On 18 April 2018, the High Court in Burns v Corbett  declared that the Civil and Administrative Tribunal of New South Wales (NCAT) does not have jurisdiction to determine matters that involve residents who reside outside of New South Wales. In fact, the High Court further specified that under the Commonwealth Constitution, no State Parliaments have the power to confer jurisdiction on a tribunal which is not a “Court of the State”.
The problem arises when a State tribunal purports to exercise judicial power in a matter falling within one of the classes identified in section 75 of the Commonwealth Constitution. Within Ch III of the Constitution, which establishes the Federal Judicature, section 75 relevantly provides:
In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth; or a person suing or being sued on behalf of the Commonwealth is a party;
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
The section explicitly forbids a State tribunal to exercise federal judicial power. The issue in Burns v Corbett was whether the NCAT could determine a claim, arising under NSW legislation, by a resident of New South Wales against residents of Queensland and Victoria (and thus a matter defined in section 75(iv) of the Constitution). The High Court held that NCAT was not a “Court”, and that it was exercising judicial power in this matter.
What does this mean for the State of Victoria?
- The case has significant implications for many types of matters heard by the Victorian Civil and Administrative Tribunal (VCAT).
- It seems from this decision, VCAT cannot determine disputes unless both parties live in Victoria (the decision does not appear to apply to corporations).
- The status of such proceedings that have already been heard and determined in VCAT is now unclear. The decision may have a retrospective effect and would therefore call into question cases determined in VCAT where a party to a dispute did not reside in Victoria.
Who CAN hear my case then?
- If the dispute cannot be determined in the Tribunal, then it can probably be determined in a State Court.
- Jurisdictional issues may be resolved by having a proceeding issued in both VCAT and the relevant Court concurrently. A member of the Court who is also appointed as a member of the Tribunal hears and determines the proceedings together.
If you are currently involved in a matter in VCAT where you or another party are not a resident in Victoria, legal advice should be obtained as to whether the proceeding can validly continue. If you have any questions about the implications of this decision, please contact our litigation team.
  HCA 15