Important change for interstate parties with disputes
29 November 2021
Since February 2020, the Victorian Civil and Administrative Tribunal (VCAT) has been unable to hear matters where a party resides outside of Victoria, following a landmark decision in the Court of Appeal.
This decision meant 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.
This issue does not affect parties who are:
- corporation or state political entities
- residents of a territory
- overseas residents
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. If the parties are individuals and one is located in another state, VCAT is unable to hear the case.
This issue often arises in residential tenancies proceedings where a rental provider (landlord) resides interstate.
However, a recent change in legislation means the Magistrates' Court of Victoria (MCV) now has jurisdiction to hear these matters.
From Monday 29 November 2021 any applicant that has had a case rejected or struck out for the above reasons can make an application to the MCV, either in person, via post or email.
The legislative change means that applicants who have previously had a matter struck out or rejected because one of the parties was residing interstate can now apply to the MCV to have their case heard.
For those initiating a Notice to Vacate (NTV)
Users will still be able to use VCAT's Residential Tenancies Hub to create a Notice to Vacate (NTV) when a party to the matter resides interstate. Once completed, the NTV can be attached to the application with the MCV.
How to lodge an application
To find out which type of application suits your matter (and if your application requires an annexure), visit the MCV's Federal Jurisdictions page which contains all associated forms and annexures you may need to begin your application.
For further information about Residential Tenancies matters, application types and section numbers , see: Common residential tenancy issues and section numbers.
Frequently asked questions
Why can't VCAT hear matters involving individuals who live interstate?
In February 2020, the Victorian Court of Appeal found that VCAT is not a 'court of a state'. In effect, this means that VCAT does not have federal jurisdiction and cannot hear certain matters specified in the Commonwealth constitution, including matters between individuals who live in different states.
Why can the Magistrates' Court of Victoria now hear matters with interstate parties?
New legislation that commenced on Monday 29 November (the Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021) means the Magistrates' Court of Victoria can now hear matters that VCAT cannot hear because VCAT does not have federal jurisdiction.
Can I still make an application through VCAT or do I go through the Magistrates' Court?
If at the time of the application you know that one of the parties resides interstate, you can make an application directly to the Magistrates' Court.
If you make an application to us and we ultimately determine we do not have jurisdiction in your matter, the application will be struck out and any fees will be refunded. If this happens, you can then apply to the Magistrates' Court.
How are parties classified to be outside of the state?
If a person's primary residential address is within another state of Australia that is not Victoria, then VCAT is unlikely to be able to hear a case where that person is a party (either the applicant or the respondent).
Is the classification at the time of the issue that warranted the application or at the time of the application?
If either the renter or rental provider are residents of a state other than Victoria at the time the application is lodged, it is outside of VCAT's jurisdiction – it is not determined by where the parties resided at the time the dispute began.
What about if the agent resides outside of Victoria? Does that matter?
No. Only the residential status of the renter and rental provider is relevant.
If I believe a party in my case resides outside of Victoria can I apply directly to the Magistrates' Court?
Yes, you can.
Will any fees I've paid to VCAT as part of my application be transferred to MCV?
No, they will be refunded to you and you'll need to pay Magistrates' Court fees separately. Be advised that it can take up to six weeks to have fees refunded.
If VCAT does not accept my application will VCAT transfer it and all supporting documents to MCV?
No. You'll need to make a new application to MCV and re-submit all supporting documentation.
Am I still able to use the RT Hub for creating a Notice to Vacate (NTV)?
NTVs are not affected by the federal jurisdiction issue and can continue to be generated using the VCAT RT Hub even if one of the parties resides interstate. In such a case, if the NTV ultimately results in an application to VCAT that VCAT cannot hear, the completed NTV can then be attached to the new application with the MCV.