15 November 2023
The Justice Legislation Amendment Act 2023 (Vic) (Amendment Act) recently introduced amendments to several Victorian Acts to improve the operation of the Victorian justice and legal systems.
Part 10 of the Amendment Act addressed legal and procedural issues regarding the Victorian Civil and Administrative Tribunal’s (VCAT) jurisdiction to hear matters arising under federal law. It amended the following four Acts:
The amendments were necessitated by jurisdictional issues raised by recent decisions including:
The amendments provide certainty about the jurisdiction of VCAT and the rights of parties in impacted proceedings, improving efficiency in the litigation process and reducing the need for litigants to spend additional time and money having disputes re-heard at courts.
This is particularly significant for existing and potential parties to domestic building disputes as VCAT has primary jurisdiction over these proceedings in Victoria.
Decisions in Thurin and Vaughan
In October 2022, VCAT in Thurin held that it did not have jurisdiction over proceedings that raise federal law subject matter. This required many VCAT proceedings to be referred to and re-listed in a Victorian court.
In March 2023, VCAT held in Vaughan that it did not have jurisdiction to determine contribution claims brought under Part IV of the Wrongs Act. This limited the proceedings that VCAT could hear as contribution claims are often featured in domestic building disputes. Read our analysis of Vaughan and its implications here.
Thurin and Vaughan overturned longstanding, albeit incorrect, practices at the Tribunal, disrupted many VCAT proceedings that were in progress or awaiting determination and led to the appeal of some recent VCAT determinations.
Decision in Krongold
In August 2023, Krongold considered the effect of a referral to a court under section 77 of the VCAT Act and its interaction with the limitation periods in sections 134 and 134A of the Building Act 1993 (Vic) (Building Act). The Victorian Court of Appeal determined that:
Decision in Steedman
It was held that claims against a statutory authority under section 157 of the Water Act 1989 (Vic) (Water Act) were not subject to limitation periods under the LA Act. The decision also cast doubt over ‘comparable’ section 16 claims which deal with water damage claims caused by natural persons. The reasons for the decision were:
The Justice Legislation Amendment Bill 2023 was introduced in the Legislative Assembly in August 2023. It built on previous reforms to the Victorian justice and legal systems in 2020. The amendments were largely uncontroversial, having been passed by both Houses of Parliament with minimal delay in early October 2023 and received Royal Assent on 10 October 2023.
The Amendment Act broadly addresses the jurisdictional uncertainty created by these recent decisions and implements reforms to improve efficiency within VCAT and the courts.
Response to Thurin and to Krongold
In response to the issues raised by Thurin, the Amendment Act, amongst other things:
Further, because the DBC Act otherwise gives VCAT near exclusive jurisdiction over domestic building disputes, the Amendment Act permits Victorian courts to hear domestic building disputes if the action may raise a controversy involving federal subject matter in the future.
Response to Vaughan
The Amendment Act included VCAT in the definition of a ‘court’ under Part IV and Part V of the Wrongs Act, giving VCAT jurisdiction to determine contribution proceedings.
Response to Steedman
The Amendment Act clarified that an action in VCAT constituted an ‘action’ under the LA Act. However, the Amendment Act did not amend the LA Act to confirm if it had application to claims under section 157 or section 16 of the Water Act. Given the secondary finding in Steedman (see above), it remains arguable that such claims are not subject to the LA Act.
The jurisdictional issues from Thurin and Vaughan had led to significant uncertainty for litigants in deciding the appropriate forum to commence their claim. Existing litigants also faced considerable costs and delays as they were forced to have ongoing VCAT proceedings referred to courts.
With the exception of the limitations issue in Steedman, these reforms address the recent crisis. Litigants now have greater clarity as to whether their dispute can be heard in VCAT, and in most cases, the application of relevant limitation periods. It is hoped that the additional powers granted to VCAT and the courts will reduce delays and costs for litigants once the current backlog is cleared.
How can we help?
If you have any questions about these amendments and what they may mean for you, please get in touch with a member of our national Construction, Infrastructure & Projects team below.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.