Bashour v Victorian Civil and Administrative Tribunal

In the case of Bashour v Victorian Civil and Administrative Tribunal, the applicant sought to challenge a decision made by the Tribunal under the Equal Opportunity Act 1995 (Vic). The dispute arose when the Tribunal, acting in its original jurisdiction, dismissed the applicant's claim due to a procedural error. Simultaneously, the applicant had filed a claim in the Federal Court under federal law, which raised similar issues. The applicant sought relief in the Court of Appeal against an order made by the Tribunal to strike out the whole proceeding and refer it to the Federal Court.

The central legal issues before the court were whether the order made by the Tribunal to strike out and refer the proceeding to the Federal Court constituted a jurisdictional error, and whether the referral order effectively conferred state jurisdiction over the VCAT matter to the Federal Court. Additionally, the court considered whether there were any prospects of success on the challenge to the order. The applicant argued that the Tribunal's order was a jurisdictional error because it failed to consider the accrued jurisdiction of the Federal Court, which already had a claim pending on similar issues.

The court held that the Tribunal had indeed made a jurisdictional error in making the discretionary order to strike out and refer the proceeding to the Federal Court. The court found that the order had the effect of conferring state jurisdiction over the VCAT matter to the Federal Court, which was inconsistent with the division of powers under the Commonwealth of Australia Constitution. The court also considered the merits of the applicant's challenge and found that there were prospects of success on the application. The court noted that the delay in filing the application for review did not necessarily preclude a successful challenge, particularly if the explanation for the delay was strong.

The final orders of the court included setting aside the order made by the Tribunal to strike out and refer the proceeding to the Federal Court. The court also remitted the matter back to the Tribunal for reconsideration in light of the Federal Court's jurisdiction and the applicant's pending claim. The court's decision highlighted the importance of considering the division of powers and the accrued jurisdiction of federal courts when dealing with matters that may also have state law implications.