VCAT jurisdiction over interstate residents

The High Court last week in Burns v Corbett [2018] HCA 15 held that a state tribunal does not have jurisdiction over residents of other states. This may be raised at VCAT if either landlord or tenant are interstate residents.

There are, at this stage, two apparent answers to this problem:

1. it appears that the High Court’s reasoning only applies to natural people (i.e. humans), not to corporations (see Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290 (‘Howe’s Case’); affirmed in Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 34 (refusing to reopen Howe’s Case); and confirmed again in obiter in British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, 51 [37]); and
2. if the dispute cannot be determined in the Tribunal, then it can probably be determined by a State Court. There is an established, albeit relatively little known, procedure in the Supreme Court and County Courts where the Courts can resolve jurisdictional issues by having a proceeding issued in both VCAT and a relevant Court, then have a member of the Court also appointed as a member of the Tribunal to hear and determine the proceedings together. The President of VCAT is a Supreme Court Judge and Vice Presidents of VCAT are County Court Judges, so there are already judges who sit in both jurisdictions. We also know of cases where special appointments have been made to allow a particular Judge to continue hearing a case issued in his or her Court while wearing two jurisdictional “hats”. For an example of a Judge in the County Court sitting also as a Vice President of VCAT, see Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563.

The authorities holding that ‘resident’ in s 75(iv) of the Constitution only refers to natural people have been criticised (eg, Isaacs and Starke JJ dissented in Howe’s Case). Justice Kirby observed and predicted in British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, 72–3 [109]–[110] (citations omitted, emphasis added) that:

The decisions establishing that principle involved a remarkable narrowing of the constitutional language. In my view, it is a narrowing unjustified by the text or the context. In many ways it is reminiscent of judicial holdings in Australia and elsewhere at the same time to the effect that a ‘‘person’’, when referred to in legislation (for example for the purpose of admission to professional practice) did not include a woman. The only justification for such a narrow interpretation of s 75(iv) of the Constitution was the expressed judicial fear about an extension of the jurisdiction of this Court that might result in an inundation of work that this Court could not easily deflect to other courts in the views then held concerning the obligation of this Court to discharge a jurisdiction conferred on it by the Constitution.

…

In a proper case, this Court should reconsider the early determination that corporations, including statutory corporations, cannot be ‘‘residents’’ of a different State for the purposes of s 75(iv) of the Constitution. Self-evidently, corporations are, and were at the time when the Constitution was made, legal persons. They were then, and still are, frequent litigants in the courts. Their existence was contemplated by the Constitution itself. Although in 1985 in Crouch v Commissioner for Railways (Q) this Court declined to reopen its early holding on the meaning of s 75(iv), the decision is open to the strongest doubt and criticism. In my view it is wrong. One day this Court will say so.

Sam Hopper and Callum Dawlings

Callum is a reader at the Victorian Bar and is available to take briefs from 11 May 2018.