VCAT's ability to hear complex cases under further threat

In March 2024, Woodward J handed down a significant decision in Plunkett v Portier Pacific Pty Ltd (Civil Claims) [2024] VCAT 205 with implications for litigants in VCAT. The decision opens the door for many more cases – in particular, building cases – to be transferred out of VCAT and up to the County or Supreme Courts.

Background

The case concerned a dispute about the commencement and operation of restaurant businesses in Sydney and Melbourne, and related to claims in excess of $1 million. The respondents made an application under section 77 of the VCAT Act 1998 (Vic) to have the proceeding struck out and referred to the Supreme Court of Victoria.

Section 77 of the VCAT Act provides that at any time, VCAT may make an order striking out or referring a proceeding if it considers that the subject matter of that proceeding would be more appropriately dealt with by a court or another tribunal.

The decision

In his Honour's judgment, Woodward J disagreed with previous authorities to the effect that the Tribunal's capacity and resources are not relevant considerations. Instead, His Honour concluded that the Tribunal's resources and capacity are relevant considerations, along with whether the proceeding requires case management or involves difficult issues of fact and law.

Woodward J emphasised that whether to grant an application under section 77 of the VCAT Act is a discretionary matter, having regard to the factors of any particular case. His Honour also confirmed that the appropriate test is whether the subject matter of a particular proceeding would be more appropriately dealt with by another tribunal, a court, or any other person or body.

Woodward J also gave examples of cases that were likely to succeed in an application under section 77 of the VCAT Act to have a case transferred to the County or Supreme Courts:

• civil cases not in VCAT’s exclusive jurisdiction, where the claims value significantly exceeds $100,000, and certainly where the claims exceed $500,000;
• where the hearing of the proceeding is estimated to last 10 days or longer;
• where the proceeding involves multiple parties, and particularly where there are third-party claims, counterclaims and claims for apportionment, such that the proceeding will benefit from regular case management;
• where other factors (such as a history of frequent interlocutory applications) suggest that the proceeding will benefit from regular case management; and
• where the proceeding involves novel points of law or complex facts.

Key takeaways

It is difficult not to interpret the examples given by Woodward J as a practical checklist for matters that should and should not be commenced in VCAT.

In any case, Woodward J's decision has provided practitioners with useful and clear guidance in the application of section 77 to matters that have been commenced in VCAT. Litigants at VCAT should consider whether there are strategic benefits in having their claims managed and determined by the County or Supreme Courts in lieu of VCAT, ideally before or at the time proceedings are initiated.

Considering the delays and lack of resources at VCAT (although noting the recent appointments and other programs to clear the backlog and reduce wait times), litigants are likely to have their cases more proactively case managed and determined more quickly (and potentially more cost effectively) if transferred to the County or Supreme Courts.

The decision has paved the way for more cases to be transferred out of VCAT and to the County or Supreme Courts. We await to see whether this will result in an increase in new building cases being issued in the County and Supreme Courts.