What VCAT can't do
VCAT cannot hear some cases, including where parties live interstate or federal jurisdiction applies.
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 any of the following 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
- where the Commonwealth of Australia is a party.
The court’s decisions mean that VCAT cannot decide some cases, including where:
- the parties are residents of different Australian states, or
- the Commonwealth of Australia is a party.
It is important to the Victorian community for VCAT to continue to resolve disputes in a timely, cost-effective and efficient way. We 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
- whether a party lives permanently in a state.
This decision does not affect a party who is identified as one of the following:
- a corporation or State political entity
- a resident of a territory (they are not a resident of a state)
- an overseas resident.
What to do if your case is affected
If you have not commenced your case
If you have not yet applied to VCAT, and you think we 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 tenancy matters, the Magistrates’ Court will be the appropriate alternative venue.
If you have commenced your case
If you have applied at VCAT, and it involves the exercise of federal jurisdiction, we cannot continue to hear your case. In this situation, VCAT will have no choice but to make orders striking out your case.
If you believe your case is affected and you have already commenced the case at VCAT, contact us.
Starting a case at the Magistrates’ Court (or another court)
Part 3A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) allows for case initiation at the Magistrates’ Court. It accounts 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
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.
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 can apply for a refund for your VCAT application. 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.
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.
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.