"Existence of a disputed claim is central to the process of resolving compensation claims": Victorian Civil and Administrative Tribunal strikes out claimant's application as misconceived

In brief

In the case of Hire and Lease Pty Ltd v Secretary to the Department of Transport and Planning [2024] VCAT 159 the Secretary to the Department of Transport and Planning (Authority) commenced proceedings in the Victorian Civil and Administrative Tribunal (Tribunal) under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to strike out an application made by Hire and Lease Pty Ltd (Claimant) to the Tribunal for the determination of a disputed compensation claim.
 
The Claimant lodged an application with the Tribunal under section 80 of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act) for a determination of a disputed claim for compensation relating to the Authority's compulsory acquisition of the land at 12 Terror Street, Keilor Park (Application). The Authority contested the Application on the basis that no disputed claim existed at the time, and therefore the Tribunal did not have the jurisdiction to hear the matter.
 
The issues before the Tribunal were three-fold:

1. was a "disputed claim" in existence in accordance with section 33(2) of the LAC Act as at 15 September 2023 when the Claimant made the Application (Application Date)?

2. if a "disputed claim" did not exist at that time, did the Tribunal have jurisdiction to hear the matter pursuant to section 43 of the VCAT ACT on the basis that the claim became disputed when the Claimant rejected the Authority’s response to the claim?

3. given the current proceeding was underway, did the Tribunal have the power to amend the Application under section 127 of the VCAT Act to change the date of the "disputed claim" from the Application Date to the date the Claimant rejected the Authority's response on 16 October 2023? 

In this case, the Tribunal found that no "disputed claim" existed at the Application Date as required under the LAC Act. Accordingly, the Tribunal found that its jurisdiction was not enlivened to hear the matter. As a result, the Tribunal refused to consider either of the remaining issues and struck out the Application.

Was there a "disputed claim" as at Application Date?

To be eligible to apply to the Tribunal under section 80(a) of the LAC Act for a determination of a disputed claim, a claimant must establish that a "disputed claim" existed at the time of the application in accordance with the prescribed time limits and processes imposed by Part 3 of the LAC Act.
 
Section 33(1) of the LAC Act states that a claimant must serve a notice of acceptance or claim on the authority within three months of an initial offer of compensation by the authority, and section 33(2) of the LAC Act states that a failure to do so will result in the matter becoming a "disputed claim" for the purposes of the LAC Act.
 
The Authority relevantly served its initial offer of compensation for the compulsory acquisition on 20 December 2022 (Offer), and the Claimant served its response on 2 June 2023 (Claim).
 
In making the Application, the Claimant relied on its own failure to respond to the Offer in time, being by 21 March 2023, to assert that the matter had become a "disputed claim" under the LAC Act.
 
The Tribunal held that the Claim was not disputed at the time of the Application because the application of section 33(2) of the LAC Act is subject to section 107 of the LAC Act, which relevantly states as follows (see [42] to [47]):

"(1) Notwithstanding anything in any other section of this Act, the time within which a person other than the Authority is required to do anything under this Act shall not expire until the expiration of seven days after the Authority has advised that person in writing of the effect of that expiration."

In light of this, the Tribunal held that the Claimant could only rely on section 33(2) of the LAC Act to establish that there was an existing "disputed claim" if the Authority had advised the Claimant in writing of the expiration of the three month time period (at [43]). In the absence of any such written confirmation, the Tribunal held that there was no "disputed claim" as at the Application Date and the Claimant was not entitled to make the Application to engage the Tribunal's jurisdiction (see [48] to [50]).

Did a "disputed claim" come into existence when the Claimant rejected the Authority's response to Claim?

In the alternative, the Claimant submitted that the Tribunal was obliged to consider the matter on the basis that the Claim had become disputed by the time the proceeding was being heard.
 
The Claimant provided the Authority with a revised response to the Offer on 15 September 2023, to which the Authority provided its response on 9 October 2023 (Response to Revised Claim). On 16 October 2023, the Claimant rejected the Response to Revised Claim. The Claimant submitted that in rejecting the Response to Revised Claim a "disputed claim" came into existence under with section 36(9) of the LAC Act and, therefore, the Tribunal had jurisdiction to hear the matter.
 
The Tribunal rejected this submission on the basis that an application under section 80 of the LAC Act is only valid if the disputed claim exists at the time of the application. Accordingly, given that the Application Date predated the alleged "disputed claim", the Tribunal did not have jurisdiction to consider the matter (at [53]).

Did the Tribunal have jurisdiction to amend the Application?

The Claimant's attempt to invoke the Tribunal's power under section 127 of the VCAT Act to amend the Application to reflect the date of the disputed claim, being as 16 October 2023, to rectify the invalidity of the Application failed because the Tribunal held that it did not have the requisite jurisdiction (at [54]).

Conclusion

The Tribunal struck out the Application, but noted in obiter dicta that the Claimant was free to lodge a fresh application in the future with the requisite documents required to invoke the Tribunal's jurisdiction under clause 45 of Schedule 1 of the VCAT Act (at [56]).

Takeaway for claimants

The LAC Act is structured in such a way that ensures the timely resolution of claims. In instances where the time limits are exceeded and subject to the processes set out in the legislation, the parties are permitted to engage the Tribunal's jurisdiction to determine the claim in dispute.
 
Notably, there are certain restrictions on how a "disputed claim" may be brought before the Tribunal. Where an authority fails to meet a time limit imposed by the LAC Act, a claimant may apply to the Tribunal for a determination without notice. However, as seen in this case, if a claimant fails to respond in time, an authority must provide a notice to the claimant notifying the claimant of the effect of the expiration of time before the matter is eligible as a "disputed claim" capable of being the subject of an application to the Tribunal (at [47]).
 
Accordingly, this case demonstrates that claimants must be diligent to ensure that the processes under the LAC Act have been accorded with when lodging an application to the Tribunal under section 80 of the LAC Act. In particular, where a claimant fails to respond within a prescribed time limit and the authority is yet to provide a notice of the effect of its expiry, there will be no "disputed claim" capable of being the subject of an application.