Ongoing issues with VCAT’s jurisdiction and the length of VCAT’s lists – part 3

I have recently received a few inquiries about my earlier posts here and here, particularly about whether VCAT has jurisdiction to hear and determine a retail tenancies dispute that includes a claim under the ACL.

Readers considering this issue should be aware of the following:

• In the decision of Owners Corporation 1 Plan No. PS707553K v Shangri-La Construction Pty Ltd (No 3) (Building and Property) [2022] VCAT 1385, his Honour Judge Anderson, sitting as a Vice President of VCAT, considered whether a reference in VCAT pleadings to ‘Australian Consumer Law’ without a reference to whether the state or Commonwealth version of that statute was being invoked should be construed as a reference to the Victorian statute.  The Vice President concluded at [37] and [38] that such a claim was in fact articulated under the Victorian statute.
• In my earlier post here I referred to a VCAT case that pleaded the Victorian version of the ACL and was referred to a judicial member to determine whether the case raised a matter of Commonwealth jurisdiction that was outside VCAT’s jurisdiction.  Since then, the applicant made submissions to the judicial member to which the matter was referred based on the Shangri-La decision and requested that the matter be returned to VCAT’s usual list.  The submissions were considered by Justice Woodward, the President of VCAT.  His Honour adopted and applied Judge Anderson’s reasoning from Shangri-Laand made orders with reasons remitting the matter for hearing and determination of the proceeding in VCAT’s usual list.  Justice Woodward’s orders and reasons have not been reproduced on AustLii, so I have attached a copy of the order to this post.
• While it is still a matter for individual VCAT members to determine whether the Tribunal has jurisdiction in any particular case, and a reference to a statute in VCAT pleadings must always be read in its particular context, these decisions combined suggest that VCAT has jurisdiction to hear and determine an ACL claim that either refers to the Victorian version of the ACL or does not identify which version of the ACL is relied upon.