No obligation to obey VCAT order invalid for exceeding jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the subject of the two previous posts, the Court of Appeal declared that there is no obligation to obey an unlawful order of VCAT before setting it aside. (That is one of the differences between a superior court and a Tribunal, since an order of a Superior Court must be obeyed unless set aside, even if made without jurisdiction.) The newspaper had gone ahead and published the terms of settlement in apparent contravention of the injunction of VCAT’s President Justice Morris that it not do so. Unsurprisingly, it led to a contempt proceeding. The Court of Appeal found there was no contempt because the injunction was a nullity.

The newspaper defended on the basis that the order was a nullity which anyone was free to disregard. Judge Bowman ruled that because s. 137 of the VCAT Act said that a person was in contempt of VCAT if he or she did anything that would, if VCAT were the Supreme Court, constitute a contempt of the Court, he had to treat Justice Morris’s order as binding until it was set aside, regardless of whether or not it was a nullity or amenable of being set aside on the basis that Justice Morris had exceeded his jurisdiction in making it. Furthermore, he said, he could not set it aside; for the newspaper to ask him to do so would be an abuse of process in the form of an impermissible collateral attack.

The Court of Appeal overturned Judge Bowman’s ruling and found that the plain words of the contempt provision, s. 137, made it clear that the provision which incorporated conduct which would amount to a contempt of the Supreme Court was merely a shorthand for expanding the categories of conduct which could constitute a contempt, and not an injunction to pretend that VCAT’s orders were Supreme Court orders for the purposes of contempt proceedings. The Court said that it was inconceivable that similar provisions relating to the Racing Appeals Tribunal were intended to give its orders the status of orders made by a superior court.

The relevant principle is that of McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 approved by the High Court in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 C.L.R. 435:

“[If] an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed”.

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