Court decisions which affect the kinds of cases VCAT can hear
There have now been two major court decisions which impact the kinds of cases which can be lawfully heard in VCAT.
These decisions raise constitutional law issues about VCAT’s jurisdiction to hear certain kinds of cases.
VCAT will not be able to hear your case if it involves an exercise of federal jurisdiction. Federal jurisdiction applies to a number of situations, including cases where the parties are residents of different states.
It also applies to cases:
- involving the Constitution or its interpretation
- relying on laws made by the Commonwealth Parliament
- between states, or between a state and a resident of another state, or
- where the Commonwealth of Australia is a party.
The court’s decisions mean that VCAT cannot decide some kinds of cases, including where:
- the parties are residents of different Australian states, or
- the Commonwealth of Australia is a party.
It is important for the Victorian community that VCAT continues to resolve disputes in a timely, cost-effective and efficient way. VCAT will continue to assess the impact of these decisions on a case-by-case basis.
Thurin v Krongold Constructions (Aust) Pty Ltd
The Court of Appeal handed down this decision on 20 October 2022.
The Court’s decision means that VCAT cannot exercise federal jurisdiction in the resolution of a dispute. This is because VCAT is not what is described as a ‘Chapter III Court’ under the Australian Constitution. Chapter III Courts available to you in Victoria are the Supreme Court, County Court and Magistrates’ Court.
VCAT cannot hear a case if a ‘federal matter’ genuinely arises in the case. This occurs where the decision VCAT needs to make to resolve the case requires us to either apply or interpret a federal law.
What is a federal matter and when does one arise?
In most situations, a federal matter will arise because one of the parties seeks to have the case decided according to legislation (normally an Act, also called a statute or a Regulation) created by the Commonwealth Parliament (also called a federal law), as opposed to Victorian legislation (also called a Victorian law).
Commonwealth legislation can be easily identified from the title of the Act or Regulation, which will have the term ‘(Cth)’ in brackets at the end. Victorian legislation has the term ‘(Vic)’ in brackets at the end of the title.
Example: The “Insurance Contracts Act 1984 (Cth)” as compared to the “Residential Tenancies Act 1997 (Vic)”.
Meringnage v Interstate Enterprises Pty Ltd
The Court of Appeal handed down this decision on 25 February 2020.
The Court’s decision means that VCAT cannot hear some kinds of cases, including where:
- the parties are residents of different Australian states; or
- the Commonwealth of Australia is a party.
VCAT decides if the parties are residents of different states:
- based on when the application is lodged, not when the dispute started; and
- whether a party lives permanently in a state.
This decision does not affect a party who is:
- a corporation or State political entity
- a resident of a territory (they are not a resident of a state); or
- an overseas resident.
What to do if your case is affected
If you have not commenced your case:
If you have not commenced your case at VCAT, and you think that VCAT might not be able to hear it because it involves an exercise of federal jurisdiction, you have the option to instead commence your case in an appropriate Victorian court – possible options depending on your case are the Magistrates’ Court, the County Court or the Supreme Court.
In many situations, for example in Residential Tenancies matters, the Magistrates’ Court will be the appropriate alternative venue.
If you have commenced your case:
If you have commenced your case at VCAT, and it involves the exercise of federal jurisdiction, VCAT cannot continue to hear your case. In this situation, VCAT will have no choice but to make orders striking out your case. That removes it from the list of cases to be heard at VCAT.
If you believe your case is affected and you have already commenced the case at VCAT, contact us.
Consider issuing a new case at the Magistrates’ Court (or another Court)
Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) was introduced by the Victorian Parliament to allow a new method of case initiation at the Magistrates’ Court.
Part 3A of the Act is available for situations where VCAT does not have jurisdiction because a case involves an exercise of federal jurisdiction.
The process under Part 3A of the Act also allows the Magistrates’ Court to transfer appropriate cases involving federal matters to the County Court or Supreme Court in certain circumstances.
Alternatively, you may choose to issue a new case directly in the County Court or Supreme Court except if your case relates to a residential tenancy, in which case you can only apply to the Magistrate Court.
Will any fees I’ve paid to VCAT as part of my application be transferred to the Magistrates’ Court (or other Court)?
No. You will need to pay your court fees separately to the relevant court.
You may apply for a refund of the VCAT fees, however each refund application will be assessed on an individual basis, and if granted it can take up to six weeks for you to receive the refund.