An excellent paper on VCAT’s jurisdiction attached…

Attached below is an excellent paper produced by barristers Robert Hay KC and Brett Harding discussing recent issues with VCAT’s jurisdiction that went with a video presentation yesterday afternoon.  

The paper addresses these issues from retail leasing perspective, so the paper is essential reading for anyone who practices in this area.

VCAT’s jurisdiction – An endangered species

For my part, I would add the following comments to the paper.

First, the paper discusses at some length the issues created for VCAT’s jurisdiction if a dispute raises a ‘Federal matter’ as defined in s 75 of the Commonwealth Constitution.  A ‘Federal matter’ includes a dispute between residents of different states. Brett pointed out in response to a question during the video presentation that a corporation is not a ‘resident’ for the purposes of s 75 of the Commonwealth Constitution, so a dispute involving a corporation registered in another state is not a dispute with a resident of another state for the purposes of determining whether the dispute involved a Federal matter.  

This issue come up from time to time in VCAT cases, particularly those that are brought on urgently.  Practitioners considering that issue should refer to the decision of her Honour Judge Hampel sitting as a Vice President of VCAT in O’Hehir v Tsanagas, Nicholson Wright Pty Ltd (Building and Property) [2018] VCAT 1973 (11 December 2018). 

Secondly, the paper also discusses the ongoing issue of whether VCAT has jurisdiction to grant relief from forfeiture of a (non-retail) commercial lease under the provisions of the ACLFTA (see paragraphs [45] to [57] in the attached paper).  

The issue often arises when a tenant needs to seek an urgent injunction to prevent re-entry, but there is doubt over whether or not the lease is retail.  My usual practice in those circumstances is to issue at VCAT so that the jurisdiction issues do not arise.  

1. the Courts have a general equitable jurisdiction to grant relief from forfeiture in addition to the statutory jurisdiction under sub-s 146(2) of the Property Law Act 1958 (Vic).  Sub-section 184(1) of the ACLFTA gives VCAT a general power to ‘hear and determine a consumer and trader dispute’.  On one view, it would be surprising if the Parliament bestowed that general jurisdiction on the Tribunal without also giving it the power to exercise a general equitable jurisdiction (or its statutory analogue) to determine those disputes;
2. sub-s 184(2) of the ACLFTA lists orders that the Tribunal can make in a consumer and trader dispute. On one view, that is an inclusive list that does not prevent other orders being made;  and
3. a practical solution to the issue is to have the proceeding listed for a trial before a judicial member of the Tribunal who is also sitting as a court, meaning that there is no doubt that the member hearing the dispute has jurisdiction to make all the orders sought.

Given that VCAT is currently referring the larger commercial tenancy disputes to the superior courts under s 77 of the VCAT Act, it may be some time before the issue is finally resolved.