VCAT Conduct of Proceedings for VIC Domestic Building Disputes

What it is

VCAT is the Victorian Civil and Administrative Tribunal. Its Building and Property List hears domestic building work disputes under section 57 of the Domestic Building Contracts Act 1995 (Vic). The conduct of proceedings is governed by the Victorian Civil and Administrative Tribunal Act 1998, the VCAT Rules 2018 and Practice Note PNVCAT2 dealing with expert evidence. The List sits in Melbourne with regional sittings as required.

How a matter starts

A domestic building dispute lands at VCAT after Domestic Building Dispute Resolution Victoria has issued a notice that the matter is suitable for tribunal determination, or after the parties bypass DBDRV in clear cases. DBDRV conciliation is the front door for most homeowner claims under section 45 of the Domestic Building Contracts Act 1995.

First directions hearing

VCAT lists the matter for a first directions hearing, normally within four to eight weeks of filing. A directions hearing is a short procedural appearance, usually 15 to 30 minutes. The member asks who the parties are, what the dispute is about, how many experts are needed and what the realistic hearing length is. The member then makes orders setting a timetable.

Typical procedural sequence

The standard sequence in a Building and Property List defect case looks like this.

• Points of claim filed by the applicant with chronological facts and a breakdown of loss.
• Points of defence filed by the respondent paragraph by paragraph.
• Discovery of contract files, variations, site diaries and inspection reports.
• Joint expert site inspection.
• Exchange of expert reports under PNVCAT2.
• Joint expert conclave and joint report identifying agreement and disagreement.
• Compulsory conference or mediation.
• Lay witness statements if matters remain.
• Tribunal Book of agreed documents.
• Final hearing.

Points of claim and defence

Points of claim are not pleadings in the strict court sense, but they perform the same job. The applicant must set out who, what, when and why the respondent is liable. A vague points of claim will be sent back for amendment and the matter will not progress. Points of defence must respond paragraph by paragraph.

Expert evidence under PNVCAT2

Each party briefs an independent expert. The expert must read Practice Note PNVCAT2 and confirm the report complies. The expert owes a paramount duty to the Tribunal. The Tribunal can direct a joint expert conclave under PNVCAT2 where the experts meet without the lawyers and produce a joint report identifying points of agreement and points of disagreement with reasons. The joint report is admissible and is often the single most important document at hearing.

Compulsory conference

A compulsory conference is conducted by a Tribunal member under section 83 of the VCAT Act. It is confidential and without prejudice. Parties prepare position papers of no more than four pages. The member can give a non-binding view on liability and quantum to push settlement. Most defect matters settle here or narrow to a small number of items.

Hearing day

If the matter does not settle the file is listed for hearing. A defect hearing typically runs two to five days for a single dwelling.

The Tribunal member opens by reviewing the Scott schedule or its VCAT equivalent. Joint expert evidence is the norm. Both experts sit together and answer the members questions on each defect. Lay witnesses are cross-examined but the questioning is tighter than a Supreme Court trial. Closing submissions are often written and filed within 21 days of the last hearing day. The orders are usually published within three months of the hearing.

Builder duties during the proceeding

The builder must produce the contract file, variations, inspection records and any quality control documents on request. The builder must keep alleged defective work undisturbed and must give the homeowner experts joint access. The statutory warranties in section 8 of the Domestic Building Contracts Act 1995 continue to apply while the matter is on foot. The builder cannot rely on DBI cover as a shield to liability. DBI is a last resort insurance.

Homeowner duties

The homeowner must give the builder reasonable access for inspection and must mitigate loss. The homeowner cannot front-run rectification by engaging a third party to remediate large items before the builder is given a chance to inspect, except for emergency works. The homeowner must comply with discovery orders, including production of photographs, communications and any prior building reports.

Common errors

Filing a points of claim that reads as a complaint letter rather than a structured pleading. Missing the joint conclave by sending the expert unprepared. Briefing an expert who has not confirmed PNVCAT2 compliance. Treating the compulsory conference as a hearing rather than a negotiation. Failing to update the Scott schedule between conclave and hearing so the Tribunal works from a stale document. Letting the timetable drift past the listed hearing window, which forces an adjournment and pushes the matter back six to nine months in the Melbourne list.