Justice Legislation Amendment Act 2023

Some of the recent uncertainty regarding VCAT’s jurisdiction has resolved with the passing of the Justice Legislation Amendment Act 2023 (Vic) (JLAA) on 10 October 2023. Here’s what you need to know.

Limitations are back

Limitation periods are back…to the extent that they disappeared. We now have certainty that The Limitation of Actions Act (Vic) applies again in VCAT.

The definition of ‘action’ in the Limitation of Actions Act 1958 is amended by the JLAA so that ‘action’ is now defined to include “any proceeding in a court of law or in VCAT”.

The explanatory memorandum to the JLAA says:

The amended definition in section 3(1) provides that an action includes a proceeding at VCAT. The definition enables VCAT matters to be bound by the same limitation of action rules as matters heard in a "Court of law".

These limitations apply to both current and future proceedings at VCAT (s 74 of the JLAA).

It may be the case that a proceeding commenced before 10 October 2023 relying on the apparent absence of limitation periods at VCAT is not covered by the JLAA amendments.

However, going forward this takes away the vast majority of uncertainy created by recent Court decisions (Steedman, Lanigan, Ajaimi etc)

Contribution claims are back

Contribution claims are back! (to the extent that they went away)

Part IV, section 23A of the Wrongs Act 1958 is amended by:

Inserting a new definition of ‘court’ to include ‘VCAT’.
A new definition of ‘judgment’ to include a ‘VCAT decision, order and/or declaration’.
Amending the definition of ‘writ’ to include an application to VCAT.

Part IV, section 24 of the Wrongs Act 1958 is amended by:

substituting the word ‘trial’ for the word ‘proceeding’

The JLAA contains provisions which retrospectively validate decisions, orders or declarations made or purportedly made by VCAT under Part IV of the Wrongs Act before the JLAA commencement date (10 October 2023) as though the amendments were in place at the time the decision, order or declaration was made in respect of contribution claims.

Exceptions: these ‘curative’ provisions do not apply -

where the relevant order was quashed, overturned or reversed by the Supreme or County Court (incl Court of Appeal) before the commencement date on the ground that VCAT had not jurisdiction to make a contribution decision, order or declaration under Part IV; or
if the relevant order is subject to appeal or review which includes the ground that VCAT had no jurisdiction to make a decision, order or declaration under Part IV that had been commenced but not determined before the commencement date (10 October 2023)

In summary, these amendments to the Wrongs Act permit recovery of contribution claims to matters in VCAT (as well as the Courts).

Jurisdiction

Section 77 of the VCAT Act is the referral to a ‘more appropriate forum’ provision.

Section 67 of the JLAA does three main things:

It expands the categories of members who may exercise powers under s 77 to include a presidential member or a senior member who has been an Australian lawyer for more than 5 years.
If a matter is referred to a Court under s 77, the Court may extend any limitation period under that provision so as to allow the proceeding to be commenced and determined, if the Court is satisfied of certain preconditions:
- the proceeding involves the same subject matter as a proceeding struck out for want of jurisdiction over matters involving federal jurisdiction;
- later commencement of the proceeding was impacted by the Tribunal proceeding being struck out; and
- it is fair and reasoanable to extend the limitation period.
It allows a court to extend ‘any limitation period that applies’ after a referral from VCAT. This ought fix the issues arising from Krongold so that parties will not be time barred from pleading against an additional defendant who was purportedly but not actually joined in VCAT because their joinder raised a matter within federal jurisdiction.

The LPLC has published a helpful article on the same topic which can be found here.