Cross-fertilisation of VCAT jurisdiction under separate enabling acts

In Director of Housing v Young [2002] VCAT 227, Deputy President Levine decided that a $14,000 residential tenancy claim of a kind in which VCAT’s jurisdiction was limited to $10,000 could be brought pursuant to the Fair Trading Act, 1999 as what is now described as a “consumer-trader dispute” because the Fair Trading Act, 1999 was enacted after the Residential Tenancies Act, 1997. He also decided that a case brought under one Act in the associated List may plug gaps in that List by invoking jurisdiction in another Act associated with another List and the whole lot may be heard at once by a member of the first List.The Director of Housing had a claim against a tenant for $14,000, more than the $10,000 allowable for a claim in VCAT in which its residential tenancies jurisdiction was invoked under the Residential Tenancies Act, 1997 (Vic.). But that Act did not lay down a code for the disposition of disputes covered by it, just a quick and cheap forum for resolving them if the disputants so chose. So the Director sought to bring the claim by invoking what is now known as the consumer-trader dispute jurisdiction granted by s. 107 of the Fair Trading Act, 1999. There is no jurisdictional limit for such disputes. The Director was the supplier of services because “services” were defined to include rights in relation to real property, such as leases. The Director was engaged in trade or commerce, a necessary jurisdictional fact [10], because of “the repetitious and continuous nature of the Director’s activities in the letting of premises as residences to tenants” even though not-for-profit.

One question was whether, given that there was a specific statute relating to residential tenancies limiting VCAT’s jurisdiction (the Residential Tenancies Act, 1997), that limit should be able to be overcome by the device of naming a different statute (the Fair Trading Act, 1999) as invoking VCAT’s jurisdiction. Deputy President Levine said yes:

“19… where an Act prior in time to the [Fair Trading Act, 1999] confers limited jurisdiction on VCAT, a [consumer-trader] dispute (otherwise unlimited in a court) should not be restricted by the imposition or application of jurisdictional limits in that earlier Act. … 20. Such a result would defeat the legislative intention of creating a jurisdiction for the resolution of [Fair Trading Act, 1999] matters at VCAT which has no monetary limit as to the amount that may be ordered to be paid.”

That raises the interesting question of whether a later Act, such as the Legal Profession Act, 2004 (with its $25,000 limit on the amount recoverable in pecuniary loss disputes and the amount of costs which may be at issue in costs disputes) should be able to be supplanted by the device of instituting, in VCAT, a consumer-trader dispute, especially where the Legal Profession Act, 2004 has been invoked by the lodgment of a civil complaint with the Legal Services Commissioner.

A second question was whether VCAT lists — for example the Retail Tenancies List or the Legal Practice List — were to be regarded as but administrative divisions of one behemoth or something more truly separate such that the jurisdictions associated with each could not be invoked in one claim. The Deputy President held that litigants may pick and choose and introduce into a case in one list a jurisdiction normally associated with another to augment gaps in the jurisdiction of the first:

“25. VCAT has absorbed a number of separate Tribunals that existed prior to July 1 1998. The administrative arrangements for dealing with cases was to allocate enabling enactments to Lists which roughly equated to each List taking over the functions of a pre-existing Tribunal. Jurisdiction under new Acts have been allocated to Lists by amendments to the Rules from time to time.

26. If a member of VCAT is sitting in a List where the dispute is not covered by the Acts allocated to that List but is covered by other Acts allocated to other Lists in VCAT is that member obliged or able to deal with the dispute? Put simply – at any time does the member apply only the law administratively allocated to the List in which the member is sitting (List jurisdiction) or the whole of the law that is within the jurisdiction of VCAT (VCAT jurisdiction)?

27. It so happens that most of the members that regularly hear [Residential Tenancies Act, 1997] cases also hear Civil Claims cases (including those under the [Fair Trading Act, 1999]). But what, if any, obligation is there upon the member to deal with issues under the [Fair Trading Act, 1999] if the application is brought under the [Residential Tenancies Act, 1997] was “pleaded” or became apparent during the course of a hearing?

28. When the [Fair Trading Act, 1999] commenced it was allocated to a number of Lists not including the Residential Tenancies List. That was remedied on January 1 2002. This application was brought in the Civil Claims List to which the [Fair Trading Act, 1999] has been allocated since that Act came into force.

29. It follows that regardless of the view that is taken of List jurisdiction or VCAT jurisdiction, parties may now bring a proceeding under the [Residential Tenancies Act, 1997] or the [Fair Trading Act, 1999] or indeed combine actions and claims under both Acts in the Residential Tenancies List. The [Residential Tenancies Act, 1997] has not been assigned to the Civil Claims List and whether claims that arise under the [Residential Tenancies Act, 1997] are capable of being litigated in the Civil Claims List might at first glance require a decision that Members must apply VCAT jurisdiction rather than being restricted to List jurisdiction.

30. However, it may not be necessary to form a view about VCAT jurisdiction as distinct from List jurisdiction – at least with respect to the operation of the [Fair Trading Act, 1999] – if one examines the effect of the provisions of section 107 and 108 of the [Fair Trading Act, 1999]. To do so it may be convenient to first look at the introduction of the [Small Claims Act, 1973] in 1974 (then the Small Claims Tribunals Act 1973).

31. When the [Small Claims Act, 1973] was introduced, it merely brought the existing contract law in a class of cases restrictively defined as a “small claim” to a Tribunal for resolution. It created no new law – just a mechanism for resolving disputes away from the Courts. It was quickly established that the Tribunal was to apply the whole of the ordinary law applicable to contracts including in appropriate cases the terms and conditions of the specific contract entered into between the parties and any limitations or exceptions in that contract. (R v Small Claims Tribunal; ex parte Barwiner Nominees Pty Ltd [1975] V.R. 831 : Walsh (Referee of the Small Claims Tribunal) v Palladium Car Park Pty Ltd [1975] V.R. 949)

32. Because [Fair Trading Act, 1999] “fair trading dispute” [now “consumer-trader dispute”] (like the [Small Claims Act, 1973] “small claim”) is a mechanism for moving the whole of the applicable law applying to the defined disputes into VCAT it is my view that the [Residential Tenancies Act, 1997] applies to those matters which fall under it, and any application must only be initiated after the appropriate notices and other requirements of the scheme of the [Residential Tenancies Act, 1997] (as part of the applicable law) have been followed. The [Fair Trading Act, 1999] may then also be used in VCAT to “complete” the claim for any matter or alternative not covered by the applicable law contained in the [Residential Tenancies Act, 1997] that could have been taken to a Court prior to the enactment of the [Fair Trading Act, 1999] (provided there exists a fair trading dispute as defined in, or a contravention of, the [Fair Trading Act, 1999]).

33. That is so even having regard to the fact that there are different fees for cases brought under different enabling enactments. The Victorian Civil and Administrative Tribunal (Fees) Regulations (Regulations) 2001 provide that fees are set on the basis of the commencement of proceedings under enabling enactments. Thus an application under the [Residential Tenancies Act, 1997] attracts a fee of $30 regardless of the type of application – although the monetary claims are limited to $10,000. In the Civil Claims List, [Fair Trading Act, 1999] claims attract higher fees once they are $10,000 or over. If this claim had been made on a Residential Tenancies Application but “pleaded” a claim in excess of $10,000 under the [Fair Trading Act, 1999] then the appropriate fee for commencement under the [Fair Trading Act, 1999] may have to be paid (depending on a particular interpretation of the words “commencement of proceedings under the enabling enactments” in the Regulations).”

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