Does the tribunal have jurisdiction? Implications of a recent High Court decision regarding residents of different States.

What does it mean for me?

If you are considering filing an application in a Tribunal such as the Victorian Civil or Administrative Tribunal (VCAT) or the South Australian Civil and Administrative Tribunal (SACAT) against an interstate resident, or if you are a not a resident of the State in which you wish to bring a proceeding, you should seek advice regarding the implications of the recent High Court decision in Burns v Corbett.[1]

An issue arises as to whether the tribunal is exercising judicial power over a matter in making a decision on your proceeding.

What is the issue?

In April, the High Court decided that the New South Wales Civil and Administrative Tribunal (NCAT) did not have jurisdiction to decide a proceeding between a resident of New South Wales, a resident of Queensland and a resident of Victoria.

The High Court decision related to two complaints of anti-discriminatory statements made against Mr Burns, a resident of NSW, by Ms Corbett, a resident of Victoria and by Mr Gaynor, a resident of Queensland.  The High Court considered that as NCAT was not a Chapter III court, and not a State court invested with Federal jurisdiction, it did not have jurisdiction.

Whether or not a tribunal has jurisdiction will turn on findings of fact as to where the parties are resident.

The principle is limited to natural persons.  However, it must be applied outside the anti-discrimination context including to planning and environment matters before the VCAT.  It is common for planning and environment proceedings in the VCAT to include natural persons as parties (such as owners of land seeking a permit for development or objectors to developments).  Advisors and clients should be aware that it cannot be assumed that the VCAT will have jurisdiction over a matter where there are non-Victorian residents as parties.

How has the High Court’s decision been applied?

In South Australia, Raschke v Firinauskas[2] involved an application for vacant possession by the landlord who was an interstate resident.  The Tribunal considered that it did not have jurisdiction to decide a dispute between landlords and tenants where one party is an interstate resident.

In construing the exercise of jurisdiction as judicial rather than administrative, SACAT considered ‘the nature of the task of the Tribunal is to supervise the compliance of the parties with the terms of their agreement and make orders that largely mimic the remedies that flow from the enforcement of the agreement as if it were the subject of a contractual dispute in a court’.[3]

Accordingly, the new Attorney-General has introduced a bill to amend the jurisdiction of SACAT by Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 (SA).  This provides for matters where SACAT does not have jurisdiction to be referred to the  Magistrates Court.

Both SACAT[4] and VCAT[5] have made statements regarding the limits of what they can and cannot decide.  They are able to decide:

  • applications in which one party is resident overseas;
  • applications in which a landlord is resident in a territory.

Of significance:

  • only natural persons may be residents – that is, corporations cannot be residents;
  • a person’s state of residence is determined at the date a proceeding commences, not at the date of the conduct that led to the dispute or claim.

In Victoria, it should be expected that when VCAT is exercising original jurisdiction, this issue may be raised if a non-Victorian resident is a party.  On the other hand, it is arguable that when VCAT is exercising review jurisdiction conferred by or under an enabling enactment, then the issue may not arise.  This is because an exercise of original jurisdiction may be considered to be a ‘matter’ and an exercise of judicial power.  When VCAT exercises original jurisdiction it ‘discharges a function that resembles the exercise of judicial power by a court’ and it must do so ‘subject to any statutory constrains that are imposed on it’.[6]

Examples of original jurisdiction relevant to planning and environment practitioners and clients include:

  • Requests to amend or cancel a planning permit under s 87 of the Planning & Environment Act 1987 (Vic);
  • Applications for an enforcement order under s 114.[7]

If one of the parties to such a proceeding is resident of a state other than Victoria, then the adjudication of the matter may involve an exercise of Federal judicial power.  VCAT can exercise State judicial power[8] but not Federal judicial power.

Decisions involving the grant or refusal of a planning permit appear more likely to be an administrative decision.

What are the next steps?

At the time of publication, VCAT and SACAT have issued statements on the potential implications of the High Court decision.  It would be prudent to seek legal advice on this issue if you have any doubts about the implications for you or your clients.

[1] [2018] HCA 15

[2] [2018] SACAT 19

[3] At [27]

[4] SACAT, ‘Frequently asked questions about the impact of the decisions in Burns v Corbett and Raschke v Firinauskas´15 June 2018

[5] VCAT, ‘Resolving disputes between residents of different Australian states’ 13 June 2018

[6] Director of Housing v Sudi (2011) 33 VR 559; [2011] VSC 266 at [208] per Weinberg J quoted in E Nekvapil (2017) Pizer’s Annotated VCAT Act p  116

[7] Yarra Ranges Shire Council v Australian Native Landscapes Pty Ltd [2009] VCAT 1025 at [199]

[8] Simpson v Andrew Maynard Architects Pty Ltd  [2014] VSC 365 at [37] – [38]

(c) Eliza M Bergin 2018

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