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Null and void: Can VCAT reconsider its own decisions?

Feature Articles

Cite as: September 2014 88 (09) LIJ, p.36

In 2002 the High Court held that a tribunal may reconsider its final orders, but the Victorian Court of Appeal recently cast this principle into doubt. 

By Bill Swannie

As an administrative tribunal the Victorian Civil and Administrative Tribunal (VCAT) generally has no power to reconsider final orders it has made in a proceeding. In limited circumstances the Supreme Court can hear an appeal from orders made by VCAT. Judicial review of VCAT orders is also available on limited grounds in the Supreme Court. These proceedings, if successful, usually result in the matter being sent back to VCAT to be heard and determined in accordance with the Court’s guidance.

In 2002 the High Court of Australia held that an administrative tribunal could reconsider final orders if those orders involved a jurisdictional error (a concept discussed below). This could happen on the tribunal’s own motion, even in the absence of court orders overturning the initial orders. This decision is controversial and was recently considered by the Victorian Court of Appeal.

Challenging VCAT orders

A party to a VCAT proceeding may appeal orders made by VCAT to the Supreme Court of Victoria. The appeal must be based on an error of law by VCAT, and must be filed within 28 days of the date the orders are made (Victorian Civil and Administrative Tribunal Act 1997 (Vic), s148). The Court’s leave is required to file an appeal and this involves discretionary considerations such as whether the appellant would suffer “substantial injustice” if leave were refused.1

Judicial review of VCAT orders is available by applying to the Supreme Court under Order 56 of Chapter I of the Rules of the Supreme Court, or under the Administrative Law Act 1978 (Vic). If the Court is satisfied that grounds for judicial review are made out, it may grant relief in the nature of certiorari to quash the VCAT orders. Relief is discretionary and may be denied, for example on the grounds of delay by the person seeking to have the orders quashed.

Challenging VCAT orders by way of appeal or judicial review involves great expense, delay and risk to the appellant. Legal costs, including fees for filing, solicitors and counsel, are generally in the thousands of dollars. The Court can take upwards of 12 months to hear and determine a leave application and (if leave is granted) the appeal proper. The greatest risk for an appellant is the risk of an order to pay the respondent’s costs (usually in the realm of six figures) should leave be refused or the appeal not granted. If the challenge is successful the matter is usually remitted to VCAT to be heard and determined. VCAT could make exactly the same decision provided it acts within the law and complies with any guidance given by the Court.


When Mr Bhardwaj’s student visa was cancelled by a delegate of the minister for immigration and multicultural affairs, he applied for review of the decision by the Immigration Review Tribunal. The day before the hearing Mr Bhardwaj fell sick and his agent wrote to the tribunal requesting an adjournment. The letter did not reach the tribunal file and, in the absence of Mr Bhardwaj, the tribunal affirmed the minister’s decision. When the tribunal became aware of its error a new hearing was convened. Mr Bhardwaj gave evidence and (approximately one month after the first decision) the minister’s decision was revoked.

The minister appealed the decision to the Federal Court on the grounds that the tribunal had no power to make the second decision. In administrative law terms, the minister argued that the tribunal’s power to review the minister’s decision was “spent” in making the first decision. On this argument, the second decision must be set aside. The Federal Court rejected the appeal, as did a majority of the Full Court of the Federal Court.

The High Court granted special leave to appeal and the appeal was heard by all seven members of the Court. The minister conceded that in making the first decision the tribunal had denied Mr Bhardwaj an opportunity to present his case. The minister argued that the only remedy was to challenge this decision in a court.

By a six-to-one majority (Kirby J dissenting) the High Court dismissed the minister’s appeal.2 In a joint judgment Gaudron and Gummow JJ held that the tribunal’s first decision involved a denial of natural justice and thus a jurisdictional error. Their Honours stated that “a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”.3

Their Honours held that because the Tribunal’s first decision was a “nullity” its duty to make a decision remained unperformed. Not only was the tribunal permitted by law to rehear the application, it was actually required to do so. McHugh J agreed with the reasons and conclusions of the joint judgment.

In dissent Kirby J argued that the provisions of the Migration Act 1958 (Cth) did not expressly or impliedly authorise the tribunal to reconsider its own decisions. The Act provided for judicial review by the Federal Court of a tribunal decision, but only within a strict time limit (which could not be extended). Breach of the rules of natural justice was specifically excluded as a ground for challenging a tribunal decision. For the tribunal to be able to reconsider its own decisions would give it greater powers than the Federal Court.

Kirby J also noted the logical difficulties in regarding a decision involving jurisdictional error as legally non-existent. How can a decision that doesn’t exist provide grounds for an appeal or proceedings for judicial review? According to his Honour “migration decisions represent one field of the law’s operation where there should be a large degree of clarity and certainty”.4 Kirby J dissented from “an interpretation of the Act that effectively makes decisions of the Tribunal, to which so many statutory consequences attach, provisional”.

Jurisdictional error

Courts have long distinguished between errors that are jurisdictional and errors “within jurisdiction”. In administrative law the distinction is crucial in terms of the type of remedy available. The remedy of certiorari, which quashes a decision or order, is available only if the error is jurisdictional.5 Jurisdictional error, however, is not always easy to define.

In essence “jurisdiction” simply means the power to decide a matter. For example, for a tribunal such as VCAT (which has no criminal jurisdiction) to hear a criminal matter would clearly be an excess of jurisdiction. In this situation the remedy of prohibition would be available to prevent VCAT from hearing the matter. Failing to exercise jurisdiction, such as in Bhardwaj, can also be a jurisdictional error. The remedy of mandamus may be granted, which requires the tribunal to exercise its jurisdiction.

In Craig v South Australia (Craig) the High Court held that jurisdictional error has a narrower scope in relation to courts than it does in relation to administrative tribunals.6 This is because courts are constituted by people with either formal legal qualifications or practical legal training, and they exercise jurisdiction as part of the hierarchical court system. Tribunals, on the other hand, are not always constituted by lawyers, and rights of appeal from tribunal decisions are often limited. Also, a tribunal, unlike a court “lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law”.7

In relation to tribunals, most if not all legal errors made in deciding a matter will be jurisdictional. This includes identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material, making a finding in the absence of supporting evidence, and reaching a legally incorrect conclusion.8 Any order or decision based on such an error will be liable to be set aside on appeal. And, under the High Court’s decision in Bhardwaj, the tribunal itself could reconsider such a decision.

DPP v Edwards

Edwards pleaded guilty to a charge of recklessly causing serious injury and was sentenced in the County Court of Victoria. The judge imposed a wholly suspended sentence, not realising that this sentence was expressly prohibited in relation to this type of offence. The judge recalled the matter and imposed a three-year community-corrections order. The Director of Public Prosecutions appealed against the sentence, arguing that the sentencing power was spent when the first sentence was imposed. The DPP argued that the judge was functus officio, and the second sentence was made without power.

In a split decision the Court of Appeal allowed the appeal. In a joint judgment Weinberg JA and Williams AJA held that, once final orders are made, a sentencing judge is generally functus officio. This doctrine is of “considerable antiquity” and fundamental importance, as it ensures a high degree of certainty and finality regarding court orders.9

In dissent Chief Justice Warren held that an order of an inferior court made in excess of jurisdiction is a nullity. The County Court lacked jurisdiction to impose a suspended sentence for this particular offence and had therefore exceeded its jurisdiction. In relation to jurisdictional errors an inferior court (such as the County Court) is in exactly the same situation as an administrative tribunal.

The Chief Justice relied on “general principles of administrative law” and referred in particular to the judgments of Gaudron, Gummow, McHugh and Hayne JJ in Bhardwaj. Although Bhardwaj itself involved an administrative tribunal, the High Court had confirmed in Craig that the doctrine of jurisdictional error applied to inferior courts as well.

The joint judgment of Weinberg JA and Williams AJA commented on the authority and holding of Bhardwaj. According to their Honours “the views expressed by Gaudron, Gummow and McHugh JJ in Bhardwaj do not constitute a majority opinion”.10 Their Honours quoted from a judgment of the Full Court of the Federal Court that states: “In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend on the particular statute”.11

Weinberg JA and Williams AJA’s judgment states: “In our respectful opinion, this Court should follow the approach expressly endorsed by Gleeson CJ and Kirby J in Bhardwaj in preference to the views of Gaudron, Gummow and McHugh JJ”.12 In their Honours’ view, this approach is more consistent with recent High Court decisions, in which the consequences of jurisdictional error are said to depend upon the construction of the legislation conferring the power.

Weinberg JA and Williams AJA also refer to some practical consequences of an inferior court or tribunal being able to reconsider its own decisions. Given that appeals from inferior courts and tribunals are often very limited, this would often give inferior courts and tribunals greater powers to correct their orders than judges of superior courts. Their Honours also state that the law would be “brought into disrepute” if, for example, a conviction for escaping from lawful custody could be set aside on the grounds of jurisdictional error.


Following the decision of the Court of Appeal in Edwards, the status of the High Court’s decision in Bhardwaj is uncertain. While only three members of the High Court in Bhardwaj explicitly held that jurisdictional error on the part of a decision-maker will result in the decision being a “nullity”, Hayne J also appeared to support this approach.13 This makes a majority holding.14 Also, in an important subsequent decision, the High Court referred to Bhardwaj and stated, “This Court has clearly held that an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all”.15 This is a clear statement of principle by five members of the Court in a joint judgment.

Ultimately the High Court will need to clarify its decision in Bhardwaj and provide clear guidance on the legal effect of jurisdictional error by a court or tribunal. Clarity is needed when an administrative tribunal can reconsider final orders made in a proceeding in the absence of court orders formally setting aside those orders.

The various judgments in Bhardwaj provide hints as to what factors may be relevant. For example, the ability of a tribunal to reconsider a decision is more likely to exist if judicial review of the decision were available and it were clear that a court would hold the decision invalid. Therefore the more obvious (and serious) the error, the more likely it is to be regarded as a nullity.16

Second, any reconsideration of a decision needs to be timely. One of the greatest concerns with allowing a tribunal to reconsider it own decisions is that this can conceivably be done at any time after the decision. For reasons of certainty and finality, rights of appeal from tribunal decisions are subject to time limits. Similarly, any reconsideration of a decision by a tribunal must occur within a reasonable time of the first decision.17

Finally, reconsideration of a decision may not be available where the rights and interests of third parties are affected, or where other people have acted in reliance on the decision. In both Edwards and Bhardwaj, the respondents were the only people affected by the relevant orders. When an administrative decision affects many people (such as an invalid tax ruling), an administrative decision maker should not reconsider the decision in the absence of a successful appeal or review. In any case, until the High Court has clarified this area of law, the prudent path is to exercise any right of appeal or to seek judicial review of an improperly made decision.18 l

BILL SWANNIE is a lecturer at Victoria University College of Law and Justice. He holds an LLM and is a former member of the Executive Committee of the Administrative Law and Human Rights section of the LIV.

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1. See Jason Pizer, Pizer’s Annotated VCAT Act, 4th edn, JNL Nominees Pty Ltd, 2012, pp730–78.
. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”).

. Note 2 above, at [51].
4. Note 2 above, at [123].
. Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary, 2nd edn, LexisNexis Butterworths, 2009, [15.4.2].

. (1995) 184 CLR 163.

. Note 6 above, at [179].
8. Note 6 above, at [176]–[180].
9. Director of Public Prosecutions v Edwards [2012] VSCA 293.
10. Note 9 above, at [180].
. Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, per Gray and Downes JJ at 68.

. Note 9 above, at [190].

. Note 9 above, at [152].

. Don’t Think Twice? Can Administrative Decision Makers Change Their Mind?, AIAL Forum No. 35, 21.
15. Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [76].
16. Note 2 above per Hayne J at [152]–[153].
17. Note 2 above per Gleeson CJ at [13].
. Note 2 above per Hayne J at [150].


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