Power under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 to ‘determine the proceeding’
Whether order determines proceeding only if it finally determines all rights in issue
Whether includes power to determine liability and assess damages at future hearing
Quick Take
1Section 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal, where s 78(1) is satisfied, to determine liability against a defaulting respondent and leave damages to be assessed at a later hearing. Because 'proceeding' (as defined in s 3) includes part of a proceeding, and a determination of liability determines at least part of it, such an order 'determines the proceeding'. A broad and flexible construction, rather than a narrow and technical one, is consistent with the Act's purpose of providing a low cost, informal and flexible forum.
2In challenging a s 78(1) belief, the question is whether it was open to the Tribunal, informed by its experience, to believe the party was causing unnecessary disadvantage. On the facts, a builder's failure to file points of defence and expert evidence as ordered created a present risk of a last-minute defence on an undisclosed basis. That uncertainty was an unnecessary disadvantage to the owner, even though the owner still had to prove his case and the Tribunal had other powers to control late participation. The Court left open whether delay was also a sufficient basis.
3The Anthony Hordern principle applies only where two provisions confer the 'same power'. It prevents reliance on a general power to escape the conditions of a specific power, but it provides no basis for implying restrictions into a specific power such as s 78(2)(b)(i). Longstanding authority treating a judgment for damages to be assessed as a final determination of liability supports this reading by analogy.
