A special sitting of the Victorian Civil and Administrative Tribunal (VCAT) has confirmed that VCAT is bound by a contentious decision of the Supreme Court of Victoria which determined that the limitation periods otherwise imposed by the Limitation of Actions Act 1958 (Vic) (Limitation Act) did not apply to a statutory claim issued at VCAT.

Key takeaway

In Steedman v Greater Western Water Corporation [2023] VCAT 128, the Tribunal concluded that the statutory claim under the Water Act 1989 (Vic) was not statute barred and could be maintained in VCAT, despite the expiry of a six year limitation period under section 5 of the Limitation Act.

What happened in this case?

The applicant alleged she had suffered loss and damage as a result of a flow of water from the sewerage infrastructure of the respondent on 18 February 2015.

The applicant commenced proceedings in VCAT on 12 April 2021, about six years and two months after the alleged damage occurred, seeking damages pursuant to s 157(1) of the Water Act 1989 (Vic). The respondent denied liability and raised a limitation defence, arguing the claim was statute barred by reason of the six year limitation period set by s 5(1)(a) or (d) of the Limitation Act.

Let’s take it back a step

In early 2022, the Supreme Court of Victoria handed down two unrelated decisions on the effect of the Limitation Act in VCAT:

• Lanigan v Circus Oz & Ors (Lanigan), in which Justice McDonald found the six year limitation period does not apply to proceedings at VCAT, as VCAT is not a ‘court of law’ for the purposes of the definition of “action” in s 3(1) of the Limitation Act. This proceeding related to a statutory claim under the Equal Opportunity Act 2010 (VIC).
• Ajaimi v Giswick Pty Ltd (Ajaimi), where Justice Osborne found the six year limitation period does apply, as the definition of “action” in s 3(1) of the Limitation Act is not limited to proceedings in court and would extend to VCAT. This proceeding related to a contractual claim.

In Steedman, the Tribunal considered the application of these two cases, which potentially represented conflicting Supreme Court authority.

What was the outcome?

The President of VCAT, Justice Quigley and Deputy President Richard Wilson, concluded that VCAT was bound to follow the decision in Lanigan having been decided prior to Ajaimi, with the effect that the claim before it in VCAT was not subject to the six year limitation period for statutory claims under s 5(1)(a) of the Limitation Act.

The Tribunal otherwise distinguished the case of Ajaimi, which involved a breach of contract claim and not a statutory claim. It indicated in obiter that it would be bound by Ajaimi if the claim had been a contractual claim – in which case the six year limitation period under s 5(1)(a) of the Limitation Act would have applied.

Accordingly, the Tribunal found the respondent could not rely on the limitation period as a point of defence and allowed the applicant’s claim to proceed.

Notably, the Tribunal said that absent Lanigan, it would have been ‘inclined to the view’ that a conventional and purposive approach to statutory construction should be adopted so that the operative provisions of the Limitation Act would apply to proceedings brought in VCAT. The apparent inconsistency between the decisions of Lanigan and Ajaimi, was noted as were the ambiguity of the legislative provisions and other powerful considerations supporting a contrary view. Ultimately, however, it considered these were issues for a superior court to rule upon.

What does this mean?

This decision confirms that, absent a subsequent contrary superior court decision or legislative intervention, the limitation periods imposed by the Limitation Act may not apply to statutory claims brought in VCAT. Therefore, VCAT is currently a potentially unique jurisdictional pathway for certain historical statutory claims.

Whether this outcome will lead to a surge of historical statutory claims (in the absence of any appeal or statutory amendment to the Limitation Act) remains to be seen. The potential consequences and gravity of this decision is reflected by its referral to a special sitting before the President and a Deputy President.

It is likely this issue will attract consideration by a superior court or amending legislation given inconsistency in the operation of limitation periods between the courts and VCAT is undesirable and may lead to ‘forum shopping’.

Further information / assistance regarding the issues raised in this article is available from the authors Richard Midgley, Partner, Jonathan Markowitz, Senior Associate and James Panas, Law Graduate or your usual contact at Moray & Agnew.