A series of recent judicial decisions have found that the Victorian Civil and Administrative Tribunal (VCAT) does not have jurisdiction to hear a large, and growing, series of claims and causes of action. It is undeniable that VCAT’s jurisdiction has been hobbled in a range of cases, including that the Limitation of Actions Act 1958 does not apply in VCAT.
 
Most recently, Justice Delany sitting as a Vice-President of VCAT in Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [2023] VCAT 233, found that the Tribunal does not have jurisdiction to hear contribution claims made under s 23B of the Wrongs Act 1958 (Vic), despite vast acceptance of such claims being brought and determined in the Tribunal.
 
This follows the Victorian Court of Appeal’s finding in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 that VCAT does not have jurisdiction to hear claims where a matter of Federal jurisdiction is raised, and the matter must be referred to a Court of competent jurisdiction. The Victorian Court of Appeal is imminently expected to answer a series of questions in Thurin as to the practical consequences of such a referral, including whether contribution claims made in VCAT, which fall foul of Vaughan are time-barred, if referred to a Court.
 
These decisions are particularly difficult where claims must be brought in VCAT due to legislation conferring exclusive jurisdiction on the tribunal, such as claims under the Water Act 1989 (as in Vaughan Constructions), disputes over co-owned land under the Property Law Act 1958, or domestic building disputes subject to the Domestic Building Contracts Act 1995.
 
Litigants currently in VCAT may wish to consider the consequences of a transfer to a Court, proactively (in the case of applicants), or consider whether there is a basis on which its jurisdiction should be impugned (in the case of respondents). While further attempts at legislative reform are likely to reintroduce or bolster VCAT’s jurisdiction, they too may be found to be ineffective, as was the case in Thurin. Until these fundamentals are ironed out, claimants would be wise to consider which jurisdiction to commence proceedings in and to consult with MTECC counsel, given their involvement in these decisions.
 

Tim Margetts KC and James Waters

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