Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal & Ors [2006] VSCA 7

1 On 22 March 2005, the appellant, Herald and Weekly Times ("HWT"), requested access to the file in each of seven proceedings in the Anti-Discrimination List of the Victorian Civil and Administrative Tribunal ("VCAT" or "the Tribunal"). The request was made by a journalist working for the Herald Sun, a newspaper which HWT publishes.

2 The request was considered by a Deputy President of the Tribunal who, later that day, gave directions in each proceeding that "only a party to the proceeding may inspect the file". (For ease of reference, I will refer to the seven directions collectively as "the direction"). The Deputy President dealt with the matter "in chambers" (as the hearing was characterised in the Tribunal's order). HWT was not present and had been given no opportunity to be heard.

3 By originating motion dated 31 March 2005, HWT sought judicial review of the direction. The application was heard on 15 April 2005. On 1 June 2005, the Judge dismissed the application.[1]

4 HWT appeals from that decision on the grounds that the Tribunal was not authorised by the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") -

(b) alternatively, to give the direction without first giving HWT a right to be heard on whether the direction should be made.

5 The Tribunal is established by s.8 of the Act. The Act confers on the Tribunal both an original and a review jurisdiction. The Tribunal divides its activities into three divisions - the Civil Division, the Human Rights Division and the Administrative Division. Each Division comprises a number of lists. The Anti-Discrimination List is one of two lists in the Human Rights Division of the Tribunal. The List comprises proceedings - in the Tribunal's original jurisdiction - arising out of complaints of discrimination, harassment, vilification and victimisation referred from the Equal Opportunity Commission of Victoria under the Equal Opportunity Act 1995.

6 The learned trial Judge said of these complaints that:

"[11] ... [M]any involve allegations of a sensitive and personal nature. Most complainants are unrepresented and draw their complaint which is usually a letter with supporting documents. Complainants usually remain unrepresented. The complaint is often drafted by persons without legal training, and whose drafting is not confined by considerations of relevance and ethics which a lawyer is required to observe in drafting pleadings. Complaints are almost always required to be substituted by formal particulars of complaint, more often drafted with legal assistance.

[12] ... [V]irtually all matters are referred to confidential mediation with a very high success rate. Mediation is thus important and to be encouraged as being in the private interest of the parties to resolve personally sensitive and emotional matters on a confidential basis, and the public interest of efficiency in the resolution of disputes..."[2]

7 Section 146 of the Act is headed "Proceeding Files". The section requires the principal registrar of the Tribunal to keep a file of all documents lodged in a proceeding until five years after the proceeding is determined. The section provides for access to files in the following ways:

"(2) A party in a proceeding may inspect the file of that proceeding without charge.

(3) On paying the prescribed fee (if any) any person may -

(a) inspect the file in that proceeding; and

(b) obtain a copy of any part of the file.

(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 section 101;

(d) any certificate under section 53 or 54."

8 The direction under challenge was a "direction to the contrary" for the purpose of sub-paragraph (4)(b). (As to (4)(c) and (d), an order under s.101 of the Act closes a hearing to the public, while ss.53 and 54 relate to Cabinet and Crown privilege respectively. None of these is relevant to this appeal.)

9 The Tribunal has a general power to make directions, conferred by s.80 of the Act, which states:

"(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

(2) The Tribunal's power to give directions is exercisable by any member..."

10 Originally, the Rules Committee of the Tribunal made a number of rules restricting the right of access to files in certain lists. These rules purported to specify conditions for the purposes of s.146(4)(a) of the Act. Rule 6.08 related to the Anti-Discrimination List. In effect, Rule 6.08 precluded inspection of a file except to the extent authorised by the Tribunal. In earlier proceedings, HWT challenged those rules and, on 4 March 2005, Bongiorno, J. held that the rules were beyond the rule-making power conferred by s.157 of the Act.[3] His Honour did not have to deal with s.146(4)(b) of the Act but noted that a direction to the contrary "would enable the protection, in accordance with the VCAT Act, of the confidentiality, in appropriate circumstances, of proceeding files."[4]

11 On 7 March 2005, in response to that decision, the Tribunal produced a new Privacy Guideline, entitled "Who Can Read VCAT Proceeding Files?" The relevant part of the guideline provides that:

"Any request from a non-party for access to a file in lists where parties regularly raise concerns about protection of their privacy (Anti-Discrimination, Credit, General (health records and privacy), Guardianship, Occupational and Business Regulation and Taxation) will be referred to a VCAT member who will consider whether a direction should be made under section 146(4)(b) of the VCAT Act."

12 It was evidently in accordance with this Guideline that the HWT requests for access were referred to the Deputy President who subsequently gave the direction.

The proceeding

13 In its originating motion, HWT sought the following orders:

"1. A declaration that [HWT] has the right, upon tendering payment of the prescribed fee, to be granted immediate access to inspect, and copy any part of, any a proceeding file kept by the Principal Registrar of the [Tribunal] ...subject only to:

(a) retrieval of the file from archives;

(b) any direction to the contrary within the meaning of s.146(4)(b) of the Act made before tendering of the prescribed fee;

(c) any order under s.101 made before tendering of the prescribed fee;

(d) any certificate under s.53 or s.54 issued before tendering of the prescribed fee.

2. A declaration that the procedure of referring any request by a non-party for access to a proceeding file in any of [the relevant Lists] to a Tribunal member to consider whether a direction should be made under s.146(4)(b) is not authorised by and is contrary to the Act.

3. An order in the nature of certiorari quashing the direction.

4. An order in the nature of mandamus directing the Tribunal to permit [HWT], pursuant to s.146(3), to inspect the proceeding file."

14 In essence, HWT's submissions were, first, that an applicant was entitled to immediate inspection of a file unless at the time of the application there was in place a direction restricting access to the file; and, secondly, that such a direction could only be made on the application of a party to the proceeding. The Judge rejected both submissions.

15 Noting that there was nothing in the language of s.146 which explicitly supported either contention, his Honour said:

" ... [N]either contention is implicit in s.146 whether that section is considered on its own or in the context of the Act as a whole including the provisions of the Act which expressly authorise the Tribunal to act on 'its own initiative.'

...

... Parliament has not attempted in s.146 to identify the circumstances in which a direction to the contrary may be made, or the criteria by reference to which it is to be determined that such a direction should be made or refused. The matter is left to the discretion of the Tribunal.

...

It is consistent with the absence of any statement of the circumstances in which a direction to the contrary may be made, or of the relevant criteria to be taken into account, that the section is silent as to whether a direction may be made after the making of the request to inspect and when a party has not applied for the direction. It is consistent in the sense that the section has left the matter at large in the discretion of the Tribunal. Doubtless Parliament intended that the Tribunal would administer the Act and perform its functions thereunder, including the exercise of the power to make a direction to the contrary, in a practical manner appropriate to the circumstances of the particular case."[5]

16 The Judge described as impracticable the proposition advanced by HWT that a direction restricting access to a file could not be made once an application had been made by a non-party for access to that file. In his Honour's view, the "logical and practical consequence" of this interpretation would be to impose on the Tribunal an obligation to consider, each time a document was placed in a proceeding file, whether or not to give a direction in respect of the document. Obviously, this would place a significant burden on the Tribunal and on litigants, many of whom are unrepresented. His Honour concluded that there was -

"nothing in s.146, whether considered alone or in the context of the Act as a whole, that would indicate that Parliament intended that the power to make a direction could not be made after the making of a request to inspect.

... In my view every consideration of practical convenience and common sense indicates that s.146 was intended to operate on the basis that, absent an existing direction to the contrary at the time when a request to inspect is made, any direction of the Tribunal to the contrary [may] be made within a reasonable time of the request."[6]

17 In rejecting the argument that the power to give a direction was only exercisable if an application for such a direction were made by a party to the proceeding, his Honour pointed out that, once again, s.146 was -

"silent on the point. It makes no reference to an application for a direction to the contrary, let alone does it provide that a direction can only be made on the application of a party."[7]

18 HWT also submitted that it had been denied natural justice, it having had no notice before the direction was made. The learned trial Judge did not consider it necessary to rule on this submission, on the ground that the proceeding had been commenced only to obtain answers to the questions of statutory construction.

The appeal: statutory construction

19 In this Court, HWT renewed its contentions as to the proper construction of s.146(4)(b). Its first submission was that, once a request for access to a file had been made, the Tribunal simply had no power to give a direction to the contrary. The alternative submission was that, even if the power subsisted after the access request was made, it was exercisable only if a party to the proceeding sought such a direction.

20 According to HWT, s.146 on its proper construction confers on a non-party a right, upon payment of the prescribed fee, to be granted immediate inspection of a proceeding file. Once the fee is paid, so it is argued, the entitlement to access is indefeasible, whether under s.146(4)(b), (c) or (d). This is said to be the natural and ordinary meaning of the words used. The phrase "on paying the prescribed fee" is said to import a temporal element, to connote "a concept of immediacy". HWT contends that s.146(4)(b) is a provision "designed to derogate from the open administration of justice" and must therefore be construed strictly and narrowly.[8]

21 On the alternative submission, HWT draws attention to the fact that the Act confers on the Tribunal a number of powers which are expressed to be exercisable on the Tribunal's own initiative.[9] HWT argues that a "careful choice" appears to have been made by the legislature, between those powers exercisable on the Tribunal's own initiative and those exercisable only on the application of a party. There being no indication in s.146(4)(b) that the Tribunal may act on its own initiative in giving a contrary direction, it must follow - so HWT argues - that the power is exercisable only on the application of a party.

22 Since both of these arguments are directed at confining the Tribunal's power to give a contrary direction for the purposes of s.146(4)(b), it is necessary to say something about the source of that power. At the trial, HWT argued that the power was to be found in s.146(4)(b) itself, while counsel for the Tribunal argued that the source of the power was s.80 of the Act, which confers a general power to give directions. The trial Judge concluded that s.80(1) was the source, a conclusion which HWT has not challenged in this appeal.

23 With respect to his Honour, I think that the power to give a contrary direction derives - albeit only by implication - from s.146(4)(b) itself. The general power under s.80(1) is a power given to the Tribunal for the management of proceedings and hence is exercisable "at any time in a proceeding" - but not otherwise. The question of access to a proceeding file may well arise long after the proceeding has concluded, whether by Tribunal determination or by mediated settlement. In those circumstances, there being no extant proceeding, it must follow that the s.80(1) power would not be available.[10] Approaching the matter a different way, the function of deciding whether to limit access to a proceeding file is a purely administrative function of the Tribunal, separate from the Tribunal's function of conducting proceedings before it. It is the latter function to which s.80(1) relates.

24 On this view, the Act contains no express conferral on the Tribunal of power to give a direction of the kind contemplated by s.146(4)(b). Since, however, the provision assumes the existence of such a power, the power is to be implied, in accordance with established principle. Such an implication is a matter of necessity. Without it, the provision could not operate. [11]

25 HWT seeks to have the (implied) power to give directions construed as subject to limitations on its exercise. Since there is nothing in s.146(4)(b) - or in s.146 as a whole - which can be read as imposing any such limitations, HWT can only succeed if the limitations contended for are themselves required - as a matter of necessary implication - for the effectual operation of the provision in accordance with the legislative intent.[12]

26 In my view, no such implication is warranted. The regulation of access to files which s.146(4)(b) contemplates does not assume, less still necessarily involve, any implied limitation on the power to give a direction. On the contrary, the effective regulation of access would seem to assume the existence of a wide and general power, exercisable at any time and in any circumstances, as occasion requires. Moreover, the generality of the language in sub-paragraph (b) - "any direction of the Tribunal to the contrary" - allows of no reading down. Had Parliament wished to limit the power in the ways HWT contends it should be limited, provision could readily have been made to that effect.

27 This conclusion accords with the approach of the Act as a whole, which grants the Tribunal wide powers to control and manage proceedings. Powers of that nature are essential for a tribunal which, as a creature of statute, has no inherent jurisdiction. As to the "careful choice" said to have been made in conferring "own initiative" powers on the Tribunal, counsel for the Tribunal concede that there are provisions which state expressly that a power may be exercised on the Tribunal's own initiative. They correctly point out, however, that there are other provisions in the Act which confer powers on the Tribunal without so stating but where the nature of the power is such that it must have been intended to be exercisable on the Tribunal's own initiative.[13] In short, there is no clear demarcation of the "own initiative" powers.

The appeal: natural justice

28 As already noted, the learned trial Judge declined to deal with the question of natural justice, that is, whether HWT was entitled to be heard before the Tribunal decided whether or not to give a direction for the purposes of s.46(4)(b). In the originating motion by which the judicial review proceeding was initiated, breach of natural justice was not identified as a ground of review. As the Judge noted, the order of the Senior Master, by which the proceeding was referred for hearing in the Practice Court, recorded that the contentions of HWT would be confined to matters of statutory construction.

29 The natural justice question was, however, fully argued on the appeal. It is a point of general importance to the Tribunal's practice and, as will appear, it is also of particular importance in the present case. Accordingly, it is appropriate for this Court to decide the question and, for that purpose, I would grant leave to HWT to amend its originating motion to add the natural justice ground.

30 HWT's argument is attractively simple. The steps in the argument are as follows:

(1) Section 146 of the Act confers rights. The opening words of subsection (4) say so explicitly.

(2) Having paid the prescribed fee, HWT had a statutory right under subsection (3) to inspect the file in each proceeding.

(3) The power to give a direction to the contrary under paragraph (4)(b) is a power "to destroy, defeat or prejudice" that right.[14]

(4) Accordingly, the rules of natural justice regulate the exercise of the power to give such a direction, unless they are excluded "by plain words of necessary intendment".[15]

(5) The rules of natural justice are not excluded.

(6) Accordingly, the Tribunal was obliged to accord natural justice to HWT before deciding whether or not to make a direction to the contrary.

31 The major premise of this argument is clearly correct. As Nettle, J.A. said in Mann v Medical Practitioners Board of Victoria[16] (a case on which HWT relied) -

"Authority makes plain that where a statute confers on a public official a discretionary power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, ... the rules of natural justice will apply to the exercise of the power unless they are excluded by plain words of necessary intendment.

The content of natural justice is of course variable, according to the nature of the power to be exercised. But the first rule of natural justice is that a statutory authority having power so to destroy, defeat or prejudice a person's rights, interests or legitimate expectations is bound to accord that person a hearing. That rule does not yield lightly to manifestations of contrary intention."[17]

32 As Mason, J. said in Kioa v West,[18] the law in relation to administrative decisions has -

"developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."[19]

33 Debate on the appeal concerned the minor premise, that is, whether the exercise of the Tribunal's power to give a contrary direction for the purposes of s.146(4)(b) was conditioned on the observance of the principles of natural justice.[20] Put another way, the question was whether the right of access conferred by s.146(3) attracted the protection of those principles.

34 Not surprisingly, HWT relies heavily on the declaration in s.98(1)(a) of the Act that the Tribunal is bound by the rules of natural justice. For their part, counsel for the Tribunal argue that this provision applies only to hearings conducted by the Tribunal. They point to the fact that s.98 appears in Division 7 of Part 4 of the Act, which deals with and is entitled "Hearings".

35 I am inclined to think that the guarantee of natural justice in s.98(1)(a) was intended by Parliament to apply to the Tribunal only in its conduct of hearings. In the event, however, it is unnecessary to decide whether s.98(1)(a) is so limited. Assuming that the statutory guarantee of natural justice provided for in s.98(1)(a) does apply only to the Tribunal's conduct of hearings in proceedings before it, the question still arises whether natural justice applies to the exercise by the Tribunal of other, non-hearing, powers conferred on it by the Act. The fact that (on this assumption) the express obligation to accord natural justice is limited to hearings could not justify a conclusion that Parliament had intended to exclude the rules of natural justice in relation to the Tribunal's other decision-making functions.

36 Accordingly, it is necessary to examine closely the nature of the interest of a person in the position of HWT, having made a request for access and paid the prescribed fee. It will be recalled that s.146(3) provides as follows:

"On paying the prescribed fee (if any) any person may -

(a) inspect the file in [a] proceeding; and

(b) obtain a copy of any part of the file."

37 As noted earlier, HWT argues that it had a statutory right to inspect the file. It relies on the phrase "the rights conferred by this section" in the opening words of s.146(4). The Tribunal, on the other hand, argues that:

"There is no unqualified right to inspect. The right in s.146(3) is subject to the exceptions in s.146(4). ... A purposive and practical construction of the Act requires that a member may consider whether to make a direction within the meaning of s.146(4)(b) within a reasonable time after the request is made. Until the effluxion of that reasonable time, no right to inspect will crystallise."

38 Leaving aside for the moment the effect of subsection (4), it is clear that subsection (3) gives a person in the position of HWT a statutory entitlement, permission or authorisation to inspect a file and to copy it. That being so, in my view, it can properly be said of s.146(3) that it confers on HWT (subject again to the effect of subsection (4)) a right to inspect and copy the file.[21] The conferral of this right imposes on the Tribunal a reciprocal obligation to permit access and copying. Its obligation to do so would be enforceable at the suit of HWT in the event of a refusal.

39 For the purpose of deciding the natural justice question, I do not think it matters whether HWT is to be regarded, once it has paid the fee, as having -

(a) (as HWT contends) a vested right of access which is subject to being divested by the making of a direction; or

(b) (as the Tribunal contends) a conditional right of access, which only becomes unconditional upon the expiry of a reasonable time after the making of the request, no direction having been given in the meantime.

40 It is both accurate, and sufficient, to say that HWT has a legal right under the Act which only an exercise of that power can defeat. That being so, it must follow that the exercise of the power to give such a direction is conditioned on the principles of natural justice. The fact that the Act gives the same right to any person who pays the fee does not, in my view, affect the analysis. The right which in Heatley v. Tasmanian Racing and Gaming Commission[22] was held to attract the protection of natural justice was the right of every member of the public, upon payment of the entrance fee, to enter a racecourse.[23]

41 What will be necessary in any given case to satisfy the requirements of natural justice cannot be prescribed in advance. The content of natural justice varies with the circumstances. In the ordinary case under s.146(4)(b), however, it should be sufficient for the Tribunal to give written notice to the person seeking access that it proposed to give a contrary direction, the effect of which would be to deny access, and to invite the access-seeker to advance argument (in writing) as to why such a direction should not be made. Naturally, if the Tribunal proposed to take into account any adverse matter relating to the access-seeker, that matter would have to be identified in the notification so that the access-seeker could respond.

42 There would be no need to involve the parties to the proceeding unless, having considered the arguments advanced by the access-seeker, the Tribunal was minded to refrain from giving the direction. At that point, the parties would have to be given an opportunity to express their views on whether access should be permitted.

43 For these reasons, the appeal must be allowed. The direction having been made in breach of natural justice, the Tribunal fell into jurisdictional error. The direction was a nullity. The matter should be remitted to the Tribunal to be dealt

44 For the reasons given by the learned President, I agree that this appeal should be allowed and the matter be remitted for further consideration.

45 I agree with the President, for the reasons that he gives, that the appeal should be allowed and the matter should be remitted to VCAT for hearing according to law.

[1] [2005] VSC 188.

[2] [2005] VSC 188. His Honour here referred to the decision of the President of the Tribunal, Morris J, in Korp v South Pacific Tyres [2005] VCAT 248 at [6].

[3] Herald and Weekly Times Ltd v VCAT [2005] VSC 44.

[4] Ibid at [25].

[5] [2005] VSC 188 at [64]- [66].

[6] At [67], [69].

[7] At [70].

[8] HWT relies on Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; and HWT v Magistrates' Court [1999] VSC 232; [1999] 2 VR 672 at [44]- [46].

[9] See, for example, ss.50(4), 72(4), 75(4), 76(3).

[10] I note that this accords with the Tribunal's own view: see Kormilas v Housing Guarantee Fund [2004] VCAT 2184 at [12].

[11] See eg. Norton v Long [1968] VicRp 23; [1968] VR 221.

[12] See Pearce & Geddes, Statutory Interpretation in Australia (5th Ed, 2001) [2.27]-[2.31].

[13] Section 83, 88.

[14] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598.

[15] Ibid.

[16] [2004] VSCA 148; (2004) 21 VAR 429.

[17] Ibid at [12]-[13], citing Annetts v McCann (supra) at 598; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36; Mobil Oil Australia Pty Ltd v Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 491; and Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109.

[18] [1985] HCA 81; (1985) 159 CLR 550.

[19] Ibid at 584; see also at 616-620 per Brennan, J.

[20] cf Kioa (supra) at 584.

[21] See, for example, Trakman and Gatien, Rights and Responsibilities, (University of Toronto Press, 1999) p.3 fn 3.

[22] [1977] HCA 39; (1977) 137 C.L.R. 487.

[23] At 509.