Since its inception in 1998, the Victorian Civil & Administrative Tribunal (VCAT) has been a central forum for civil dispute resolution in Victoria.

Under various enabling statutes it has exclusive jurisdiction in the fields of residential tenancies, retail tenancies, domestic building, transport accident injuries, credit and water flow disputes. As there is no monetary limit to VCAT’s jurisdiction, the cases with which it deals range from the smallest ‘consumer and trader’ dispute to multimillion dollar retail leasing and building disputes.

In the last couple of years, however, its jurisdiction has been significantly curtailed in the areas of Federal legislation, limitation and contribution.

This poses difficulties for plaintiffs/applicants in deciding the correct forum to bring a proceeding but it potentially benefits them by creating a forum in which causes of action which would otherwise be statute barred may now be brought. The consequences are potentially more serious for defendants/respondents, who are now deprived of limitation defences and the opportunity to bring contribution claims.

An issue also arises as to the extent to which previous VCAT decisions may be overturned on the ground that the Tribunal lacked jurisdiction to make them.

Federal Jurisdiction

Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 was a multiparty domestic building dispute arising from a 2006 building contract which included issues relating to implied warranties and misleading and deceptive conduct under the since repealed Trade Practices Act 1974 (Cth) (TPA). The dispute involved a VCAT proceeding and two Supreme Court proceedings.

The various proceedings were referred to Riordan J who was both an ad hoc member of VCAT and a judge of the Supreme Court. Riordan J directed that the proceedings be heard and determined together and then referred several questions to the Court of Appeal for determination, including VCAT’s jurisdiction to deal with Federal legislation such as the TPA.

The Court of Appeal held that where there is or might be a Federal issue in a matter, or a dispute otherwise falls within Federal jurisdiction, VCAT has no jurisdiction.

Statutes which might previously have been considered by VCAT but in respect of which VCAT now has no jurisdiction include the Competition and Consumer Act 2010 (Cth) (which replaced the TPA) and the Insurance Contracts Act 1984 (Cth).

Limitation

It has been customary in VCAT proceedings for respondents to rely upon the 6 year limitation period imposed by s5(1) of the Limitation of Actions Act 1958 (Vic) (Limitation Act) for claims brought in contract, tort or breach of statutory duty.

In Pumpa v Goulburn Murray Rural Water Corporation (2015) VCAT 587, for example, it was held by Jenkins J and VCAT Member Sharpley that a claim under s157(1) of the Water Act 1989 for damage caused by a flow of water was statute barred under s5 of the Limitation Act.

More recently, however, this has come into doubt. In Lanigan v Circus Oz [2022] VSC 35, McDonald J held that the Limitation Act applied only to proceedings brought in a ‘court’ and because VCAT is not a ‘court’, s5(1) of the Limitation Act had no application. In Steedman v Greater Western Water Corp [2023] VCAT 128 Quigley J and Deputy President Wilson found that the Tribunal was bound by the Lanigan decision and confirmed that the Limitation Act did not apply in VCAT.

The proposition that the Limitation Act does not apply in VCAT is, to say the least, a startling one for respondents and their representatives. Limitation arguments will be available, however, where the legislation conferring jurisdiction upon VCAT or other relevant legislation such as the Building Act 1983 (Vic) contains limitation provisions.

Contribution Claims

As with limitation, it has been customary in VCAT for respondents to make contribution claims against other parties under the Wrongs Act 1958 (Vic) (Wrongs Act) and for those claims to be accepted by the Tribunal.

In Vaughan Constructions Pty Ltd v Melbourne Water Corporation (2023) VCAT 223, however, it was held by Delaney J that VCAT had no jurisdiction to deal with contribution claims because the Wrongs Act applied only to proceedings in a court and VCAT is not a court.

Conclusion

As can be seen, the jurisdiction of VCAT has been significantly curtailed by the above decisions in a way that particularly disadvantages respondents.

It remains to be seen whether some or all of these jurisdictional gaps will be filled by future legislative changes such amendments to the Limitation Act and the Wrongs Act.

Further information / assistance regarding the issues raised in this article is available from the Stephen George, Senior Consultant or your usual contact at Moray & Agnew.