Herald and Weekly Times Limited v VCAT [2005] VSC 44

Supreme Court of Victoria|2005-03-04|Before: BONGIORNO J

ADMINISTRATIVE LAW - Subordinate legislation - Rule-making power - Practice and procedure - Inspection of VCAT proceeding files - Imposition of conditions on inspection by rules - Validity of rules - Ss. 146, 157, Schedule 2 Victorian Civil and Administrative Tribunal Act 1998; rr 5.04, 5.10, 6.08, 6.17(2) and 6.24 Victorian Civil and Administrative Tribunal Rules 1998.

The same section of the VCAT Act confers upon the parties to a proceeding the right to inspect the file of their proceeding without charge and upon the public generally the right to inspect VCAT files on payment of prescribed fees. However, each of these rights is subject to the qualifications set out in s.146(4) which is in the following terms:

"(4) The rights conferred by this section are subject to: (a) any conditions specified in the rules; (b) any direction of the Tribunal to the contrary; (c) any order of the Tribunal under s.101; (d) any certificate under s.53 or 54."

Section 157 of the VCAT Act confers rule-making power on the Rules Committee of VCAT, a committee which includes all of the judicial members of VCAT, and a number of other persons (not all of whom are VCAT members) nominated by the Minister. That power is to make rules regulating the practice and procedure of the Tribunal, including any rules required or permitted to be made by the VCAT Act or necessary to be made to give effect to the Act. The same section incorporates a schedule containing a list of 17 unnumbered topics upon which rules might be made. That schedule (Schedule 2 to the Act) includes, as the 15th of such topics:

"Contents of register of proceedings and availability and procedure for inspecting and obtaining copies of register of proceedings and proceeding files."

Each of the other 16 topics relate to matters which would properly be described as being procedural in nature.

In the exercise of its rule-making power, the Rules Committee has made rules regulating the practice and procedure of the various lists into which the three divisions of VCAT are divided for administrative purposes. They are the VCAT Rules 1998. Those rules include, in respect of some but not all of those lists, rules relating to the inspection of proceeding files.

This case, which is brought by The Herald & Weekly Times Limited, the proprietor of a Melbourne daily newspaper, concerns a challenge to the validity of a number of those rules,[1] namely, rules 5.04, 5.10, 6.08, 6.17(2) and 6.24. The plaintiff argues that they are ultra vires the VCAT Act 1998 and are therefore invalid.

Rules 5.04 and 5.10, which relate to the inspection by both parties and non-parties of proceeding files in the Occupational and Business Regulation List and the Taxation List respectively deny access to those files unless a discretion is exercised by designated persons in favour of inspection. Rules 6.08 and 6.24 which relate to the Anti-Discrimination List and the Guardianship List respectively also deny inspection and the copying of documents to non-parties, subject to similar discretions. Rule

6.17(2) precludes a non-party from inspecting and copying material on a proceeding file in the Credit List if a VCAT member is satisfied that access to that material would involve unreasonable disclosure of the personal affairs of a person. The challenged rules (which are set out in an appendix to this judgment) do not all use the same formula to affect a non-party's access to proceeding files. However they all seek to restrict the right of inspection in what, the plaintiff submits, are impermissible ways.

The rule making power of the Rules Committee of VCAT is contained in s 157 of the Act. It is, in the first instance at least, confined to making rules which regulate the "practice and procedure" of the Tribunal.

It has been long held that the term "practice" like the term "procedure" denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines that right. The terms ?practice? and ?procedure? refer to the machinery of justice as distinct from the product or end result of a proceeding.[2] The "practice" of a court or tribunal comprises only those provisions of the law which are concerned with the practice and procedure observed by that court or tribunal in the exercise of the jurisdiction with which it is entrusted. The term covers "the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the ... limits of the Court itself".[3] In Gosper v Sawyer[4] Gibbs CJ, Wilson and Dawson JJ suggested that "practice" and "procedure" were not synonyms and that procedure probably had a more comprehensive meaning than practice. In the context in which the phrase is used in s 157 of the VCAT Act, however, used together, they refer to

matters of a procedural kind which guide the way in which the Tribunal exercises the jurisdiction to adjudicate upon the matters committed to it by law, and which prescribe the steps which persons seeking the exercise of that jurisdiction must take to move the Tribunal to exercise that jurisdiction. The power conferred is similar to that conferred upon the judges and magistrates of the courts of general jurisdiction to make rules in respect of the practice and procedure of those courts.[5]

The plaintiff, for whom Mr P Hanks QC appeared, challenged the rules on a number of different bases. He submitted that the rule making power contained in ss.157(1) and 157(2) of the Act do not authorise rules of the type his client is challenging. He submitted that they exceed the rule making power, they deny rights specifically conferred by the VCAT Act, they offend the principle of open justice and, in any event, they seek to impose unauthorised conditions on the exercise of statutorily conferred rights.

Ms D Mortimer S.C., who appeared for VCAT, submitted that the impugned rules are all authorised by the general rule making power contained in s 157(1) of the VCAT Act. She argued that they do deal with the practice and procedure of VCAT and that they therefore regulate the subject matter with which the rule making power is concerned. She also submitted that s 157(2) of the Act, which incorporates the topics set out in Schedule 2 as being matters in respect of which rules might be made, provides a further and independent head of power which would authorise the making of the impugned rules.

In support of her first submission Ms Mortimer relied upon the discussions of the

meaning of "practice and procedure" in Gosper v Sawyer to which I have already referred[6] and White v White[7], where the Full Court of this Court interpreted the words "practice and procedure" in the Matrimonial Causes Act 1945 (Cth). Section 11 of that Act contained a choice of law provision governing the law to be applied in a matrimonial cause when it was being litigated in a Supreme Court other than that of the State of the petitioner's domicile. The provision required the Court hearing the suit to apply the law of the petitioner's domicile, other than the law relating to practice and procedure. The question before the Full Court was whether, as the petitioner was domiciled in Western Australia, the provisions of the relevant Western Australian legislation dealing with the form in which judgment dissolving the marriage should be pronounced are part of "the law (other than the law relating to practice and procedure)" of that State. If they were part of that law then the Western Australian provision with respect to a judgment would prevail. If they were not they would be governed by the provisions of the Marriage Act 1933 (Vic), which prescribed the manner in which the decree was to be made in Victoria.

After reviewing the authorities dealing with the phrase "practice and procedure" the Court considered that the word "procedure" was the wider of the two expressions and that:

"In the appropriate context, it comprehends all steps necessary to be taken in litigation for the establishment of a right in order that the right may be judicially recognised and declared in such manner as would enable the party asserting the right legally to enjoy it; it covers not only the acts of the Judges of the Court, but also the acts of the officers of the Court which are necessary to give effect to judicial pronouncements".[8]

It went on to say that having regard to the purpose of the Matrimonial Causes Act 1945 (Cth) the phrase should be interpreted liberally and that both substantives (scil. practice and procedure) should be given their full meaning.

The provisions being considered in White v White, namely those which related to the fixation of the period required to elapse between decree nisi and decree absolute and the form of that decree do not affect the petitioner's rights to have his or her marriage dissolved upon a ground being established. They merely concern the form of the Court order effecting that result and the time required to elapse before that order is of full force and effect. That the Full Court reached the conclusion that the provisions were part of the law relating to practice and procedure is hardly surprising, not least because, as the reported arguments of counsel reveal, neither the petitioner nor the Commonwealth Attorney-General, who intervened, put any argument to the contrary! However that may be, the Full Court did not construe the phrase or its composite parts in any wider sense than that later adopted by the High Court in Gosper.

In the present case the subject matter of the impugned rules is the right, granted by ss 146(2) or 146(3) of the VCAT Act, as the case may be, to inspect and/or copy a VCAT proceeding file. These rules affect the exercise of that right, not merely the way in which the right is exercised. Indeed, subject to their individual differences, they go as far as denying the existence of the right conferred by the statute unless an

administrative discretion is exercised in favour of the applicant for inspection. Thus if these rules are valid, the exercise of the right of access to proceeding files, granted by

the statute, can be controlled to the point of prevention, by the implementation by VCAT of rules which its Rules Committee has made.

In Melbourne Corporation v Barry[9] the High Court held that a section of the Local Government Act 1915 (Vic) which authorised a council to make by-laws for the purpose of regulating traffic and processions could not support a by-law which provided that any procession of persons or vehicles (except for military or funeral purposes) required the prior consent in writing of the council. Isaacs J said[10] that the effect of the by-law was that all processions (except military and funeral processions) were absolutely prohibited, no matter what their nature or effect on traffic, unless the Council chose, for any reason it liked, to permit a particular procession. His Honour considered that the by-law was framed exactly as if the word prohibition were used in the sub-section instead of the word regulating. He regarded that as a fundamental error which could not be justified by the statute authorising the by-law. Thus, the by-law was held to be beyond the power of the Council.

Later, in Swan Hill Corporation v Bradbury[11] the High Court held that a municipal by-law prohibiting the erection of any building "unless with the approval of the council" was ultra vires the power conferred by s 198(1)(a) of the Local Government Act 1915 (Vic) to make by-laws "regulating and restraining the erection and construction of buildings". Latham CJ said that the result of Melbourne Corporation v Barry and other similar decisions was that:

" ... under a power to make a by-law regulating a particular subject matter, a municipal council has no power to prescribe that the subject matter shall not be allowed to come into existence unless the council from time to time grants its approval in each particular case. It follows that the by-law cannot be supported under the power to make by-laws regulating the erection of buildings."[12]

Dixon J considered that, prima facie, a power to make by-laws regulating a subject matter does not extend to prohibiting it, either altogether or subject to a discretionary licence or consent. See also Shanahan v Scott[13]; Lyster v Camberwell City Council[14]; Morton v Union Steamship Co. of N.Z.[15] and Ira, L & LC Berk Ltd v Commonwealth[16].

A rule which denies access to a statutory right unless a third party exercises a discretion to permit access is not a rule which regulates practice and procedure. It is a rule which purports to alter fundamentally the right conferred by Parliament. As such, it is not a rule concerned with the practice and procedure of the Tribunal and is, accordingly, beyond the power conferred on the Rules Committee by s.157(1) of the Act.

The second limb of Ms Mortimer's argument relies upon s 157(2) of the VCAT Act which incorporates the topics set out in Schedule 2 to the Act as being matters upon

which rules might be made. She submitted that this sub-section provided a separate and independent head of power which supported the validity of the rule. In particular her submission related to the 15th of the topics in Schedule 2 of the Act namely:

"Contents of register of proceedings and availability and procedure for inspecting and obtaining copies of register of proceedings and proceeding files".

Ms Mortimer's argument is that each of the challenged rule is a rules "in respect of" and "for" the procedure for inspecting and obtaining copies of proceeding files, these being the two phrases used in s 157(2). Relying upon the wide meaning of the words "in respect of" as accepted in cases such as Trustees Executors and Agency Company Limited v Reilly[17] and State Government Insurance Office (Qld) v Crittenden[18] Ms Mortimer submitted that all that is required for a valid rule is a connection or relationship between the rule and the subject matter listed in Schedule 2. The subject matter, she submitted, is the inspection and obtaining of copies of proceeding files. There is, she argued, a relationship or connection between each of the challenged rules and that subject matter.

Taken to its logical conclusion this submission would mean that the Rules Committee could abolish the statutory right of access to proceeding files completely by passing a rule to that effect. Such a rule would be "in respect of" or "for" the inspection and obtaining copies of proceeding files even if it was worded such that such inspection and/or copying could never occur in compliance with it. Section 157(2) of the Act and Schedule 2 does not, at least in this instance, provide the Rules Committee with any greater power than does s 157(1). Although perhaps infelicitously drafted the 15th topic in Schedule 2 in as much as it relates to proceeding files, appears to contemplate rules of procedure which would regulate and/or prescribe the time, place, manner and circumstances at which or in which those files would be made available for inspection and/or copying as the case may be.[19] Thus, none of the rules is supported by either s 157(1) or s 157(2) of the VCAT Act.

Even if this conclusion is wrong and the challenged rules do relate to the practice and procedure of VCAT or are able to be accommodated by s 157(2) and the 15th topic in Schedule 2, the question remains as to whether they impose valid conditions on inspection and/or copying of proceeding files as required by s 146(4)(a).

Ms Mortimer argued that having regard to the ordinary meaning of the word "condition" as being "something demanded or required as a prerequisite to the granting or performance of something else, a provision, a stipulation[20] or "a circumstance indispensable to some result; a pre-requisite; that on which something else is contingent[21] the rules do no more than impose conditions upon the exercise of the rights conferred by s 146(2) and (3).

There are at least two answers to this argument. First, to be valid the condition must be a condition specified in the rules. That is to say it must be a condition validly specified in the rules. To be so specified it must be a condition which regulates the practice and procedure of the Tribunal or must be made in respect of one of the

matters referred to in Schedule 2. For the reasons already expressed it is neither. A condition of the type imposed on the inspection and copying of proceeding files by the impugned rules cannot be supported under either s 157(1) or s 157(2) of the Act.

Secondly no matter how much the Rules Committee might think it desirable to limit access to proceeding files, it cannot do this under the guise of imposing "conditions" which have the effect of subjecting the exercise of a legal right conferred by statute to a licence or consent granted or withheld by the Tribunal or one of its members or, in the case of Rule 5.10, the Commissioner of Taxation.

Section 146(4)(b) of the VCAT Act empowers the Tribunal to give directions contrary to the rights conferred by ss. 146(2) and (3). Its effect is not relevant to this proceeding, although it would enable the protection, in accordance with the VCAT Act, of the confidentiality, in appropriate circumstances, of proceeding files. Further, s 101 of the VCAT Act empowers the Tribunal to make orders relating to documents produced to it so as to preserve the confidentiality of those documents in the circumstances set out in s 101(4). Where such a direction is given or such an order is made the rights conferred by ss 146(2) and 146(3) to inspect and/or copy the contents of proceeding files will be subject to that direction or order, just as it is subject to any order made by the Tribunal under ss 53 or 54 of the Act to protect the confidentiality of Cabinet documents and documents the subject of Crown privilege. Outside those circumstances, however, the Tribunal has no power to prevent access to its proceeding files and, in particular, its Rules Committee has no power to confer on the Tribunal, its members or the Commissioner of Taxation a discretion to determine

whether any particular file will be able to be inspected or copied pursuant to the right conferred by s 146(2) or (3) of the Act. The power of the Rules Committee with respect to the inspection and/or copying of proceeding files is confined to imposing conditions which regulate the practice and procedure of such inspection and/or copying.

No discretionary considerations have been raised by VCAT which would suggest that the remedy of a declaration was inappropriate in this case if the Court was of the opinion that the challenged rules were, in fact, ultra vires the Rules Committee. Accordingly, there will be a declaration that rules 5.04, 5.10, 6.08, 6.17(2) and 6.24 of the Victorian Civil and Administrative Tribunal Rules 1998 are ultra vires the Rules Committee of the Victorian Civil and Administrative Tribunal such that they are and have always been void and of no effect.

PART 3--OCCUPATIONAL AND BUSINESS REGULATION LIST

5.04 Conditions to which right to inspect proceeding file to be subject

In the case of an application for review under an enactment allocated to the occupational and business regulation list, a party or other person shall not be entitled to inspect a file relating to the proceeding except to the extent that a member of the Tribunal being a person who has been admitted to legal practice for not less than 5 years authorises its inspection by the party or other person. ..........................................................................................

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5.10 Conditions to which right to inspect proceedings file to be subject

In the case of an application for review under an enactment allocated to the taxation list, a party or other person shall not be entitled to inspect a file relating to the proceeding except to the extent that its inspection has been authorised by a member of the Tribunal or by the Commissioner of Taxation.

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ORDER 6--CIVIL DIVISION AND HUMAN RIGHTS DIVISION

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6.08 Right to inspect proceeding files subject to condition

For the purposes of section 146(4) of the Act, the right conferred on a person (other than a party) by section 146(3) of the Act to inspect and copy a file in a proceeding under--

is subject to the condition that the person may only inspect and copy the file or part of the file if a member of the Tribunal has given a direction or made an order authorising the person to conduct an inspection of the file or part of the file or make a copy of the file or part of the file.

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PART 3--CREDIT LIST

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6.17 Conditions to which right of inspection of proceedings file to be subject

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(2) For the purpose of section 146(4)(a) of the Act the rights conferred on a person (other than a party) by section 146(3) of the Act to inspect the file in a proceeding under an enactment allocated to the credit list do not include inspection or copying of material if a member of the Tribunal is satisfied that access to the material would involve unreasonable disclosure of the personal affairs of a person.

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6.24 Conditions to which right of person other than party to inspect proceeding file to be subject

For the purposes of section 146(4)(a) of the Act, the rights conferred on a person other than a party by section 146(3) of the Act to inspect and obtain a copy of any part of a file relating to a proceeding allocated to the guardianship list are subject to the condition that the person shall not be entitled to inspect and obtain a copy of any part of the file relating to the proceeding except to the extent (if any) that a member of the Tribunal authorises the person to do so.

[1] The plaintiff's Originating Motion as issued sought prerogative relief in respect of a direction by a Deputy President of VCAT prohibiting access by the public to any file in the VCAT Anti-discrimination list. By the time of trial the plaintiff's claim had been amended so that it then sought only declaratory relief in respect of the validity of various VCAT rules and it was upon that basis that the trial proceeded.

[2] Poyser v Minors (1881) 7 QBD 329 per Lush LJ at 333.

[3] Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 723 quoted by Mason and Deane JJ in Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548 at 564.

[5] Section 25(1)(f) Supreme Court Act 1986; Section 78(1)(i) and (j) County Court Act 1958 and section 16(1)(f) Magistrates' Court Act 1989.

[6] [1985] HCA 19; (1985) 160 CLR 548 at 558 per Gibbs CJ, Wilson and Dawson JJ.

[13] [1957] HCA 4; (1957) 96 CLR 245 at 253 per Dixon CJ, Williams, Webb and Fullagar JJ.

[14] (1989) 69 LGRA 250 at 258 per Cummins J.

[18] [1966] HCA 56; (1966) 117 CLR 412 at 416 per Taylor J.

[19] cf Dixon J in Melbourne Corporation v Barry [1937] HCA 15; (1937) 56 CLR 746 at 762.

[20] Oxford English Dictionary (2nd Ed) Vol II p 683.

[21] Macquarie Dictionary (2nd Ed) p 390.