VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
CIVIL CLAIMS LIST	
vcat reference No. C2009/2023	
CATCHWORDS	
Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; matters in federal jurisdiction; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 77; federal matter in the civil proceeding; Commonwealth Constitution Ch III, s 76(ii); VCAT proceedings exercising judicial power of the State of Victoria.	

APPLICANT	Greenpainters Ltd ABN:74 133 287 644	
respondent	Ammonite Pty Ltd ACN:160 846 088	
BEFORE	Deputy President R Wilson	
Type of order	In chambers	
DATE OF ORDER and reasons	
27 November 2023	
CITATION	Greenpainters Ltd v Ammonite Pty Ltd (Civil Claims) [2023] VCAT 1310	

OrderS
1.	Subject to this Order, the proceeding is struck out under s 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
2.	If the applicant seeks an order under s 77(3) of the VCAT Act to refer this proceeding to a Victorian court as a more appropriate forum, the applicant must notify the principal registrar of the Tribunal and the respondent in within 28 days of the date of this Order stating the Victorian court that the applicant contends is the more appropriate forum for the hearing and determination of the subject-matter of its claims against the respondent.
3.	If the respondent has any objection to that referral order being made, the respondent must state that objection in writing to the applicant and Tribunal within 14 days of receipt of the applicant’s request for such a referral order.
4.	If no request for a referral order is made by the applicant within 28 days in accordance with para 2 of this Order, the proceeding will simply stand as struck out with no further order.
5.	Upon receipt of any application under para 2 and response under para 3 of this Order, the Tribunal will make a determine under s 77(3) of the VCAT Act in Chambers, on the papers, without the need for any hearing or appearance by any party.

R Wilson
Deputy President			

REASONS 
REASONS FOR JURISDICTIONAL RULING
Background 
1.	By written submissions settled by the respondent’s Counsel and filed with the Tribunal by email copied to the applicant from the respondent’s solicitors dated 3 October 2023, the respondent submits that the applicant’s claims – as the alleged owner of copyright in content and to be entitled to royalties from the respondent for copyrighted content use – raise claims that involve questions of copyright ownership, infringement and enforcement governed by or raising justiciable issues under the Copyright Act 1968 (Commonwealth). It submits this brings the justiciable controversy between the parties in this proceeding within ‘federal jurisdiction’ within the meaning of Ch III of the Commonwealth Constitution, thus meaning that this Tribunal has no jurisdiction to hear and determine the subject matter of the dispute.
2.	Specifically, the respondent:
a.	denies the applicant’s claim that the applicant is ‘content holder and content creator’: point of claim (POC) para 6, points of defence (POD) para 6; respondent’s submissions para 4(a);
b.	submits the applicant’s claim to royalties for use of content in POC para 10 ‘is reflective of the “user principle’ approach to damages, a remedy available under copyright law’”: respondent’s submission para 4(e).
3.	The respondent therefore seeks orders under s 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that the proceeding be struck out as being outside the jurisdiction of the Tribunal as a State tribunal under the legal principles governing the jurisdiction of VCAT recently confirmed by the Court of Appeal in Thurin v Krongold Constructions (Australia) Pty Ltd [2022] VSCA 226 (Krongold), applying another recent decision of the High Court of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (Citta).
4.	There has been no response from the applicant.
RULING
5.	The Tribunal is satisfied that by the respondent raising of these contentions in defence to the applicant’s claim the legal dispute between the parties is a ‘matter’ within federal jurisdiction under s 76(ii) of the Constitution of the Commonwealth of Australia, being a ‘matter’:
‘Arising under any laws made by the [Commonwealth] Parliament’.
6.	On 20 October 2022, the Victorian Court of Appeal delivered its decision Krongold. This decision of a superior appellate court binding on this Tribunal concerns the legal issue that can arise under the Constitution of whether a proceeding in VCAT is one that raises a matter in ‘federal jurisdiction’ under Ch III of the Constitution, so as to deprive the Tribunal of its jurisdiction.  The Court of Appeal applied a recent decision of the High Court of Citta.
7.	In its unanimous decision, the Victorian Court of Appeal reiterated that VCAT’s first duty as a statutory tribunal is to be satisfied that it has jurisdiction to hear and determine a dispute between the parties: Krongold at [128]. Further, whether the Tribunal has jurisdiction is something about which the Tribunal itself must be satisfied. Parties cannot consent to give VCAT jurisdiction to hear and determine a legal dispute that the Victorian Parliament has not given to VCAT or has no legislative power to give to VCAT.
8.	On the material on the case file for this proceeding, I am satisfied:
a.	that if the Tribunal had had jurisdiction over this dispute (which it does not) VCAT would be required to hear and determine the legal dispute exercising the judicial power of the State of Victoria; 
b.	VCAT has no jurisdiction to hear and determine this federal ‘matter’: Krongold [44] – [45], [47] – [48], [77] – [79]; 
c.	therefore I determine, under s 77 of the VCAT Act, that the Tribunal it is not the appropriate forum for the hearing and determination of the subject-matter of the dispute in this proceeding.
VCAT Act, s 77 – procedural powers of the Tribunal
9.	Section 77(4) of the VCAT Act enables the Tribunal, on its own initiative, to make an order under s 77(1) of the VCAT Act to strike out a proceeding over which it has no jurisdiction, as well as to make a referral order under s 77(3) of the VCAT Act referring the matter to a more appropriate forum.
10.	The respondent asserts a referral order under s 77(3) of the VCAT Act is inappropriate as there are a variety of other courts, including the Federal Court of Australia in which the applicant’s claims sought to be advanced this proceeding could be brought. The Tribunal also observes that the address of the respondent company is registered in Springwood, Queensland which may have a bearing on the appropriate location of the alternative forum. 
11.	The Tribunal therefore does not presently ‘consider it appropriate’ to make a referral order under s 77(3) of the VCAT Act. But that does not mean that the applicant may wish to apply for such a referral order.
12.	Accordingly, the proper course procedurally is for the proceeding to be struck out under s 77(1) of the VCAT Act, reserving liberty to the applicant to apply to VCAT within 28 days of the date of this Order for a referral order under s 77(3) of the VCAT Act, but only to a Victorian court. The applicant may instead wish, as they may be advised, to commence a new proceeding in any court competent to exercise federal jurisdiction and having jurisdiction over the subject-matter of this dispute.
13.	For the benefit of both the parties, I caution that the Tribunal may not have the power or authority under s 77(3) of the VCAT Act to refer the subject-matter of this proceeding to a federal court of the Commonwealth of Australia or to a court of another Australian State or Territory. That legal issue has not been determined by any superior court.

DEPUTY PRESIDENT R WILSON