26 April 2018

High Court of Australia rules that VCAT cannot hear disputes where a party is not a resident of Victoria

Last week’s High Court decision in Burns v Corbett (2018) HCA 15 is likely to have far-reaching consequences for disputes in the Victorian Civil & Administrative Tribunal (VCAT) where one party resides outside of Victoria.

The High Court held that section 75(iv) of the Australian Constitution provides courts with original jurisdiction in matters where parties are residents of different states and that a Court’s jurisdiction could not be conferred upon a state tribunal.

The decision in Burns v Corbett means that VCAT does not have jurisdiction to hear a dispute where a party to a dispute resides outside of Victoria.

This case is likely to cause significant issues for “retail tenancy disputes” because under the Retail Leases Act 2003 (Vic) only VCAT, and not the courts, has jurisdiction with only limited exceptions. The decision may also have a retrospective effect and call into question cases determined in VCAT where a party to the dispute was not a resident in Victoria.

We recommend that landlords and tenants consider if a party to a retail leasing dispute is located outside of Victoria. If it is, VCAT may not be an appropriate forum and the litigation strategy should be revisited.

Hall & Wilcox is able to assist with providing advice on the implications of this decision including how the location of a company is determined or altered.

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