Vaughan Constructions Pty Ltd v Melbourne Water Corporation: Is VCAT a court under the Wrongs Act 1958 (Vic) Part IV?

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Case citation: Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2022] VCAT 633

Case Note


  • On 19 October 2018, Biodiversity entered into a contract with Vaughan for the construction of a building on land in Epping owned by KV Cooper Pty Ltd and Drakon Investments Pty Ltd. On the same day, Biodiversity entered into a contract with Drakon for the purchase of the land.
  • In 2022, a proceeding was commenced by Vaughan Constructions Pty Ltd (as well as KV Cooper and Drakon) against Melbourne Water Corporation in VCAT under the Water Act 1989 (Vic) (Water Act). They alleged that there had been a flow of water from a drain in Epping into nearby land, with defects arising in the building Vaughan built. Vaughan alleged that the defects had been caused by a flow of water from the drain, for which Melbourne Water was responsible. Subsequently, two other parties, Reeds Consulting Pty Ltd, Tonkin & Taylor Pty Ltd and Cornfoot Bros Earthmoving Pty Ltd, were joined to the proceeding. One of those parties, consulting engineer Reeds, applied to bring a contribution claim against geotechnical engineer AS James Pty Ltd as part of this existing case under s 16 of the Water Act. AS James opposed its joinder, including on the basis that the claims Reeds sought to make against it were based on sections 23B and 24 in Part IV of the Wrongs Act 1958 (Vic) (Wrongs Act), which AS James contended may not be within VCAT’s jurisdiction to determine.
  • Justice Delany found that VCAT lacks jurisdiction to determine contribution claims brought under Part IV of the Wrongs Act. Therefore, Reeds did not have jurisdiction to determine a contribution claims against AS James and the court refused Reeds’ joinder application.
  • Therefore, if a party to a VCAT proceeding wishes to make a contribution claim under Part IV of the Wrongs Act, that party will need to commence a separate, freestanding contribution proceeding in a court, while the primary claim remains in VCAT.

Procedural history

  • Forum – Supreme Court Vic, per Delaney J

Legal reasoning

  • While section 23B of the Wrongs Act creates a freestanding entitlement to making contribution claims, the question arises under s24 of the Wrongs Act, which makes reference to a “court or jury” deciding the amount of contribution a person must make. Thus, Delaney J focussed on the interpretation of those words. A number of Parts of the Wrongs Act specifically define the word ‘court’ to include a tribunal, meaning that VCAT is able to exercise powers set out in those Parts. However, Part IV, which creates a statutory basis for the remedy of contribution does not include a definition of ‘court’.
  • Considering other cases, Delaney J explained that VCAT does not have the characteristics of a court. This is because VCAT is not bound by the rules of evidence, it cannot enforce its own decisions, some of its members are not legally qualified, it can be required to apply a statement of government policy and it can be required to provide advisory opinions.
  • The context in which ‘court’ must be construed, in Part IV of the Wrongs Act, including references to ‘judgment’ and ‘writ’, supports a construction of ‘court’ in Part IV of the Act, which excludes the Tribunal.
  • The history of amendments to the Wrongs Act reinforces that VCAT is not a ‘court’ for the purposes of Part IV.
  • History of amendments is outlined by AS James, who argued that when parliament amended other parts of the Wrongs Act, it introduced a specific definition for courts, which expressly included the Tribunal, but those amendments were limited in part IV of the Wrongs Act, and did not apply to contribution claims.
  • Delaney J held that the words “court or jury” meant that VCAT was excluded from contribution claims because it is not a court.

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