ACL and VCAT Jurisdictional Issues

Background

The Court of Appeal recently found that the Victorian Civil and Administrative Tribunal (VCAT) lacks jurisdiction to hear matters relating to federal legislation.¹

The decision may affect VCAT’s capacity to deal with consumer disputes under the Australian Consumer Law (ACL).

This article provides some background and direction to traders operating in the Victorian consumer space.

Australian Consumer Law (ACL)

The ACL is a piece of federal legislation, which has been enshrined in legislation across each Australian State and Territory, including Victoria’s Australian Consumer Law and Fair Trading Act 2012 (ACLFTA).

Consumer claims against traders (suppliers or manufacturers) are often based on the ACL. VCAT has typically been accepted by parties as the primary forum for dealing with these claims in Victoria. Now the question has arisen whether VCAT has jurisdiction to hear ACL matters at all.

What this means

If VCAT does not have the jurisdiction to hear ACL matters, this could see both current and future claims being elevated to the Victorian Courts authorised to hear disputes about federal subject matter. This would mean higher filing fees, increased legal costs, longer delays (as the Courts are clearly not resourced to deal with the volume of consumer claims), extra formality, and procedural complexity. It will also make it much more difficult for parties (both consumers and traders) to deal with the claims without the assistance of lawyers.

VCAT’s Response

There has been no concrete guidance as to the appropriate forum for ACL matters in Victoria. However, it appears that VCAT is continuing its practice of hearing these disputes.

In a recent proceeding concerning the supply of a motor vehicle,² the Tribunal acknowledged that its jurisdiction to hear ACL matters had recently been “called into question” but was ultimately satisfied that it had “jurisdiction in [that] case”.

In another recent claim, the Tribunal noted that:

1. section 8 of the ACLFTA provides that the ACL applies as a law of Victoria;
2. there was no indication that the applicant relied specifically on the ACL (as opposed to the ACLFTA); and
3. found “there is no doubt that the Tribunal has jurisdiction”.³

Accordingly, unless a claim is brought specifically under the ACL in its federal form, VCAT is likely to hear the dispute under Victoria’s ACLFTA. However, this may leave the door open for parties to “forum shop”, and ground some claims in either the Commonwealth or Victorian versions of the ACL.

What you can do

If you are involved in ACL disputes, it’s important to seek legal advice early on, to ensure the matter is heard and determined in the appropriate forum. Our ACL team and disputes team helps consumer businesses navigate and resolve disputes effectively. Get in touch to find out how this recent decision relating to VCAT, affects your business.