When is a claim at the VCAT Statute barred?

Steedman V Greater Western Water Corporation

The recent Victorian Civil and Administrative Tribunal decision in Steedman v Greater Western Water Corporation [2023] VCAT 128 found that the 6 year time limitation in section 5 of the Limitation of Actions Act 1958 (Vic) does not apply to certain statutory claims where VCAT has exclusive jurisdiction.

Background

Ms Steedman, the applicant, alleges that she suffered loss and damage under section 157 of the Water Act 1989 (Vic) (Water Act) caused by the respondent, Greater Western Water Corporation (GWWC), in February 2015. She filed proceedings against GWWC in April 2021, which GWWC argued is outside the six year time limitation period and therefore is statute barred.

The Victorian Civil and Administrative Tribunal (Tribunal) considered the conflicting decisions in Lanigan v Circus Oz & Ors [2022] VSC 35(Lanigan)and Ajaimi v Giswick Pty Ltd [2022] VSC 131(Ajaimi)in determining whether the claim was statute barred by the Limitation of Actions Act 1958 (Vic) (Limitations Act).

Lanigan found that the Limitations Act does not apply to proceedings commenced under the Equal Opportunity Act 2010 (Vic) because they do not meet the definition of “action” in the Limitations Act. That decision further determined that the Tribunal was not a court of law for the purposes of ss 3(1) and 5(1)(a) of the Limitations Act. As the Lanigan proceedings were for a statutory claim they were not statute barred by s 5(1)(a) of the Limitations Act.

The decision in Ajaimi conflicted with that of Lanigan and found that the definition of “action” under the Limitations Act was broad enough to include the Tribunal. However, the proceeding arose out of a contractual claim (which fell within s 5(1)(a) of the Limitations Act).

Consideration of conflicting precedents and the Limitations Act

In Steedman v Greater Western Water Corporation [2023] VCAT 128(Steedman), the applicant submitted that Lanigan was binding and that the definition of “action” was any proceeding commenced in a court by a writ, which therefore did not extend to the Tribunal.

The respondent submitted that Lanigan was incorrectly decided and that the Limitations Act applied to the Tribunal as found in Ajaimi.

The Tribunal found that Lanigan was the binding decision. At paragraph 53:

“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.”

Both Lanigan and Ajaimi were both considered to be binding on the Tribunal and in circumstances where they conflicted, the Tribunal determined that Ajaimi was distinguishable as it was a claim brought under contract, whereas both Steedman and Lanigan concerned statutory claims. It was noted that if both cases were indistinguishable, the Tribunal would have had to apply the first in time, which was still Lanigan.

It is worth noting that the Tribunal indicated had they not been bound by precedent, they would have been inclined to determine that the claim was statute barred in line with the broader definition of “action” in Ajaimi.

Conclusion

The Tribunal found in favour of the applicant, that s 5(1) of the Limitations Act does not apply and therefore the claim is not statute barred. However, given the Tribunal’s apparent reluctance in coming to such a conclusion and their assertion that the “apparent inconsistency between the respective decisions in Lanigan and Ajaimi is a matter for a superior court to rule upon”, there appears to be potential for this decision to considered further.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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