Court of Appeal reads down VCAT’s jurisdiction to make orders in matters related to proceedings within its jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the facts of which are described in the previous post, VCAT’s Presdient Justice Morris, having found that the principle of functus officio was not an impediment to him reinstating the relevant proceeding and making further orders, purported to join the newspaper as a party and enjoined it from publishing the details of the terms of settlement lawfully procured by its journalist’s search of VCAT’s file. He found that to publish the details of the expressly confidential settlement would be a breach of an equitable duty of confidentiality. The newspaper said that his Honour had no jurisdiction to make an order against someone who was a stranger to the proceeding but for the reinstatement of the proceeding and the addition of them as a party in order to provide a vehicle by which to make the order.  The Court of Appeal agreed.The Court of Appeal said that the question of whether the President had jurisdiction to entertain the newspaper’s application for an injunction to restrain conduct which would amount to an equitable wrong depended on whether “on its proper characterisation, the claim by [the government] can be said to be so related to the … proceeding that it formed part of it, or whether, as [the newspaper contends], it was relevantly a separate proceeding in respect of which the Tribunal’s original jurisdiction had not been invoked under s. 43”. The Court concluded, taking comfort from R v Ross-Jones ; Ex parte Green (1984) 156 CLR 185:

“s.123(1) of the Act confers a power on the Tribunal to grant injunctions only in matters in which it has original jurisdiction. The section does not enlarge the Tribunal’s jurisdiction, but operates in aid of whatever jurisdiction the Tribunal already has.[19] In the present case, it had jurisdiction to hear and determine the Jeffrey proceeding. That jurisdiction was conferred pursuant to an “enabling enactment” namely, the Equal Opportunity Act. The proceeding was concerned with a dispute between an employee and employer that arose in the context of the Equal Opportunity Act in which Ms Jeffrey essentially alleged that Corrections Victoria breached its obligations towards her under that legislation. That was the ‘matter’ that was referred to the Tribunal for resolution and, consequently, as has been noted, it had jurisdiction to deal with it. It follows that it also had the power under s.123(1) to grant an injunction in aid of its dealing with that dispute, and to do so in conformity with equitable principles. But in our view the claim by Corrections Victoria was not relevantly related to that dispute – it was concerned with a matter outside it, namely, conduct that was to be undertaken by a third party in respect of the Terms of Settlement to which it was a stranger, which Terms it had obtained lawfully, without breaching any duty, contract or order or direction of the Tribunal. It does not follow, of course, that, in appropriate circumstances, it should not be restrained from disclosing the contents of what was plainly a confidential document. But in our view such relief could not have been granted by the Tribunal. That is because, on its proper characterisation, the claim being relevantly unrelated to the Jeffrey proceeding, it did not have jurisdiction to deal with it and, thus, had no proper basis for calling in aid the power under s.123(1) of the Act.”

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