction under the EO Act as the proceeding was not one which met the definition of 'action' as defined in the Limitations Act. He found that the Tribunal is not a 'court of law' for the purposes of the definition of 'action' in s 3(1) of the Limitations Act. Further, the claim made was not an action founded on tort including actions for damages for breach of statutory duty for the purposes of s 5(1)(a).[3]
3. McDonald J's analysis commenced by stating that it was "common ground" in that proceeding that "no Victorian court has previously considered the question of whether the Tribunal is a court of law for the purposes of ss 3(1) and 5(1)(a) of the Limitations Act." He then gave detailed consideration to the issue, analysing several cases both in Victoria and Tasmania which answered similar (though not identical) questions concerning whether the relevant tribunals in those jurisdictions can be considered to be a 'court' for various purposes. Most notably, McDonald J considered the obiter of Kyrou AJA, which was part of a dissenting judgment in Subway Systems Australia v Ireland (Subway Systems),[4] was of significant relevance regarding the Limitations Act (this is addressed in detail in our analysis below). McDonald J found that the Tribunal is not a court for the purposes of the definition of 'action' in s 3 (1) of the Limitations Act.[5] His Honour also determined that the claim made under the EO Act was not one which was an action founded on tort for the purposes of s 5(1)(a) of the Limitations Act.[6]
4. Subsequently, on 17 March 2022, the Supreme Court handed down the decision of Ajaimi v Giswick Pty Ltd (Ajaimi)[7] in which his Honour Justice Osborne held that a contractual claim under the Retail Leases Act 2003 (Vic) brought in the Tribunal by a tenant for damages arising from water and sewerage ingress to leased property was subject to s 5(1)(a) of the Limitations Act. In Ajaimi the Supreme Court found that the definition of 'action' was an inclusive one and was not limited to proceedings brought in a court. Justice Osborne relied on China v Harrow[8] as authority for the proposition that Victoria's limitations of action legislation extended to a court or 'equivalent'.
5. In Ajaimi, the proceeding was one which arose out of a contractual claim and as such the claim in that case fell within the class of actions described in s 5(1)(a) of the Limitations Act. Applying that provision_,_ the Court found that part of the claim was statute barred because the legal proceeding commenced in the Tribunal was out of time.

1. The preliminary question in this proceeding, being whether this cause of action brought in this proceeding under s 157(1) the Water Act was statute barred,[9] was raised at a directions hearing before Senior Member M Farrelly on 19 November 2021 and the parties were directed to file submissions on the question: 'Is the applicant's claim statute barred by reason of time? This question for preliminary determination was originally premised on the assumption that the question was one of statutory interpretation involving the application of the Limitations Act to the cause of action in this proceeding rather than whether there was specific precedent which the Tribunal was bound to follow.
2. However, by the end of March 2022 it became evident that Lanigan and Ajaimi potentially represented conflicting Supreme Court authority on the relevant question.
3. On 30 March 2022 and 1 April 2022, orders were made by the Tribunal extending the questions to be answered by the preliminary hearing, and the parties were directed to file submissions making reference to Lanigan and Ajaimi.
4. The purpose of the preliminary hearing that took place on 17 May 2022 was therefore to determine the preliminary question:

Question (1) Is the applicant's claim statute barred by reason of time?[10]

Question (2)(a) whether or not this Proceeding is a 'proceeding in a court of law' or otherwise comes within the definition of 'action' in s 3(1) of the Limitations of Actions Act 1958 (Vic) (LAA/Limitations Act), including the question whether or not the Tribunal is a "court" for the purposes of the definition of 'action' in s 3(1) of the LAA?

Question 1(b) whether the claim made in this Proceeding seeking an award for damages under s 157(1) of the Water Act 1989 (Vic) is:

(i) an 'action founded on tort including actions for damages for breach of a statutory duty' for the purposes of s 5(1)(a) of the LAA?

(ii) an action 'to recover any sum recoverable by virtue of enactment' for the purposes of s 5(1)(d) of the LAA?

(iii) otherwise the subject of s 5(1) of the LAA?[11]

1. Prior to the preliminary hearing, detailed written submissions and extensive authorities were filed by the parties who were represented at the hearing by counsel.

Cause of action - Water Act s 157

1. Section 157(1) of the Water Act (as amended by No 17/2012, s 27) now in force provides:
   1. Liability of Authorities arising out of flow of water[12]

(1) If -

(a) as a result of intentional or negligent conduct on the part of an Authority in the exercise of a function under Part 8, Part 9, Division 1, 3 or 5 of Part 10, or Part 11 or any corresponding previous enactment, a flow of water occurs from its works onto any land; and

(b) the water causes -

(i) injury to any other person; or

(ii) damage to the property (whether real or personal) of any other person; or

(iii) any other person to suffer economic loss -

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

Jurisdiction to determine cause of action - Water Act s 19

1. Section 19 of the Water Act confers jurisdiction on the Tribunal to determine the causes of action (other than any claim for damages for personal injury) arising under section 157(1). Section 19 provides:
   1. Jurisdiction of Tribunal

(1) The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water from a private dam.

S. 19(2) repealed by No. 52/1998

* * * * *

(3) In exercising jurisdiction conferred by subsection (1), the Tribunal -

(a) may by order, whether interim or final, grant an injunction (including one to prevent an act that has not yet taken place) if it is just and convenient to do so; or

(ab) may make an order for payment of a sum of money awarding damages in the nature of interest; or

(b) may make an order that is merely declaratory.

(3A) Nothing in subsection (3) takes away from or affects the Tribunal's powers under section 123 or 124 of the Victorian Civil and Administrative Tribunal Act 1998.

(4) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 1 of the Penalty Interest Rates Act 1983 or on any lesser rate that it considers appropriate.

(5) The Tribunal may in respect of any works that give rise to a cause of action of a kind referred to in subsection (1) make any order with respect to -

(a) compensation for damage to land; or

(b) the continuation, removal or modification of works; or

(c) payment of the costs of the removal or modification of works -

that it considers appropriate.

S. 19(6) (7) repealed by No. 52/1998

* * * * *

(8) Nothing in this section prevents a person from bringing before a court a claim for damages for personal injury based on a cause of action of a kind referred to in subsection (1).

(9) In determining a cause of action arising under section 17(1), 16, 17(1) or 157(1) of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.

(10) Subject to subsection (8), a proceeding based on a cause of action of a kind referred to in subsection (1) must not be brought otherwise than before the Tribunal.

• 19 The claims brought in this proceeding engage the Tribunal's original jurisdiction. [13]

Commencement of proceeding in the Tribunal - VCAT Act s 43(a) and s 67

1. The original jurisdiction of the Tribunal is invoked[14] under s 43(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act):

...by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67.

1. Section 67 sets out "How to make an application to the Tribunal" and requires at s 67(1) that an application, in a form and containing particulars required by the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules), is to be "lodged in the manner specified in the rules."
2. Although it does not appear to be in dispute, we accept the Respondent's submission that the Applicant commenced her proceeding in the Tribunal on 12 April 2021 when an email attaching the Applicant's Application to the Building and Property List of the Tribunal and Applicant's Points of Claim was sent by the Applicant to the email address of the principal registrar.[15]

The Tribunal's functions in exercising original jurisdiction - VCAT Act s 44

1. Section 44 of the VCAT Act deals with the functions of the Tribunal in its original jurisdiction and provides:

In exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under this Act, the regulations and the rules.

1. The Limitations Act commences, in its long title, with a statement of its purpose:

An Act to consolidate the Law relating to the Limitation of Time for commencing Actions and Arbitrations.

1. Section 5(1) of the Limitations Act provides as relevant:

• (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

...

(d) Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

1. Definitions for the purpose of the Limitations Act are set out in s 3. Relevantly they provide:

• (1) In this Act unless inconsistent with the context or subject-matter -

... action includes any proceeding in a court of law.

1. These are the key provisions of the Limitations Act which are the subject of the analysis required of the preliminary question in this proceeding.

1. The Applicant submitted that the claim is not statute barred firstly because the court is bound by Lanigan and otherwise because the Limitations Act does not apply according to a proper interpretation of its provisions.

1. The Applicant submitted that the statutory construction adopted by the decision of Lanigan was relevant and binding on the Tribunal in this matter: namely, the definition of "action" in s 3(1) of the Limitations Act does not extend to proceedings at the Tribunal and the application therefore cannot be statute barred.[16]
2. To that end, the Applicant argued that the Tribunal should consider itself bound by Lanigan under one of two paths of reasoning:
   • 30.1 That Lanigan and Ajaimi are not in conflict as only Lanigan sets a precedent of a superior court the Tribunal is bound to follow; or
   • 30.2 In the alternative, if the Tribunal considers that Lanigan and Ajaimi are in conflict, that Lanigan is the preferable decision.
3. In arguing that Lanigan and Ajaimi are not in conflict, the Applicant made the following submissions:[17]
   • 31.1 The key conclusion of Lanigan - that the Tribunal is not a 'court of law' for the purposes of the definition of 'action' in s 3(1) of the Limitations Act - was central to the overall outcome of that decision. This finding is part of the ratio decidendi of the Lanigan case and is directly on point.
   • 31.2 In contrast, this question was said to be raised only in obiter discussion in Ajaimi and further, Osborne J assumed that the Limitations Act applies to the Tribunal but did not support this position with reasons. As such, the Tribunal should not consider Ajaimi to be authority for the proposition that the Tribunal is a 'court of law' for the purposes of the definition of 'action' in s 3(1).
   • 31.3 In this sense, so it was argued, Lanigan and Ajaimi are not in conflict because only Lanigan makes an authoritative statement on whether the Limitations Act, and in particular s 3(1), bind the Tribunal.
   • 31.4 The Applicant also noted that as Lanigan was handed down only a few weeks prior to Ajaimi it is possible that Osborne J was unaware of the earlier decision and that his Honour was bound by it (unless satisfied that Lanigan was plainly wrong).
4. If the Tribunal considered the two decisions were in conflict the applicant argued that Lanigan should be preferred because: [18]
   • 32.1 Lanigan directly considered whether the Tribunal is a 'court of law', whereas Ajaimi did not. The Applicant relied upon McDonald J's reasoning in paragraphs [21]-[34] of Lanigan, including where his Honour found the dissent of Kyrou AJA in Subway Systems highly persuasive.
   • 32.2 The decision is consistent with the principle of legality, in that Parliament would not curtail a right or freedom without expressly stating as such.
5. For these reasons, the Applicant urged the Tribunal to either consider itself bound by Lanigan, or in the event that the Tribunal considered Lanigan and Ajaimi to be in conflict, to prefer Lanigan. Further, it was said that such construction was consistent with a proper interpretation of the relevant provisions of the Limitations Act.

The Limitations Act and the proper meaning of 'action'

1. The Applicant submitted that the ordinary legal meaning of the term "action" is a proceeding commenced in a court by a writ. The applicant argued that the definition in s 3(1) of the Limitations Act extends the meaning of 'action' to cover 'any' proceeding in a court of law, but this meaning of action does not extend to the Tribunal, which is not a court.[19]
2. The Applicant characterised the absence of explicit reference to the Tribunal in s 3(1) as a 'deliberate decision' of the legislature to exclude the Tribunal from the time limitations for bringing claims in courts that apply under the Limitations Act.[20] The Applicant submitted that every time an enabling enactment is passed conferring the Tribunal with jurisdiction, the legislature has a choice to make, and had made a choice, with respect to the limitation of actions regime.[21] Unlike courts, the Tribunal has no inherent jurisdiction: all of its powers are sourced from either the VCAT Act or enabling enactments, which utilise the term 'proceeding', not 'action'.[22]
3. The Applicant made several submissions regarding the presumed or apparent intention of Parliament, including:
   • 36.1 The legislature's inclusion of s 27A(2) of the Limitations Act demonstrated that the legislature did not intend the definition of 'action' in s 3(1) to extend to the Tribunal unless explicitly included.[23] It was submitted that as the legislature had made specific mention of the Tribunal elsewhere in the Limitations Act, it is appropriate to give weight to the decision not to mention it in s 3(1).
   • 36.2 The Tribunal's jurisdiction is wholly based on enabling enactments. To the extent that an enabling enactment creates a cause of action and confers jurisdiction, Parliament has the opportunity by that enabling enactment to impose time limits within which an application is to be commenced. This is routinely done in the review jurisdiction of the Tribunal. Where the legislature confers original jurisdiction on the Tribunal, that policy decision to impose a time bar is open to the Parliament. It was emphasised that the Tribunal has done so in claims under s 134A and s 134 of the Building Act (Vic) 1993,[24] and in respect of claims made under s 217 of the Australian Consumer Law and Fair Trading Act 2012 and s 236 of the Australian Consumer Law (Victoria).[25]
   • 36.3 It was argued that the legislature made an active decision not to impose a limitation period within the Water Act.[26] The consequence of this was that unless the Limitations Act applied to the present application, it was not encumbered by a limitation period.

1. The Respondent urged the Tribunal to consider Lanigan as incorrectly decided insofar as it construed the Limitations Act as not applying to proceedings before the Tribunal. The preferred reading, according to the Respondent, was that the Limitations Act applies to the Tribunal and that the subject claim is statute barred.

1. The Respondent made the following submissions with regard to Lanigan, Ajaimi and statutory construction:
   • 38.1 The construction of "action" in Ajaimi, which is both inclusive and extending to a proceeding in a court (or equivalent) is to be preferred as it accords with both the language and policy of the legislative provisions.[27]
   • 38.2 The decision in Lanigan ignores both the purpose and language of the Limitations Act and creates anomalous outcomes, allowing some statutory causes of action to have limitation periods and others to escape them, and enabling forum shopping.[28]
   • 38.3 McDonald J stated in Lanigan that "no Victorian court has previously considered the question of whether the Tribunal is a court of law for the purposes of ss 3(1) and 5(1)(a) of the Limitations Act."[29] The Respondent submitted that in doing so, His Honour posed the wrong question.[30] The consequence was an interpretation that fails to have regard to the purpose and context of the Limitations Act.
   • 38.4 The Respondent submitted that the proper enquiry on the question of construction is whether the definition of "action" in s 3(1) of the Limitations Act has the effect of limiting the operation of the Limitations Act to actions brought in a court of law.[31]
   • 38.5 The Respondent submitted that this approach to the question would give more appropriate weight to s 3(1) as a whole, as well as the context and purpose of the Limitations Act.[32]
   • 38.6 In this respect, the Respondent argued that while McDonald J paid close attention to the word "action", his analysis came at the expense of other important considerations.[33] In particular, the definition of "action" begins with the word "includes",[34] indicating that the definition is inclusive, not exhaustive. This contrasts with other definitions within s 3(1) that use "means", the latter pointing to a more rigid definition. The Respondent submitted that McDonald J did not pay heed to this distinction and therefore was in error.[35]
   • 38.7 The Respondent also submitted that Lanigan does not consider the importance of the proviso to s 3(1) ("In this Act unless inconsistent with the context or subject-matter").[36] The Respondent argued that the interpretation adopted by McDonald J was inconsistent with the context and subject matter of the Limitations Act. The context was said to be a decision by the legislature to consolidate all limitation periods applicable to civil litigation into a single source. The Respondent submitted that it would be at odds with the purpose and subject matter of the legislation to carve out an exception to certain proceedings before the Tribunal unless this is explicitly dictated by the legislation.[37]
   • 38.8 The Respondent submitted that McDonald J in Lanigan "erroneously determined the applicability of the limitation period" by reference to the jurisdiction or forum rather than the nature of the cause of action. The Limitations Act "is concerned with 'periods of limitation' - noting the heading to Part 1, Periods of Limitation - 'not the limits on the exercise of jurisdiction'.[38] In support of this argument, the Respondent pointed to s 134(1) of the Building Act 1993 (Vic) and s 217 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) as examples of other legislative provisions which demonstrate that limitation periods are directly rooted in the accrual of a cause of action, not a jurisdictional basis.[39]
2. The Respondent ultimately urged the Tribunal not to follow Lanigan as it was plainly wrong and asked the Tribunal to interpret the Limitations Act in a broad and inclusive manner.

The Limitations Act and the proper meaning of 'action'

1. The Respondent submitted that 'action' was not limited to a proceeding in a court of law and that, on a proper construction of the provision, the definition of 'action' in s 3(1) is an inclusive one.
2. Accordingly, this proceeding brought in the Tribunal based on a cause of action governed by the Limitations Act is subject to the applicable time limitation period for that cause of action under the Limitations Act, either under s 5(1)(a) or (d).
3. The Respondent acknowledged that in contrast to s 3(1), certain provisions of the Limitations Act specifically mention the Tribunal, demonstrating an unambiguous intent to include the Tribunal in its operation with respect to those provisions (e.g. s 27A(2)).[40] However, the Respondent submitted that the lack of explicit reference to the Tribunal in the definition of 'action' does not lead to the construction adopted in Lanigan.
4. Further, where there is more than one viable interpretation of a provision, the decision-maker should prefer the option that better aligns with the purpose, context and object of the legislation:[41]
   • 43.1 As the purpose of the Limitations Act is to impose a period of limitation on civil actions, the preferred interpretation would be one which serves this purpose, displaced only by clear contrary intent.
   • 43.2 To this end, save for the text of ss 3(1) and 5, there is nothing in the legislative history of the Limitations Act or the Water Act to show that the legislature positively intended to exclude the Tribunal.
   • 43.3 The Respondent cited McHugh J in Brisbane South Regional Health Authority v Taylor[42] and in supporting the submission that "the notion that proceedings could be brought at VCAT unconstrained by the operation of any limitation periods imposed by the LAA is [an] anathema to the very purpose of limitations periods".[43] It was also said that s 98(1)(d) of the VCAT Act would be undermined by an inconsistent application of limitation periods.[44]
5. The Respondent pointed to the history of the Water Act and its predecessor, the Drainage of Land Act 1975.[45] The interaction of those two statutes was considered by Deputy President Macnamara (as His Honour was then known) in Hough v Shire of Mitchell,[46] in a proceeding at the Administrative Appeals Tribunal of Victoria, before this Tribunal came into existence. The decision in Hough notes that prior to the Drainage of Land Act, negligence claims related to the flow of water were subject to the Limitations Act, and that a purpose of the Drainage of Land Act was to transfer those matters to a new body established by that Act known as the Drainage Tribunal.[47] There was nothing in the legislative history to suggest that the legislature intended to place those matters beyond the scope of the limitations regime.
6. The Respondent argued that a similar logic should apply to the present case,[48] given:
   • 45.1 The lack of clear material from the legislative history that the legislature sought to exclude proceedings of this type from the time limitations provided by the Limitations Act; and
   • 45.2 The fact that this Tribunal has exclusive jurisdiction to determine proceedings brought pursuant to s 157 of the Water Act.
7. Therefore, the Respondent concluded that the Tribunal should not consider itself bound by Lanigan, that Ajaimi was correct in identifying the term 'action' was inclusive and that it was open to the Tribunal to determine on the proper construction of the Limitations Act that a claim under s 157 of the Water Act was subject to the limitation and was statute barred.

1. The preliminary legal question for the Tribunal's determination - whether the claim in this case brought against a statutory authority under the Water Act is statute barred - raises a question of statutory construction of the Limitations Act and of the application of the relevant sections of that Act, as properly construed, to the facts in this case.
2. Whilst questions of construction entail the application of the principles established by the High Court in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky),[49] in the face of superior authority on the same point of construction the Tribunal is bound by that higher authority under the doctrine of precedent, unless the circumstances are able to be distinguished.
3. Here, we are faced with the apparently conflicting authorities of Lanigan and Ajaimi. The decisions concerning the applicability of the Limitations Act to proceedings in the Tribunal formed part of the ratio decidendi of both cases, although McDonald J in Lanigan provided a more detailed analysis on one particular issue.[50]
4. Under the doctrine of precedent, the Tribunal is bound to follow the decisions of the Supreme Court, and the reasoning behind those decisions that are directly on point with the case at hand.[51] A member of the Tribunal, regardless of whether it is the President sitting alone or with another member, is bound by decisions of single judges of the Supreme Court.[52]
5. It was raised with us, that even if the Tribunal were not technically bound by Lanigan and may prefer the interpretation applied in Ajaimi it should follow Lanigan as a matter of judicial comity. It is the established approach that even a single judge in the Supreme Court should apply an earlier decision on the same point, unless that judge is satisfied that the earlier decision is plainly wrong (and enunciates why) and is not merely acting on a preference for a different construction.[53]

1. The basic rule of precedent is that the ratio decidendi of a case binds courts that are lower in the judicial hierarchy than the court which decided the case. Where the decision has no ratio decidendi, it is nonetheless binding in circumstances not reasonably distinguishable from those which gave rise to the decision, in the absence of binding authority to the contrary. Where there is any doubt that an earlier binding decision has been overruled by a later decision the court should follow the earlier decision and leave the matter to be resolved on appeal.[54]
2. Consequently, it is our view that the decision of McDonald J in Lanigan binds this Tribunal. In these circumstances, an alternative view subsequently expressed by another judge in a similar case, however attractive or otherwise that alternative view may be, cannot be followed. Ultimately, it is for an appellate court to determine whether Ajaimi should surpass Lanigan. It would be wrong at law and presumptuous of this Tribunal to go beyond its task and overrule the analysis set out in Lanigan. For this reason, much of the Respondent's submissions cannot be accepted.

The distinction between the doctrines of precedent and stare decisis

1. This case throws into sharp relief the distinction in application between the doctrine of precedent and the doctrine of stare decisis.[55] The doctrine of precedent binds this Tribunal as a tribunal that is lower in the judicial hierarchy. The doctrine of stare decisis, which is embraced within the doctrine of precedent, is a principle that a given court in the hierarchy will apply in regard to that court's decisions and the decisions of lower courts.

The tension between the desire for consistency and predictability on the one hand and the desire for adaptability and justice ... explains why it is that there is a want of precision in some aspects of the doctrine [of precedent].[56]

1. In examining the content and ambit of the doctrine, in what he terms 'the narrow sense', the then Chief Justice of the High Court explained:

Precedent signifies the respect paid to a decision of a superior court. ... But in its strict sense precedent signifies the obligation of a court, whatever its own inclinations may be, to accept and apply a decision of a court above it in the hierarchy to which it belongs. Thus the Magistrates' Court is bound to apply the decisions of the courts ranking above it in the Victorian curial hierarchy reaching all the way to the High Court of Australia, for the High Court is the apex of the curial hierarchy in Victoria ... Both the reason and the sanction for the doctrine of precedent rest in the power of the higher court to correct the decision of the lower court if it fails to observe the doctrine. [57]

1. This legal obligation under the doctrine of precedent binds this Tribunal as a tribunal of law within the Victorian legal system, both in the exercise of the judicial power of the State of Victoria (which the Tribunal is called upon to exercise in this case as a 'civil tribunal'[58]) and in the exercise of State executive power (which the Tribunal exercises in other proceedings when constituted as an 'administrative tribunal[59]).

1. Sir Anthony also explains that the doctrine of precedent has a second, broader element, embracing a similar but altogether separate doctrine of stare decisis:

In its broader sense precedent also embraces the doctrine of stare decisis. This doctrine expresses the proposition that a superior court is bound by its own previous decision or ought not to depart from it. But the doctrine may inhibit a superior court from departing from a long-standing decision of a court ranking lower in the hierarchy. There is strong authority for the view that a decision of long standing, on the basis of which many persons will have arranged their affairs, should not be lightly disturbed by a superior court. Babaniaris v Lutony Fashions Pty Ltd is a striking illustration of the potential in this wider application of stare decisis, even though the High Court, by a bare majority, decided that stare decisis should not prevail in that case.[60]

1. Sir Anthony observes that although a comparatively recent invention of the common law courts, the doctrine of stare decisis has 'as its purpose consistency, continuity and predictability in the law', but the High Court has never regarded that doctrine as denying the High Court's capacity to depart from its own previous decisions. This is because: "As a final court of appeal [the High Court] must administer justice according to law".[61] In discussing the High Court's attitude to the doctrine of stare decisis in regard to its own past decisions he observes:

In 1949 the court said "Continuity and coherence in the law demand that . . . the principle of stare decisis should be applied, save in very exceptional cases". But earlier this year six members of the court, in repeating this statement, said that "the principle of stare decisis should ordinarily be applied". Even so, the court will exercise its power to overrule a prior decision with great caution and where, for example, that decision is manifestly wrong, as distinct from a difficult question of statutory construction where the competing considerations are finely balanced.[62]

1. What Sir Anthony's observations on the dichotomy between the two doctrines underscore is that the doctrine of precedent is a legal rule or law that operates to bind courts and tribunals lower in the hierarchy of a legal system; the doctrine of stare decisis applies as a more flexible legal principle to a court at a hierarchy level in regard to its own (or lower)[63] decisions.
2. Put another way: in the hierarchy of a legal system, the doctrine of precedent can be understood as operating vertically upward as a legal 'rule or law'; in contrast, the doctrine of stare decisis operates horizontally and downwards as a 'legal principle' that "a superior court is bound by its own previous decision or ought not to depart from it" (without compelling reason).[64]
3. The central purpose served by the doctrine of precedent is that it obligates a lower court or tribunal to follow authority laid down by a higher authority. The central purpose served by the later doctrine of stare decisis is balancing the desire for "consistency, continuity and predictability in the law"[65] with the need for the common law to be able to develop and for legal principles that might once have held true to be corrected, such as when a decision of the court is regarded by a subsequent court to be manifestly wrong.

Application of these rules to this Tribunal proceeding

1. This Tribunal, as a tribunal of law and being lower than the Supreme Court in the hierarchy of the Victorian judicial system must apply the doctrine of precedent as a legal 'rule' or 'law' binding upon it.
2. The doctrine of precedent is a doctrine of the common law that all courts and tribunals must apply from their place in the legal hierarchy of a legal system. This Tribunal does not and cannot - when making its decisions in proceedings before it - apply the principles of stare decisis that can only be applied by the Supreme Court in the exercise of its judicial power in regard to the Supreme Court's own decisions[66] or in regard to precedential decisions of lower courts or tribunals in the Victorian judicial hierarchy.[67]

Common law doctrine of precedent binds this Tribunal

1. The common law doctrine of precedent binds this Tribunal. It is a rule of law which must be applied by this Tribunal in the hearing and determination of disputes commenced in the Tribunal in the same manner that the Tribunal is bound to apply the applicable law - be it under 'contract, tort, equity ...[or] breach of applicable statutory provision' [68]- that governs the legal resolution of the parties' dispute under law.

The operation of the doctrine where precedents are in apparent conflict

1. The operation of the doctrine requires VCAT - as a tribunal that is lower in the judicial hierarchy of the Victorian legal system - to follow the ratio decidendi of a binding 'precedential' decision of a superior court that is first in time, unless that decision can be properly distinguished from the case to be decided by the Tribunal.[69]
2. As we have noted, this proceeding entails the application of a Victorian statute - the Limitations Act - in circumstances where there are two recent competing but inconsistent interpretations of the same legislation. In this circumstance we consider that the application by the Tribunal of the doctrine of precedent binds the Tribunal in the following way:
   • 67.1 If either of the precedents that bind the Tribunal (which both do) can be properly distinguished in its application to the facts or legal basis of the case that the Tribunal must determine, the Tribunal must apply the binding precedent that is indistinguishable and, not apply the precedent can be distinguished;
   • 67.2 If the precedents are both indistinguishable in their application to the facts or legal basis of the case before the Tribunal, the Tribunal must apply the first precedent in time. If there is an error in that precedent, that is an issue for the Supreme Court to correct under the doctrine of stare decisis.[70] The binding precedent can also be corrected by Parliament through the enactment of amending legislation.
3. What this Tribunal cannot do is apply the doctrine of precedent in the manner of the doctrine of stare decisis. That can only happen (in terms of the present conflict) in the Supreme Court in regard to its conflicting decisions. The doctrine of precedent is simply concerned with what is or is not binding on the Tribunal, and not with what the ultimate correctness of the binding precedent to be applied may or may not be. In Sir Anthony's words: the doctrine of "precedent signifies the obligation of a court [or tribunal], whatever its own inclinations may be, to accept and apply a decision of a court above it in the hierarchy to which it belongs".[71]
4. In later describing the 'constraining effect of precedent' Sir Anthony underscored this point:

The Constraining Effect of Precedent

The Ratio Decidendi

The coercive force of precedent hinges on the ratio decidendi of a decision, for it is that which has binding effect on a lower court and influential effect on the same court when it is called upon to decide a similar case. The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision, it being recognized that there may be more than one ratio when the court assigns more than one ground for its decision.[72]

How we have applied the doctrine of precedent to this Water Act claim

Ajaimi is binding but distinguishable as a claim brought under contract law

1. For the reasons we have set out in this decision, we have decided this case before the Tribunal under the Water Act on the basis that one precedent is distinguishable whilst the other is not.
2. Although the two Supreme Court decisions are inconsistent as to the application of the Limitation of Actions Act to proceedings commenced in this Tribunal, the decision in Ajaimi is distinguishable from this case before the Tribunal, as it is one involving a claim brought under the law of contract for breach of contract. It follows, that were the legal basis for the claim in this case to have been one on the same basis as Ajaimi (i.e. brought under the law of contract) the precedent of Ajaimi would bind this Tribunal as the indistinguishable precedent.

Lanigan is binding and indistinguishable as statutory claim with no time limit set

1. In this case, as the legal basis for the claim is one under a statutory cause of action Lanigan also dealing with a statutory cause of action, albeit under a different Act, is indistinguishable.
2. The Supreme Court's decision in Lanigan is the binding precedent that this Tribunal must follow. The question for this Tribunal is not which decision is to be preferred by this Tribunal; the question is which decision binds the Tribunal as a precedent.

Statutory claim against the authority falls under neither s 5(1)(a) nor (d)

1. In this proceeding we have also found that the provisions of the Limitations Act do not extend to the cause of action against the authority in this case brought under the Water Act.
2. That cause of action does not fall under s 5(1)(a). It is not an action founded on tort or one for damages for breach of a statutory duty.
3. Nor does it fall under s 5(1)(d) as an action to recover a 'sum' recoverable by virtue of an enactment.

Apparent conflict in ratio between Lanigan and Ajaimi

1. The apparent conflict between the two recent Supreme Court decisions in Lanigan and Ajaimi can be seen to have arisen from the use of two different starting points to the construction of the Limitations Act. Although that issue was argued before us, it is a question that can only be resolved by the Supreme Court applying the doctrine of stare decisis or through legislative amendment. That conflict of authority cannot be resolved by this Tribunal under the doctrine of precedent.
2. If the issue of the application of the Limitations Act to proceedings in this Tribunal were free from this recent binding precedent, applying the conventional[73] and purposive[74] approach to the construction of its operative provisions, we would have been inclined to the view that the Act's operative provisions in s 5 do apply to legal proceedings brought in this Tribunal relying on the causes of action referred to in those provisions, where in the proceeding the function[75] of the Tribunal in its original jurisdiction[76] entails the exercise of judicial power of the State of Victoria in the hearing and determination of a cause of action or other legal claim in an inter partes dispute.[77]
3. This approach is consistent with other binding authority in the Supreme Court that holds that there are not two legal systems in Victoria and that in determining an inter partes dispute this Tribunal must apply the law.[78] It is harmonious with the fact that much of the Tribunal's civil jurisdiction, which calls upon the Tribunal to decide cases under contract law, in tort and property law, and hear claims in equity and apply equitable principles, is concurrent with the jurisdiction of the Supreme Court and County Court. It is for this reason that procedural powers such as s 77 of the VCAT Act have been enacted to address a case commenced in the Tribunal and the Tribunal considers a 'more appropriate forum' should deal with its subject-matter.
4. It is also consistent with the purposive approach adopted to the operative limitations provisions in the earlier English decision of China v Harrow[79] and an earlier decision of the South Australian Supreme Court Full Court in R v Police Appeal Board; Ex parte McGee[80] regarding the South Australian limitations legislation not extending in its operation to an administrative tribunal as opposed to a tribunal that exercises judicial power.[81]
5. These authorities were also both relied on in the materials filed with the Tribunal.
6. In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality of the High Court observed that in regard to the statutory interpretation, the legal meaning is 'the meaning that the legislature is taken to have intended [the provision] to have'.[82] It may or may not be the same as the literal meaning.[83] We were not addressed on the question of conflicts between literal words and legislative purpose but observe that Verraty Pty Ltd v Richmond Football Club[84] poses a number of examples where, in a given case, the process of statutory construction justifies departure from literal meaning.
7. While we say that absent recent authority binding on the Tribunal we would have been inclined towards that view, the legalisation contains some ambiguity and there are other powerful considerations. A basic principle of statutory construction is the presumption that legislatures do not intend to abrogate or curtail fundamental common law rights or fundamental freedoms, unless such an intention is clearly manifested by unambiguous language. In the absence of express words or necessary implication, courts presume that legislatures do not intend to deprive persons of access to the courts.[85] For this reason, legislation which imposes limitation periods, including the Victorian Limitations Act, should be construed strictly.[86]
8. In the face of recent and apparently conflicting Supreme Court authority, these competing considerations can only be addressed by the Supreme Court applying the doctrine of stare decisis, or by legislative amendment by Parliament.

1. In finding that we are bound by the decision in Lanigan it must be taken as implicit that we do not accept the Applicant's submission[87] that Osborne J's unreported decision in Ajaimi, heard before but delivered shortly after McDonald J's unreported decision in Circus Oz and made without reference to it, means that "it is likely that judgment in Ajaimi was delivered per incuriam". As Finkelstein J (with whom Lee and Giles JJ agreed) explains in Warramunda Village Inc v Pryde[88] that concept involves two elements: "A per incuriam decision is a judgment given in ignorance of some authority, or statutory provision, which, had it been referred to, would have resulted in a different decision". It is far from clear that the Court in Ajaimi would have reached a different decision given the approach to the statutory construction of the operative section of the Act in that case, s 3(1), and consideration given to the whole of the definitional section of 'action' in s 2 and the effect of the word 'includes'.[89]

Is our application of the doctrine of precedent in conflict with earlier VCAT decisions?

1. It will also be apparent from the conclusions that we have reached regarding the operation of the doctrine of precedent to proceedings in this Tribunal that we depart from obiter views expressed by previous decisions in this Tribunal. In People's Investment Co Pty Ltd v Commissioner of State Revenue,[90] Justice Morris, President, observed:

I consider that the tribunal, however constituted, is bound by the ratio decidendi of the Politis decision, unless it is inconsistent with some other decision of a superior court above the tribunal in the judicial hierarchy.

The applicant submitted that, because I am a justice of the Supreme Court of Victoria, the tribunal, as presently constituted, was not so bound. But as a matter of logic I do not consider that this makes any difference. I am sitting as the tribunal; and I am exercising the powers of the tribunal. The principle of stare decisis operates by reference to institutions, not people. It is true that appeals from the tribunal, when constituted by a judge, must be heard by the Court of Appeal of the Supreme Court of Victoria. But this is a statutory courtesy designed to respect the role of a judge when exercising the jurisdiction of the tribunal and to enhance the role of the President and Vice Presidents of the tribunal. It does not change the nature of the judicial hierarchy.

1. In that case the submission Justice Morris was addressing as President concerned whether, as a judicial member of the Tribunal and a Supreme Court justice, he was required to follow Supreme Court precedent, which he emphatically stated that he was. It is not clear that there was any inconsistency of Supreme Court authority.[91] We agree that the words "unless inconsistent ..." (i.e. distinguishable) are the start of the analysis. There is then another step in the analysis as we have discussed earlier.[92]

1. We find Lanigan indistinguishable from the case before the Tribunal.
2. As noted above, Lanigan is on fours with this matter as it also dealt with a statutory cause of action. Ajaimi is distinguishable in that it deal with a claim founded in contract.
3. Further, in Lanigan the Court analysed closely whether the Tribunal was a 'court of law' for the purposes of the definition of 'action' in s 3(1) of the Limitations Act and as such this central issue clearly forms part of the ratio decidendi.
4. In contrast, in Ajaimi, the question of whether the Limitations Act applied in the proceedings in the Tribunal, although an essential element of decision and thus forming part of its ratio,[93] was not seriously in question. Rather the parties' dispute focused on the date upon which time commenced running. The court in Ajaimi necessarily proceeded on an assumption implicit in the agreed position of the parties - that the Tribunal was bound to apply the operative provision of 5(1) of the Limitations Act - and accordingly held that the inclusive definition in s 3(1) embraced a court of law 'or equivalent'. There being an assumption made by the court based on an issue not apparently contested in the proceeding can be seen to distinguish the authority of that case as a precedent from another - such as Lanigan - where there is direct contrary and reasoned authority which squarely answers the legal question that this Tribunal must decide.
5. Lanigan is not the only decision in recent times to deal with the question of whether the Tribunal is a 'court' or 'court of law'. In Meringnage v Interstate Enterprises Pty Ltd & Ors (Meringnage),[94] the Court of Appeal found that the Tribunal was not a 'court of a State' for the purposes of the Constitution of Australia and s 39(2) of the Judiciary Act 1903 (Cth) and therefore cannot be vested with the jurisdiction outlined in Chapter III of the Constitution. The Tribunal is a creature of statute and its jurisdiction arises from its establishing legislation - the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the various 'enabling enactments' which confer selective jurisdiction.
6. To the extent that an enabling enactment creates a statutory cause of action and confers jurisdiction on the Tribunal, the legislature has the opportunity by that enactment to impose time limits within which an application must be commenced. It does so commonly in conferring review jurisdiction on the Tribunal. In the Tribunal's original jurisdiction (civil or non-review jurisdiction), Parliament has the opportunity to impose a time limitation. It has done so in other significant areas of the Tribunal's original jurisdiction, including in relation to statutory actions for damages under both s 217 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA) and s 236 of the Australian Consumer Law (Victoria) over which the Tribunal also has original jurisdiction under the ACLFTA, and s 182 in regard to 'consumer and trader disputes'.[95] It has also done so by ss 134 and 134A of the Building Act 1993 (Vic) in relation to causes of action involving 'building actions', over which the Tribunal has original jurisdiction in the case of 'domestic building disputes' coming under the Domestic Building Contracts Act 1995 (Vic) s 53 and s 55 (as well as under the ACLFTA in regard to 'consumer and trader disputes'). These areas of jurisdiction make up a very significant proportion of the Tribunal's original jurisdiction in the context of civil claims.
7. The fact that Parliament has not enacted a time limitation for a statutory cause of action within the Water Act when conferring jurisdiction on Tribunal under that Act, does not lead us to the conclusion that a different view ought be taken of this omission. There is no reason to infer anything from the apparent intention of Parliament in relation to time limits in each of the Tribunal's enabling enactments which would convey its intention in relation to whether the Limitation of Actions Act applies to the Tribunal generally. Regarding the latter, as McDonald J in Lanigan noted with reference to Kyrou AJA in Subway Systems:

In addition to analysing the common law understanding of the word 'court', Kyrou AJA addressed the meaning of 'court' within the Limitations Act. His Honour noted that s 27A(2) of the Limitations Act states that '[i]n this part... a reference to a court includes a reference to the Victorian Civil and Administrative Tribunal'. This section supports the conclusion that Parliament did not intend to include tribunals within the definition of court. Rather, Parliament included the Tribunal within the definition of 'court' for the purposes of a specific part of the Act. When the statute was amended in 1010 to include s 27A(2), there existed a substantial body of Court of Appeal authority supporting the proposition that the Tribunal was not a court. Section 17A(2) should be read with that in mind.[96]

1. By his analysis McDonald J regarded that the inferred intention of Parliament is that the provisions of the Limitations Act do not apply to the Tribunal unless the relevant provision expressly states as such, highlighting the point that Parliament has a choice with regard to each enabling enactment conferring jurisdiction on the Tribunal whether to impose a time period.
2. That analysis forming part of the ratio of the decision in Lanigan, and being indistinguishable from the conferral of jurisdiction on the Tribunal over the statutory cause of action in this case, the Tribunal is bound by Lanigan.
3. As we have noted, the judgment in Ajaimi was delivered after that in Lanigan.[97] It is not apparent on the face of the court's reasons in Ajaimi that it was aware of the Lanigan decision. As the judgment in Lanigan preceded the judgment in Ajaimi, the court in Ajaimi was bound by Lanigan unless satisfied that McDonald J was 'plainly wrong'. Osborne J in Ajaimi, had his attention been taken to the unreported case of Lanigan, would - under the doctrine of stare decisis - have been required to enunciate such a satisfaction. In the absence of this, his decision in the later case of Ajaimi cannot steer the Tribunal away from Lanigan. The Tribunal, being a jurisdiction of lower order in the hierarchy does not have the option of being satisfied that the decision was plainly wrong. That is a principle of stare decisis which is open to intermediate appellate courts and not a jurisdiction lower in the hierarchy.[98]

Does s 157 of the Water Act attract s 5(1) of the Limitations Act?

1. Having reached the conclusion that the Tribunal is bound by Lanigan, the Tribunal does not strictly need to decide whether a claim under s 157(1) of the Water Act is otherwise subject to the time limitation set out in s 5(1) of the Limitations Act. However, it was argued before us and for the sake of completeness, we have considered that argument and give our reasons for why s 5(1) is not so engaged. The only potential scope of s 5(1) of the Limitations Act in this circumstance is in relation to subsections 5(1)(a) and 5(1)(d).

Actions founded on simple contract or tort - s 5(1)(a)

1. It is the tort part of the s 5(1)(a) that has the potential to be relevant in the present circumstances.
2. The Water Act sets out the basis of legal liability of an "authority" arising out of a "flow of water" onto any land from works conducted by that authority, as well as being an enabling enactment that confers jurisdiction on the Tribunal to determine claims under that Act according to law.
3. Section 157 of the Water Act (extracted above at [17]) provides a freestanding statutory cause of action. It is very different from any cause of action available at common law. It does not require a duty of care akin to that required to establish the tort of negligence.[99]
4. Section 5(1)(a) of the Limitations Act applies to tortious claims including actions for damages for breach of a statutory duty, which of itself is a common law tortious claim. The section does not describe the cause of action but identifies the jurisprudential basis of those tortious claims. It implicitly recognises there are many forms of actions founded on tort (for example negligence, conversion, detinue, nuisance, trespass, and deceit) and is used in contradistinction to actions founded in contract.
5. We accept that the word 'tort' is a legal technical term. When construing a technical legal term, it is to be given its acquired legal meeting unless a contrary intention appears.[100]
6. In Lanigan the court accepted for the purposes of s 5(1)(a) of the Limitations Act that "a tort denotes a common-law cause of action that is enforceable in a court".[101] McDonald J applied Philip Morris Ltd v Ainley,[102] which was a claim under the Workers Compensation Act 1958 (Vic). Menhennitt J found that the claim under s 62(1)(b) was not a 'tort' and that in essence the action was one to enforce the statutory cause of action. Akin to the claim considered here under s 157 of the Water Act, it was within the exclusive jurisdiction of the Tribunal, was wholly statutory, and no common-law causes of action were available.[103]
7. .A claim under s 157 of the Water Act can be made out by either negligent conduct or intentional conduct. That conduct relates to the provision of services in respect of the works, not in the causing of loss and damage.
8. The submissions of the parties both analysed the history of the creation of s 16 and s 157 of the Water Act. Section 16 is a comparable provision to s 157, but it relates to the liability of natural persons, rather than authorities.
9. Section 16 was first introduced into the Water Act in 1989. The section derives from s 4(1) of the Drainage of Land Act 1975 (Vic) (repealed) which conferred jurisdiction on the former Planning Appeals Board in relation to all civil causes of action arising out of the flow of waters from the lands of one person in such a way as to cause damage to or which can reasonably be expected to cause damage to the lands of any other person. However, in Ardnew v Jardine Matheson Victoria Ltd[104] Member Gibson (as she was then) noted that the Water Act abolished such common law claims that may have been heard previously by the Planning Appeals Board under the Drainage of Land Act, replacing them with a statutory code of civil remedies to be found within Division 1 of Part 2 of the Water Act, including s 16(1).
10. Section 157 had its genesis in the Water Act 1905 (Vic) (repealed) and was extended in the Water Act 1958 (Vic) (repealed) when the relevant common-law claims were abrogated[105] and claims were determined at the election of the applicant by a court or a specialist arbitrator under s 275. Consequently, at least since 1958, the cause of action now reflected in s 157 was an action brought not at common law relying on some form of tortious claim enforceable in the courts, but by reliance upon the statutory cause of action enforceable by a claim for compensation before a court or specialist arbitrator. Then, from the coming into effect of the Water Act 1989, the Victorian Administrative Appeals Tribunal became the relevant specialist body, and then its successor, this Tribunal.
11. The appropriate conclusion must be that Water Act 1989 abolished common law claims. Further, reference in s 5(1)(a) of the Limitations Act to a breach of statutory duty does not extend the meaning of the subsection to causes of action which are not tortious. Breach of statutory duty is of itself a tort which creates a civil right in the common-law and supplies a remedy by way of damages.[106] A claim under s 157 is not a claim for breach of statutory duty.[107]
12. We do not accept that the example, referred to by the Respondent, in Green v Eadie[108] wherein the UK court found that a misrepresentation claim under s 2 of the Misrepresentation Act 1967 (UK) was an action founded on tort for limitation purposes, as it was "in the nature of the claim that is not derived from statute alone, but is a claim that applies a form of statutory veneer on the pre-existing law of deceit and innocent misrepresentation",[109] is apposite. A claim under s 157 of the Water Act is not a statutory extension of a negligence claim or another common-law claim. The concepts of negligent conduct and intentional conduct at the heart of s 157 are statutory constructs and not the same as the common-law concepts of negligence and s 157 does not pick up the tort of negligence or apply any 'form of statutory veneer'. The statutory claim available under s 157 provides a form of statutory compensation for flooding and the flow of water, independent of the common law. Under s 157, the water authority carries the burden of not only previous conduct that was not negligent but also proving that the flow was not the result of its intentional conduct. It creates liability in cases of intentional flooding even if the water authorities conduct is not negligent.
13. Therefore, in our view, s 5(1)(a) of the Limitations Act has no capability of being enlivened in the present case.

Actions to recover any sum recoverable by virtue of enactment - s 5(1)(d)

1. We are also of the view that a proceeding under s 157(1) of the Water Act is not an action "to recover any sum recoverable by virtue of enactment" for the purposes of s 5(1)(d) of the Limitations Act.
2. The phrase penalties and forfeitures, which are excluded under this section, has traditionally been used to describe imposts excised for transgressing the provisions of statutes and recoverable at the suit of the Crown or the like. This includes, for example, recovery of council rates.[110]
3. It is clear that a claim for damages under s 157 of the Water Act is not an action to recover a sum recoverable by virtue of enactment as it is not an action to recover anything. It does not provide for the recovery of a sum which is certain or even calculable under the provisions of the enactment itself or ascertainable by reference to some stipulated standard or measure.
4. Section 157 creates a cause of action and, if the Tribunal is satisfied that the elements of the subsection are met, it imposes a liability to pay damages as compensation for loss suffered. That is not an expression of entitlement for recovery of a sum or debt. It is a claim for damages, and damages are a separate and precise legal concept. A sum recoverable by virtue of enactment is a sum which is either a fixed sum, or where a particular provision of a statute specifies the mechanism for calculation of that sum. To that extent it is a sum certain. It is to be contrasted with cases such as the recovery of assets vested in a public authority, compensation for compulsory purchase or following local boundary change and claims for indemnity for liabilities that have been incurred or sums that have been paid, and thus ascertainable.
5. We accept that the words of the provision ought not to be interpreted so as to read into the subsection the words 'actions to recover any sum ordered by a court to be recoverable by virtue of enactment'. This would extend the enacted language and apparent intent of the legislature beyond permissible limits.
6. We accept that a claim under s 157 is neither a common law cause of action nor is it enforceable in a court. VCAT has exclusive jurisdiction to hear and determine a claim under s 157.[111] It is, like the other examples cited above, technically different from an action in tort and it does not follow that the action constitutes a 'tort'. A claim under s 16 of the Water Act against a natural person requires neither intentional conduct or negligent conduct and has been described as a "claim in strict liability". A claim under s 157 against an authority can be made out by either negligent conduct or intentional conduct. That conduct relates to the provision of services in respect of the works not in the causing of loss and damage.

Is there a single cause of action or multiple causes?

1. Having determined that the Limitations Act does not apply and that there is no time bar, it is unnecessary to determine whether there are multiple causes of action.

1. Under the doctrine of precedent the Tribunal is bound by the ratio decidendi of an indistinguishable decision of the Supreme Court relevant to the decision to be made by the Tribunal in a proceeding. It is thus bound to follow a decision which is a prior decision of a superior court, even where an alternative analysis may be found in the ratio of a subsequent decision of equivalence in the judicial hierarchy, where the subsequent decision has not considered that the first decision is 'plainly wrong'.
2. In this matter, the decision of the Supreme Court in Lanigan sets a binding precedent on the Tribunal. It was the first in time, is directly on point in terms of the issues of statutory interpretation at hand, it was not cited in the subsequent decision of Ajaimi and is indistinguishable from the case the Tribunal must decide according to law. As a tribunal of law, this Tribunal cannot ignore the doctrine of precedent. The apparent inconsistency between the respective decisions in Lanigan and Ajaimi is a matter for a superior court to rule upon.
3. In any event, s 5(1) of the Limitations Act does not apply in the present case, therefore the Respondent cannot rely on this as a point of defence. The applicant's claim should proceed to hearing in due course.
4. We shall reserve the question of costs.

[1] Leave to amend the points of defence was granted to the Respondent during the preliminary hearing to rely on s 5(1)(d).

[2] [2022] VSC 35 ('Lanigan').

[4] [2014] VSCA 142; (2014) 46 VR 49 ('Subway Systems').

[7] [2022] VSC 131 ('Ajaimi').

[8] [1954] 1 QB 178. It is not apparent that the Supreme Court in Lanigan was referred to China v Harrow. China v Harrow is a 1954 Queens Bench full court case which predates the enactment of Victoria's Limitation of Actions Act (1958). The decision involved the interpretation of the Limitation Act 1939 (UK) (the 1939 Act) that had been enacted following the Law Revision Committee, Fifth Interim Report, Statutes of Limitations, 1936 (Cmd 5334) on which the Victorian limitations legislation was also modelled. Section 31(1) provided:

In this Act, unless the context otherwise requires ... 'Action' includes any proceeding in a court of law...

[9] Whilst the Respondent denies liability for the loss, that issue was not before the Tribunal at the preliminary hearing.

[10] Orders of Deputy President R Wilson in Steedman v Greater Western Water Corporation (Victorian Civil and Administrative Tribunal, BP637/2021, 1 April 2022), ord 5.

[12] A footnote to that section provides that:

"By virtue of section 17(2) Authorities cannot be liable under section 17 in respect of a flow of water from their works"

It is unnecessary for us to examine other statutory causes of action that are created by the Water Act other than to note that s 16 contains separate causes of action for injury to person, damage to property and economic loss caused by a flow of water from land of a person onto any other land that is not reasonable (s 16(1)) or by interferences with a flow of water (s 16(2)).

1. [13] Section 40 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') provides:

"The Tribunal has 2 types of jurisdiction -

(a) original jurisdiction; and

(b) review jurisdiction."

Section 41 of the VCAT Act defines original jurisdiction as follows:

"Original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction."

Review jurisdiction is, as its name suggests, the jurisdiction conferred on the Tribunal by an enabling enactment to 'review a decision made by a decision maker': VCAT Act, s 42(1).]

1. [14] In Lillas & Loel Lawyers Pty Ltd v Celona [2014] VSCA 19 at [32], Priest JA held:

"... a proceeding is an action or matter or 'some vehicle by which the jurisdiction of [the Tribunal] is invoked', commenced by an application or other initiating process"

In Clifford Hallam Healthcare Pty Ltd v Price [2010] VCAT 1117 at [34], Deputy President Macnamara, remarked:

"Where the Tribunal's jurisdiction under an enabling enactment is invoked by a party what results is a proceeding."

[15] 'Respondent's Submissions for Preliminary Hearing', 31 January 2022, [2]; Affidavit of Kieran O'Brien 31/1/22, Exhibit KJO-: email from Simone Traianou dated 22 April 2021 at 4.42pm attaching Application and Points of Claim; and rule 4.32(6) stipulates that rule 4.32(5) (which provides that a document 'lodged or filed after 4:00pm ...is taken to have been lodged or filed on the next day the registry is open') 'does not apply to an application to commence a proceeding or any other originating process'.

[16] 'Applicant's Outline of Submissions on Preliminary Question', 2 May 2022 ('Applicant's Submissions'), [3].

[19] Applicant's Submissions (n 16), [35]-[36]

[20] Transcript of Proceedings, Steedman v Greater Western Water Corporation (Victorian Civil and Administrative Tribunal, BP637/2021, President Justice Quigley and Deputy President Wilson, 27 May 2022) ('Transcript'), 80-81.

[22] Applicant's Submissions (n 16), [22], [41]-[43].

[24] Ibid, [22]. Note: Section 134(1) of the Building Act 1993 (Vic) provides:

"Despite any thing 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... (original emphasis)"

[25] A 6 year limitation period is provided.

[27] 'Respondent's Submissions in reply to Applicant's Second Outline of Submissions', 17 May 2022 ('Respondent's Submissions'), [36]-[42].

[30] Transcript (n 20), 61; Respondent's Submissions (n 27), [6].

[31] Respondent's Submissions (n 27), [6].

[32] Ibid, [44]-[45]; and Transcript (n 20), 36.

[35] Respondent's Submissions (n 27), [42].

[38] Respondent's Submissions (n 27), [15].

"In this Part in relation to a cause of action under section 117 of the Australian Consumer Law and Fair Trading Act 2012 or section 146 of the Australian Consumer Law (Victoria), a reference to a court includes a reference to the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998."

[41] Respondent's Submissions (n 27), [8], referring to s 35 of the Interpretation of Legislation Act 1984 (Vic) and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382 [69] - [71] and 384 [78] per McHugh, Gummow, Kirby and Hayne JJ.

[42] [1996] HCA 25; (1996) 186 CLR 541 at 551.

[43] Respondent's Submissions (n 27), [7].

[46] (1996) 10 VAR 47 ('Hough').

[48] Respondent's Submissions (n 27), [56].

[49] (1998) 1994 CLR 355 ('Project Blue Sky').

[51] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2005] VSC 136, [12]

[52] Minister for Environment and Conservation v Kupfer [2003] VCAT 1999, [9]; Cope v Hobson's Bay City Council [2004] VCAT 2487, [57]-[58].

[53] Shaw v Yarranova Pty Ltd [2006] VSC 45, [65]-[68]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47, [49].

[54] See Jacob v Utah Construction & Engineering Pty Ltd [1966] HCA 67; (1966) 116 CLR 200.

[55] Latin for the phrase "to stand by things decided".

[56] Sir Anthony Mason, 'The use and abuse of precedent' (1988) 4 Australian Bar Review 93, 95 (emphasis added).

[57] Ibid, 95-96 (emphasis added), citing Cross, Precedent in English Law (3rd ed, 1977), 6; Allen, Law in the Making (7th ed, 1964), 363;

Sir Anthony refers to Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 71 ALR 225; 61 ALJR 304 where 'the High Court treated a decision of the Workers Compensation Board of Victoria, which was not a superior court, as having potential precedential value because the Board was exercising judicial power. As he goes on to discuss by a narrow majority the High Court 'overruled' the decision of the Board as a precedent.

[58] And in exercise of VCAT's 'original jurisdiction'.

[60] Mason (n 56), 98, citing Campbell College, Belfast (Governors) v Northern Ireland Valuation Commissioner [1964] 1 WLR 912, 918.

[61] Ibid, 99, citing Australian Agricultural Co v Federated Engine-Drivers & Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261, 278.

[62] Ibid, 101, citing Perpetual Executors and Trustees Association of Australia Ltd v FCT (Thomas' case) [1949] HCA 4; (1949) 77 CLR 493, 496; Jones v Commonwealth (1987) 71 ALR 497, 498; Cain v Malone [1942] HCA 20; (1942) 66 CLR 10, 15, 16; Baker v Campbell (1983) 153 CLR 52 at 103; [1982] FCA 212; 44 ALR 431; and Jones v Commonwealth (1987) 71 ALR 497 at 498.

[63] In the case of long-standing decisions on which reliance has been placed.

[66] Be they first instance or appellate.

[67] In this proceeding it is unnecessary for us to embark on a discussion of the principles of stare decisis in the application by the Tribunal to decisions of this Tribunal. In this proceeding, the Tribunal is faced with recent precedential and binding decisions of a higher court.

[68] See Teen Entertainment Enterprise Network Pty v A&H Natoli Pty Ltd [2020] VSC 388, [32]-[34], [37]-[39] per Richards J; Christ Church Grammar School v Bosnich (2010) 34 VAR 23, [40] per Sifris J.

[69] VCAT, as a tribunal lower in the legal hierarchy does not and cannot embark on the judicial decision-making exercise that a court higher up in the legal hierarchy embarks upon in respect of its own decisions when applying the doctrine of stare decisis.

[70] Either in an appeal from a decision of this Tribunal or by the Supreme Court applying the doctrine of stare decisis in a subsequent case before the Court.

[72] Ibid, 103; he continues with a helpful discussion of question of what a ratio of a decision is.

[73] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382 [69] - [71] and 384 [78] per McHugh, Gummow, Kirby and Hayne JJ.

[74] Interpretation of Legislation Act 1984 (Vic), s 35. See generally Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551-552 (per McHugh J on the various rationales for the existence of limitation periods and referring to various authorities)

[75] VCAT act s 44 which provides:

"In exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under this Act, the regulations and the rules."

[76] Under s 41 of the VCAT Act as 'invoked' by s 43(a). See Lillas & Loel Lawyers Pty Ltd v Celona [2014] VSCA 19 at [32], per Priest JA: "... a proceeding is an action or matter or 'some vehicle by which the jurisdiction of [the Tribunal] is invoked', commenced by an application or other initiating process".

[77] Latin for the phrase "between the parties".

[78] Christchurch Grammar School v Bosnich [2010] VSC 476 (a case dealing with the Tribunal's jurisdiction to make orders under s 109 of the now superseded Fair Trading Act 1999 (Vic))

[79] China v Harrow [1954] 1 QB 178 is a Queens Bench case which predates the enactment of Victoria's Limitation of Actions Act (1958). The decision involved the interpretation of the Limitation Act 1939 (UK) enacted following the Law Revision Committee, Fifth Interim Report, Statutes of Limitations, 1936 (Cmd 5334), on which the Victorian Limitations Act was also modelled. See Lord Goddard CJ (at 184 - 185) and his conclusion at 186 that regarding the English statute 'the legislature meant to bring every class of litigation, before whatever tribunal it might come, within the ambit of the statute'. See also Sellers J (at 187) distinguishing a 'judicial proceeding' from a 'ministerial matter', and referring to a 'cause of proceeding' being covered by the statute, framing his analysis in terms of whether the 'elements for constituting a proceeding in a court of law are present'; and Havers J (at 190) noting that the 'wide words of the definition in the Limitation Act, 1939, show that it was intended to bring within the ambit of section 1 [the operative provision of that Act] proceedings to which the term "action" would not normally be appropriate' and holding 'If the word "action" is to embrace proceedings which are not actions in the ordinary sense, ''cause of action" should, in my view, be read as "cause of proceeding.".

[80] (1984) 36 SASR 455.

[81] Ibid, 458 per Zelling J holding that the South Australian legislation (which contained an even broader definition of 'action' that included legal proceedings of all kinds) distinguished "curial from non-curial proceedings" and extended only to a body that was an "analogue of a court", not the administrative police appeal board in that case, which could only make 'recommendations', not 'orders'. Millhouse J (at 470 - 474) also analysed the question of the application of the South Australian statute of limitations by distinguishing administrative power from judicial power and judicial functions. He relied on Griffiths CJ's discussion in Huddart, Parker & Co. Pty. Ltd. v. Moorehead stating in regard to 'judicial power':

'The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action',

and in Waterside Workers' Federation of Australia v. J. W. Alexander Ltd stating

'Without attempting an exhaustive definition of the term 'judicial power', it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter'.

Millhouse J concluded: 'It is quite clear that a body, to be a "court", must have power to come to a final decision and one which is binding. Is that the position with the Police Appeal Board? It is not'. White J (dissenting) agreed with Zelling J about the South Australian limitations statute not extending to the police appeals board because 'this administrative tribunal ... is not a court'.

'boards like the Police Appeal Board do not exercise the judicial function or the judicial power. They are, therefore, not courts even though they have some of the trappings of a court such as the power to take evidence and issue subpoenas and the like. The main characteristic which the Board lacks is the power to make a final and binding decision.'

[82] (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ)

[83] Cited in Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267 (Kyrou, Kaye and Sifris JJA)

[84] (2020) 63 VLR 150; [2020] VSCA 267, [58]-[62] (Kyrou, Kaye and Sifris JJ).

[85] Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 221 CLR 309 [118] per Gleeson CJ; see also the summary contained in Commissioner of State Revenue v DHL Burgess Properties Pty Ltd [2015] VSCA 269, [47]-[79].

[86] Australian National Airlines Commission v Newman [1987] HCA 9, [11].

[87] Applicant's Submissions (n 16), [12].

[88] [2002] FCAFC 58; [2002] FCA 250, [84]-[85].

[89] We also observe that despite the proliferation of unreported decisions of courts available on the internet, as presently advised, the Supreme Court practice note applicable in this State in regard to reliance on unreported cases in proceedings continues to require that unreported decisions on which a party intends to rely in a case must be brought to the attention of the Court and to the opposing party and leave sought and granted by the Court before it can be relied on: Supreme Court of Victoria, Practice Note 4 - Citation of unreported judgments, 30 September 1986. This practice note, has been archived as the Court reviews its practice notes, but does not appear to have been revoked. It also appears to be unaffected by Practice Note SC Gen 3 Citation of authorities and legislation, (30/1/2017) para 5.6, which relates to the citation of authority and provision of unreported authorities where there is no electronic copy available. The amendment history at that bottom of it does not state that it changes Practice Note 4. Nor does Rule 29 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (requiring that a barrister inform the court in a hearing of any binding authority known to the barrister about which the court has not yet been informed) or Rule 31 (regarding the position where a judgement is reserved) alter the Supreme Court practice note.

[90] [2004] VCAT 2424, [21]-[22] (emphasis added).

[91] The decision in Commissioner of State Revenue v Politis and Politis Investments Pty Ltd [2004] VSC 126 (Nettle J) which he considered he was bound to apply was a decision of a single judge in the trial division of the Supreme Court and the argument being put to him was that as a justice of the same court he was not bond to follow the decision.

[92] Similarly, Judge Marks VP in in Owners Corporation 1 PS331627G v Pacific Rim Marketing Group Pty Ltd (Owners Corporations) [2022] VCAT 657 (17 June 2022) at [36], in accepting the first respondent's submission which had relied on a decision of Justice Morris was saying no more in that case than that she was bound by an earlier decision of Richards J in the Supreme Court unless it could be distinguished. She said it could not.

[93] In this regard we adopt the language of Sir Anthony Mason referred to earlier:

"The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision ..."

[94] [2020] VSCA 30 (25 February 2020) ('Meringnage').

[95] Discussed in Teen Entertainment Enterprise Network Pty v A&H Natoli Pty Ltd [2020] VSC 388.

[96] Lanigan (n 2), [28] (footnotes omitted).

[97] Lanigan was delivered on 9 February 2022; Ajaimi was delivered on 17 March 2022.

[98] See Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398.

[99] Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [55] per Garde JA.

[100] See Webb v McCracken [1906] HCA 45; (1906) 3 CLR 1018, 1027-1028; Barker v the Queen [1983] HCA 18; (1983) 153 CLR 338, 341, 356

[102] [1975] VicRp 32; [1975] VR 345.

[103] See also Williams v The Society of Lloyds & ors [1994] VicRp 19; [1994] 1 VR 274, where the court in considering whether a breach of s 52 of the Trade Practices Act 1974 (Vic) was a "tortious act of omission for the purposes of service of pleadings out of Victoria" held that the breach of the provisions of s 52 provides a measure of damages for breach that are appropriate to damages in tort, but it does not follow that such a breach constitutes a tortious act or omission.

[104] 1995/6858 [1995] VICCAT 113,7.

[106] See British American Tobacco Exports BV v Trojan Trading Company Pty Ltd [2010] VSC 572, [26].

[107] see Quigley v Lower Murray Urban and Rural Water Corporation trading as Lower Murray Water [2014] VCAT 1325, [19], [21], per VP Macnamara.

[108] [2012] CH 363.

[110] Brisbane City Council v Amos [2019] HCA 27, [66], per Nettle J.

[111] See Water Act, s 19(10).