Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings

Justices Chernov, Nettle and Ahley JJA handed down the Victorian Court of Appeal’s judgment in The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146 on 7 July 2006, one of the 1 in 1000 decisions of VCAT which are appealed (according to a speech made by its President). They found that VCAT’s power to  override by direction the basic principle that VCAT files are able to be inspected by the public meant that VCAT had an implied power to reinstate proceedings for the purpose of  exercising that power in proceedings which were otherwise long disposed of. Note: references to legislation are to the Victorian Administrative Tribunal Act, 1998.
A woman who would become the subject of the controversial article “Prison Officer Sacked for Jailhouse Fling” sued the government in VCAT’s anti-discrimination list. The case was settled on strictly confidential terms reduced to writing and filed on VCAT’s file. With the consent of the parties, the proceeding was struck out by VCAT, one of at least two modes of dispositions of proceedings expressly recognised by the VCAT Act (see ss. 75-76). A journalist searched the file and found the terms of settlement on it. The mediator had omitted to tick a box on the mediation worksheet advising VCAT not to allow public inspection of the terms on the basis they were confidential. The journalist lost the copy she had taken and asked to inspect the file a second time. She said she wished to write a story about the case. VCAT refused to give her the terms of settlement, despite the fact that s. 146 says any person may inspect a file subject to any direction of hte Tribunal to the contrary, and there was no such direction.

The government soon made an application for a suppression order under s. 101 of the VCAT Act which morphed into an application under s. 123 for an injunction to restrain the newspaper from publishing the information in the terms. The President, Justice Morris, granted the injunction in the original proceeding between the woman and the government. He said that the newspaper had become a party to that proceeding, and his order would later be corrected so as to formalise that oral ruling. He said he was not functus officio, that is, he said the legal doctrine that having done the job which enlivened his jurisdiction, he had no more jurisdiction, did not apply. If it had, then VCAT’s power to override the public’s right to inspect documents on its files would be undermined because directions to that effect could only be made prior to the final orders in the case.
In the Court of Appeal, the government argued that what had happened was that Justice Morris had in fact reinstated the proceeding though he did not expressly say so, and that he had an implied power to do so. The Court of Appeal accepted both propositions. They said:

“the Tribunal does have the implied power, in appropriate circumstances, to reinstate a proceeding that it has struck out. Generally, as was pointed out by Kaye, J. in R v. McGowan; Ex parte Macko & Sanderson,[12] an order striking out an action does not terminate it. The latter occurs where judgment is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list. It is plain enough, we think, that it would be a serious impediment to the Tribunal’s administration of the Act if it could not reinstate a proceeding that was struck out in order to make an otherwise appropriate order in relation to it. … Such a power is incidental to its obligation to administer the Act and to deal fully with proceedings that are properly before it, including those that have been settled through the mediation process or otherwise, and notwithstanding that they have been struck out.”

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