In Osland v Secretary to the Department of Justice [2010] HCA 24, Chief Justice French, and Justices Gummow and Bell said:
‘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.’
