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Still not a court: Limitations to VCAT's expanded jurisdiction

Cover Story

Cite as: May 2013 87 (5) LIJ, p.30

The new Australian Consumer Law and the Australian Consumer Law and Fair Trading Act 2012 have augmented VCAT's jurisdiction. However, practitioners should be alert to its remaining limitations. 

By Michael King

The Victorian Civil and Administrative Tribunal (VCAT) has an original jurisdiction and a review jurisdiction: s40 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the Act). Here we are only concerned with the former. VCAT’s original jurisdiction is at first defined almost negatively – it is its jurisdiction other than that of review: s41. Section 43, though, provides for the invoking of this original jurisdiction pursuant to “an enabling enactment”.

Of course, VCAT is a creature of statute and only has the jurisdiction and powers that Parliament has conferred on it. It has no inherent jurisdiction or powers. It might be that in certain cases it has an implied or “incidental” power to do something – that is, a power that is not specifically given to it, but which will enable it to more fully and properly carry out what it has been explicitly charged with: see, for example, Re Kelly v Department of Treasury and Finance [No 2].1 It is submitted, however, that for clarity this should be referred to as powers and that the term “jurisdiction” should be reserved for fields on which VCAT may enter in the first place. The extent to which VCAT may order its own procedure and govern its own process should also be kept distinct from the concept of jurisdiction.

THE CIVIL CLAIMS LIST

Most of the lists in VCAT’s Civil Division are quite specialised. One can look to a specific enabling Act that principally confers jurisdiction: for example, Part 5 of the Domestic Building Contracts Act 1995 (Vic) (wherein s57 effectively allows a party to ensure that VCAT has an exclusive jurisdiction), or s89 of the Retail Leases Act 2003 (Vic). Naturally, other statutes granting jurisdiction can also be invoked in proceedings in the Domestic Building List, the Retail Tenancies List and so on, including the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA).

The very generality of the name “Civil Claims List”, however, while quite reasonable, is apt to give rise to some misapprehensions as to VCAT’s real jurisdiction. It does not have a general “civil” or “commercial” jurisdiction.

The Civil Claims List is a general catch-all for those cases over which VCAT may adjudicate but which do not come within any of the other specialised lists (and see the reorganisation of lists as from 15 February 2013). In practice, with a few relatively minor additions (under s45 of the Motor Car Traders Act 1986 (Vic), the Retirement Villages Act 1986 (Vic) and the Owner Drivers and Forestry Contractors Act 2005 (Vic)), the list is for cases brought principally under the ACLFTA, where, as mentioned, this Act is not additionally invoked in relation to proceedings properly brought in another list (for example, the Domestic Building List). Claims for misleading and deceptive conduct and for unconscionable conduct may typically be brought in the Civil Claims List.

AUGMENTED JURISDICTION

VCAT, until recently, did not have jurisdiction over Trade Practices Act 1974 (Cth) (TPA) matters. The Fair Trading Act 1999 (Vic) (FTA) gave it jurisdiction to hear matters arising under its state consumer-protection provisions, but VCAT was not a “court” pursuant to s86 of the TPA. Decisions of VCAT itself doubted (correctly, it is submitted) that it was a court under the commonwealth legislation: see, for example, Re Maltall Pty Ltd v Bevendale Pty Ltd.2 Although the specific application of this decision has now been superseded by legislation, its general conclusion that VCAT is not a “court” is still relevant (see further, below).

The Competition and Consumer Act 2010 (Cth) (CCA) effectively enacted the former TPA consumer-protection provisions as its Schedule 2: the Australian Consumer Law (ACL). This came into effect on 1 January 2011.

By dint of state and commonwealth cooperation, each state has enacted legislation to include the ACL as part of its own law, so that there is a uniform consumer protection law, covering trading companies as well as natural persons, in Australia. In Victoria, this took the form of the FTA as amended. Section 9 applied the ACL “as a law of this jurisdiction”; it “may be referred to as the Australian Consumer Law (Victoria) and as so applying is a part of this Act”. See now s8 ACLFTA.

Section 2 of the ACL simply says that “court”. . . “means any court having jurisdiction in the matter”, and s86(3) of the CCA still states (as did s86(3) of the TPA) that “Nothing in subsection (2) [q.v.] shall be taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory”. Thus, it is up to each state to determine which of its courts or tribunals is to have any relevant jurisdiction or powers. Previously, as already indicated, VCAT was not a “court” under the Act, the FTA or at general law and so did not have jurisdiction over TPA matters.

Now, however, s223 of the ACLFTA specifically provides that (with a few minor exceptions) in the ACL: “court means . . . (d) VCAT” and s224 provides that “. . . VCAT or any court of competent jurisdiction may hear and determine a cause of action arising under any provision of” the ACL.

LIMITS TO JURISDICTION

Despite what has just been said, VCAT’s jurisdiction still has constraints. Contrary to a seemingly popular conception, VCAT has been given no jurisdiction over general common law or equitable claims. It has been given specific powers in relation to certain equitable relief: see for example the already mentioned ACL prohibition of unconscionable conduct in trade or commerce. It has also been explicitly given the power (exercised by a judicial or legally qualified member) to grant injunctions, as one would think would be a necessary adjunct to its jurisdiction: s123 of the Act. Power has also been given to VCAT, here and there in both the Act and enabling Acts, to grant relief in certain cases over which it has jurisdiction, which naturally and necessarily reflects common law and equitable relief available at large in the state courts.

However, as alluded to above, one must distinguish such powers from jurisdiction. To argue that VCAT has certain powers and so must possess a certain jurisdiction would be to put the cart before the horse. One must first determine whether VCAT may enter upon the field to start with – whether an enabling enactment permits it to entertain a claim at all – and only then may one turn to the question of what powers it may exercise once seised of jurisdiction.

Thus, the ACLFTA gives VCAT wide powers once it is properly hearing a “consumer and trader dispute” (s184) or a claim brought under s236 or s237 of the ACL. However, first, despite the fact that s182(2) includes within a “consumer or trader dispute” “any dispute or claim in negligence, nuisance or trespass that relates to the supply. . . of goods or services”, as referred to above, the ACLFTA does not confer general jurisdiction in relation to common law claims, including claims in contract.

Second, VCAT has no accrued jurisdiction. There were not the constitutional considerations when passing the Act as to whether VCAT could exercise, say, jurisdiction in common law matters, as there were in relation to the Federal Court. Even so, there is no equivalent in the Act of s32 of the Federal Court of Australia Act 1976 (Cth). In other words, there is no accrued or ancillary jurisdiction in VCAT over matters “associated” with matters in which VCAT’s undoubted jurisdiction is invoked (to paraphrase s32 of the Federal Court Act). VCAT has itself doubted (correctly, it is again submitted) that it has jurisdiction to hear claims in nuisance: Barton v Lantsbery (although note the restricted exception, already alluded to, with regard to a “consumer and trader dispute”: s107(2)).3

Third, VCAT cannot arrogate to itself jurisdiction, even if it thinks that it would be convenient or sensible or just or desirable that it should possess it. Either Parliament has specifically conferred jurisdiction or it has not. VCAT cannot assume or pretend that it has jurisdiction. Rather, if doubts or objections arise, they should be addressed as preliminary questions: see Kirby J in Re Boulton; ex parte Construction Forestry Mining and Engineering Union and in National Parks and Wildlife Service v Stables Perisher Pty Ltd (in relation to a superior court of record, unlike VCAT).4

IS VCAT GENERALLY A “COURT”?

This is an important question. If VCAT is a court, then every time any Act gives jurisdiction to “a court” it is also conferring jurisdiction on VCAT. At the least such an Act might give VCAT a power. (And if VCAT is not a court, and power to grant relief were taken from it by an Act, because that Act conferred that power only on a “court”, VCAT might effectively end up having no jurisdiction in that matter: see for example ss131(4) and 133 of the Corporations Act 2001 (Cth) in relation to pre-registration contracts). Acts conferring jurisdiction on “a court” would be “enabling enactments”. However, it is submitted that VCAT is generally not a court (unless, naturally, Parliament has said that it is – as above, in the ACLFTA, for the purposes of a specific enactment).

Whenever a superior court has to determine whether or not a tribunal created by Parliament is a “court”, in the strict sense, as no Act says that it is, there are certain indicia that it considers: the rank, judicial or otherwise, of its members; whether it may take evidence upon oath; whether it may punish for contempt; and so on. It is always a rather imprecise exercise. There is no sine qua non as a distinguishing feature; nor is there an attribute which, if present, precludes the tribunal from being given a curial status. It is usually a matter of the “feel” of the situation, all things considered.

It is submitted that we are now spared such musings and analyses as far as VCAT is concerned.

First, in her second reading speech in relation to the VCAT Bill, the Attorney-General of the time, Mrs Jan Wade, said in Parliament that, “This new tribunal [VCAT] will . . . amalgamate a number of existing tribunals within the Department of Justice”; and, as to those tribunals, “Compared to the courts they are intended to be relatively informal, inexpensive and efficient”. As to the president of VCAT being a Supreme Court judge and the vice-presidents County Court judges, the Attorney-General said, “VCAT will be a judicially assisted tribunal in order to provide litigants with a ‘one-stop shop’”. The designation by Parliament of a body as a “tribunal” will not always be conclusive, but, it is suggested, it will usually carry a good deal of weight: the legislature can be taken to be alive to the distinction between what are strictly courts and other bodies it wishes to create (and see Tana v Baxter).5

Second, although the cases admittedly did not involve a strict examination of what attributes went to make a “court” and whether VCAT possessed those attributes, it is submitted that there are now enough authoritative judicial statements that VCAT is not a court to make an exhaustive analysis of all the indicia unnecessary every time the question is raised: see Nettle J (as his Honour then was) in Collection House Ltd v Taylor, “the tribunal [VCAT] is not a court”; Callaway and Buchanan JJA in Simjanoski v La Trobe University, “the tribunal is not a court”; Ashley J (as his Honour then was) in Pong Property Development Pty Ltd v Strangio, “they are the reasons of an administrative tribunal [VCAT], not a court”; Nettle and Ashley JJA in Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd, VCAT “is not a court. It is a statutory tribunal”.6 Incidentally, Eames J in Magazzu v Business Licensing Authority said that “the Tribunal system created by the VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings”.7 See also Energy Brix Australia Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd.8

VCAT (per then Deputy President, now Judge, Macnamara) has itself concluded that it is not a court: Maltall v Bevendale; Sarandis v Mulberry’s Australia Pty Ltd.9 See, too, the decision of the Court of Appeal in Director of Housing v Sudi [2011] VSCA 266, especially per Weinberg JA.

THE EXCEPTIONS PROVE THE RULE

In two decisions of VCAT, Sherman v One.Tel Ltd (in liquidation) and Zhi Ping Wan v Yatrasone Pty Ltd, it was suggested that “in many respects VCAT is tantamount to a court”.10 However, with respect, that statement, even if correct, wouldn’t get us very far. In construing a statute that gives jurisdiction or power to “a court”, one needs to know whether VCAT is included: is it to be regarded automatically as a court or not? Moreover, though, any analysis of the indicia of what constitutes a “court” was unnecessary in those cases.

The capacity of judicial members of VCAT to imprison for contempt, cited in the two VCAT decisions just discussed, is not persuasive that it is a court: Varnavides v VCAT.11

It is submitted that the correct statement of principle is that VCAT, where no Act specifically defines it as such for a particular purpose, is not a court and will not automatically be included in a statute’s reference to a “court”. A particular statutory provision may be interpreted as, by necessary implication, including VCAT as a “court” so that the purpose of the statute will not itself be circumvented (and this will usually be negative, anyway, so that, just as the “courts” referred to do not have jurisdiction, neither does VCAT).

CONCLUSION

The above considerations are commended to practitioners when they are about to issue proceedings, or when, as is not unusual, a client has already had a claim accepted by VCAT and now seeks representation. VCAT now has expanded jurisdiction because it was explicitly given such in the ACLFTA. However, VCAT may sometimes be found not to have jurisdiction or, perhaps, the power to grant the relief sought in a given case, and it will be easier and cheaper in the long run to withdraw and issue in a court.



MICHAEL KING is a member of the Victorian Bar practising predominantly in commercial law.

Numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. (2002) 19 VAR 330. See especially [46].

2. (1998) 14 VAR 368.

3. [2004] VCAT 926, at [62].

4. Re Boulton; ex parte Construction Forestry Mining and Engineering Union (1998) 73 ALJR 129; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585.

5. (1986) 160 CLR 572 at 582 (Brennan J).

6. Collection House Ltd v Taylor (2004) 21 VAR 333 at [26]; Simjanoski v La Trobe University (2004) 21 VAR 299 at [4]; Pong Property Development Pty Ltd v Strangio (2005) 23 VAR 128 at [57]; Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd (unreported, Supreme Court of Victoria, 1 September 2006) at [29].

7. (2001) 17 VAR 264.

8. (2002) 5 VR 353 (the Full Bench of the Court of Appeal) at [37].

9. Maltall v Bevendale, note 2 above; Sarandis v Mulberry’s Australia Pty Ltd [2002] VCAT 390.

10. Sherman v One.Tel Ltd (in liquidation) [2001] VCAT 1896; Zhi Ping Wan v Yatrasone Pty Ltd [2003] VCAT 513.

11. (2005) 12 VR 1, especially at [16] and [21].

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