‘The jurisdiction and powers of the Court of Appeal

17.  It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal. That jurisdiction and those powers continued to define the functions of the Court on the remitter of the appeal for further hearing. The relevant jurisdiction and powers are set out in s 148 of the VCAT Act, which provides, inter alia:

“Appeals from the Tribunal

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding—

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b) to the Trial Division of the Supreme Court in any other case—
if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

…

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.”

18. Section 148 confers “judicial power to examine for legal error what has been done in an administrative tribunal”[40]. Despite the description of proceedings under the section as an “appeal”, it confers original not appellate jurisdiction; the proceedings are “in the nature of judicial review”[41].The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise[42]. That feature of s 148 resembles s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Commonwealth AAT Act”), which defines the analogous jurisdiction of the Federal Court to hear appeals on questions of law against decisions of the Administrative Appeals Tribunal (AAT). Under s 44(4) of the Commonwealth AAT Act, the Federal Court, in determining an appeal, may “make such order as it thinks appropriate by reason of its decision”. But wide as that power may be, the Court “should not usurp the fact-finding function of the AAT”[43]. Those observations turn upon the text of s 44. They do not depend upon the separation of judicial and executive powers, which limits the functions that can be conferred upon federal courts. They have application to the jurisdiction conferred upon the Court of Appeal by s 148 of the VCAT Act, which is, in concept and in terms, modelled on, although not identical to, s 44[44].

19.  The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained[45]. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.

[40] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) [2001] HCA 49; (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ; [2001] HCA 49.

[41] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) [2001] HCA 49; (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ.

[42] The distinction between jurisdiction and power has been made repeatedly in this Court: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 161-162 per Gibbs CJ, Stephen, Mason and Wilson JJ; [1981] HCA 48; Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 616 per Mason CJ, 619 per Wilson and Dawson JJ, 627-628 per Toohey J; [1987] HCA 23; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29 [27]-[28], 32 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 30; Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at 516-517 [78] per Gaudron, Gummow and Hayne JJ; [1999] HCA 65; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at 590 [64]- [65] per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 1; Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 at 280 [36] per French CJ; [2009] HCA 18.

[43] Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ; [1985] HCA 10. See also Harris v Director-General of Social Security 1985] HCA 1; (1985) 59 ALJR 194 at 198 per Gibbs CJ, Brennan, Deane and Dawson JJ; 1985] HCA 1; 57 ALR 729 at 735-736; [1985] HCA 1; cf Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 at 126 [28] per McHugh, Gummow, Callinan and Heydon JJ, 146 [101] per Kirby J; [2005] HCA 40.

[44] The VCAT Act replaced the Administrative Appeals Tribunal Act 1984 (Vic), which was inspired by the Commonwealth AAT Act, as appears from the Second Reading Speech for the Administrative Appeals Tribunal Bill 1984: Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 20 September 1984 at 664-665. Section 52 of the Administrative Appeals Tribunal Act 1984 (Vic) resembled s 44 of the Commonwealth AAT Act.

[45] Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ.’

1. He submitted that the Equal Opportunity Act 1995 has no extraterritorial operation. He said the ordinary presumption attaching to the general words of an enactment of a parliament such as Victoria’s was that it intended to govern only matters within Victoria’s territory. He referred to Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 per O’Connor J; Boath v Wyvill (1989) 85 ALR 621, 636. This principle was, he said, codified by Section 48 of the Victorian’s Interpretation of Legislation Act 1984, which he said provided that in construing a Victorian statute ‘a reference to a … matter or thing should be construed as a reference to such … matter or thing in and of Victoria’. He submitted that the general words of the Victorian Statute should not be construed as extending to matters governed by foreign law. He referred to Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581, 601 per Dixon J.
2. He said these principles were exemplified with respect to the anti-discrimination jurisdiction in this Tribunal by two decisions of Deputy President McKenzie which applied the same principle, mainly Cooper v State of Victoria [2003] VCAT 589 and Reid v Jet Aviation Management AG [2000] VCAT 1848. The latter case, he said, indicated that a matter could fall beyond the reach of the Victorian Act even where certain elements of the dispute occurred within or were connected with Victoria. He said according to Deputy President McKenzie it was the treatment of the complainant by the alleged discriminator which was the key issue in determining whether the Victorian Act applied or not.’

Deputy President McNamara observed that:

‘… whilst Section 2(1) of the Australia Act 1986 empowers Victoria’s Parliament to legislate extraterritorially, so long as the extraterritorial legislation can be seen as for the peace, order and good government of Victoria, nevertheless no party has contended that enacting the Equal Opportunity Act 1995 the Victorian Parliament was purporting to legislate extraterritorially in exercise of their power granted and conferred to it by Section 2(1) of the Australia Act.’

The Deputy President accepted that the gravamen of the Australian blogger’s complaint was a failure to take down the American blogger’s blog.  The conduct required to take down the blog would have occurred in America, and so the failure to take it down, if established, must also have occurred in America.  That made this case different from Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, a defamation case in which it was decided that material published in America on the internet and downloaded in Australia was published in Australia for the purposes of Australian defamation law.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta:

’33  The first question is whether the claim for privilege should be addressed under the Evidence Act 2008 or under the pre-existing statutory or common law regime.  It was at first submitted on behalf of the Artusa parties that the entitlement to legal professional privilege is a substantial rather than a procedural right and it should therefore be governed by the law as it stood in 2003 rather than by the Uniform Act which came into force on 1 January 2010.  This submission was not pressed in final address and in my view, rightly so.

34  The transitional provisions contained in clause 2 of Schedule 2 of the Evidence Act 2008 make it clear that the Act applies to a hearing commencing after the commencement date, 1 January 2010.  The provisions of Part 3.10, Division 1, differ from the pre-existing common law and the Evidence Act 1958.  In Telstra Corporation v Australis Media Holdings,[4] McClelland CJ in Eq concluded that the provisions of the New South Wales Uniform Evidence Act 1995 were inconsistent with the previous law concerning legal professional privilege so that the previous law did not apply to the trial before the court.[5] I would respectfully adopt his Honour’s observations which are equally applicable to the Victorian Evidence Act 2008.

[4] (1997) 41 NSWLR 346 at 349.

[5] See also Evidence Act 2008 (Vic) ss 9, 56(1).’

I did not even know that his Honour had commenced hearing cases in his new role, but The Age‘s front page today records that he is hearing an appeal from VCAT in the case about the taxi driver who, long ago, stabbed his wife to death under the grip of a psychosis from which he has now recovered.  The case was XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy-President Macnamara who seems to have moved into Justice Ross’s old spot as head honcho of the Legal Practice List.  I posted about the decision here.  Attorney-General Hulls’s press release says:

‘Judge Ross was appointed to the County Court in 2007 and currently serves as a Deputy
President of the Victorian Civil and Administrative Tribunal, overseeing the Civil Division. Judge
Ross is also a part-time Commissioner at the Victorian Law Reform Commission.

“Judge Ross brings extensive experience in dispute resolution, employment, workplace relations
and administrative law,” Mr Hulls said.

Before his appointment Judge Ross was Vice President of the Australian Industrial Relations
Commission and a partner at Corrs Chambers Westgarth. He also holds a doctorate from
Sydney University.’

But it is important that the Civil List actually apply the law, even if it dispenses with its more technical excrescences, and review by superior courts from time to time (incredibly rare, if you look at the statistics) remains important.  Justice Habersberger considered that justice in one case had got so rough that the appellant deserved another go, and set aside VCAT’s decision: Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430.  The rules of evidence may not bind the tribunal, his Honour said, but whatever rules are adopted in relation to evidence, they must be applied even handedly.  When the member allowed one man to tender hearsay evidence without demur but then refused to hear the other man’s hearsay evidence despite the absence of any objection by his opponent, she created a perception of bias:

’72 It was up to the Tribunal whether or not to allow hearsay evidence. But, in my opinion, whatever course was adopted, it had to be even-handed and treat both parties the same. I consider that the Member did not do this when she refused to listen to Mr Flinkier’s hearsay evidence about what Mr Black said, after she had received without demur the hearsay evidence from Mr O’Donnell about what he was told by Mr Lindburgh. Although the latter evidence was really irrelevant, the Member gave no indication that she was rejecting it. The important point is that because of the way in which the Member handled the hearsay evidence issue, the appearance was given that she was not treating both parties in the same way. Thus, I consider that a fair minded lay observer might reasonably conclude that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of Mr O’Donnell’s claim when she treated Mr Flinkier and Mr O’Donnell so differently with respect to the giving of hearsay evidence.’

MH6 v Mental Health Review Board [2008] VSC 345, an appeal from a VCAT decision,  tackles these issues head on, filling out some of the implications of the Court’s earlier decision in Towie’s Case confirming that professional discipline proceedings which may result in fines or interference with an entitlement to practise are proceedings for a penalty.  The Court declined in the circumstances of this case to find that there had been a denial of procedural fairness such as to require reversal of VCAT’s decision to make the applicant go first (the main circumstances were the absence of any objection to the applicant going first by his trial counsel, and the fact that the applicant had forewarning of the Mental Health Review Board’s evidence in the form of witness statements served in advance).  But I do not think you will find VCAT in merits reviews of this kind making the applicant (i.e. the subject of the administrative decision) go first in a merits review hearing again.  For the Court constituted by Justice of Appeal Redlich and Acting Justice of Appeal Hargreave said:

’26 The submission of the respondent cannot be sustained. It focussed on the purpose of the order rather than its effect. It is well understood that orders which may be non-punitive in their purpose can have a grave impact upon the rights or interests of an individual.[19] The consequences of an involuntary treatment order include the continued, indefinite, and involuntary detention of the applicant. An involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie. Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the ‘usual procedure for merits review’ at VCAT that ‘the applicant goes first’ will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the Board. [emphasis added]

27 We turn to consider whether in the present case the applicant was afforded a fair opportunity to be heard in accordance with the hearing rule.

28 An adequate opportunity will not have been afforded unless the party knows what is alleged, knows what evidence is relied upon to substantiate the allegation, and has an opportunity to respond to the case against them and put forward their own case.[20] Even where the process has an inquisitorial component, a party against whom adverse findings may be made, having been apprised of the issues, must be given the opportunity to put evidence and argument in response, though there be no ‘case’ being advanced against the party.

29 The common law rules of natural justice and procedural fairness are ‘neither standardized nor immutable’.[21] Their content may vary, requiring adjustment according to the circumstances of the particular case.[22] In Mobil Oil Australia Pty Ltd v The Commissioner of Taxation,[23] Kitto J spoke of the ‘impossibility of laying down a universally valid test by which to ascertain what may constitute … an opportunity [to be heard] in the infinite variety of circumstances that may exist’.[24] Stephen J, to like effect, said of the requirements of procedural fairness in Salemi v MacKellar (No 2):[25]

not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwinper per Lord Reid (11)), they may also vary from case to case although each be conducted before one and the same tribunal or person.[26]

30 What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing.[27] An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.[28]

31 The procedural consequences of the rules of procedural fairness depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case.[29] The relevant statutory framework is the Act and the VCAT Act. When hearing an appeal under s 120(1) of the Act, VCAT is to undertake what was described by the deputy president as ‘a merits review’, but may be described more fully as an appeal by way of re-hearing. The role of VCAT is to ‘stand in the shoes’ of the original decision maker. In doing so, VCAT has a broad discretion to chose its own procedure, but that discretion is governed by the requirements of procedural fairness.[30]

[19] See, for example, Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

[20] Towie v Medical Practitioners Board [2008] VSCA 157, [36].

[21] Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656, 676 (Deane J).

[22] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 91; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J); Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-504 (Kitto J); R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552-553.

[23] [1963] HCA 41; (1963) 113 CLR 475.

[24] Ibid, 503-504 (citations omitted).

[25] [1977] HCA 26; (1977) 137 CLR 396.

[26] Ibid, 444.

[27] See, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (Mason CJ and Gaudron J); Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 (Nettle JA) where procedural fairness was not offended by a party proceeding beyond pleadings because of the acquiescence of the other party.

[28] White v Ryde Municipal Council [1977] 2 NSWLR 909, 925 (Reynolds JA).

[29] Minister for Immigration v Jia Legeng [2001] HCA 17, [181] (Hayne J); Abebe v The Commonwealth (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909, 1918-1919 [57] (Gummow and Heydon JJ).

[30] As indeed the procedure of the Board is required to abide s 24(1).

Following filing, VCAT generally sets down a directions hearing of its own motion. There is a standard form of orders which is often made.  They are reproduced below.  To avoid a directions hearing, applicants would be well-advised to include the details (‘particulars’ in legal lingo) the usual orders require in the application itself.  The applicant should then ask the respondent whether it will consent to doing what the usual orders generally require within, say, 2 weeks.  Alternatively, if that was not done at the outset, the parties might consider submitting the orders they would each be happy with (‘a minute of consent orders’ in legal lingo) in the terms of the usual orders to VCAT in advance, saving the need for a trip to VCAT if the decision maker who would otherwise preside at the directions hearing is content to make the orders on the papers.  Of course, a directions hearing may be necessary anyway.  Directions made at directions hearings are not necessarily limited to those found in the usual orders.  Nor are the usual orders always made.

The usual orders are:

’1.    The applicant by [date] is to serve upon the respondent and lodge with the Tribunal written particulars of:

(a)    the costs agreement which is the subject matter of the application. The applicant is to provide to the respondent and to the Tribunal a photocopy of the costs agreement;

(b)    any other document that is relied upon by the applicant as evidence of a costs agreement. The applicant is to provide to the respondent and to the Tribunal a photocopy of any such document;

(c)    any conduct that is relied upon by the applicant as evidence of a costs agreement;

(d)    the statutory basis of the application, including whether the application is based upon an allegation of fraud or misrepresentation, a finding of misconduct or unsatisfactory conduct, an allegation of failure to disclosure information, or some other basis;

(e)    the facts or circumstances to be relied upon in support of each statutory basis of the application;

(f)    the legal services provided to the applicant by the respondent.

2. The respondent by [date] is to serve upon the applicant and lodge with the Tribunal the respondent’s response to the application, including written particulars of:

(a)    the costs agreement referred to in the application. The respondent is to provide to the applicant and to the Tribunal a photocopy of the costs agreement;

(b)    any other document that the respondent relies upon as evidence of a costs agreement. The respondent is to provide to the applicant and to the Tribunal a photocopy of any such document;

(c)    any conduct that is relied upon by the respondent as evidence of a costs agreement;

(d)    the legal services the respondent contends to be the subject matter of the alleged costs agreement.

3.    The applicant or the respondent may apply to the Tribunal at any time seeking further directions as to the conduct of the application.

4.    The costs of the directions hearing that took place on [date of directions hearing] are reserved.’

The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

The Medical Practitioners Board had cancelled the doctor’s registration following his conviction for sex offences involving patients.  Years later, he had applied for re-registration, and was knocked back.  He applied to VCAT for review.  It granted the review, deciding that the correct and preferable decision for the Board to have made was to allow him back into practice subject to strict conditions, such as that he not treat women.  The Board appealed that decision to the Court of Appeal, and applied for a stay of VCAT’s order pending determination of the appeal.  More usually, of course, the professional applies for a stay of a decision disentitling him or her to practise pending appeal.  The Board succeeded in its stay application: Medical Practitioners Board of Victoria v SL [2008] VSCA 264.  Their Honours summarised the VCAT decision of Judge Ross’s tribunal, and then said this in granting the stay:

’14 The question that remains to be determined is whether, pending hearing and determination of the appeal, the respondent should be permitted to practise in accordance with the Tribunal’s finding. We were informed from the Bar table by counsel who appeared for the respondent that he has not engaged in any medical work since 2003, but that he now wishes to return to the practice of medicine. It appears that he is presently seeking a position with a group practice and that an interview has been arranged.

15 It goes without saying that an appeal does not of itself operate as a stay. Moreover, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances. This Court, having already granted leave to appeal, may not be so constrained.

16 But, in any event, the factors that are relevant include the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay. As a general proposition, the respondent should not lightly be denied the ‘fruits’ of his success before the Tribunal. It is clear that the onus rests upon the party seeking the stay.

17 Despite the careful findings of the Tribunal, we have concluded that the Board has discharged that onus. We are influenced to some degree in arriving at that conclusion by the fact that this appeal can be expedited and heard relatively soon. Enquiries with the Registry indicate that the appeal can be listed for hearing very early on in term two next year. We propose to direct that that course be followed.

18 There is nothing to indicate that the respondent is presently suffering undue hardship by being unable to practise medicine. He is currently employed in a book-keeping capacity and appears to be able to make a living. At worst, he will face a stay of some few months, which will delay his return to practise for a relatively short time. Given that he has not been practising for some six years, a delay of a few months longer does not strike us as gravely prejudicial.

19 In addition, it should be borne in mind that this is not a commercial dispute between two private litigants. The paramount consideration must be the protection of the public. To refuse the stay would require a conclusion on our part, albeit a provisional one, that the public welfare will be adequately protected, that being the primary question which must be resolved on the appeal. The public interest will be best served, we have concluded, if the respondent does not return to his practice as a doctor, even under close supervision, until this Court has determined whether he should be permitted to do so. It would serve no one’s interest if the respondent were to treat patients for several months and then find his registration once again cancelled.’