VCAT confirms it is incumbent on applicants who apply to review decisions out of time to provide an acceptable explanation for their delay, or risk having their claims struck out.
The applicants sought to review a denial of a domestic building insurance claim issued by IAL on 16 November 2016, in proceedings commenced on 13 June 2019. IAL successfully struck out the proceeding, which had been brought well beyond the 28 day period permitted by s61 of the Domestic Building Contracts Act 1995.
IAL applied to strike out the proceeding under s75 of the VCAT Act on the basis that the applicants had not applied under s126 of the VCAT Act to extend the time to review IAL’s decision and the proceeding was an abuse of process1. The applicants ultimately filed a s126 application, and the matter proceeded to an interlocutory hearing for both applications. The Tribunal correctly considered the s126 application first.
Senior Member Farrelly had regard to the principles laid down in Hunter Valley Developments Pty Ltd v Minister for Homes Affairs and Environment in considering the s126 application. The Senior Member did not accept the applicants were not aware of their right, or timeframe within which, to challenge IAL’s decision. Despite finding the applicants’ substantive application was arguable, this did not overcome their failure to adequately explain the significant delay.
The Tribunal dismissed the s126 application and otherwise struck out the proceeding against IAL.
The Tribunal accepted IAL’s decision alerted the claimants to their review rights and, to the extent there may have been a delay in obtaining legal advice, the onus was on the applicants to pursue that advice.