I have tried to make application to the court for a residential tenancy matter but the court(s) believe VCAT has exclusive jurisdiction but refuses to comment any further about the matter. Even a person from the residential tenancy commission states as a fact that VCAT has exclusive jurisdiction but has no idea when and where he read it. I advised him it's just his believe as he can not refer to any documentary evidence of it but still he insists it is a fact. 98% of reviews on google of VCAT are negative with applicants stating VCAT is a waste of time and money. I strongly feel the same way with dozens of applications I’ve made in past 4 years. I would like to court to hear the matters instead but they don’t believe they can. Just because everyone has so far been having their matters heard at VCAT, does not mean it can’t be heard at court (or at least that’s how I strongly feel even after reading s510 of the RTA 20 times over. It relates to me but as a whole, it’s also a public interest matter in general and deserves some consideration by others that work in the industry that are in a position to share their opinion. I would be great if the director could have a view of the below and share any of their thoughts on the subject as well
A person may make an application to court in relation to “any matter” arising in relation to a residential rental agreement, being an application that, if it were made to the tribunal, the tribunal would also be entitled to hear it (except for where it does not have jurisdiction under s447).
In addition to the court’s existing powers, it also has the same powers as the tribunal has to hear applications.
Nothing in s447 limits the power of the court to hear any application under this section (s510).
Not only can the court hear matters that the tribunal has no jurisdiction for, it can also hear any and all other matter the tribunal typically can. The “but for s447” part is only an acknowledgment that the tribunal has a limit to what matter it can hear, whereas the court does not.If the “but for s447” was not mentioned, then it would falsely suggest that “any matter” that involved pain and suffering, the tribunal would have been able to hear it, and that it not the fact of the matter. Sect 447 is mentioned so as to not mislead as the tribunal can not hear all matters, whereas the court can. If the tribunal had exclusive jurisdiction to hear all matters (except for ones under s447), then sect 510(1) would read very differently. It would refer to “any matters”, but moreso along the lines of “only matters under s447”
If there is any doubt as to the interpretation of subsection (1) in which s447 restrict the court to only hear those matter and not “any matters” the tribunal typically hears, then subsection (3) should clear that doubt by how it expresses that nothing in s447 limits the power of the court to hear applications. Furthermore it seems so absurd to think that the court has no jurisdiction to hear any matter that can be heard at the tribunal.
For matters that fall within s447, it automatically goes without saying that a court will be able to hear the matter, and as such there would be no real purpose of s510 to even exist if the courts had no jurisdiction to hear to hear any other matter outside s447.
Another way s510(1) would have been written should the court “only” have jurisdiction to hear matters that the tribunal can not, is that it would have ended in the way of ….if made to the Tribunal, the Tribunal would “not” have been entitled to hear and determine. It’s not about an interpretation of law - it’s about a correct interpretation of English grammar and the use of commas.
Regardless of whether the tribunal would have or would not have been able to hear a particular matter makes to difference as the court can hear any and all matters. The belief that the tribunal has exclusive jurisdiction is a misperception based on two things. Insufficient grammar skills and reading too quickly without focus, and the other being that considering that 99.999% of residential rental agreement matter are always heard at the tribunal, it’s the mistaken belief that it is “only” the tribunal that can hear the matters. There’s a first time for everything and just because practically everyone is taking the common and cheaper path and applying to the tribunal, it’s not to say that the tribunal is the “only” place it can be heard. It’s been practiced this way for decades and almost everyone is oblivious to s510.
Another thought I just had to describe s510(1) is that if a matter that did not fall within s447, such as an application to repair the front door handle, then s447 would not be relevant and not even be required to be mentioned. It would then read as:
“A person may make an application under this section to a court referred to in section 509 in relation to any matter arising in relation to a residential rental agreement of premises situated in Victoria, being an application that, if made to the Tribunal, the Tribunal would have been entitled to hear and determine.”
Perhaps it would have been clearer if subsection 1 had been split into 2 parts. One being as above and the 2nd being something that described that if any matter relating to a residential rental agreement falling within the scope of s447, it could also be applied and heard at the court.
The whole misperception of “but for sect 447” of subsection 1, can be put in an analogy of simple layman’s terms is that if a child could watch a G rated film (all residential rental agreements - except s447) in the kids room (ie:VCAT), but the child wanted to watch a PG rated film (matters under s447) and would have to request to watch it in the parents room (ie:court) while supervised by a parent, then this would be permitted. However, should the child wish to watch a G rated film, not in the kids room but in the parents room, then the parent could also watch with the child a G rated film, in addition to also watching PG rated films in the parent room with the child.
Some lawyers (including court staff) have had conflicting views about s510 as to whether the court has jurisdiction to hear “any matters” or not, however not a single one has been prepared to explain their thoughts and views on the matter, and that’s a typical response from someone that does not really know a lot about what they state, their reluctance is evident of their doubtfulness, despite trying to give the impression that they are a lawyer that knows the law well.
Also what needs to be acknowledged is thats509 relates just to jurisdiction. If jurisdiction to the courts was only for matters under s447 then this surely would be mentioned in s509. This section further supports that application to the courts is not restricted to just s447 matters but instead provides jurisdiction for all matters that can be heard at VCAT.
Again, the only reason s447 is mentioned in s510(1), is that any matter that can be heard at the residential tenancy tribunal can also be applied for and heard at court, “but for s447” matters, as it’s obvious the tribunal has no jurisdiction to hear those matters, but the court can hear those matters in addition to all other matters heard at the tribunal.
Section 510(1) does not suggestion that the court “can not” hear any matter (that is typically heard at the tribunal), but for sect 447. It is instead suggesting that the court “can” hear any matter (that is typically heard at the tribunal), but for sect 447. Sect 447 doesn’t really even apply to sect 510 limiting an application in any way because the tribunal never has had jurisdiction to hear matters that fall within sect 447 and as such, the courts have always automatically had jurisdiction to hear matters that fall within sect 447 and applications could be made to court with reference of sect 510. The main purpose of sect 510 is to identify and acknowledge that all other matters of applications outside of sect 447 can also be made and heard at the court.
Considering no residential tenancy lawyer I have encountered is willing to comment on s509 and s510, and the same goes for any court staff (the operations manager was firm that the court has no jurisdiction before he had even read s509 or s510) or self representative litigant court advisor. I would like to know how you think parliament may have intended these 2 sections to be interpreted when the Act was passed in 1997.
Please share any of your detailed thoughts here....as it would assist me in my arguments in the supreme court instead of just basing it on what may be my biased thoughts.
A person may make an application to court in relation to “any matter” arising in relation to a residential rental agreement, being an application that, if it were made to the tribunal, the tribunal would also be entitled to hear it (except for where it does not have jurisdiction under s447).
In addition to the court’s existing powers, it also has the same powers as the tribunal has to hear applications.
Nothing in s447 limits the power of the court to hear any application under this section (s510).
Not only can the court hear matters that the tribunal has no jurisdiction for, it can also hear any and all other matter the tribunal typically can. The “but for s447” part is only an acknowledgment that the tribunal has a limit to what matter it can hear, whereas the court does not.If the “but for s447” was not mentioned, then it would falsely suggest that “any matter” that involved pain and suffering, the tribunal would have been able to hear it, and that it not the fact of the matter. Sect 447 is mentioned so as to not mislead as the tribunal can not hear all matters, whereas the court can. If the tribunal had exclusive jurisdiction to hear all matters (except for ones under s447), then sect 510(1) would read very differently. It would refer to “any matters”, but moreso along the lines of “only matters under s447”
If there is any doubt as to the interpretation of subsection (1) in which s447 restrict the court to only hear those matter and not “any matters” the tribunal typically hears, then subsection (3) should clear that doubt by how it expresses that nothing in s447 limits the power of the court to hear applications. Furthermore it seems so absurd to think that the court has no jurisdiction to hear any matter that can be heard at the tribunal.
For matters that fall within s447, it automatically goes without saying that a court will be able to hear the matter, and as such there would be no real purpose of s510 to even exist if the courts had no jurisdiction to hear to hear any other matter outside s447.
Another way s510(1) would have been written should the court “only” have jurisdiction to hear matters that the tribunal can not, is that it would have ended in the way of ….if made to the Tribunal, the Tribunal would “not” have been entitled to hear and determine. It’s not about an interpretation of law - it’s about a correct interpretation of English grammar and the use of commas.
Regardless of whether the tribunal would have or would not have been able to hear a particular matter makes to difference as the court can hear any and all matters. The belief that the tribunal has exclusive jurisdiction is a misperception based on two things. Insufficient grammar skills and reading too quickly without focus, and the other being that considering that 99.999% of residential rental agreement matter are always heard at the tribunal, it’s the mistaken belief that it is “only” the tribunal that can hear the matters. There’s a first time for everything and just because practically everyone is taking the common and cheaper path and applying to the tribunal, it’s not to say that the tribunal is the “only” place it can be heard. It’s been practiced this way for decades and almost everyone is oblivious to s510.
Another thought I just had to describe s510(1) is that if a matter that did not fall within s447, such as an application to repair the front door handle, then s447 would not be relevant and not even be required to be mentioned. It would then read as:
“A person may make an application under this section to a court referred to in section 509 in relation to any matter arising in relation to a residential rental agreement of premises situated in Victoria, being an application that, if made to the Tribunal, the Tribunal would have been entitled to hear and determine.”
Perhaps it would have been clearer if subsection 1 had been split into 2 parts. One being as above and the 2nd being something that described that if any matter relating to a residential rental agreement falling within the scope of s447, it could also be applied and heard at the court.
The whole misperception of “but for sect 447” of subsection 1, can be put in an analogy of simple layman’s terms is that if a child could watch a G rated film (all residential rental agreements - except s447) in the kids room (ie:VCAT), but the child wanted to watch a PG rated film (matters under s447) and would have to request to watch it in the parents room (ie:court) while supervised by a parent, then this would be permitted. However, should the child wish to watch a G rated film, not in the kids room but in the parents room, then the parent could also watch with the child a G rated film, in addition to also watching PG rated films in the parent room with the child.
Some lawyers (including court staff) have had conflicting views about s510 as to whether the court has jurisdiction to hear “any matters” or not, however not a single one has been prepared to explain their thoughts and views on the matter, and that’s a typical response from someone that does not really know a lot about what they state, their reluctance is evident of their doubtfulness, despite trying to give the impression that they are a lawyer that knows the law well.
Also what needs to be acknowledged is thats509 relates just to jurisdiction. If jurisdiction to the courts was only for matters under s447 then this surely would be mentioned in s509. This section further supports that application to the courts is not restricted to just s447 matters but instead provides jurisdiction for all matters that can be heard at VCAT.
Again, the only reason s447 is mentioned in s510(1), is that any matter that can be heard at the residential tenancy tribunal can also be applied for and heard at court, “but for s447” matters, as it’s obvious the tribunal has no jurisdiction to hear those matters, but the court can hear those matters in addition to all other matters heard at the tribunal.
Section 510(1) does not suggestion that the court “can not” hear any matter (that is typically heard at the tribunal), but for sect 447. It is instead suggesting that the court “can” hear any matter (that is typically heard at the tribunal), but for sect 447. Sect 447 doesn’t really even apply to sect 510 limiting an application in any way because the tribunal never has had jurisdiction to hear matters that fall within sect 447 and as such, the courts have always automatically had jurisdiction to hear matters that fall within sect 447 and applications could be made to court with reference of sect 510. The main purpose of sect 510 is to identify and acknowledge that all other matters of applications outside of sect 447 can also be made and heard at the court.
Considering no residential tenancy lawyer I have encountered is willing to comment on s509 and s510, and the same goes for any court staff (the operations manager was firm that the court has no jurisdiction before he had even read s509 or s510) or self representative litigant court advisor. I would like to know how you think parliament may have intended these 2 sections to be interpreted when the Act was passed in 1997.
Please share any of your detailed thoughts here....as it would assist me in my arguments in the supreme court instead of just basing it on what may be my biased thoughts.
