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

Many readers will be aware already of the Court of Appeal’s decision in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226.

For those who haven’t heard, the upshot of the decision is that VCAT cannot hear a case that raises a bona fides issue under federal legislation.

An excellent summary of the decision by my colleague at the Victorian Bar Melinda Jackson can be found at the CommBar blog here.

Anecdotal reports suggest that the decision is already starting to have an impact on retail leasing cases at VCAT. In particular:

First, I was listed for a four-day trial that was scheduled to commence last Monday. The respondent filed a counterclaim that raised alleged breaches of the Australian Consumer Law and Fair Trading Act 2012 (Vic). The respondent did not plead its claim under the Competition and Consumer Act 2010 (Cth). However, the Australian Consumer Law and Fair Trading Act 2012 (Vic) incorporates into Victorian law the Australian Consumer Law, which is contained in a schedule to the Competition and Consumer Act 2010 (Cth). When the Tribunal was asked to make some last-minute pre-trial directions, it unilaterally adjourned the trial for a number of reasons. Among the reasons given for the adjournment was that the pleadings raise issues relating to the Australian Consumer Law and that it was appropriate for the matter to be referred to a judicial member.

Secondly, the problems with VCAT’s lists in recent years has been well-known for some time now (see my earlier post here). I have heard that wait times to trial have stretched out as far as 2025. However, recent anecdotal reports suggest that adjournments such as occurred above are likely to become commonplace. One colleague has reported to me that she recently appeared at a directions hearing for a trial that is currently listed in November 2023 and was told by the Tribunal that there were likely to be vacancies in the list due to jurisdiction issues that have arisen, which could see her case being given an earlier trial date.

I suggest that practitioners with retail tenancies cases at VCAT keep a close eye on how things are progressing and consider the following:

* if you have a case that raises a claim or counterclaim under the Australian Consumer Law - whether that be under the Australian Consumer Law and Fair Trading Act 2012 (Vic) or the Competition and Consumer Act 2010 (Cth) – you should consider making an application to VCAT for orders referring the matter to the Supreme Court or County Court to be heard and determined by a judicial member sitting as both VCAT and a Court that can exercise federal jurisdiction; and

* if you have a case that is listed for a trial at some stage in the distant future and your client would prefer to have that case heard sooner, you should consider making an application to have the matter listed for an earlier trial, even if it does not raise a claim under the Australian Consumer Law, as the Tribunal’s lists may well free up in the coming weeks or months.

For those wanting to read more about the Court of Appeal’s decision in Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226, I suggest looking at the following blogs:

https://www.landers.com.au/legal-insights-news/court-holds-that-vcat-lacks-jurisdiction-to-resolve-disputes-relating-to-federal-issues

https://hwlebsworth.com.au/decision-of-the-victorian-supreme-court-of-appeal-signals-vcat-no-longer-has-the-jurisdiction-to-hear-federal-matters/

https://www.khq.com.au/legal-blog/court-of-appeal-vcat-has-no-jurisdiction-in-federal-matters/

https://www.cornwalls.com.au/vcats-jurisdiction-for-domestic-building-works-limited/

This post originally appeared on Sam Hopper's blog along with a part 2 post continuing on the subject.