Background
The recent decision from Krongold v Thurin[1], released on September 5th 2023, follows on from a lengthy case that first began in VCAT, and has progressed all the way to the Victorian Supreme Court of Appeal. This landmark case has set important precedents for VCAT’s jurisdiction, particularly in accordance with s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
Read on below to discover the key aspects of the case that are currently re-configuring our legal system as we know it. For further information, go to Warlows Legal’s youtube channel for a full break down on the case, by our very own Harriet Warlow-Shill and Samuel J Woff.
A recap: what have recent cases legislated for VCAT?
VCAT’s jurisdiction and relationship with federal law has undergone changes according to significant recent legal developments.
Let’s step back a bit and discuss previous cases.
Burns v Corbett [2]
Burns v Corbett was a particularly important case concerning federal law and VCAT. After a lengthy court battle all the way to the High Court, this case held that VCAT lacked jurisdiction to hear matters that involved federal law.
Thurin v Krongold [3]
The Thurin v Krongold decision last year, heard in the Victorian Supreme Court of Appeal, held that if a federal law was brought into a matter being heard by VCAT, VCAT could refer the matter to the Supreme Court under s 77 of the VCAT Act.
What is s 77 of the VCAT Act?
Titled ‘More Appropriate Forum,’ this section legislates that “at any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.”[4] Therefore, Thurin v Krongold (2022) expanded the scope of this section.
Krongold v Thurin 2023
This case grappled with issues arising under the effect of a referral under s 77, how the limitation periods in the Building Act 1993 (Vic) affect such a referral, and if the third parties that were joined to proceeding in VCAT can join the proceeding in the Supreme Court.
No new proceedings if referred under s 77
In summary, it was held that when a matter of federal law is involved, a referral for a VCAT case to be heard in the Supreme Court under s 77 does not require the initiation of a new case; rather, the case will continue where it left off in VCAT.
At [58] in the judgment, it was noted that the submissions of the Attorney-General for Victoria on the construction of s 77 were accepted. That is, there were opposing arguments from Krongold and Thurin about the application of s 77; Krongold argued that a referral meant that only the subject matter of the case is brought to the attention of the Supreme Court, so new proceedings would have to be initiated. Thurin argued that a referral meant the actual continuation of the case in the Supreme Court. The Attorney-General’s submissions supported Thurin’s claims, and ultimately, were affirmed by this case.
At [63] in the judgment, s 57 of the Domestic Building Contracts Act 1995 (Vic) (DBC Act) was discussed. It was discussed that though it provides for VCAT to be the primary venue for resolving domestic building disputes, it is not a limitation on the general power in s 77 of the VCAT Act to transfer domestic building disputes to a court.
No time limitations on referrals
It was also held that a referral under s 77 does not constitute the bringing of an action for the purpose of time limits in the Building Act 1993 (Vic) (Building Act). This means that even if the referral is made outside of the time limitations of the subject matter set by the Building Act, they will not apply. Time limitations will only apply when a new proceeding is initiated, however the referral from VCAT is a continuation, rather than a fresh proceeding.
Invalid use of s 77 regarding referral of joinders
Regarding the original joinders in VCAT – the architect and the supplier of pipes – VCAT did not have jurisdiction to join them at the time, as their joinder was brought under claims pertaining to federal law. Therefore, as this original incident was an invalid exercise of federal judicial power by VCAT, s77 could not cover these joinders, and there was no proper basis on which VCAT could make an incidental order to transfer a matter that concerned these joinders to the Court.
Additionally, if a case is referred to the court pursuant to s 77, any joinders of the case must be treated as a new part of the case, rather than a continuation. This distinction may present challenges for joining third parties associated with cases that have been transferred from VCAT to a court, as their ability to initiate a joinder may be hindered by time limitations subject to the Limitation of Actions Act 1958 (Vic).”
The legal developments surrounding VCAT and its jurisdiction in relation to federal law highlight the ongoing need for clarity and precision in the delineation of state and federal jurisdiction in Australia. These cases underscore the importance of respecting the boundaries of jurisdiction while providing mechanisms for the appropriate transfer of cases to higher courts when federal law issues arise.
Go watch Harriet Warlow-Shill and Samuel J Woff’s video on our youtube channel!
[1] Krongold Constructions (Aust) Pty Ltd v Thurin [No 2] [2023] VSCA 210; BC202312485
[2] Burns v Corbett (2018) 265 CLR 304
[3] Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187
[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 77 ss 1
