In Steedman, the Tribunal clarified how the doctrine of precedent and stare decisis applies and operates within the context of the Tribunal’s jurisdiction and in doing so, confirmed that the six-year limitation period in s 5(1)(a) or (d) of the Limitation of Actions Act 1958 (LAA) does not apply to certain statutory causes of action commenced in the Tribunal.

The Applicant brought a claim for compensation for a flow of water by a water authority under ss 157(1) and 19 of the Water Act 1989 (Vic) (Water Act)  The water authority contended that the action was barred by operation of s 5(1)(a) or (d) of the LAA.
 
That contention fell to be considered in light of two conflicting decisions of the Supreme Court of Victoria: the decision of McDonald J in Lanigan v Circus Oz & Ors [2022] VSC 35 (Lanigan) and that of Osborne J in Ajaimi v Giswick Pty Ltd [2022] VSC 131 (Ajaimi).  Ajaimi was decided shortly after Lanigan and did not refer to Lanigan.

In Lanigan, McDonald J decided that s 5(1) of the LAA did not apply to a statutory claim for compensation under the Equal Opportunity Act 2010 in the Tribunal because the claim was not an ‘action’ as defined in s 3 of the LAA: an ‘action’ is restricted to a proceeding in a ‘court’.

In Ajaimi, Osborne J decided that s 5 of the LAA did apply to an ‘action’ in the Tribunal in respect of a contractual claim.

Quigley J and Wilson DP, sitting as members of the Tribunal, explained in Steedman

• the doctrine of precedent – respecting decisions of courts higher in the hierarchy – binds the Tribunal to follow decisions of higher courts unless properly distinguishable to the case to be decided (at [66]);
• the doctrine of precedent binds the Tribunal in both its exercise of judicial and administrative power (at [57]);
• the doctrine of stare decisis obliges a court to apply decisions at that court’s hierarchical level unless they are manifestly wrong (at [59], [61], [62]); and
• where there are two decisions from the same court higher in the hierarchy and the latter appears to not have followed the earlier decision, the earlier decision must be followed unless it was plainly wrong (at [52], [97]).

Because it was decided earlier and, as a jurisdiction of lower order in the hierarchy, the Tribunal considered itself bound by Lanigan because it was indistinguishable as a statutory claim, and Ajaimi was distinguishable as a contractual claim ([88], [89], and [97]).  However, the Tribunal considered that, absent the above principles, it would have applied Ajaimi ([78]).  The inconsistency between the two decisions was therefore left for a superior court to rule on.

The Tribunal also found that, even though it was not obliged to consider the issue, a claim under the Water Act does not fall within the scope of s 5 LAA because it is neither an ‘action’ founded in tort or for damages for breach of statutory duty ( [99] to [111]), nor is it an ‘action’ to recover a sum recoverable by virtue of an enactment ( [112] – [117]).

As a side, but important, note for practitioners, the Tribunal commented in footnote 89 that if a party intends to rely on an unreported decision it must, according to an archived but not revoked practice note, bring it to the other party’s attention and seek, and be granted, leave of the court before it can be relied upon.

Andrew Downie and Andrew Blunt

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