There’s been a flurry of online commentary about the cases which have curtailed VCAT’s jurisdiction recently.

I was going to write a post about it, but then the LPLC provided this great article prepared by Moray & Agnew.

In case you missed it, below are the key takeaways from the article. Well worth a read if any part of your practice involves proceedings in VCAT.

The key takeaways

VCAT is not a court and the same rules will not always apply.
For now, there is an inconsistent operation of limitation periods between VCAT and the courts with VCAT being a potential unique pathway for historical statutory claims. Practitioners should be wary of incorrectly advising applicant clients that a claim is statute barred when it can be maintained in VCAT, or incorrectly advising respondent clients that a limitation defence is available.
VCAT’s jurisdiction to hear and determine claims is now more limited. The Tribunal cannot determine parties’ rights and liabilities under federal legislation or contribution claims under the Wrongs Act.
Therefore, practitioners will need to carefully consider, for both existing and future proceedings, the potential for federal issues to arise, and whether there might be claims for contribution. Getting this wrong may result in significant cost consequences and delay with the proceeding (or part) being relisted in a Court.
If separate applications in different forums are justified, practitioners should bear in mind potential limitation periods.
Practitioners need to keep an eye out for appeals and legislative reform which is anticipated following these decisions.

Key cases that have shrunk VCAT’s jurisdiction

Since 2018, here are the main cases which have limited VCAT’s jurisdiction:

Burns v Corbett (2018) 265 CLR 304 (no jurisdiction where parties are residents of different States);

Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361 (confirmed that VCAT is not a 'court of a State' within the meaning of Ch III of the Constitution);

Republic of Turkey v Mackie Pty Ltd (2021) 64 VR 467 (no jurisdiction in matters affecting consuls or other representatives of other countries);

Uber Builders and Developers Pty Ltd v MIFA Pty Ltd & Anor [2021] VCC 1677 (found that the proceeding "could not be heard by VCAT" for the purposes of section 57 of the DBC Act due to delays and a backlog in VCAT);

Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1 (no jurisdiction where Federal matter raised);

Lanigan v Circus Oz & Ors [2022] VSC 35 (Limitation of Actions Act 1958 does not apply in VCAT);

Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 (no jurisdiction where Federal matter raised, confirmed that VCAT can refer to a court under s 77 of the VCAT Act);

Steedman v Greater Western Water Corporation [2023] VCAT 128 (VCAT bound to follow Lanigan, despite Ajaimi v Giswick Pty Ltd [2022] VSC 131); and

Vaughan Constructions Pty Ltd v Melbourne Water Corporation [2023] VCAT 233 (no jurisdiction to hear contribution claims under the Wrongs Act 1958).