As has been reported on numerous occasions, in Thurin v Krongold [2022] VSCA 226, the Victorian Court of Appeal determined that VCAT is not a “Court of a State” for the purposes of s 77(iii) of the Constitution and therefore the Victorian State Parliament is incapable of conferring judicial power on VCAT in respect of federal matters. The Court of Appeal identified three categories of claim where a Commonwealth “matter” might arise, the third being where the subject matter of the controversy, although not directly arising under a Commonwealth law, is sufficiently connected to a Commonwealth law so that it is properly characterised as arising under that law, albeit indirectly.

Does that then call into question VCAT’s jurisdiction to hear and determine claims of misleading and deceptive conduct made pursuant to s 18 of the Australian Consumer Law (Victoria) (ACL Vic)?

In Teen Entertainment Enterprise Network P/L v A & H Natoli P/L [2022] VCAT 1500, DP Wilson considered the question, including in respect of the third category of federal matter described in Thurin, but left determination of it to a judicial member. When the matter came before her in A & H Natoli Pty Ltd v Teen Entertainment Network Pty Ltd [2023] VCAT 576, Vice President Judge Marks referred the proceedings to the County Court on the basis of claims made under the Personal Properties Securities Act 2009 (Cth) but noted there were also federal issues potentially arising under the ACL (Cth) as referred to by DP Wilson.

Meanwhile, in OC 1 Plan No PS707553K v Shangri-La Construction Pty Ltd (No 3) [2022] VCAT 1385, Anderson DP held that as the ACL (Vic) is implemented by a state law (the Australian Consumer Law and Fair Trading Act 2012) then jurisdiction has been validly conferred on VCAT to hear and determine claims made pursuant to s 18.

In July 2023, President Woodward made orders in Glen Properties Investments Pty Ltd v Golden Ocean Group Pty Ltd (BP1470/2020) in which his Honour recorded (in “Other Matters”) that he agreed with Judge Anderson’s reasoning in Shangri-La.

It does not appear that the third Thurin category was considered in Shangri-La or Glen Properties.

Might it be therefore that a cause of action pleaded under the ACL (Vic) is a matter that arises under Commonwealth Law because it is based on the Competition and Consumer Law Act 2010 by definition of ‘ACL text’ in s 8 of that Act? In other words, if causes of action arising under the ACL (Vic) are a creation of Federal Law, are they caught by the third Thurin category? The ACL (Vic) applies the ACL but does not create it. In that regard, Victoria is a participating jurisdiction for the purposes of the Intergovernmental Agreement for the ACL. The ACL can only be amended by agreement of all participating Parties. The Victorian Parliament cannot amend the ACL without first submitting a proposal to the Commonwealth for it to then be voted on by the participating Parties.

 
Michael Whitten KC and Alex Golding

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