If a tenancy matter involves a resident from a State outside of Victoria, VCAT will generally lack jurisdiction to hear it, and proceedings must instead be commenced in the Magistrates’ Court of Victoria.
Whether a party resides in another State is a question of fact depending on:
However, VCAT stills retains jurisdiction where a proceeding involves:
VCAT cannot hear disputes where one party resides in another state unless limited circumstances apply.
This is because s 75(iv) of the Constitution precludes State tribunals such as VCAT from having jurisdiction to hear any matter that is between residents of different States. As a result, VCAT lacks jurisdiction to hear RTA tenancy matters where a party resides interstate: Burns v Corbett (2018) 265 CLR 304; Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30.
To resolve this jurisdictional gap, the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) has been amended to grant the Magistrates’ Court of Victoria jurisdiction to hear ‘federal subject matters’ which cannot be heard by VCAT. This means that the Magistrates’ Court can hear tenancy matters where one party is an interstate resident.
However, VCAT retains jurisdiction where a proceeding involves:
This includes where there are multiple parties in a dispute where one of them is an interstate resident, so long as one party is a corporation or political entity, it appears that VCAT may have jurisdiction to hear the dispute.
An exception also applies for the Department of Housing, which can bring RTA tenancy disputes against interstate residents to VCAT because the Department is a corporation and not a ‘resident’ or a ‘State’: Director of Housing v Currie (Residential Tenancies) [2021] VCAT 1368.
When there is an interstate party in a tenancy dispute, Part 3A of the VCAT Act applies. These proceedings are referred to as ‘substituted proceedings’: VCAT Act s 57B. This new Part allows the Magistrates’ Court to exercise all the functions and powers that VCAT would normally have under the Residential Tenancies Act: VCAT Act s 57C.
The following rules have also amended to supplement this new jurisdiction:
These rules give Judicial Registrars of the Magistrates’ Court the power to hear and determine substituted proceedings: Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic) r 8(da). Judicial Registrars in the Magistrates Court also have the power to amend applications, and issue warrants: Victorian Civil and Administrative Tribunal (Federal Jurisdiction Matters) Regulations 2021 (Vic), schedule 1 .Judicial Registrars can also adjourn matters and stay warrants where a review application is made under s 120 of the VCAT Act or s 110 of the Magistrates’ Court Act: Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 (Vic) s 10A.07.
Applicants may apply for substituted proceedings under s 57B of the VCAT Act by filing a Form 10A and an accompanying annexure (if applicable) with the Magistrates’ Court: Magistrates’ Court (Miscellaneous Civil Proceedings Rules r 10A.02.
Respondents must then give a notice of reply using Form 10B within 14 days after being served with the application (Rules r 10A.03). However, a notice of reply is not required if the matter is urgent and needs to be heard within less than 14 days: Magistrates’ Court (Miscellaneous Civil Proceedings Rules r 10A.04. Matters that are required to be heard under the Residential Tenancies Act within less than 14 days include: family violence applications (see 91V(7), s142S(7), 206AG(7), 207M(7)), applications in relation to abandoned premises (see 91ZG(2)), applications related to notices to leave rooming housing (s 374) and applications for urgent repairs.
Service of the application must be made in accordance with ss 140–141 of the VCAT Act and r 4.10 of the VCAT Rules: Magistrates’ Court (Miscellaneous Civil Proceedings Rules r 10A.05. This means that service can be effected by:
If the respondent lives outside of Victoria, the applicant must comply with the Service and Execution of Process Act 1992 (Cth) and serve the respondent with a Form 1 Notice to defendant.
Any application fees will be equivalent to those normally charged at VCAT. A party may also request the registrar of the Magistrates’ Court to waive their fees on the basis of financial hardship: Magistrates’ Court Act 1989 (Vic) s 22(2).
Due to s 57C(3) of the VCAT Act, the conduct of substituted proceedings in the Magistrates’ Court should mirror normal proceedings in VCAT such that:
Technically, s 57C(3)(b) of the VCAT Act gives the Magistrates’ Court discretion to not follow any of the abovementioned rules in substituted proceedings.
Any Judicial Registrar of the Magistrates’ Court can exercise the powers of VCAT’s Principal Registrar: Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic) r 8(da).
The rules give Judicial Registrars of the Magistrates’ Court the power to hear and determine substituted proceedings: Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic) r 8(da). Judicial Registrars of the Magistrates Court also have other powers such the power to adjourn proceedings for up to 3 months (at the request of the rental provider), and the power to stay and extend a warrant of possession: Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 (Vic) r 10A.07.
If an interstate application is incorrectly lodged with VCAT, it should be dismissed as there is currently no mechanism to transfer such matters to the Magistrates’ Court. Only a valid application made directly to the Magistrates’ Court under s 57B of the VCAT Act can be considered under the new regime.
If an application is listed in VCAT with an interstate party, you should contact VCAT. You may be able to request a directions hearing be held for the matter to be struck out under s 75 of the VCAT Act on the basis that the Tribunal lacks judication to hear the matter. Such an application can also be made at the commencement of the hearing, but notice must be given to all parties ahead of the hearing.
Due to s 57F of the VCAT Act, any past decisions concerning interstate parties made by VCAT prior to 29 November 2021 are retrospectively validated. However, from now on, any new applications concerning interstate parties must be made directly to the Magistrates’ Court in the first instance to be valid.
If a client does not appear at a hearing for substituted proceedings in the Magistrates’ Court, they may apply for a re-hearing under either s 110 of the Magistrates’ Court Act 1989 (Vic), or s 120 of the VCAT Act: VCAT Act s 57C(3)(g).
A re-hearing application made under s 110 of the Magistrates’ Court Act 1989 (Vic) must be in Form 46B and state the reasons why the client did not appear at the hearing. This application must be filed with the Court, and served on the other party at least 14 days before the date fixed for the re-hearing: Magistrates’ Court General Civil Procedure Rules 2020 (Vic) rr 46.08, 49.09.
For information on applying for a re-hearing under s 120 of the VCAT Act, see further HLP guidance here.
If a determination of a tenancy matter is made by a Judicial Registrar in the Magistrates Court, the decision can be reviewed by making a review application under (s 16K(3)(a) of the Magistrates Court Act 1989 (Vic). Such an application must be made using Form 1 and an accompanying affidavit, and these must be filed within 14 days after the determination was made: Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic) r 16.
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