Herald and Weekly Times Pty Ltd v Victoria
[2006] VSCA 146
•7 July 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3789 of 2004
| THE HERALD AND WEEKLY TIMES PTY LTD & ANOR |
| v. |
| STATE OF VICTORIA (ON BEHALF OF CORRECTIONS VICTORIA) & ORS |
No. 9356 of 2004
| THE HERALD AND WEEKLY TIMES PTY LTD & ANOR |
| v. |
| VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL & ORS |
No. 3724 of 2005
| THE HERALD AND WEEKLY TIMES PTY LTD & ANOR |
| v. |
| PRINCIPAL REGISTRAR OF THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL |
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JUDGES: | CHERNOV, NETTLE and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2006 | |
DATE OF JUDGMENT: | 7 July 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 146 | |
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Victorian Civil and Administrative Tribunal – Original jurisdiction – Power to grant injunction – Injunction to restrain breach of confidence – Power to strike out / reinstate proceeding – Power to join party – Whether application sufficiently related to proceeding referred to tribunal under enabling enactment – Contempt of tribunal – Whether order of tribunal made without power is valid for purpose of contempt proceeding – Power of tribunal to punish for contempt acts that would constitute contempt of superior court – Victorian Civil and Administrative Tribunal Act 1998, ss. 43, 123, 137(1)(f).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr W.T. Houghton, Q.C. with Ms G.L. Schoff | Corrs Chambers Westgarth |
| For the Respondents in Proceeding No. 3789/04 | Mr J. Pizer | Solicitor for Corrections Victoria |
| For the 2nd, 3rd and 4th Respondents in Proceeding No. 9356/04 | Mr J. Pizer | Solicitor for Corrections Victoria |
| For the Respondent in Proceeding No. 3724/05 | Mr N.J.D. Green, Q.C. with Ms R. Orr | Victorian Government Solicitor |
CHERNOV, J.A.,
NETTLE, J.A.,
ASHLEY, J.A.:
The appellants, Herald and Weekly Times Pty Ltd (“HWT”) and Kate Jones (“Ms Jones”), appeal by leave pursuant to s.148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”) against orders of Morris, J., sitting as the President of the Victorian Civil and Administrative Tribunal (“the Tribunal”), made on 25 June 2004[1] and of Judge Bowman, a Vice-President of the Tribunal, made on 4 March 2005.[2] The order of Morris, J. restrained the appellants from publishing the contents of a settlement agreement between Tina Jeffrey (“Ms Jeffrey”) and Corrections Victoria that had been placed on the Tribunal’s file after the dispute between them was settled. By a separate proceeding, commenced by an originating motion, the appellants also seek judicial review of the order of Morris, J. on the grounds that the Tribunal had no jurisdiction or power to make the impugned order and that it otherwise erred in law in making it. As we will describe more fully later, notwithstanding the order of Morris, J., HWT published the contents of the settlement with the result that the principal registrar of the Tribunal brought a contempt proceeding (“the contempt proceeding”) against the appellants that came on for hearing before Judge Bowman. Relevantly, his Honour ruled, on 4 March 2005, that a collateral attack on the order of Morris, J. that was sought to be pursued by the appellants was not available to them.
[1]Proceeding No. 3789 of 2004, in which the State of Victoria, acting for Corrections Victoria, is the principal respondent.
[2]Proceeding No. 3724 of 2005, in which the principal registrar of the Tribunal is the respondent.
The circumstances leading to the appeals are briefly set out in the reasons of this Court given on 22 April 2005 in the context of applications for leave to appeal against the above decisions. For present purposes, the background can be summarised as follows. A proceeding before the Tribunal, brought by Ms Jeffrey essentially against her employer, Corrections Victoria, in which she alleged breach by the defendant of provisions of the Equal Opportunity Act 1995 (“the Jeffrey proceeding”), was settled following a mediation on terms contained in the above-mentioned settlement agreement (“the Terms of Settlement”). The terms contained a confidentiality clause whereby the parties agreed that they were to be “strictly confidential and [could] only be disclosed to the parties’ legal and/or financial advisors or as required by law”. In accordance with another provision of the Terms of Settlement the Jeffrey proceeding was struck out by order of the Tribunal on 9 June 2004.
It would appear that after the settlement and, in accordance with standard procedure at the Tribunal’s registry, the Terms of Settlement, together with the Mediation Work Sheet that was signed by the mediator, were placed on the Jeffrey file. The Mediation Work Sheet is a pro-forma document and makes provision for the mediator to stipulate that any terms of a settlement placed on the file may be inspected only by a party to the proceeding, despite the provisions of s.146(3) of the Act.[3] In the instant case, it seems that the mediator inadvertently had not indicated the confidential nature of the agreement on the Mediation Work Sheet. Accordingly, the Terms of Settlement was placed on the file and was made available for inspection by members of the public.
[3]Section 146(3) relevantly provides that any person may inspect a file in a proceeding upon the payment of a prescribed fee. Sub-section (4) states that this right is subject to, amongst other matters, any direction of the Tribunal to the contrary.
On or about 8 June 2004, Ms Jones, who was a journalist in the employ of HWT, made a request to the Tribunal by facsimile to inspect the Jeffrey file and, on or about 10 June 2004, with the approval of the Tribunal’s registry, she inspected the file and copied the Terms of Settlement. Ms Jones also inspected files in a number of other proceedings. On 22 June 2004, she made a further request to the Tribunal by facsimile to inspect the Jeffrey file again because she intended to write a story about it and had apparently misplaced her copy of the terms. On 24 June 2004, she attended the Tribunal and was given the file, but a member of the registry staff removed the Terms of Settlement from it and told her that she was not entitled to see it. Ms Jones then spoke with the principal registrar about the matter and was essentially told that the document should not have been made available to her in the first place.
Shortly thereafter, Corrections Victoria, on notice to HWT, applied to the Tribunal for an order pursuant to s.101(3)(b) of the Act that the publication of the information contained in the Terms of Settlement be suppressed. At the hearing of the matter before Morris, J., as a result of the President’s acceptance of the submission of HWT that the Tribunal had no jurisdiction to make such an order, the application was amended to seek only an order, pursuant to s.123(1) of the Act, restraining HWT from publishing the Terms of Settlement on the basis that publication would constitute a breach of confidence. As we have noted, on 25 June 2004, Morris, J. ordered that HWT, its servants and agents, be restrained from publishing the contents of the Terms of Settlement. His Honour determined that the Tribunal did not have power to suppress publication of the agreement pursuant to s.101 of the Act, but that it did have power under s.123(1) to grant the injunction sought. His Honour rejected[4] the submission of HWT that the Tribunal was functus officio in the Jeffrey proceeding and said that HWT “should now be regarded as a party, being a respondent to the present application”.
[4]At [16].
On 24 November 2004, Corrections Victoria applied to the Tribunal pursuant to s.119(2)(b) to correct the order of Morris, J. so as formally to add HWT as a party to the Jeffrey proceeding pursuant to s.60(1) of the Act. On 2 December 2004, a Deputy President of the Tribunal, after hearing HWT and Corrections Victoria, made the order sought and the appellants do not seek to challenge it.
Notwithstanding his Honour’s order, as we have said, on 6 July 2004, HWT published in one of its newspapers an article by Ms Jones entitled “Prison Officer sacked for jailhouse fling” that dealt, inter alia, with the Terms of Settlement, thereby disclosing its contents. As has been noted, in October 2004, the principal registrar instituted the contempt proceeding against the appellants seeking an order that they be punished for contempt pursuant to s.137(1)(f) of the Act for breach of his Honour’s order. The matter came on for hearing before Judge Bowman on 3 February 2005. The appellants submitted that the order of Morris, J. was invalid and, therefore, could not found a proceeding for contempt. It has already been mentioned that Judge Bowman ruled that such a collateral attack on his Honour’s order was not open to the appellants.
On 22 April 2005, this Court granted the appellants leave to appeal against the order of Morris, J. and that of Judge Bowman pursuant to s.148 of the Act, but limited the appeal to certain issues. Relevantly, in relation to the first matter, the Court ordered that the questions of law be confined to those formulated in the appellants’ proposed notice of appeal, to which reference will be made later and, in respect of the contempt proceeding, it ordered that the appeal be confined to the question whether an order of the Tribunal made under s.123 of the Act without jurisdiction or power was nevertheless a valid order for the purpose of contempt proceedings brought under s.137(1)(f) of the Act. The Court ordered that both appeals and the judicial review proceeding be heard together, the judicial review proceeding having been referred to this Court pursuant to s.17B(2) of the Supreme Court Act 1986 by an order of Whelan, J. made on 3 December 2004. In the proceedings other than the contempt proceeding, the appellants contended, essentially, that the order restraining publication was, for various reasons, made without power and that the Tribunal otherwise erred in making the order.
At the outset of the hearing of the appeals before us on 8 May 2006, Mr Houghton, for the appellants, sought leave to amend the notice of appeal in respect of the decision of Judge Bowman so as to raise a second question of law (“the additional question of law”), namely:
“Whether the Tribunal has jurisdiction pursuant to s.137(1)(f) of the Act to punish for contempt a person who has breached an order of the Tribunal.”
The accompanying ground of appeal was in the following terms:
“The learned primary judge erred in law in entertaining an application that the appellants be punished for contempt of Court pursuant to s.137(1)(f) of the Act by reason of the alleged breach of an order of the Tribunal.”
The application was opposed by Mr Green for the principal registrar. The Court nevertheless permitted the appellants to argue the additional question of law on the basis that it will determine the application to amend the notice of appeal at the same time as the other issues. Given the lateness of the application and the time constraint as to the hearing of oral argument, we gave Mr Green leave to file further submissions on this issue after close of argument. Counsel did so on 12 May 2006.
Matters on appeal
Mr Pizer, who appeared for the State of Victoria (which represented Corrections Victoria) and the other respondents to the first appeal, made helpful submissions as to whether the appellants’ formulated questions of law were appropriate and whether the matters sought to be agitated in respect of the order of Morris, J. were properly raised by them under s.148 of the Act. Although there is much force in Mr Pizer’s arguments, it is not necessary to resolve them here given that, as a matter of substance, it is clear enough what are the questions of law that are raised for determination in the two appeals (and the originating motion). Essentially, they are these. The first is whether s.123(1) of the Act empowered the Tribunal to make the impugned order of 25 June 2004. The second is whether, even if the order was made without power, it must be treated as a valid order for the purposes of s.137(1)(f) of the Act, in the sense that, until set aside, it must be obeyed. The appellants’ application for leave to amend the second notice of appeal raises the additional question of law, whether the Tribunal has jurisdiction or power pursuant to s.137(1)(f) of the Act to punish for contempt a person who has breached its order.
Relevant provisions of Act
Before considering the first question, it is necessary to refer briefly to the relevant provisions of the legislation. Division 1 of Part 2 of the Act deals with the establishment of the Tribunal and its membership. Section 9 provides that its members are a President – a judge of the Supreme Court[5] - and such Vice-Presidents – judges of the County Court[6] - Deputy Presidents and ordinary members as are appointed under the Act. The President and Vice-Presidents are “judicial members” or “presidential members” of the Tribunal as these terms are defined in s.3. All other members are “non-judicial members”.[7] The Tribunal’s staff includes a principal registrar, a chief executive officer and other staff.[8] The principal registrar has the functions conferred on him by the Act and other relevant legislation and, in carrying out those functions, is subject to the direction of the President.
[5]Section 10(1) of the Act.
[6]Section 11(2) of the Act.
[7]Section 3 of the Act.
[8]Section 32(1) of the Act.
Part 3 of the Act specifies the jurisdiction and functions of the Tribunal. Sections 40 and 41, which are in Division 1, relevantly provide that the Tribunal has two types of jurisdiction – original and review jurisdiction - original jurisdiction being jurisdiction other than review jurisdiction. What amounts to review jurisdiction is set out in s.42 and is otherwise dealt with in Division 3. Division 2 is concerned with original jurisdiction. Relevantly, s.43(b) provides that the original jurisdiction of the Tribunal is invoked “by a matter being referred to [it] under an enabling enactment in accordance with s.69”. And s.44 says that, in exercising its original jurisdiction, the Tribunal has the functions conferred on it by the enabling enactment, as well as any functions conferred on it by the Act, the regulations and the rules. The Jeffrey proceeding came before the Tribunal by way of a reference to it pursuant to s. 134 of the Equal Opportunity Act consequent on the complaint of Ms Jeffrey against Corrections Victoria under that Act. It was common ground that the Jeffrey proceeding was properly referred to the Tribunal under “an enabling enactment” for the purposes of s.43(b) and that, therefore, it had (original) jurisdiction to deal with it.
Division 10 of Part 4 confers powers on the Tribunal to make various orders. Relevantly, s.123(1) of the Act empowers it to grant an injunction, including an interim injunction, “in any proceeding if it is just and convenient to do so” and sub-s.(3) says that such an order may be made on an application by any party or on the Tribunal’s own initiative. Importantly, sub-s.(2) qualifies this power in the sense that it provides that, in the case of a permanent injunction, the power is exercisable only by a judicial member.
Section 146, which is in Division 13 of Part 4, relevantly provides that the principal registrar must keep a file of all documents lodged in a proceeding and that any person, on paying the prescribed fee, if any, may inspect the file and obtain a copy or any part of it. Such a right, however, is subject to any conditions specified in the Tribunal’s rules, any direction of the Tribunal to the contrary and any order of the Tribunal made under s.101 of the Act.
Mr Houghton presented a number of arguments in support of the contention that the Tribunal did not have power under s.123(1) of the Act to make the impugned order. They included the following. First, it was said that the Tribunal can only make an order under that section in a “proceeding.” Counsel argued that the only proceeding in which the order could have been made was the Jeffrey proceeding, but the Tribunal was functus officio in relation to it, given that it was struck out on 9 June 2004, and there was no power in the Tribunal to reinstate it. Consequently, it was said, the application before his Honour was not made in a “proceeding” within the meaning of s.123(1). It was next said that, in any event, even if the application was made in the Jeffrey proceeding, the appellants were not parties to it and, therefore, the order could not properly have been made against them. The appellants’ principal argument, however, was that, properly characterised, the application before Morris, J. was a proceeding that was relevantly unrelated to the Jeffrey proceeding in the sense that it was concerned with materially different circumstances and issues and was based on a cause of action in equity in respect of which the Tribunal had no jurisdiction. Thus, it was said, the power that is conferred on it by s.123(1) of the Act could not properly have been exercised in respect of that application. In the circumstances, it was claimed, the order is void as having been made without jurisdiction or power.
In light of the conclusion we have reached on the latter issue, as we explain below, it is strictly not necessary to deal with the questions of whether the order was made in a “proceeding” and whether the appellants were parties to it. But in deference to the helpful submissions of the parties on these issues, we propose to deal with them briefly, albeit necessarily on the assumption that the Tribunal had the jurisdiction to entertain the claim of Corrections Victoria.
Whether order made in a “proceeding”
It was common ground that the Tribunal could only properly have made the impugned order in the Jeffrey proceeding. And it is plain enough that Morris, J. recognised this position. His Honour said[9]:
“An application for an injunction pursuant to s.123 of the Act, like an application for a declaration pursuant to s.124 of the Act, is not a separate proceeding in itself. Rather such an application may only be made in the context of an existing proceeding … Hence, if the tribunal has power to make the injunction sought, [the Jeffrey proceeding] must be a proceeding which has not been finally completed in all respects”.
But the appellants contended, as we have said, that because the Jeffrey proceeding was struck out and because the Tribunal did not have jurisdiction to reinstate it, it was functus officio in respect of it. It followed, so the argument ran, that the application by Corrections Victoria was not in an “existing proceeding” and, thus, his Honour did not have power to make the impugned order.
[9]At [36].
Mr Pizer, rightly, we think, accepted that the Tribunal did not have inherent jurisdiction or power to reinstate the Jeffrey proceeding but submitted that it had implied power to do so. Counsel argued that, as was recognised by Bowen, C.J., Northrop and Toohey, JJ. in Parsons v. Martin,[10] the Tribunal had “such powers as are incidental and necessary to the exercise of the jurisdiction or powers [expressly] conferred”. It was said that, in the present circumstances, the power to reinstate the struck out Jeffrey proceeding was incidental and necessary to the exercise by the Tribunal of the jurisdiction or power conferred on it by the Act, including s.43(b). It was also pointed that the legislation recognises – in ss.75 and 76 – that there is a difference in the nature and the character of an order that strikes out a proceeding and one that dismisses it. Thus, for example, under s.75(1) the power to strike out is conferred separately from the power to dismiss the proceeding and, since an order striking out a proceeding ordinarily does not terminate it, said counsel, the statutory power to strike it out carries with it, by necessary implication, the power to reinstate it. Absent such implicit power to reinstate, counsel argued, the Tribunal’s jurisdiction and powers to administer to the Act, including the making of orders under s.123, would be unduly curtailed. Mr Pizer accepted that no formal order was made by the President reinstating the Jeffrey proceeding, but argued that his Honour concluded[11] that the Tribunal had jurisdiction to grant the relief sought in the Jeffrey proceeding so that, in the circumstances, his Honour should be taken to have reinstated it notwithstanding that he made no formal order to this effect.
[10](1984) 5 F.C.R. 235 at 241. Reference was also made to the decision of Sundberg, J. in Otter Gold Mines Ltd v. McDonald (1997) 76 F.C.R. 467 at 473.
[11]At [42].
In our view, the Tribunal does have the implied power, in appropriate circumstances, to reinstate a proceeding that it has struck out. Generally, as was pointed out by Kaye, J. in R v. McGowan; Ex parte Macko & Sanderson,[12] an order striking out an action does not terminate it. The latter occurs where judgment is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list. It is plain enough, we think, that it would be a serious impediment to the Tribunal’s administration of the Act if it could not reinstate a proceeding that was struck out in order to make an otherwise appropriate order in relation to it. For example, the Tribunal’s power under s.146(4)(b) would be materially reduced if it could not make an appropriate order as to whether a file kept by the registry could be inspected once a proceeding has been struck out. Thus, if it were discovered before Ms Jones saw the Jeffrey file, but after the proceeding was struck out, that due to inadvertence the Terms of Settlement had been placed in the public domain, on the appellants’ argument, the Tribunal could not exercise its power under s.146(4)(b) (or s.101(3)(b)) because it could not effectively reinstate the proceeding for the purpose of making the appropriate orders. We would reject such a claim. As we have said, in our view, the Tribunal has the implied power, in appropriate circumstances, to reinstate a proceeding that has been struck out. Such a power is incidental to its obligation to administer the Act and to deal fully with proceedings that are properly before it, including those that have been settled through the mediation process or otherwise, and notwithstanding that they have been struck out.
[12][1984] V.R. 1000 at 1002. See also Aiken v. Aiken [1941] V.L.R. 124 and Roberts v. Gippsland Agricultural and Earth Moving Contracting Co. Pty Ltd [1956] V.L.R. 555 at 565 per Smith, J.
We also consider that, although his Honour did not, in terms, order the reinstatement of the Jeffrey proceeding, it is plain enough, as Mr Pizer pointed out, that the learned judge proceeded on the footing that it was reinstated and made the impugned order accordingly. In doing so, he implicitly reinstated the proceeding, although whether that was effective will depend on whether the Tribunal had jurisdiction to deal with the claim brought by Corrections Victoria.
Whether HWT a party to the Jeffrey proceeding
As has been noted, the appellants argued that, in any event, they were not parties to the Jeffrey proceeding and, therefore, the order for a permanent injunction could not have been properly made against them. In support of this contention they pointed to the decision of this Court in Maritime Union of Australia v. Patrick Stevedores Operations Pty Ltd[13] where it was said that, except by statute, a person claiming an order against another cannot obtain relief unless there are proceedings to which that other is a party.
[13][1998] 4 V.R. 143 at 159 per Winneke, P., Brooking and Charles, JJ.A.
It may be accepted that, ordinarily, an order may not be made against a person not a party to the proceeding[14] and that this applies a fortiori to injunctions.[15]But in our view, if the Tribunal had jurisdiction to entertain the proceeding that was before it, HWT became a party to it for reasons that include the following. First, where a person participates in a proceeding, as HWT did, it is a question of fact whether it has submitted to the jurisdiction of the tribunal in question. In the present case, HWT appeared before his Honour, seemingly on behalf of itself and Ms Jones, and argued not only that no order could be properly made against them under s.103(3)(b) of the Act, but also that such an order could not be properly made under s.123. We consider that, notwithstanding that HWT argued that there was lack of power in the Tribunal to grant the injunction sought, as a matter of fact, by participating in the proceeding as it did, it became a party to it. Secondly, that HWT was treated as a party to the proceeding was specifically noted by his Honour[16] and, in any event, as has been noted, the matter was formalised by the Tribunal’s order of 25 June 2004 and no challenge is made to that order. In the circumstances, therefore, it was bound to obey the order of the President unless it demonstrates that it was made without power or is otherwise ineffective.
[14]John Fairfax & Sons Pty Ltd v. Police Tribunal of New South Wales (1986) 5 N.S.W.L.R. 465 at 477; John Fairfax Publications Pty Ltd v. District Court (N.S.W.) (2004) A.C.S.R. 380 at 397.
[15]Maritime Union at 157-158.
[16]At [16].
Whether order made without power
We now turn to consider the appellants’ principal contention that the Tribunal had no jurisdiction or power to make the order because the application before it was based on a cause of action in equity as to which the Tribunal had no jurisdiction, and was, in any event, relevantly unrelated to the Jeffrey proceeding. Counsel referred to a number of authorities which, he said, demonstrate that the proceeding was based on equitable principles given that the relief sought was against threatened abuse of confidential information not involving tort or breach of contract.[17]
[17]Commonwealth v. John Fairfax & Sons Ltd (1980) 147 C.L.R. 39 at 50-52 per Mason, J., Moorgate Tobacco Co Ltd v. Philip Morris Ltd[No.2] (1983) 156 C.L.R. 414 at 437-438 per Deane, J. and Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed.) 41-050.
That the application was based on a cause of action in equity seems not to have been in dispute before his Honour. It is plain enough that he accepted that the claim was so based but considered, at least implicitly, that the Tribunal had jurisdiction to deal with it because of his conclusion that the application was dealt with in the Jeffrey proceeding (and HWT was a party to it). Thus, his Honour concluded, the Tribunal had power under s.123(1) to grant the relief sought. His Honour then turned to the question whether Corrections Victoria had made out its case for relief, namely, whether it had made out the three pre-conditions to the existence of the equitable duty to maintain confidence that were identified by Megarry, J. in Coco v. AN Clark (Engineers) Ltd.[18] His Honour concluded that these requirements were satisfied, more particularly, that the Terms of Settlement itself possessed the necessary quality of confidence that a reasonable person in the shoes of HWT or Ms Jones would have realised that the contents were confidential and that, by the time of publication, HWT and Ms Jones were aware that the agreement was intended to be confidential. In the circumstances, his Honour said, HWT was bound to respect that confidence and, therefore, it was appropriate to grant the injunction sought.
[18][1969] R.P.C. 41 at 47.
It may be accepted for present purposes that his Honour was correct in concluding that HWT was bound in conscience to maintain the confidence in respect of the Terms of Settlement. The real question, however, is whether the Tribunal had the jurisdiction to entertain the application, and the answer to that depends, we think, on whether, on its proper characterisation, the claim by Corrections Victoria can be said to be so related to the Jeffrey proceeding that it formed part of it, or whether, as the appellants contend, it was relevantly a separate proceeding in respect of which the Tribunal’s original jurisdiction had not been invoked under s.43 of the Act.
Unsurprisingly, it was common ground before us that the Tribunal did not possess general equitable jurisdiction, but it was argued by Mr Pizer that it did have jurisdiction to entertain the application because it was made in the Jeffrey proceeding and that the Tribunal’s power to grant an injunction sprang from the terms of s.123(1) which, by necessary inference, required it to apply equitable principles when exercising that power. Such an injunction, said counsel, may be granted in a proceeding that has been properly instituted before the Tribunal, as the Jeffrey proceeding clearly was.
It seems to us that, in a case such as the present, s.123(1) of the Act confers a power on the Tribunal to grant injunctions only in matters in which it has original jurisdiction. The section does not enlarge the Tribunal’s jurisdiction, but operates in aid of whatever jurisdiction the Tribunal already has.[19] In the present case, it had jurisdiction to hear and determine the Jeffrey proceeding. That jurisdiction was conferred pursuant to an “enabling enactment” namely, the Equal Opportunity Act. The proceeding was concerned with a dispute between an employee and employer that arose in the context of the Equal Opportunity Act in which Ms Jeffrey essentially alleged that Corrections Victoria breached its obligations towards her under that legislation. That was the “matter” that was referred to the Tribunal for resolution and, consequently, as has been noted, it had jurisdiction to deal with it. It follows that it also had the power under s.123(1) to grant an injunction in aid of its dealing with that dispute, and to do so in conformity with equitable principles. But in our view the claim by Corrections Victoria was not relevantly related to that dispute – it was concerned with a matter outside it, namely, conduct that was to be undertaken by a third party in respect of the Terms of Settlement to which it was a stranger, which Terms it had obtained lawfully, without breaching any duty, contract or order or direction of the Tribunal. It does not follow, of course, that, in appropriate circumstances, it should not be restrained from disclosing the contents of what was plainly a confidential document. But in our view such relief could not have been granted by the Tribunal. That is because, on its proper characterisation, the claim being relevantly unrelated to the Jeffrey proceeding, it did not have jurisdiction to deal with it and, thus, had no proper basis for calling in aid the power under s.123(1) of the Act.
[19]See, for example, The Queen v. Ross-Jones; Ex parte Green (1984) 156 C.L.R. 185 at 209 per Wilson and Dawson, JJ. Cf Federal Court of Australia Act 1976, s.22; Philip Morris Inc. v. Adam P Brown Male Fashions Pty Ltd (1981) 148 C.L.R. 457 at 489.
In terms of relevant principle, this aspect of the case is not unlike that considered in Ross-Jones.[20] There, a deed was executed by Mrs Green and her son-in-law in which he acknowledged his indebtedness to her and agreed to make weekly payments. Shortly thereafter the parties to the marriage separated and were later divorced. Mrs Green issued a writ in the Supreme Court claiming the amount she said was due to her under the deed. In the event, final judgment was entered against the son-in-law. In the meantime, he had filed an application in the Family Court pursuant to s.79 of the Family Law Act for an alteration of property interests seeking, amongst others, an order that his former wife indemnify him in respect of all moneys and verdicts that he may sustain in the proceedings issued by Mrs Green. He then applied to the Family Court for an order that Mrs Green be restrained from taking any step to enforce the judgment she obtained in the Supreme Court. He argued that the court had jurisdiction to deal with his claim because it was a “matrimonial cause” by reason of the operation of s.4(f) of the Act, which defines “matrimonial cause” as “any other proceeding … with respect to the enforcement of a decree or … in relation to concurrent, pending or completed proceedings of a kind referred to in any of the paragraphs (a) to (eb)”. His case on that issue was that the “marriage dispute” with his former wife was a “matrimonial cause” within the meaning of paragraph (ca) of the definition of that term and that his proceeding against Mrs Green was relevantly related to it within the meaning of s.4(f) and thus, was a “matrimonial cause”. Consequently, it was said, the Family Court had the jurisdiction to deal with his application and the power under s.114(3) of the Act to grant the injunction sought. [21] The Family Court ordered that, pending further order, Mrs Green be restrained from taking any steps to enforce the judgment.
[20]Full citation fn.19.
[21]Relevantly, s.114(3) provided that the Family Court had jurisdiction to grant an injunction in any case in which it appeared to the court to be just and convenient.
The majority of the High Court, however, held that the Family Court did not have jurisdiction to make the order sought notwithstanding that it was accepted that the proceeding instituted by the son-in-law by which he sought orders against his former wife, including the indemnity, was a “matrimonial cause” within the meaning of para. (ca) of the definition of that term. Importantly, for present purposes, their Honours considered that the proceeding against Mrs Green was not one that relevantly related to the proceeding concerning the “marriage dispute” – it was not one that was “in relation to” it. It followed that the Family Court had no jurisdiction to entertain the application of the son-in-law. Gibbs, C.J. (with whom Mason, J. agreed) said[22] that to come within s.4(f) the proceeding in question must have an appropriate relationship to other proceedings of the kind referred to in the definition. The Chief Justice went on to note what he said in Perlman v. Perlman[23] in that regard, namely:
“The words ‘in relation to’ import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind … An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings … It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (e.g., where an application … is brought by a surviving parent for custody of a child when that custody has been awarded to another parent, since deceased ... or where an application for custody of a child of a marriage since dissolved is made by a stranger to the marriage against a party to the marriage who has been granted custody by an order in previous proceedings …)”
Wilson and Dawson, JJ. said:[24]
“For the proceedings by the husband to prevent the enforcement of the judgment against him by the prosecutrix to be in relation to the proceedings between the husband and the wife there must be more than a mere connection between the two sets of proceedings; there must be some relevant relationship.”
[22]At 197.
[23](1984) 155 C.L.R. 474 at 484 (citations omitted).
[24]At 210.
In the present case, s.43 of the Act, unlike s.4(f) of the Family Law Act, does not provide, in terms, that proceedings that are related to those which have been referred to the Tribunal under an enabling enactment are to be deemed to be such “referred” proceedings. Nevertheless, it may be assumed for present purposes that this is the situation under the Act. Thus, a proceeding that is relevantly related to a proceeding that has been referred to the Tribunal under an enabling enactment may also attract its original jurisdiction. In the present case, however, we consider that, just as the proceeding of the son-in-law against Mrs Green was not sufficiently related to the “matrimonial dispute” for the purposes of s.4(f), so the claim of Corrections Victoria was not sufficiently connected with the Jeffrey proceeding to fall within the Tribunal’s original jurisdiction. Neither the reinstatement of the Jeffrey proceeding, nor the order that HWT was a party to it, nor the provisions of s.123(1), gave the Tribunal jurisdiction to deal with the claim of Corrections Victoria. Hence, it had no power to make the impugned order and it must be regarded as invalid.[25]
[25]The circumstances stand in contrast to those considered by the Full Family Court in In the Marriage of DJ & MY Collins (1987) 11 Fam. L.R. 382, a case in which that court distinguished Ross-Jones.
A situation analogous to Collins might arise in the Tribunal when, for example, it is exercising the original jurisdiction which is conferred on it by s.108 of the Fair Trading Act 1999. Section 108(2) of that act confers jurisdiction to vary or rescind a contract in relation to a consumer and trader dispute. In such a case it is conceivable that the Tribunal would have power under s.123 of the Victorian Civil and Administrative Tribunal Act 1998 to issue an interim injunction restraining enforcement of the contract pending the hearing and determination of an application for its rescission.
Whether disobedience of order amounts to contempt
We now turn to the second principal question of law raised in the appeal, namely, whether the appellants’ disobedience of the impugned order amounts to contempt of the Tribunal notwithstanding its invalidity. As has been noted, this issue arises out of the question in respect of which leave to appeal was given by this Court on 22 April 2005, that question being whether an order of the Tribunal made pursuant to s.123(1) of the Act without jurisdiction or power is nevertheless valid and effective until set aside for the purpose of contempt proceedings brought under s.137(1)(f) of the Act.
In a carefully considered judgment, Judge Bowman recognised, by reference to a number of authorities,[26] that an order of a superior court of record must be obeyed until it is discharged, even if it is thought to be invalid or wrong and is later set aside. His Honour considered that the terms of s.137(1)(f) compelled him to treat the impugned order as if it had been made by the Supreme Court and thus, one that had to be obeyed until it was discharged, even if it was made without power. Thus, his Honour said, it was not open to the appellants to challenge before him, by way of collateral attack, the validity of the order of Morris, J.
[26]The authorities include the Full Court decision of Little v. Lewis [1987] V.R. 798 at 804 per Kaye, J. and at 806 per O’Bryan, J., Isaacs v. Robertson [1985] A.C. 97 at 102 per Lord Diplock, Hadkinson v. Hadkinson [1952] P. 258 at 288 per Romer, L.J., and Pico Holdings Inc v. Voss [2002] VSC 319 at [41] – [45] per Gillard, J.
The appellants contended before us that failure to obey an order of an inferior Tribunal exercising judicial power cannot found contempt if the Tribunal had no authority to make the order. In that regard they relied on Attorney-General (NSW) v. Mayas Pty Ltd[27] and United Telecasters Sydney Ltd v. Hardy[28] which, they said, were approved by the High Court in Pelechowski v. Registrar, Court of Appeal (NSW).[29] In Mayas, McHugh, J.A. said:[30]
“[If] an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed”.
And, as has been noted, his Honour’s decision was cited with approval in United Telecasters, and reference similarly was made to both cases in Pelechowski. That case concerned the powers of the District Court under the District Court Act 1973 (NSW) (“the NSW Act”), s.46 of which empowered the District Court to grant, in “any action”, any injunction which the Supreme Court might have granted if the action was a proceeding in that court as if it had all the powers of the Supreme Court. Relevantly, “action” was defined as an action in the court. In the event, a creditor obtained judgment against two debtors and the judge ordered that they be restrained, “until further order or payment”, from selling or otherwise disposing of or encumbering their interest in certain property.
[27](1988) 14 N.S.W.L.R. 342.
[28](1991) 23 N.S.W.L.R. 323 at 335 per Samuels, A.P., with whom Clarke and Meagher, JJ.A. agreed.
[29](1999) 198 C.L.R. 435.
[30]At 357.
Nevertheless, the debtors granted a second mortgage over the property and the creditor applied to the court to have the matter dealt with for contempt. The New South Wales Court of Appeal, to which the matter was referred pursuant to the NSW Act, found Pelechowski guilty of contempt and sentenced him to a term of imprisonment. On appeal, it was contended, inter alia, that the order was made without power and the power of the District Court to grant equitable relief was attacked. In their joint judgment, Gaudron, Gummow and Callinan, JJ. referred to the principle set out by McHugh, J.A. in Mayas and its application in United Telecasters.[31] Their Honours went on to examine the statutory and other authority pursuant to which the order was made and found that the court did not have jurisdiction to make the preservation order and, applying Mayas, said that such an order could not found a prosecution for contempt.[32]
[31]In United Telecasters it was held that the District Court did not have the power to restrain a threatened contempt by a telecaster in broadcasting material identifying a person on trial in that court and also that the court did not have the power to accept undertakings in those terms. Accordingly, it was held that the order “was a complete nullity and bound no-one” and thus could not found contempt.
[32]At 453 per Gaudron, Gummow and Callinan, JJ. and at 457 per McHugh, J.
In the present case, Mr Green, however, contended that, on a proper construction of s.137(1)(f), Judge Bowman’s interpretation of that provision should be accepted and that the order of the Tribunal should be treated as if it were an order of the Supreme Court and, thus, valid until set aside. In these circumstances, he contended, the principle in Mayas does not apply. More particularly, counsel argued that s.137(1)(f) reflects the intention of Parliament that, in respect of punishment for contempt for failure to obey an order of the Tribunal, the Tribunal should be placed in that regard in the same position as the Supreme Court so that its order had to be obeyed until it was set aside. It was submitted that the provision is a deeming provision for the purpose of adjudging possible contempt and is similar to like provisions found in English and Australian statutes[33] all of which, he said, should be read as indicating that the legislature intended that the order of the lower court or tribunal had to be obeyed until it is discharged.
[33]Reference was made to the Tribunals of Inquiry (Evidence) Act 1921 (UK), s.1(2)(c), the Administrative Appeals Tribunal Act 1975 (Cth), s.63(5), the Mental Health Act 1986, s.130(d) and the repealed Administrative Appeals Tribunal Act 1984, s.60(d).
The respondent relied on Saunders v. Federal Commissioner of Taxation[34] as authority for the claim that s.137(1)(f) operates to require an invalid order, such as the one here, to be obeyed until it is set aside. But Saunders did not deal with that issue. Relevantly, it was concerned with whether, in the circumstances of that case, the conduct of the Commissioner in the exercise of his powers under s.263 of the Income Tax Assessment Act 1936 (Cth) amounted to contempt of the Tribunal for the purpose of s.63(d) of the Administrative Appeals Tribunal Act 1975 (Cth) which, Northrop J. said,[35] treated the Tribunal as though it were a court of law for the purpose of determining what constitutes contempt. Relevantly, section 63(d) prohibited a person from doing any act that would, if the Tribunal were a court of record, constitute a contempt of that court. It seems to us that, as we have indicated, his Honour decided no more than that the section deals with circumstances that may constitute a contempt of the tribunal. Thus, he said that an act that would amount to contempt of a court of law would be considered contempt if committed in relation to a proceeding before the tribunal. But it obviously does not follow that, by reason of this, an invalid order of the tribunal is to be treated as if made by a court.
[34](1988) 15 A.L.D. 353; 88 A.T.C. 4,349.
[35]15 A.L.D. at 359; 88 A.T.C. at 4,356.
We consider that, on its plain reading, s.137(1)(f) of the Act does not operate to treat an invalid order purportedly made under s.123(1), as a valid order for the purposes of contempt proceedings in the Tribunal. The provision does no more, we think, than enlarge the ambit of what may constitute contempt of the Tribunal so that acts that would be regarded as amounting to contempt of the Supreme Court would fall to be dealt with under s.137(1)(f). It is in the following terms:
“(1) A person is guilty of contempt of the Tribunal if they –
(a)insult a member of the Tribunal while that member is performing functions as member; or
(b)insult, obstruct or hinder a person attending a hearing before the Tribunal; or
(c)misbehave at a hearing before the Tribunal; or
(d)interrupt a hearing before the Tribunal; or
(e)obstruct or hinder a person from complying with an order of the Tribunal or a summons to attend the Tribunal; or
(f)do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.”
It seems to us that paragraph (f) was intended to be a residual provision that enlarges the category of acts that may constitute contempt of the Tribunal and does not seek to give its orders the status of those made by the Supreme Court.
The apparent precursor of s.137(1)(f), and the context in which it was enacted, seem to support this conclusion. The provision was in the Act when it was first enacted. But the extraneous material relating to the legislation does not explain its source. It is instructive, however, to look at three sets of legislative provisions that, in terms, are similar to s.137(1)(f) and that were in place when the Act was passed. They confirm, we think, the view that Parliament did not intend that s.137(1)(f) would operate so as to elevate the status of an order of the Tribunal to that of the Supreme Court. The first is s.1(2)(c) of the Tribunals of Inquiry (Evidence) Act 1921 (UK) to which Mr Green referred, as we have earlier noted.[36] To our knowledge, it is the earliest such legislative provision and is one on which s.137(1)(f) may have been based. The English section appears not to have been judicially considered, apart from a brief mention by the Privy Council by way of obiter that was concerned with the structure of that power.[37] Importantly, however, it is apparent that it does not give the tribunal the status of a superior court, given that it says, in terms, that any alleged contempt must be dealt with by a court.
[36]See footnote 31 above. Relevantly, the provision is in the following terms:
“If any person …
(c) does any other thing which would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court;
the chairman of the tribunal may certify the offence of that person under his hand to the High Court … and the court may thereupon inquire into the alleged offence and … punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.”
[37]Badry v. D.P.P. (Mauritius) [1983] 2 A.C. 297 at 306-307.
The second such provision, that was also in place in Victoria when the Act was passed and may also have been a basis on which s.137(1)(f) was drafted, is s.54 of the County Court Act 1958 which deals with punishment for contempt of that court. Prior to its amendment in 1986, s.54 provided for a number of specific situations in which a judge of that court could hold a person in contempt. No reference was then made to the Supreme Court. The Courts Amendment Act 1986, however, replaced s.54 in its entirety. The substituted s.54 provided:
“54. Contempt of Court
The Court or a Judge thereof has the same jurisdiction, and may exercise the same powers and authority, in respect of any contempt of the court or of a Judge thereof as the Supreme Court has and may exercise in respect of any contempt of the Supreme Court.”[38]
[38]The section was subsequently amended to remove ‘or a Judge thereof’ by the County Court (Amendment) Act 1989 (Vic), s.8.
But again, it is apparent that this section does not seek to give an order of the County Court the status of a Supreme Court order. It merely broadens the range of acts that may constitute contempt of that court. That is made clear, we think, by its terms and is confirmed by the extraneous material that relates to it. Thus, the Explanatory Memorandum to the 1986 Act makes plain the purpose of the substitution that was introduced in the form of clause 13 of the Bill. It states:
‘Clause 13 confers upon the County Court the same jurisdiction in relation to contempt as the Supreme Court.’
Likewise, the Second Reading Speech on the Bill deals explicitly with clause 13. It says:
“Contempt Power of County Courts
The power of a court to punish for contempt of its own proceedings is considered fundamental to the administration of justice. The Supreme Court has unlimited power to do so. The County Court is restricted by its statute to punishing contempts committed in its face or refusal to obey a summons. Other contempts must be dealt with by the Supreme Court. The increasingly important role which the court is expected to carry out in the administration of justice requires it to have a more extensive power to punish for contempt. It should be the same as that of the Supreme Court. The Bill confers this power.”
It is to be noted that the then new power to punish for contempt in the same circumstances as the Supreme Court is discussed in the Second Reading Speech under a separate heading from the section dealing with the jurisdiction of the County Court generally. Consequently, as we have said, it is apparent that s.54 was intended to do no more than enlarge the category of acts in respect of which a County Court judge could punish a person for contempt, but without elevating that court to the status of the Supreme Court.
The third category of legislative provisions to which we wish to refer in this context, and which were in operation when the Act came into force, consists of a range of enactments that empowered tribunals to punish persons for contempt for acts that would have amounted to contempt of a superior court had they been committed in relation to it. For example, reference may be made to legislation of this kind that relates to bodies such as the Psychosurgery Review Board,[39] the Racing Appeals Tribunal,[40] a Commissioner appointed under the Radiocommunications Act 1983 (Cth)[41] and the Copyright Review Tribunal.[42] It is inconceivable that Parliament intended through such legislation to give the orders of those bodies or persons the status of orders made by a superior court.
[39]Mental Health Act 1986, s. 130(d).
[40]Racing Act 1958 (Vic), s. 83MB(d).
[41]Radiocommunications Act 1983 (Cth), s. 61(e).
[42]Copyright Act 1968 (Cth), s.173(f).
Consequently, we consider that Judge Bowman erred in concluding that the order of Morris, J. had to be obeyed by the appellants even if it was made without power such that its disobedience could amount to a contempt of the Tribunal. Thus, in our view, the second question of law should be answered in the negative.
Tribunal’s power to punish for contempt of its own order
We now turn to deal with the question whether the appellants should be given leave to amend their notice of appeal so as to raise the additional question of law. In light of our conclusions on the first two questions, the additional question would necessarily have to be considered in a hypothetical context. Not only would such a course be plainly inappropriate, but it would lack utility. In our view it is plain enough that the impugned order of Morris, J. is of no effect and, therefore, the contempt proceedings cannot properly continue. In the circumstances, we would refuse the appellants’ application for leave to amend the relevant notice of appeal as sought. As to the question of costs of this application, our provisional view is that there should be no order as to costs. Whilst the appellants’ application necessitated the hearing of some argument on this issue and, as we have said, Mr Green filed a brief written response to the appellants’ arguments, considering the matter broadly, the hearing of the appeals was completed in one day, so that any additional costs expended by the respondent on this issue would have been minimal.
Dismissal of originating motion
We mention for completeness Mr Pizer’s thorough argument to the effect that the appellants’ proceedings for judicial review were unnecessary and note that, in our view, nothing has been said by the appellants that establishes the contrary. In the circumstances, counsel submitted, the proceeding should be dismissed with costs. There is much to be said for Mr Pizer’s view. Nevertheless, given that some uncertainty exists in this area of the law, it was unsurprising that the appellants felt compelled to institute the Order 56 proceeding in addition to their appeal under s.148 of the Act so as to safeguard their rights effectively to challenge the President’s order. Importantly, for present purposes, no additional arguments were put by the parties during the hearing of the appeals that were attributed solely to the originating motion. In the circumstances, our tentative view is that the requirements of justice would be met if the originating motion were dismissed with no orders to costs.
Conclusions
To reiterate, we consider that the Court should answer the two questions of law raised for its consideration in the negative by way of declarations or otherwise. We also think that the appellants’ application for leave to amend the second notice of appeal should be refused and that the originating motion be dismissed and subject to hearing the parties, in each case with no order to costs. As to the costs of the appeals, again, subject to hearing the parties, we think that they should be paid by the respective respondents.
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