Readers will recall that in Thurin & Anor v Krongold Constructions (Aust) Pty Ltd & Ors [2022] VSCA 226; 73 VR 403 the Court of Appeal confirmed that VCAT does not have jurisdiction to hear and determine a proceeding involving the exercise of judicial power in relation to federal subject matter.  Consequently, the Victorian Civil and Administrative Tribunal Act 1998 was amended on 10 October 2023 to validate earlier decisions of the Tribunal that were invalid only because they were made in purported exercise of federal jurisdiction. 

Two recent Supreme Court decisions have illustrated the continued need for careful consideration of VCAT’s jurisdiction. 

In Certain Underwriters v Shangri-La Construction [2024] VSC 556, Garde J  heard an appeal from two VCAT decisions regarding construction defects and insurance claims in an apartment complex.  Several parties had raised claims invoking the provisions of the Trade Practices Act 1974 (Cth). thereby involving federal jurisdiction.  The claims involving federal subject matter were made before the Tribunal made orders joining further parties to the proceeding which, his Honour reasoned, meant that the Tribunal’s joinder orders were invalid. 

Garde J then considered the validating amendments which apply to VCAT decisions made before 10 October 2023 but noted a legislative exception for appeals commenced before the validating amendments came into effect but after 10 August 2021.  As the appeal had been commenced before 10 October 2023, the validating amendments were not applicable.  Thus, the lack of jurisdiction had not been cured and the Court allowed the appeal and set aside the Tribunal’s decisions.    

Albyn Queensland v Australian Postal Corporation [2024] VSC 584 concerned an application lodged in VCAT by a licensed post office operator pursuant to a licensing agreement with Australia Post.  Australia Post raised an objection to the Tribunal’s jurisdiction, on the basis that it is ‘the Commonwealth’ within the meaning of s 75(iii) of the Commonwealth Constitution, which gives the High Court original jurisdiction in all matters in which the Commonwealth is a party.  In this context, three questions of law in relation to jurisdiction were referred to the Supreme Court.

Harris J decided, first, that the Tribunal would, were it to proceed to hear and determine the claims brought against Australia Post, be exercising judicial power.  The claims were brought under the Australian Consumer Law and Fair Trading Act 2012 (Vic) and for breach of contractual obligations.  Applying the indicia of judicial power, Her Honour found that, in determining an application of this kind, the Tribunal would be exercising judicial power.  Although procedures in the Tribunal do not accord in some ways with those in a court, these characteristics did not override the otherwise judicial nature of the Tribunal’s powers in the application brought.

Secondly, Her Honour found that Australia Post is the ‘Commonwealth’, for the purposes of s 75(iii) of the Commonwealth Constitution, having regard to two broad matters: the nature of the activities undertaken by Australia Post and whether they have a governmental character; and the legal relationship between Australia Post and the executive government of the Commonwealth, and the degree of control that the executive may exercise over Australia Post.  The Court drew upon a detailed consideration of the Australian Postal Corporation Act 1989 (Cth) and a range of factors and indicia including as to the circumstances of the establishment of Australia Post, the extent of Australia Post’s financial relationship with the Commonwealth, the Commonwealth’s power to appoint directors, the appointment of Australia Post staff, the participation of the Commonwealth in Australia Post’s formulation of policy or decision making, auditing of Australia Post by the Commonwealth, and the immunities or privileges of Australia Post.

Finally, in light of the above, Her Honour concluded that the Tribunal did not have jurisdiction to hear and determine the claim brought against Australia Post in the VCAT proceeding. 

These recent cases highlight the continued need for careful consideration of the limits of VCAT’s jurisdiction. 

Ian Percy and Roman Rozenberg

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