VCAT’s Jurisdictional Limitations: What You Need to Know

Building & Construction Litigation, Disputes & Litigation, News

June 16, 2023

The Victorian Civil and Administrative Tribunal (VCAT) is a popular less expensive forum for resolving various types of disputes, such as domestic building, retail leasing, consumer and trader, owners corporations, and residential tenancies disputes.

However, recent court decisions have highlighted some important limitations on VCAT’s jurisdiction which could mean that VCAT may not be able to hear your case and you may be forced to issue proceedings in a Court which can often be more formal and cost excessive.

VCAT has no jurisdiction to deal with matters involving federal legislation

One significant limitation on VCAT’s jurisdiction is that it cannot deal with matters involving an issue arising under federal legislation. Federal legislation is any law made by the Commonwealth Parliament, such as the Competition and Consumer Act 2010 (Cth) and the Insurance Contracts Act 1984 (Cth).

This limitation stems from the Constitution and the Judiciary Act 1903 (Cth), which together give exclusive jurisdiction over federal matters to federal courts or state courts invested with federal jurisdiction. VCAT is neither a federal court nor a state court invested with federal jurisdiction. Therefore, VCAT has no power to hear or determine matters involving federal issues.

This limitation was confirmed by the Court of Appeal in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226, which held that VCAT lacked jurisdiction to hear a domestic building dispute that involved an issue arising under the Australian Consumer Law (ACL), which is part of the Competition and Consumer Act 2010 (Cth). As a result of this decision, many cases involving federal legislation have been struck out by VCAT and referred to other courts.

This limitation has serious implications for parties involved in legal disputes that may involve federal issues. For example, if you have a consumer or trader dispute that involves an alleged breach of the Australian Consumer Law, you cannot bring your claim in VCAT. You will need to commence your proceeding in a court that has federal jurisdiction, such as the Federal Court or the Supreme Court of Victoria.

This could affect your choice of forum for various reasons, such as costs, procedures, remedies, and availability of legal representation. It could also affect your strategy and tactics in litigation, such as raising or avoiding federal issues as part of your claim or defence.

It is essential to identify any potential federal issues in your case and seek legal advice before commencing legal proceedings in VCAT or any other forum.

Limitation periods do not apply to certain statutory claims in VCAT

Another limitation on VCAT’s jurisdiction is that limitation periods do not apply to certain statutory claims in VCAT. A limitation period is the time within which you must commence legal proceedings to enforce your rights or seek a remedy. If you miss the limitation period, your claim may be dismissed as statute-barred. In Victoria, most civil claims have a six-year limitation period under the Limitations of Actions Act 1958 (Vic).

However, a recent decision by VCAT in Steedman v Greater Western Water Corporation [2023] VCAT 128 held that limitation periods do not apply to statutory claims in VCAT. A statutory claim is a claim based on a specific Act of Parliament that gives VCAT the power to hear and decide that claim.

The reason why limitation periods do not apply to statutory claims in VCAT is that VCAT is not a ‘court of law’ for the purposes of the Limitations of Actions Act 1958 (Vic). Therefore, an ‘action’ under that Act does not include a proceeding in VCAT. This means that you can bring a statutory claim in VCAT even after the expiry of a six-year limitation period.

This decision has some advantages and disadvantages for parties involved in statutory claims. On one hand, it could provide an opportunity for historical claims that would otherwise be time-barred in court. On the other hand, it could create uncertainty and unfairness for parties who rely on limitation periods as a defence or as a means of finality.

It is important to note that this decision may be subject to legislative change or further judicial review. Therefore, you should seek legal advice before relying on this decision or commencing a statutory claim in VCAT.

Key Takeaway

VCAT’s jurisdictional limitations pose significant challenges for parties involved in legal disputes in Victoria.

Recent court decisions have shown that VCAT cannot deal with matters involving federal legislation, claims for contribution, or certain statutory claims that are subject to limitation periods. These limitations could affect your choice of forum, your strategy and tactics in litigation, and the cost and duration of your dispute. Therefore, it is essential to seek legal advice before commencing legal proceedings in any forum and to stay informed about any potential legislative changes or superior court decisions that may address these issues in the future. By doing so, you can ensure that your case is heard in the appropriate forum and that your rights and interests are protected at all times.

Elit Lawyers by McGirr & Snell are litigation experts. Should you require advice, please contact Danielle Snell and Robert McGirr of Elit Lawyers on 03 9098 8646.

News

Media

Get in touch

With us personally, it is just one more way we’re different.

Danielle Snell

CO-FOUNDER AND MANAGING PARTNER

.

Robert McGirr

CO-FOUNDER AND PARTNER

.

"

"We were forced to issue legal proceedings against the insurer for a number of reasons including disagreement about the amount of money that was required to be paid out under the policy to reinstate our home. I want to express our deepest heartfelt gratitude and appreciation for all Elit did for our family throughout this matter."

Insurance Policy Holder

Home owner

Thank you to Danielle and Mark and the Elit team for all their hard work in acting for myself and my family against a large international insurer following a fire sustained at our home. We were forced to issue legal proceedings against the insurer for a number of reasons including disagreement about the amount of money that was required to be paid out under the policy to reinstate our home. I want to express our deepest heartfelt gratitude and appreciation for all Elit did for our family throughout this matter.

The work of Danielle and Mark was professional, consistent and to the highest standard throughout this process. I was so impressed by each of the team. It wasn’t just their exceptional professional work that left the impression, but more importantly, their interactions as good, decent, kind individuals. Thank you Elit for captaining this litigation ship throughout the tiresome journey! We really appreciate everything you have done for us. I hope and pray that each one of you has a share in some of the comfort you have provided my family in your own lives.

"

"Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity. As a result of the action taken by Robert McGirr & Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. "

Defamation

Plaintiff

I was engaged to appear on behalf of a resident at an aged care home in a proceeding before the Tasmanian Civil and Administrative Tribunal (TASCAT). A false and defamatory email was sent by a senior executive of the home about my conduct at the hearing to a number of third parties.

The false statements contained in that email were serious and damaging to my reputation, and included amongst other things, an imputation of criminality, which if proven to be true, could have resulted in a term of imprisonment. Being subject to malicious false statements was very stressful, as I have always conducted myself with professionalism and integrity.

As a result of the action taken by Robert McGirr and Elit Lawyers, the false statements were retracted, I received a formal apology and was paid my legal costs. I could not have achieved this outcome without the assistance of Robert. I felt informed and comforted throughout the process and am very grateful for the early result that was achieved.

"

"I was devastated when I learnt of a very serious defamatory publication made against me. I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings with anonymity."

Defamation

Plaintiff

I was devastated when I learnt of a very serious defamatory publication made against me.

I was concerned that bringing a Court proceeding would lead to widespread media reporting which would in turn repeat the allegations made against me and cause even more harm to my reputation because let’s face it – mud sticks.

I was so grateful to Danielle and the legal team who were able to obtain a pseudonym order in my favour so that I was able to advance defamation proceedings against the publishers with anonymity and be comforted that the defamatory content linked to my name would not be further spread.

I felt vindicated at the end of the matter and will always look back on the experience as a difficult one but knowing that issuing the court proceedings was what I had to do in order to achieve redress and restore my reputation.

"

"When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me. "

Defamation

Lawyer and Business Owner

As a lawyer and business owner, I take our professional reputation seriously.

When we were targeted by a vexatious and unfounded online attack, I turned to Robert, Danielle, and Elit for advice. Their calm, clear, and strategic guidance was exactly what we needed. They quickly understood the key issues and provided practical options that prioritised our values and professional standing.

I was impressed with their ability to get across the key issues and provide real life practical advice during this critical time which really centred around us and what was best for our business.

As I am a lawyer myself, Elit’s ability to zone in so quickly on what was best for us really impressed me.

"

"My business was sued for defamation. The Eit team were able to pinpoint the weaknesses in the other side’s case and were able to resolve the proceeding on very favourable terms for us."

CEO

Medical Industry

My business was sued for defamation and my insurance company appointed Aggie, Danielle, Robert and the Elit team to act in my defence of the proceeding.

I was astounded by the fact that the Eit team were able to pinpoint the weaknesses in the other side’s case and after bringing an interlocutory application on my behalf, they were able to resolve the proceeding on very favourable terms for us.

I felt informed and comforted throughout the process and am very grateful for the early result that was achieved.

"

"I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives."

Director

ASX Listed Company

Danielle and team acted on behalf of myself and my fellow directors of an ASX listed company in the Supreme Court of Western Australia involving repeated attacks and defamatory content being posted about us on a forum website. The third party website operator was also joined to the proceeding.

Given the personal attacks made against me and my fellow directors, it was a difficult situation over an extended period and I felt comforted and informed throughout the legal process and was happy with the early resolution of the case which achieved my ultimate objectives to have the content removed and undertakings that no future defamatory content would be published by the person involved.

01

02

03

05

06

07

08

09

Others