Powers of VCAT to rule out of statute...??

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Active Member
2 July 2020
I am curious about VCAT and their powers.

On one hand, I believe their rulings are restricted to abiding by statute. It’s also very clear that it is only the higher courts that are allowed to make “common law”.

However, I’ve also been told by a lawyer that VCAT is allowed to make rulings outside statute and if further cases come up that are very similar, that previous rulIng outside statute becomes effective for future cases. Is this the ”Claytons” common law?? (Apologies to those not mature enough to remember the Clayton’s advert of the 80’s). An example might be the practice of excusing liability under section 16 of the Water Act if an entity repairs the water flow within a reasonable time from when they first know about it. This option is not mentioned in the Water Act!

I’m confused. Surely, the above example is a ruling outside of statute. And secondly, Hasn’t it effectively created a ‘common ruling’ without the name?

all references to legislation gratefully received!