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[2005] VSC 188
Supreme Court of Victoria
2005-06-01
HANSEN, J
Original judgment source is linked above.
JUDICIAL REVIEW - Victorian Civil and Administrative Tribunal - Anti-discrimination List - Request by a non-party to inspect a proceeding file - Victorian Civil and Administrative Tribunal Act 1998, s 146 - Right to inspect - Subject to any direction of the Tribunal to the contrary - Direction made refusing inspection - Interpretation of s 146 - Whether immediate right to access - Whether a direction precluding access may be made after request to inspect - Whether direction may only be made on application by a party - Applicant to inspect not heard.
1 On 22 March 2005 a journalist employed by The Herald and Weekly Times Pty Ltd ("the plaintiff"), which publishes the Herald Sun, a daily newspaper sold in Victoria, made a written request to the Victorian Civil and Administrative Tribunal ("the Tribunal") to inspect the file in seven proceedings in the Anti-discrimination List of the Tribunal. The request was considered by a member of the Tribunal, Deputy President Coghlan, who, later that day, in each case made the following order, namely "Pursuant to s 146(4) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal directs that only a party to the proceeding may inspect the file". The Deputy President dealt with the matter "In Chambers", to use the description of the type of hearing in the order; the applicant to inspect was not heard. The question that now arises is whether such a direction may be given -
(b) only on the application of a party to the proceeding.
The answer turns on the proper interpretation of s 146. There is a little more elaboration to the question than that, and other issues were argued in particular as to the procedure adopted by the Tribunal in determining the request, but that is the central point.
2 The Tribunal is established by the Victorian Civil and Administrative Tribunal Act 1998 ("the Act")[1]. The Tribunal has two types of jurisdiction, original and review[2]. The original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction[3]; it consists primarily of functions conferred on the Tribunal by enabling enactments for the Tribunal to make a first-instance decision[4]. The review jurisdiction is conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker[5]. Under this scheme, jurisdiction has been conferred on the Tribunal by a number of Acts in a range of disparate areas.
3 Section 59 states who the parties are to a proceeding in the Tribunal. There is a difference between the original and review jurisdiction[6]; the difference is not material to the present case. It is sufficient to refer to s 59(1)(a) which provides that the parties to a proceeding in the original jurisdiction are:
"(i) the person who applies to the Tribunal, or who requests or requires a matter to be referred to the Tribunal; and
(ii) in the case of an inquiry by the Tribunal, the person who is the subject of the inquiry; and
(iii) any person joined as a party to the proceeding by the Tribunal; and
(iv) any other person specified by or under this Act or the enabling enactment as a party;".
4 Section 144 provides for the maintenance of a register of proceedings and for its inspection. By sub-s (1) the principal registrar of the Tribunal must keep a register of proceedings containing the matters required by the rules, and sub-s (2) requires that the register be available for inspection at any time the principal registry is open for business. A party to a proceeding may inspect without charge that part of the register that relates to the proceeding (sub-s (3)), and on paying the prescribed fee (if any) any person may inspect the register and obtain a copy of any part of the register. Finally, sub-s (5) provides that the rights conferred by the section are subject to -
(b) any order of the Tribunal under section 101; and
(c) any certificate under section 53 or 54."
6 The Act then proceeds, in s 146, to provide for the keeping of files of proceedings and the inspection of such files. The section provides as follows:
(1) The principal registrar must keep a file of all documents lodged in a proceeding until the expiration of the period of 5 years after the final determination of the proceeding.
(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 -
(4) The rights conferred by this section are subject to -
7 The orders of the Tribunal made on 22 March 2005 were made pursuant to s 146(4)(b). None of the other paragraphs in sub-s. (4) is applicable. There are no rules of the nature referred to in para (a); as to the matter of rules I refer below to a recent decision of this Court by which certain rules were set aside. Then, the sections referred to in paras (c) and (d) are irrelevant to this case.
8 Numerous Acts have conferred a wide and diverse jurisdiction on the Tribunal[7]. By rules made under the Act, the Tribunal exercises its functions in divisions, namely the Administrative Division, the Civil Division and the Human Rights Division[8]. Each division has a number of lists which deal with particular types of cases, as follows:
9 The allocation of functions conferred on the Tribunal is set out, by reference to the enabling Act, in Schedule 1 to the Rules. In relation to the Human Rights Division the allocation is as follows:
(a) Anti-discrimination List, the functions under the Equal Opportunity Act 1995.
10 In their written submission counsel for the Tribunal, in a section to which no exception was taken by counsel for the plaintiff, briefly described the type and nature of matters in these lists. The description was provided in aid of a submission that the functions exercised in the lists demonstrated the need for a broad and flexible control of proceedings at the Tribunal. The following is stated in the submission.
11 Matters in the Anti-discrimination List commence at, and are referred to the Tribunal by, the Equal Opportunity Commission. They involve complaints of discrimination, harassment, vilification and victimisation and many 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 I am further told that virtually 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. These points, and the further point that mediation is more likely to be successful if the allegations of the parties have not been aired publicly, were made by the President of the Tribunal, Morris J, in Korp v South Pacific Tyres[9].
13 As the present case does not concern a matter in the Guardianship List I do not set out the description of matters determined in that list. It is sufficient to observe that they can involve matters of a highly sensitive and personal nature.
14 As I have said, counsel for the plaintiff did not take exception to the description of the type and nature of the functions exercised by the Tribunal in these lists. In one sense that was understandable as the description was provided by the Tribunal through its counsel. It was also understandable in another sense. That is that the question with which the plaintiff is concerned in this case is the narrower one of statutory interpretation. That is, that s 146 confers a right to inspect which in the circumstances the Tribunal cannot deny. That being the right, it is beside the point that a proceeding file may contain information of a personally sensitive and otherwise confidential nature.
15 At the outset it was necessary for the Tribunal to have rules dealing with matters of practice and procedure and otherwise in relation to matters in respect of which there was power to make rules[10]. Rules were made which included rules which restricted the right to inspect proceeding files in certain lists, namely rule 5.04 pertaining to the Occupational and Business Regulation List, rule 5.10 pertaining to the Taxation List, rule 6.08 pertaining to the Anti-discrimination List, rule 6.17 pertaining to the Credit List, and rule 6.24 pertaining to the Guardianship List[11]. Although there were differences in their drafting it is sufficient for present purposes to note that the essence and effect of these rules was the same; they precluded inspection of a proceeding file except to the extent inspection was authorised by the Tribunal. In the case of rules 5.04 and 5.10 the preclusion extended even to a party to the proceeding.
16 The plaintiff, being concerned that the limitation thus imposed on its ability to inspect proceeding files at the Tribunal, commenced a proceeding against the Tribunal last year in which it challenged the validity of the above rules on the ground that they were ultra vires the rule making power. The challenge was upheld by Bongiorno J in a judgment published on 4 March 2005[12]. Bongiorno J held that the rules were beyond the rule-making power in s 157(1) and (2). They were not "conditions" (within the terms of s 146(4)(a)) on the right to inspect and copy under s 146(3), as they denied rather than merely regulated the exercise of the right unless an administrative discretion was exercised in favour of inspection. So understood, the rules altered the right granted by the Act.
17 In concluding his judgment, Bongiorno J referred to the power to give a direction in s 146(4)(b) noting that that power was not relevant to the case before him[13].
18 The Tribunal moved quickly to establish a new regime in relation to inspection of proceeding files. On Monday 7 March, the first business day after the decision of Bongiorno J, a journalist employed by the plaintiff was advised by the senior registrar that the Tribunal had a new procedure for accessing files in the Anti-discrimination List, namely that Deputy President Coghlan would review any requested proceeding file in that List before a non-party was able to inspect it. The journalist located on the Tribunal's website home page a "New VCAT Privacy Guideline as at 7 March 2005" stated to be published in accordance with the decision of the Supreme Court on 4 March 2005.
19 It is sufficient for present purposes to refer to the portion of the guideline which states generally the position as to inspection of proceeding files and in particular by a non-party to a proceeding. The guideline states:
VCAT proceeding files can hold the original application to VCAT, VCAT orders, correspondence between the parties and VCAT and documents provided to VCAT by the parties.
This information held at VCAT is generally available to any person who identifies a particular case and asks to inspect the file.
The exception created by law are files concerning the Freedom of Information Act 1982 which are not open for inspection or copying by any person (VCAT Act - Schedule 1, Clause 30).
In individual cases VCAT may restrict or deny access to files under section 146 of the VCAT Act. Parties to cases may apply to VCAT to have access to the proceeding file which concerns being restricted or denied.
Generally requests from a party for access to a file will be immediately granted in all but the Guardianship List. Files about proceedings finalised over a year ago may not be available for a day while the file is retrieved from off-site archive. Requests for Guardianship List files will be referred to a VCAT member to decide access.
Any request from a non-party for access to a file in the following VCAT lists (Civil Claims, Domestic Building, General (excluding FOI), Land Valuation, Planning and Environment, Real Property, Residential and Retail Tenancies) will be immediately granted subject to retrieval from archive.
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."
20 On 22 March 2005 the journalist attended at the Tribunal and lodged a written request to inspect the proceeding file in seven proceedings in the Anti-discrimination List, and paid the prescribed fee. For this purpose she was provided with, and completed, a File Access Request form which set out the file access guidelines. She was advised that the requested files would be reviewed by a Tribunal member before she would be able to inspect them. The basis on which the seven proceedings were selected was simply that on the previous day they appeared in the Law List in The Age newspaper as cases listed for directions in the Anti-discrimination List on that day.
21 Subsequently on 22 March, the Tribunal, constituted by Deputy President Coghlan, made the order set out at [1] above.
22 On 23 March the journalist was advised of the orders and provided with a copy. In accordance with the order she was denied access to the subject proceeding files.
23 In the affidavit sworn by the journalist in support of the proceeding, she states that the new privacy guideline has the effect of delaying or prohibiting her ability to inspect proceeding files and make a fair and accurate report of proceedings at VCAT.
24 On 31 March 2005 the plaintiff commenced this proceeding for judicial review. In addition to the Tribunal, which is the first defendant, there are two further defendants, Greg North and Visy Paper Pty Ltd, who are the parties to one of the proceedings in which the journalist requested to inspect the proceeding file.
25 The originating motion seeks the following orders:
(a) a declaration that the plaintiff has the right, upon tendering the prescribed fee, to immediate access to inspect and copy any part of a proceeding file kept by the principal registrar of the Tribunal (other than a file for a proceeding brought under the Freedom of Information Act 1982) subject only to:
(ii) any direction to the contrary under s 146(4)(b) made before tendering the prescribed fee, and
(b) A declaration that the procedure of referring a request by a non-party to inspect a proceeding file in the Anti-discrimination List, Credit List, General (health records and privacy) List, Guardianship List, Occupational and Business Regulation List and Taxation List 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.
(c) An order in the nature of certiorari quashing the direction made on 22 March 2005 in the proceeding between the second and third defendants.
(d) An order in the nature of mandamus directing the Tribunal to permit the plaintiff, pursuant to s 146(3), to inspect the file in the proceeding between the second and third defendants.
26 Pursuant to the rules the plaintiff filed a summons returnable before a Master on 8 April 2005. The plaintiff advised the Tribunal that it would seek a final hearing on that date. The Tribunal thus had a limited time in which to consider the steps required to be taken to be ready for trial. Of immediate concern was the matter of evidence: what evidence was required and by what time could it be placed before the Court? Further, the position of the second and third defendants, in particular as to their privacy, required consideration[14]. A representative of the second defendant provided the Victorian Government Solicitor (acting for the Tribunal) with a consent to the proceeding file being given to the Court and the plaintiff for the purpose of enabling the proper consideration of the plaintiff's application, but the third defendant refused such consent. An employee of the Victorian Government Solicitor, Emily Kate Sanders, deposed to those matters and the difficulties. Ms Sanders concluded her affidavit with an estimate that she would be able to put "the necessary material" before the Court by 8 May 2005.
27 On 7 April the plaintiff served on the principal registrar of the Tribunal a notice to produce, and a subpoena to produce. These documents required production to the Master on 8 April of the proceeding file in the proceeding between the second and third defendants.
28 It was in these circumstances that the proceeding came before the Senior Master on 8 April 2005. In summary, the plaintiff wanted expedition in the hearing of the case whilst the Tribunal wished to file evidence and wanted an adjournment for that purpose. The Senior Master sought from counsel for the plaintiff clarification of the issue for determination. On such clarification being provided, it was apparent that evidence of the nature apprehended as necessary by Ms Sanders was not required. Wisely, the Senior Master recorded the position thus in the Other Matters section of the Order:
"Senior counsel for the plaintiff informed the Court that the plaintiff's contentions are that, as a matter of statutory construction, no direction within s. 146(4)(b) of the VCAT Act may be given after the lodgement of a valid application for inspection of a proceeding file by a non-party; and that no direction within s. 146(4)(b) may be given on the initiative of the Tribunal but only upon the application of a party to the proceeding. Since these are matters of statutory construction, the evidence sought to be introduced if an adjournment is ordered as foreshadowed in the affidavit of Emily Kate Sanders made on 7 April 2005 will not be necessary."
29 The nature and scope of the plaintiff's contention on the application being thus stated, and the scope of the relevant materials being thus limited, the Senior Master set aside the subpoena and referred the proceeding to a judge in the Practice Court on 15 April 2005 for trial or other order or direction. The proceeding came before me in the Practice Court on that day when I heard final argument. It should be said that at one point the argument of the plaintiff before me took the case to areas that were beyond the contentions identified by the Senior Master and raised evidentiary matters. I refer to this aspect below in the course of referring to the plaintiff's submissions. Finally, I note that the second and third defendants did not file an appearance and neither has taken any part in the proceeding.
30 In support of the declarations counsel submitted as follows. Section 146 contained or reflected a concept of immediacy. The words "[o]n paying" in the phrase "[o]n paying the prescribed fee" imported a temporal element, that on payment of the fee a person was then and there entitled to inspect the file and copy any part of it. That immediate right was subject only to retrieval of the file from storage or archives, and (in the absence of any relevant rules) to a direction, order or certificate of the kind referred to in sub-s (4)(b), (c) or (d). Consistently with this concept of immediacy any such direction, order or certificate must have been made or issued before payment of the prescribed fee.
31 This being the correct interpretation, the approach adopted by the Tribunal in the Privacy Guideline and taken by the Deputy President in this case, was not authorised by the Act. That approach to a request by a non-party was tantamount to reinstating the approach that Bongiorno J held impermissible. That made the right of access subject to the discretion of a member of the Tribunal.
32 For these reasons the declarations sought in the originating motion should be made.
33 Counsel then turned to the application for orders in the nature of certiorari and mandamus. Referring to Craig v The State of South Australia[15] it was submitted, on the premise of the interpretation of s 146 contended for by the plaintiff, that the Tribunal fell into jurisdictional error in that:
(a) Section 146 did not authorise the making of a direction in the absence of an application by a party to the proceeding.
(b) The Tribunal did not have power to make the direction on the papers.
(c) Alternatively, if the Tribunal had power to make the direction, there was no material before the Tribunal that could have justified its making.
In support of (a) above, counsel pointed to a number of provisions in the Act which expressly authorise the Tribunal to exercise power "on its own initiative", and drew the comparison with s 146 where such authority is not expressly conferred. The instances in which the Tribunal is so authorised, and to which counsel referred, are: s 50(4) (power to stay a decision under review), s 60(2) (power to join a person as a party), s 72(4) (power to dispense with service), s 75(4) (power to summarily dismiss or strike out "unjustified proceedings"), s 76(3) (power to summarily dismiss or strike out for want of prosecution), s 77(4) (power to transfer a proceeding to another court or body), s 96(2) (power to refer a question of law to the Supreme Court), s 101(2) (power to direct a hearing be held in private), s 104(2) (power to issue a witness summons), s 108(2) (power to reconstitute the Tribunal), s 119(2) (power to correct a mistake in an order), s 123(3) (power to grant an injunction), s 126(1) (power to extend time), s 127(2) (power to amend a document), and s 149(1) (power to stay an order of the Tribunal).
34 In not providing in s 146 that the Tribunal may make a direction "on its own initiative" it must have been Parliament's intention that the power to make a direction be exercised only upon an application for a direction, and not on the Tribunal's own initiative. It is consistent with the open administration of justice that Parliament would have so intended s 146 to operate, and that s 146 be construed on that basis[16].
35 Further, it was inconceivable that Parliament intended that s 146(4)(b) would authorise a direction where neither party to the proceeding had asked for it, or was aware of the application to inspect the file or that the direction might be made. The Act provides that the Tribunal is required to act fairly[17] and is bound by the rules of natural justice[18] and, except in the case of an interim injunction where an order may be made without giving notice to a person affected[19], the Tribunal will fail to observe the requirements of natural justice if it hears a proceeding without first giving notice to the parties and any other person the Tribunal directs be given notice of the hearing[20]. It was submitted that the plaintiff, as the person who had applied to inspect the proceeding file, was a person affected and, as such, should have been given an opportunity to be heard. It is to be noted that s 102(1) provides that the Tribunal must allow a party a reasonable opportunity to call or give evidence, examine witnesses, and make submissions. It was said that the parties to the complaint should have been given notice and that if they had they may not have opposed the application to inspect the file.
36 As to (b) above, under s 100(2) the Tribunal may only conduct all or part of a proceeding "entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses" if the parties to the proceeding so agree. There was no such agreement in this case.
37 Turning finally to (c) above, I have stated the submission as it is put in the written submission. It was put a little differently in the oral submission. There it was put that the error of law was in making the order on the papers without hearing any party or having regard to any material. That is, there was no regard to "any" material as distinct from there being "no" material.
38 At this point counsel for the Tribunal objected that the plaintiff's submission - written or oral - was precluded by the limited nature of the issue for trial. That was the question of statutory construction identified in the order of the Senior Master. In contrast, the subject submission was not a mere matter of statutory construction; it rested on an assertion either that there was "no" material on which the Tribunal could have been justified in making the direction, or that the direction was made without regard to "any" material. Either way, the submission took the plaintiff's case into evidentiary issues as to whether there was any and what material before the Deputy President and whether what was before her could have justified the direction. It is clear enough that the referred complaint would have been on the file in the proceeding between the second and third defendants but what other document, if any, was on that file (let alone the files in the other proceedings) was not established by the evidence.
39 In these circumstances, on counsel for the plaintiff saying that he wished to press the submission, I gave counsel for the Tribunal time in which to consider her course. After a short break the hearing resumed and counsel for the Tribunal tendered two letters, one dated 24 February 2005 from the Tribunal to the third defendant and the other dated 7 April 2005 from the third defendant's solicitor to the solicitors for the plaintiff and to the Tribunal. The former letter was of a pro-forma type which advised that the complaint of the second defendant had been referred to the Tribunal and of a directions hearing on 21 March 2005. Among other things, it stated that the parties to the proceeding may inspect the Tribunal file in the proceeding but that no other person may inspect and/or copy the file unless the Tribunal gives permission. The latter letter advised that the third defendant was not prepared to consent to the Tribunal file being produced to the Court and the legal representatives of the plaintiff. The letter expressed concern at the file being forwarded to the Court and the plaintiff's legal representatives "without any guarantee that a non-publication order will issue. Further, our client is also concerned about the information that is contained on the file, including information about employees of our client, being released in this way".
40 In tendering these letters counsel for the Tribunal did not abandon her objection to the plaintiff's submission. I should add that for his part, counsel for the plaintiff did not seek an adjournment for the purpose of putting on evidence in support of the submission and enabling the extended issues to be determined.
41 The provision of the letters did no more than put into evidence two communications relating to the proceeding between the second and third defendants, the first of which confirmed that a complaint had been referred to the Tribunal, and the second of which stated that the file contained information including information concerning employees of the third defendant which the third defendant desired not be publicly disclosed. Apart from that, it is not known what materials were on the file in that proceeding when the Deputy President made the direction, nor is the content of those materials known. Even less is known as to what was on the file in the other proceedings in which a request was made. In these circumstances, as I indicated to the plaintiff's counsel, I would not and could not determine the submission, first, because it was outside the issue on which the proceeding was referred to trial and, secondly, and as a result, because the parties had not gone into evidence on the issue. The result is that the submission could only be resolved by me engaging in inadmissible speculation as to the content of the material that was on the proceeding file when it was considered by the Deputy President. For these reasons I will not consider the alternative submission.
42 It was submitted for the Tribunal that the direction of the Deputy President was authorised by s 80 or s 146(4)(b), the better view being that s 80 was the source of power to make a direction for the purpose of s 146(4)(b). Section 80 provides:
(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.
It was submitted that s 80, or s 146(4)(b), authorised the Tribunal to make the direction after an application to inspect a proceeding file had been made, and on its own initiative, so that an application for such a direction by a party to the proceeding was not necessary.
43 It was submitted that numerous provisions in the Act give the Tribunal wide and flexible powers to control and manage the conduct of proceedings[21]. This is necessitated, at least in part, by the fact that in many matters parties appear in person and the absence of an inherent jurisdiction which aids the control of proceedings in superior courts. In addition to the power to give directions in s 80, there is the requirement to act fairly and according to the substantial merits of the case[22], the right of the Tribunal to inform itself on any matter as it sees fit[23], and regulate its own procedure[24], and to refer matters to compulsory conference[25] and mediation[26].
44 Counsel then addressed submissions on the proper construction of s 80 and s 146(4)(b).
45 The argument was developed in this way. Section 146(4)(b) must be read in the context of the Act as a whole. So regarding sub-s (4), it is seen that the power to make "rules" specifying conditions is conferred not in para (a) but s 157, and the power to make an order or issue a certificate as referred to in paras (c) and (d) is contained not in those paragraphs but in the sections referred to, namely s 101 and ss 53 and 54. Consistently with this understanding of the source of power for the relevant matters in paras (a), (c) and (d), para (b) is not to be understood as being the source of power to make a direction for the purpose of para (b). Instead, it is a provision which gives force to a direction made pursuant to a grant of power elsewhere in the Act, namely s 80(1). A direction for the purpose of para (b) is but one type of direction that may be made pursuant to s 80(1).
46 Section 80(1) is expressed in the widest terms[27]. At any time in a proceeding the Tribunal may give directions and do whatever is necessary for the expeditious and fair hearing and determination of a proceeding. It would be hard to confer a power in wider terms. It was necessary to grant such a breadth of power for the purpose of regulating proceedings in the Tribunal, a creature of statute not possessing the inherent powers of a superior court.
47 Finally, s 80 and s 146(4)(b) must be construed in a way that is consistent with the scheme and purpose of the Act, and with regard to the nature of the matters which the Tribunal is required to determine, which in this case is a proceeding in the Anti-discrimination List. For this reason, and applying the plain words of s 80(1), s 80(1) should be construed as authorising the Tribunal to give a direction restricting access to a proceeding file by a non-party:
(a) within a reasonable time of receiving a request for access;
(b) with or without an application for such a direction being made by a party to the proceeding.
48 Counsel then turned to s 146, addressing both its interpretation and practical operation, noting first that the right to inspect was "subject to... any direction of the Tribunal to the contrary".
49 Counsel submitted that the phrase "subject to" indicated that the qualifying conditions in sub-s (4) are intended to prevail over the right granted in sub-s (3). As Megarry J put it in C & J Clarke Ltd v Inland Revenue Commissioners[28] in relation to the use of the phrase in the English Finance Act 1965, "the phrase shows what is to prevail".
50 Then, the nature of the Tribunal's jurisdiction necessitated a construction of sub-s (4) that gives the Tribunal a reasonable opportunity to consider a request by a non-party to inspect a proceeding file, and in particular as to the existence and application of any relevant rule, order or certificate within paras (a), (c) and (d), and whether a direction to the contrary has been or should be made within para (b).
51 The plaintiff's submission that para (b) is confined to the circumstance of a direction made prior to the request to inspect would, if correct, result in an unworkable outcome. When a proceeding file was commenced, and on every occasion subsequently when a document was placed on the file, a member of the Tribunal would have to look at the file for the purpose of considering whether a direction restricting access by a non-party should be made. This would, it was said, necessitate dozens, if not hundreds, of such assessments each day and in relation to files for which a request to inspect by a non-party might never be made.
52 For such reasons of practicality, if s 146(4)(b) is the source of power to make a direction, it must be construed as permitting the Tribunal to give a direction within a reasonable time of receiving a request to inspect a proceeding file. The issues that will be relevant for the Tribunal to consider will vary according to the circumstances of the case including the stage reached in the proceeding. For example, at the pre-mediation stage relevant considerations would include the interests of the parties in maintaining the confidentiality of matters referred to in the file, the risk of injustice caused by premature disclosure of untested allegations, and the public interest in promoting resolution of complaints by mediation.
53 Finally, the power to give a direction should not be confined to a situation in which the direction is sought by a party to the proceeding. No such confinement is stated in the section and there is every reason not to read the section, whether regarded alone or in the context of the Act as a whole, as implying such a confinement. As to other provisions in the Act, it is true that s 146 does not include the phrase "on its own initiative" but nor do ss 83 or 88 which authorise the Tribunal to refer a proceeding to a compulsory conference or mediation. Regarding the matter overall, to construe the section as incorporating the confinement would be to circumscribe the ability of the Tribunal to make a direction in a case in which it was appropriate to do so. In short, to confine the section in that way would limit the ability of the Tribunal to properly control proceedings particularly in the case of proceedings involving litigants in person and parties with a disability or incapacity who may be unable to make such an application for a direction in the protection of their own interests.
54 I first refer to the issue raised by counsel as to the source of the power to make a direction. To recapitulate, counsel for the Tribunal submitted that the power lay in s 80(1), whereas counsel for the plaintiff submitted that the power lay in s 146(4)(b). In so submitting counsel for the plaintiff relied on the obiter observation of Bongiorno J in The Herald and Weekly Times Ltd v VCAT[29] that s 146(4)(b) "empowers the Tribunal to give directions contrary to the rights conferred by s 146(2) and (3)" which, it was further submitted, was consistent with the principle of interpretation that a specific provision prevails over a general provision[30]. In putting the submission counsel for the plaintiff placed reliance upon the principle of open justice, as to which he referred by way of example to Central Equity Ltd v Chua[31].
55 It is not all that clear that the conclusion in this case will differ according to whether the source of the power is s 80 or s 146(4)(b). Perhaps the plaintiff considers that it is on safer ground with s 146(4)(b) on the basis that a decision whether to prohibit inspection of a file will rest on narrower considerations than would obtain under s 80(1). That is, the former decision directly raises and will turn upon consideration of the requirement of open justice whereas a decision under the latter is concerned with directions that facilitate the expeditious or fair hearing and determination of a proceeding.
56 In my opinion, the true understanding of the Act is this. The Tribunal is a creature of statute and as such is conferred with power to make directions by s 80. That power applies to all proceedings in the jurisdiction of the Tribunal. Further, s 80(2) provides that the power to give directions is exercisable by any member. Hence, regardless of how many members constitute the Tribunal for the purpose of any particular proceeding[32], one member alone is empowered to give directions in a proceeding.
57 It is necessary to see s 146(4) in context. It, and s 144, come late in the Act. Sections 144 and 146 require the principal registrar to keep a register of proceedings and a file of all documents lodged in a proceeding. Each section confers a right of inspection to a party and a non-party, the only difference being that the latter must pay a fee if one is prescribed. Each section makes the right of inspection "subject to" certain matters which are identical save that s 146(4) includes the additional matter in para (b) of "any direction of the Tribunal to the contrary". A right is conferred, the exercise of which is subject to the stated matters.
58 Addressing the stated matters for a moment, the following is seen. Take first the matter of "any conditions specified in the rules". This permits "conditions" which regulate the exercise of the right. But what is the source of the power to make rules on that matter? The answer is found in s 157(1) which confers power on the Rules Committee to make rules "regulating the practice and procedure of the Tribunal, including any rules ... permitted to be made by this Act". The effect of s 146(4)(a) is to state a matter to which the right to inspect is subject and, in doing so, to identify a matter upon which the Rules Committee may make rules pursuant to s 157.
59 Then, passing over sub-s (4)(b), it is seen that the source of the power to make an order or issue a certificate as referred to in sub-ss (4)(c) and (d) lies not in s 146 but in s 101 and ss 53 and 54 respectively.
60 In my view the symmetry thus exposed in sub-s 4(a), (c) and (d) of the source of power lying outside s 146 may also be seen in sub-s (4)(b). The effect of para (b), as with paras (a), (c) and (d), is to identify certain matters, by category as it were, to which the right to inspect is subject. It is the identification of the matter as distinct from the source of the power, the exercise of which produces the matter, with which sub-s (4) is concerned. Hence, para (b) is content to merely state "any direction of the Tribunal to the contrary" without concerning itself with language appropriate to confer power to make directions as in s 80(1). It is evident, in my view, that the source of the power to give directions in a proceeding is contained in s 80(1) and that the effect of s 146(4)(b) is to state one of the matters to which the right to inspect is subject, a matter in respect of which a direction, if made, will operate for the purpose of the section.
61 Thus understood, it is seen that s 80(2) allows a member of the Tribunal to exercise the power of the Tribunal to make a direction for the purpose of s 146(4)(b).
62 At one point or another in the submissions there seemed a little looseness in the use of the word "party" in relation to a proceeding. The plaintiff is not a party to the proceeding between the second and third defendants. Nevertheless the direction of the Deputy President was made in the proceeding between the second and third defendants. In considering whether to make a direction to the contrary the Deputy President was not limited to a mere consideration of the requirements of open justice but was properly able to consider those requirements in light of and together with the relevant circumstances of the proceeding. The inclusion of the exception in s 146(4)(b) reflects a recognition by Parliament that in some cases the balance will come down against permitting inspection of a file or part thereof. In the present circumstances it is not necessary to refer to the many decisions in which courts have engaged in this exercise.
63 I turn from this analysis to the questions of construction upon which the plaintiff's case for declarations rests. There are two basic contentions:
(a) absent an extant direction to the contrary an applicant to inspect is entitled to immediate production of the proceeding file, and
(b) a direction may only be made on the application of a party to the proceeding.
Neither contention is expressed in s 146. The submission of the plaintiff is that each contention is implicit in s 146.
64 In my view neither 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".
65 The structure of s 146 is first to require the keeping of a file of all documents lodged in a proceeding, then to confer a right to inspect the file, and then to make the right subject to the four matters stated in sub-s (4). It is consistent with the structure of first conferring the right and then making it subject to exceptions, that sub-s (3) states that the file may be inspected "[o]n paying the prescribed fee". That language may be regarded as indicating a mechanistic process, or as bearing a temporal meaning as counsel for the plaintiff said. This analysis concentrates upon sub-ss (1)-(3). But sub-s (4) is a part of the whole scheme under which a party or a non-party may inspect a proceeding file. 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 at large to the discretion of the Tribunal. The power extends to directing that even a party may not inspect the file in the proceeding. In the case of a direction that closed the file even to a party it must be probable that the file would also be closed to a non-party. This is a wide power, with the potential to negate the right.
66 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.
67 The impracticality of the plaintiff's submissions is immediately apparent. The first proposition that there must be an extant direction would, considered alone, have the consequence that every time a document as to facts or allegations was filed in, say, the Anti-discrimination List a member of the Tribunal would have to consider whether a direction to the contrary should be made. This may sound extreme but it is a logical and practical consequence of the plaintiff's submission. That is because one will not know, and a party or the parties will most probably not be warned, before a non-party makes a request to inspect a file. Under the plaintiff's interpretation, a latent trap would run against a party who might otherwise have opposed inspection. The Tribunal is responsible for the due administration of justice in proceedings before it, and could hardly stand by in such circumstances knowing that numbers of proceeding files contained information of a highly personal and sensitive or confidential nature the publication of which could cause personal suffering and have a detrimental effect on the resolution of the proceeding. I see 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.
68 There is the further factor that many parties before the Tribunal do not have legal representation and some may suffer a disability or incapacity. Thus, they may not be as astute to the need to speedily seek a direction to the contrary. Let us contemplate too the amount of additional and unnecessary work for litigants and the Tribunal if such applications were required. Would a concerned party apply as soon as a proceeding is commenced, or after the lodging of each document that dealt with facts or contained allegations? Moreover, would the Tribunal in the first instance have to introduce a program of advising parties as to their right to apply for a direction to the contrary? Yet in many cases a direction would not turn out to be necessary because a non-party may never make a request to inspect.
69 In my view every consideration of practical convenience and commonsense 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 be made within a reasonable time of the request.
70 I also reject the plaintiff's submission that a direction can only be made on the application of a party to the proceeding. Section 146 is 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. Nor, as the plaintiff points out, does it state that the Tribunal may act on its own initiative. A relevant factor in this may be that in making a direction to the contrary the relevant member is not hearing or determining the proceeding within which the direction is made. And, it may have been thought appropriate that the Tribunal should be able to make a direction in a situation of a request to inspect being made without warning to the parties bearing in mind, in particular, the presence of unrepresented parties and parties with a disability or incapacity who may not be so readily able to act for their own protection. I have regard to all that was submitted by counsel for the plaintiffs but conclude that the section permits the Tribunal to make a direction to the contrary without there being an application for such a direction by a party to the proceeding.
71 For these reasons, the plaintiff has not established either contention as to the construction of s 146(4)(b) stated in the Senior Master's order. That being so, the declarations must be refused. So also must the application for relief in the nature of certiorari and mandamus be refused, as that relief was premised on the plaintiff's contentions on the construction of s 146(4)(b) being upheld.
72 It has been important in this case to confine attention, so far as possible, to the issues of statutory construction stated in the Senior Master's order upon which the case proceeded to trial. The purpose of the present case is to test the boundaries of s 146(4)(b), just as the earlier case before Bongiorno J tested the validity of rules which purportedly complied with the description of "conditions" in s 146(4)(a). As I have dealt only with the stated questions of statutory construction, I have not had to consider the plaintiff's submissions as to a denial of natural justice in not being heard on the matter of the direction. Nor have I had to consider whether the approach adopted by the Tribunal in the last paragraph of the Privacy Guideline quoted above at [19] is authorised by the Act. The plaintiff submitted that it was not. As to that, it is to be noted that it is a mere guideline and, more importantly, that it says nothing as to the manner in which the consideration is to be undertaken by the Tribunal member, or as to the right of a person wishing to inspect a file to be heard as to whether a direction should be made under s 146(4)(b). It being unnecessary to do so, and having regard to the present litigious context, I express no view on these matters. It is preferable that the future take care of itself in terms of how the Tribunal proceeds in considering whether to make a direction to the contrary. In the present case neither the journalist nor the plaintiff requested to be heard on the matter and upon the direction being made the proceeding was commenced to obtain an answer on the identified points of statutory construction.
74 I will hear the parties on the question of costs.
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(1995) 184 CLR 163