VCAT, the Court of Appeal and the Justice Legislation Amendment Act 2023 (Vic)

The patience of VCAT, Victorian parties and practitioners has at last been rewarded.  The Justice Legislation Amendment Act 2023 has become law, remedying the previously parlous position of gaps in VCAT’s jurisdiction and powers, and associated anomalies.

While not the genesis of VCAT’s difficulties or even the start of their unveiling, the decision of the Victorian Court of Appeal in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 was notable for confirming that VCAT has no jurisdiction to deal with controversies under federal law (such as involving the Competition and Consumer Act 2010 (Cth) or Insurance Contracts Act 1984 (Cth) for instance), but that VCAT can “refer” such a matter to an appropriate Court.

It is not a simple matter to invest a Tribunal with federal jurisdiction.  Victoria had already attempted a “work around” by instead expanding the role of the Magistrates’ Court to hear and determine matters commenced at VCAT involving a federal controversy.[1]

Other recent decisions revealed or confirmed that: certain statutory causes of action under the Water Act 1989, where VCAT has exclusive jurisdiction, have no governing limitation period[2]; and that VCAT has no power to hear and determine contribution claims under the Wrongs Act[3].

VCAT, practitioners, and past, present and prospective parties to VCAT proceedings have languished in uncertainty and stasis, till the following developments have resolved the difficulties and some questions – to the extent possible.

First, on 17 August 2023, the Court of Appeal handed down its decision in Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191, holding that VCAT’s referral of the matter to the Supreme Court under s 77 of the Victorian Civil and Administrative Act 1998 invoked the jurisdiction of the Court to hear and determine the proceeding commenced at VCAT, meaning that no new originating process was required in the Court, such that the Thurins’ referred matter was not defeated by reason of expiry of the limitation period.  (However, the Court of Appeal also held that the purported joinder of other parties by VCAT was invalid due to it being an invalid exercise of federal power and that the s 77 referral process cannot cure that, leading to separate issues of limitation in respect of the two joined parties.)

Secondly, the Justice Legislation Amendment Act 2023 became law on 10 October 2023.  Part 10 of the Justice Legislation Amendment Act 2023 introduces four key changes:

1. Division 1 of Part 10 modifies the Victorian Civil and Administrative Tribunal Act 1998:
   to validate previous decisions of the VCAT invalid only because they were made in purported exercise of federal jurisdiction; to better facilitate the referral of federal matters to Courts under s 77; and to allow such a Court to extend a limitation period in specific circumstances where time was spent taking additional steps due to VCAT having struck out the proceeding due to the controversy involving federal subject matter.
2. Division 2 modifies Part IV of the Wrongs Act (by including VCAT in the definition of “Court”) so that VCAT is empowered to make decisions as to contribution claims and contributory negligence, and to make effective past decisions of VCAT as to those matters.
3. Division 3 modifies the Limitation of Actions Act 1958 to provide that VCAT matters are bound by the same limitations under the Limitation of Actions Act for matters heard in a Court of law.
4. Division 4 modifies the Domestic Building Contracts Act 1995 to expand the reasons why a Court is not required to stay a domestic building dispute begun in a Court to include if the matter raises or may raise a federal controversy (which VCAT lacks the jurisdiction to hear and determine).

With these significant difficulties as to jurisdiction and powers seemingly resolved, the next challenge is to ameliorate VCAT’s resourcing difficulties that have seen protracted delays to hearing dates.

[1] Part 3A of the Victorian Civil and Administrative Act 1998; see https://www.keypointlaw.com.au/keynotes/the-court-of-appeal-finds-vcat-pipeline-broken-vcat-has-no-jurisdiction-in-federal-matters/

[2] Steedman v Greater Western Water Corporation [2023] VCAT 128; see https://www.keypointlaw.com.au/keynotes/troubled-waters-the-water-act-vcat-and-contribution-claims/

[3] Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2023] VCAT 233; see https://www.keypointlaw.com.au/keynotes/troubled-waters-the-water-act-vcat-and-contribution-claims/