The Justice Legislation Amendment Act 2023

The Justice Legislation Amendment Act 2023 (Vic) (JLAA) became law on 10 October 2023.  Part 10 of the JLAA contains ‘VCAT-related amendments’ which comprise four key changes. 

1. Division 1 of Part 10 amends the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’) in light of the decision in Thurin & Anor v Krongold Constructions (Aust) Pty Ltd & Ors [2022] VSCA 226 (‘Thurin’) which confirmed that VCAT did not have jurisdiction to hear and determine matters involving federal subject matter.  The JLAA seeks to validate earlier decisions of the Tribunal that were invalid only because they were made in purported exercise of federal jurisdiction.  The changes also improve, amongst other things, the Tribunal’s ability to efficiently refer federal jurisdiction matters to Courts under s 77 of the VCAT Act.  Notwithstanding these changes, the question of whether a ‘matter’ involves federal subject matter, and therefore is for that reason outside VCAT’s jurisdiction, is something that is not necessarily straightforward: see Thurin, [58]-[59] and Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16.
2. Division 2 of Part 10 amends Part IV of the Wrongs Act 1958 (the ‘Wrongs Act’) so as to empower the Tribunal to make decisions as to contribution claims and contributory negligence.  Relevant context for these changes is found in Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2023] VCAT 233 in which it was held that the Tribunal did not have jurisdiction to determine claims for contribution brought pursuant to Part IV of the Wrongs Act.  The JLAA amends the Wrongs Act to, amongst other things, include the Tribunal in the definition of ‘court’ under the Wrongs Act.  The JLAA also operates to make effective past decisions of the Tribunal in respect of these matters. 
3. Division 3 of Part 10 amends the Limitation of Actions Act 1958 (the ‘Limitations Act’) to provide that that an ‘action’ under the Limitations Act includes a proceeding at VCAT. The substantive effect is to enable VCAT matters to be bound by the same limitation of action rules as applicable to matters heard in a Court.  The amendments provide clarity following recent decisions concerning limitations, such as Lanigan v Circus Oz & Ors [2022] VSC 35 in which the Court found that the six-year limitation period under the Limitations Act did not apply to proceedings before the Tribunal, as VCAT was not a ‘court of law’ for the purposes of the definition of ‘action’ in the Limitations Act. 
4. Division 4 of Part 10 amends the Domestic Building Contracts Act 1995 (the ‘DBC Act’).  Section 57 of the DBC Act provides that a Court must stay an action arising wholly or predominantly from a domestic building dispute if the action could be heard by VCAT and the Court has not heard any oral evidence concerning the dispute itself.  The JLAA amends s 57 so that that the Court is not required to stay an action if it raises, or there are reasonable grounds for the Court to consider that the action may in the future raise, a controversy involving federal subject matter.  The effect is to prevent matters from being transferred to VCAT where VCAT does not, or possibly will not, have jurisdiction, and the matter will have to be transferred back.

These amendments will no doubt provide welcome relief and certainty to litigants and legal practitioners involved in proceedings before the Tribunal. 
 
Roman Rozenberg
  
Liability limited by a scheme approved under professional standards legislation