In this article we outline:

•  Why we needed legislative intervention
• What the VCAT related amendments were
• How this affects past, current and future cases in VCAT

Recent Caselaw - why was there a need for legislative intervention?

The amendments were necessitated by recent decisions in the Supreme Court of Victoria and VCAT which overturned long held assumptions about the extent of VCAT’s jurisdiction.

Of particular importance to commercial practitioners, recent authorities had narrowed the jurisdiction of VCAT by finding that:

1. VCAT did not have jurisdiction to deal with claims for contribution under Part IV of the Wrongs Act 1958 (Vic) (Wrongs Act), see Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [2023] VCAT 223
2. VCAT did not have jurisdiction to deal with matters involving an issue arising under federal legislation, see Thurin v Krongold Constructions [2022] VSCA 226
3. A referral under section 77 of the VCAT Act did not require a fresh proceeding to be issued and such referrals did not constitute an action within the context of the 10-year limitation period in the Building Act 1993 (Vic), see Krongold v Thurin [2023] VSCA 191
4. The six-year limitation period under the Limitation of Actions Act 1958 (Vic) did not apply to proceedings in VCAT as it was not a court of law for the purposes of section 3(1), see Steedman v Greater Western Water Corporation [2023] VCAT 128.

More detail can be found in our June article ‘Recent Erosion of the Jurisdiction of VCAT’ here. 

Overview of the VCAT related amendments

Part 10 of the Act makes the following ‘VCAT-related amendments’:

Victorian Civil and Administrative Tribunal Act 1998

• Substitutes the definition of ‘invalid Tribunal decision’ in section 57A(1) so that previous tribunal decisions, orders or declarations relating to federal subject matter are validated as if made in the Magistrates Court
• Section 57B is amended so that it will also apply to matters set aside by a court on appeal or review on the grounds of there being a federal jurisdictional issue
• Substitutes section 77(4) allowing a court to now extend limitation periods that apply to the commencement of a proceeding if a matter has been referred to it by VCAT.

Wrongs Act 1958

• Amends section 23A to expand the definition of ‘court’ and ‘judgment’ to respectively include VCAT and a VCAT decision, order or declaration for contribution claims
• Amends section 25 to include VCAT in the definition of ‘court’ for contributory negligence claims
• Inserts new sections 24ADA and 28AAB which provide that VCAT decisions, in respect of contribution and contributory negligence claims, and made prior to the commencement of Act are valid, provided they were invalid only for that reason.

Limitations of Actions Act 1958

• Amends the definition of ‘action’ in section 3(1) to include VCAT. This applies to causes of action whether accruing before, on or after the date of commencement.

Domestic Building Contracts Act 1995

• Inserts a new section 57(2A) which provides that if a domestic building dispute has been commenced in a court, the court is not required to stay an action provided the court is satisfied that the action raises or may raise a federal controversy in which VCAT has no jurisdiction to resolve.

Implications

For past proceedings, the Act now validates earlier VCAT decisions made in relation to federal subject matter involving claims for contribution or contributory negligence. Additionally, the Act provides an avenue for relief in the Magistrates’ Court if decisions have been set aside on the basis that VCAT lacked jurisdiction. 

Further, the amendments now allow for parties to avoid potential jurisdictional uncertainty by commencing proceedings relating to domestic building disputes, which involve federal subject matter, in a court of competent jurisdiction.

However, for ongoing tribunal proceedings which concern federal subject matter and were commenced but not determined between 10 August 2021 and 10 October 2023, the road forward is less clear. For these proceedings, parties should consider the referral of proceedings to an alternative forum (i.e. court) or may wish to seek substituted proceedings in the Magistrates Court of Victoria.