Easing the strain on Victorian courts and tribunals

The County Court of Victoria has recently announced a raft of temporary changes to help manage case management expectations and significant listing pressures faced by the Court over the last few years.¹ Developments in recent years have contributed to pressure on Victorian Courts and Tribunals leading to, at times, significant delays.

Whilst both the County Court and the Victorian Civil and Administrative Tribunal (VCAT) are implementing changes to have cases managed more quickly, both jurisdictions are still experiencing significant pressure on listings and resultant delays.

The Court under pressure

Recent years have seen a sharp increase the number of cases, and the number of complex cases, that are being managed by the Commercial Division of the County Court. The increase in the number of cases is largely attributable to:

• An influx of cases from VCAT: due to the landmark decision in Thurin v Krongold. Learn more about the decision in our previous update, Court holds that VCAT lacks jurisdiction to resolve disputes relating to federal issues.
• An increase in large-scale litigation referrals: Beyond the Thurin decision, there has been a rise in the referral of large-scale, complex and resource intensive cases from VCAT to the Court.
• A post-pandemic surge in initiations: particularly in the General List and the Banking and Finance List. Overall, the Commercial Division has seen a twofold increase in these areas, further straining its capacity.

Impact of the increased file load

Unsurprisingly, the increase in the number of cases is leading to delay in:

• Matters being listed for trial. Ordinarily, the Commercial Division of the County Court aims to provide trial dates within 8 months. However, this timeframe has now been extended to 14 to 15 months.
• Judgments being delivered. While the Division strives to adhere to conventional timeframes, some judgments may now take 6 to 8 months to be delivered.

Listing pressures in VCAT and impact on the County Court

VCAT has also been experiencing significant listing pressures, as demonstrated by the recent decision of Hayhurst v Metrozone (Australia) Pty Ltd,² which was handed down three years after the matter was heard in 2021. In handing down its decision, VCAT acknowledged the delay and referred to a 2021 County Court decision in Impresa Construction v Oxford Building which highlighted VCAT’s issues with under-resourcing.³

In the recent decision in Mooney & Anor v Fanissa Pty Ltd,⁴ Judge Kirton of the County Court acknowledged the improvements in VCAT’s resourcing and that the delays in VCAT were not substantial enough to prevent VCAT from hearing a matter. Her Honour also said that the listing times for both the Division and VCAT are presently comparable, which cast doubt over whether the Court could resolve the dispute more efficiently than VCAT. Her Honour, importantly, noted that the Building & Property List has implemented a case management practice of allocating a hearing date for multi-day hearings only once they are ready to be heard. Once a matter is ready for hearing, after all interlocutory steps are completed, it is anticipated that cases will be allocated a hearing date within six to nine months.⁵

Implications for litigants

Litigants should be aware that listing pressures may present an obstacle to the timely and cost-effective resolution of litigated disputes. In the circumstances, managing disputes in these jurisdictions requires a strategic and proactive approach. With delays on the horizon for the foreseeable future, it is increasingly important to actively engage with other parties to narrow the issues in dispute and to explore early settlement opportunities.

^{1 You can read the notice here
2 (Building and Property) [2024] VCAT 682
3 [2021] VCC 1146
4 [2024] VCC 1032
5 Mooney & Anor v Fanissa Pty Ltd [2024] VCC 1032 at [45]}