Akers v RSPCA
[2024] VSC 489
•23 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 02850
S ECI 2023 02851
S ECI 2023 02852
S ECI 2023 02853
| BRUCE AKERS | Applicant |
| v | |
| THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS | Respondent |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2024 |
DATE OF JUDGMENT: | 23 August 2024 |
CASE MAY BE CITED AS: | Akers v RSPCA |
MEDIUM NEUTRAL CITATION: | [2024] VSC 489 |
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ADMINISTRATIVE LAW — Application for leave to appeal pursuant to Victorian Civil and Administrative Tribunal Act 1998 s 148 — Decisions under Freedom of Information Act 1982 — Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Self-represented | |
| For the Defendant | Mr A Crocker | Ebsworth Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Procedural history and statutory scheme...................................................................................... 1
Application to Information Commissioner............................................................................... 1
Information Commissioner’s powers and duties..................................................................... 2
Decisions of an officer of OVIC................................................................................................... 2
Application to Tribunal................................................................................................................ 3
Tribunal’s orders and reasons..................................................................................................... 3
‘Personal affairs’ exemption — FOI Act s 33(1).............................................................. 3
Consultation/notice requirements — FOI Act ss 33(2B) and 53A............................... 3
Investigative methods exemption — FOI Act s 31(1)(d)................................................ 5
Police intelligence exemption — FOI Act s 31(3)............................................................ 5
Public interest override provision — FOI Act s 50(4).................................................... 5
Complaints about the adequacy of searches — FOI Act ss 61A and 61B.................... 5
The proceedings in this Court..................................................................................................... 7
Applicable principles........................................................................................................................ 9
Consideration.................................................................................................................................... 10
Tribunal’s Orders and Reasons................................................................................................. 10
First SCV proceeding (S ECI 2023 02850) — appeal from VCAT proceeding Z681/2021 13
Overview............................................................................................................................. 13
Grounds of appeal............................................................................................................. 14
Grounds 1 and 2................................................................................................... 14
Ground 3................................................................................................................ 15
Ground 4................................................................................................................ 17
Ground 5................................................................................................................ 19
Ground 6................................................................................................................ 22
Ground 7................................................................................................................ 23
Conclusion regarding first SCV proceeding.................................................................. 24
Second SCV proceeding (S ECI 2023 02851) — appeal from VCAT proceeding Z671/2020 24
Overview............................................................................................................................. 24
Grounds of appeal............................................................................................................. 25
Ground 1................................................................................................................ 25
Ground 2................................................................................................................ 26
Ground 3................................................................................................................ 26
Ground 4................................................................................................................ 26
Ground 5................................................................................................................ 27
Grounds 6 and 7................................................................................................... 27
Grounds 8 and 9................................................................................................... 28
Ground 10.............................................................................................................. 28
Ground 11.............................................................................................................. 28
Ground 12.............................................................................................................. 29
Ground 13.............................................................................................................. 29
Ground 14.............................................................................................................. 30
Conclusion regarding second SCV proceeding............................................................ 30
Third SCV proceeding (S ECI 2023 02852) — appeal from VCAT proceeding Z782/2020 31
Overview............................................................................................................................. 31
Grounds of appeal............................................................................................................. 32
Ground 1................................................................................................................ 32
Ground 2................................................................................................................ 34
Ground 3................................................................................................................ 35
Ground 4................................................................................................................ 35
Ground 5................................................................................................................ 36
Ground 6................................................................................................................ 36
Ground 7................................................................................................................ 37
Conclusion regarding third SCV proceeding................................................................ 37
Fourth SCV proceeding (S ECI 2023 02853) — appeal from VCAT proceeding Z881/2020 38
Overview............................................................................................................................. 38
Grounds of appeal............................................................................................................. 39
Ground 1................................................................................................................ 39
Ground 2................................................................................................................ 40
Ground 3................................................................................................................ 41
Ground 4................................................................................................................ 41
Ground 5................................................................................................................ 41
Ground 6................................................................................................................ 42
Conclusion regarding fourth SCV proceeding.............................................................. 42
Overall conclusion........................................................................................................................... 42
HIS HONOUR:
Introduction
The applicant seeks leave to appeal from decisions of the Victorian Civil and Administrative Tribunal (Tribunal) in relation to four requests for access to documents he made under the Freedom of Information Act 1982 (FOI Act). Has he established real prospects of success for any of the grounds in his notices of appeal?
The applicant tendered a court book containing the documents he relied upon. In oral and written submissions, he explained the grounds in his four notices of appeal.
I have decided that none of the grounds have any real prospect of success.
I will therefore refuse leave to appeal and dismiss the four proceedings.
I will hear the parties on costs.
Procedural history and statutory scheme
The applicant (Mr Akers) made requests for access to documents held by the respondent (the RSPCA) under the FOI Act.
The RSPCA made a decision in relation to each request and Mr Akers sought review by the Information Commissioner,[1] who is one of the office-holders comprising the Office of the Victorian Information Commissioner (OVIC).[2]
[1]FOI Act s 6C.
[2]FOI Act s 6B(2)(a).
Application to Information Commissioner
Section 49A(1) of the FOI Act provides relevantly that an applicant may apply to the Information Commissioner for review of ‘(a) a decision of an agency or a Minister refusing to grant access to a document in accordance with a request…’.
It was uncontroversial that the RSPCA is an agency for the purposes of the FOI Act. It is a prescribed authority within the meaning of the FOI Act.[3] Its officers may be given certain powers under the Prevention of Cruelty to Animals Act 1986.[4]
[3]Freedom of Information Regulations 2019 reg 6 and Sch 1.
[4]Prevention of Cruelty to Animals Act 1986 ss 18 and 24ZW.
Information Commissioner’s powers and duties
Section 49KA of the FOI Act confers a power on the Information Commissioner to require a further search for documents ‘if the Information Commissioner reasonably believes that an agency … has failed to undertake an adequate search for documents that relate to a decision that is the subject of a review under this Division’.
Section 49L of the FOI Act confers power on the Information Commissioner to refer a matter back to the agency for reconsideration, with the agreement of an applicant.
Section 49P of the FOI Act provides that after conducting a review of a decision of an agency, the Information Commissioner must make a fresh decision on the original application. In that event, the decision of the Information Commissioner has the same effect as the decision of the agency.[5] The Information Commissioner must give the parties notice in writing of the decision setting out the reasons for the decision and the rights of the parties to apply to the Tribunal for review under s 50 of the FOI Act.[6]
[5]Section 49P(2).
[6]FOI Act s 49P(3).
Decisions of an officer of OVIC
In relation to each of Mr Akers’ access requests, an officer of OVIC[7] agreed with the RSPCA and found the documents in dispute were exempt, largely because they were ‘personal affairs’ documents, the release of which would be unreasonable, under s 33(1) of the FOI Act. Some of the documents were found to be exempt under s 31(1)(d) of the FOI Act.
[7]It appears from the court book that at least one of the decisions was made by the Public Access Deputy Commissioner: document F.46 in relation to Supreme Court proceeding S ECI 2023 02853, in which Mr Akers seeks leave to appeal from the Tribunal’s orders in VCAT proceeding Z881/2020. The terms of the Tribunal’s orders suggests that all of the decisions at OVIC were made by this officer. Some of the powers of the Information Commissioner are delegable pursuant to s 6R of the FOI Act to the Public Access Deputy Commissioner, but not the power to make a fresh decision under section 49P on a review under pt VI of the FOI Act: s 6R(1)(b). The parties did not address this issue, or whether there was some alternative, lawful, way in which the Public Access Deputy Commissioner came to make the decisions, or whether the principles discussed in cases such as Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, 180 would mean that this issue is immaterial in the proceedings in this Court in any event. I will not consider it any further.
Application to Tribunal
Section 50 of the FOI Act relevantly provides that, ‘[s]ubject to this section’, an applicant may apply to the Tribunal for review of ‘(b) a decision of the Information Commissioner refusing to grant access to a document in accordance with a request’.
Section 50(4) of the FOI Act provides that on the hearing of an application for review ‘the Tribunal shall have, in addition to any other power, the same powers as an agency … in respect of a request …’.
Tribunal’s orders and reasons
On 30 May 2023, the Tribunal constituted by Senior Member Dea gave reasons for decision in the five review applications made by Mr Akers (Reasons), and made orders disposing of each of those review applications.[8] The Reasons turned on the application of the following provisions.
[8]Akers v The Royal Society for the Prevention of Cruelty to Animals (Review and Regulation) [2023] VCAT 602 (Reasons).
‘Personal affairs’ exemption — FOI Act s 33(1)
Section 33(1) of the FOI Act provides that a document is an exempt document if its disclosure under that Act would involve the unreasonable disclosure of information relating to the ‘personal affairs’ of any person. Information relating to the personal affairs of any person is defined to include information that identifies any person or discloses their address or location, or from which any person’s identity, address or location can reasonably be determined.[9]
[9]FOI Act s 33(9).
Consultation/notice requirements — FOI Act ss 33(2B) and 53A
Section 33(2B) provides:
An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must—
(a) notify the person who is the subject of that information (or if that person is deceased, that person's next of kin) that the agency or Minister has received a request for access to the document; and
(b) seek that person's view as to whether disclosure of the document should occur; and
(c) state that if the person consents to disclosure of the document, or disclosure subject to deletion of information relating to the personal affairs of the person, the person is not entitled to apply to the Tribunal for review of a decision to grant access to that document.
Section 53A of the FOI Act is entitled ‘Notification of reviews regarding documents affecting personal privacy’.
Section 53A(1) provides relevantly as follows:
If—
(a) an agency or Minister or the Information Commissioner makes a decision refusing to grant access to a document; and
(b) a reason for the decision is that the document is an exempt document under section 33(1) because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person; and
(c) an application is made to the Tribunal under section 50(1)(b) or (d) for review of the decision—
the agency … or the Information Commissioner (as the case requires), as soon as practicable after being notified of the application, must, if practicable, give written notice in accordance with subsection (2) to the person to whom the information relates.
Subsection 53A(2) sets out various requirements of the contents of such notice. It provides that a notice must inform the person of their right to intervene in the review and request the person to inform the Tribunal, within 21 days, whether or not the person intends to intervene.
Section 53A(3) provides that if the person does not intervene and the Tribunal orders that access be granted, the Tribunal must, if practicable, give notice of the order to the person. There is a 28-day delay in the coming into effect of any such order. The legislative intention behind this provision must be to give the person concerned the ability to make an application for leave to appeal from the order granting access, and to seek a stay of the order pending resolution of any such application and appeal.[10]
[10]See s 53A(4).
Investigative methods exemption — FOI Act s 31(1)(d)
Section 31(1)(d) provides that ‘subject to this section’, a document is an exempt document if its disclosure under the FOI Act would, or would be reasonably likely to, ‘disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures …’.
Police intelligence exemption — FOI Act s 31(3)
In certain respects, the Tribunal’s Reasons relied on a further exemption, s 31(3) of the FOI Act, which relevantly provides:
Notwithstanding anything to the contrary in this section, a document is an exempt document if it is a document created by the Bureau of Criminal Intelligence or (whether before or after the commencement of section 22 of the Terrorism (Community Protection) (Further Amendment) Act 2006) by the Intelligence and Covert Support Command of Victoria Police
Public interest override provision — FOI Act s 50(4)
The Tribunal also considered the public interest override provision of s 50(4), which relevantly provides:
On the hearing of an application for review the Tribunal shall have … power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
Complaints about the adequacy of searches — FOI Act ss 61A and 61B
The Tribunal also noted provisions of the FOI Act that enable complaints to be made the Information Commissioner relating to the adequacy of searches. These provisions are contained in pt VIA of the FOI Act, entitled ‘Complaints’.
Section 61A(1) relevantly provides:
A complaint may be made to the Information Commissioner in accordance with this Part about any of the following—
(a) an action taken or failed to be taken by an agency in the performance or purported performance of the agency's functions and obligations under this Act, including a decision by an agency that a document does not exist or cannot be located; …
The Information Commissioner has power to not accept, or dismiss, a complaint under s 61B, as well as power to refer a complaint to another body under s 61C, or to accept a complaint and investigate it, in which case the Information Commissioner must notify the principal officer of the agency concerned under s 61D.
If, when dealing with a complaint under pt VIA, the Information Commissioner ‘reasonably believes that an agency … has failed to undertake an adequate search for documents that relate to a decision that is the subject of the complaint, the Information Commissioner may give a notice to an agency … to require that agency…’ relevantly:
(a) in the case of a decision of an agency … under section 25A(1) or (5),[11] to process or identify a reasonable sample of the documents to which the request relates; or
(b) in any other case, to further search or to cause a further search to be undertaken for documents in the possession, custody or control of the agency ...
[11]These provisions confer power on an agency to refuse to grant access without processing the request in certain circumstances.
Section 50 of the FOI Act does not confer any power of review on the Tribunal in relation to the Information Commissioner’s decisions about such complaints. It does not refer to decisions of the Information Commissioner under any of the provisions of pt VIA at all.
In the course of its Reasons, two further provisions it noted with respect to arguments raised by Mr Akers were s 51(2)(d) and s 124 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Section 51 of the VCAT Act provides, relevantly:
51 Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2) In determining a proceeding for review of a decision the Tribunal may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
Section 124 of the VCAT Act provides:
124 Declarations
(1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.
(2) The Tribunal's power to make a declaration under subsection (1) is exercisable by a presidential member or a member who is an Australian lawyer.
(3) The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under an enabling enactment to make a declaration.
The proceedings in this Court
In these four proceedings, Mr Akers applies for leave to appeal pursuant to s 148(1) of the VCAT Act from the orders made by Senior Member Dea in four of the five review applications that were before the Tribunal:
(a) in Supreme Court proceeding S ECI 2023 0250 (the first SCV proceeding), Mr Akers seeks leave to appeal from the orders of the Tribunal in VCAT proceeding Z681/2021;
(b) in Supreme Court proceeding S ECI 2023 02851 (the second SCV proceeding), Mr Akers seeks leave to appeal from the Tribunal’s orders in VCAT proceeding Z671/2020;
(c) in Supreme Court proceeding S ECI 2023 02852 (the third SCV proceeding), Mr Akers seeks leave to appeal from the Tribunal’s orders in VCAT proceeding Z782/2020; and
(d) in Supreme Court proceeding S ECI 2023 02853 (the fourth SCV proceeding), Mr Akers seeks leave to appeal from the Tribunal’s orders in VCAT proceeding Z881/2020.
Mr Akers’ applications for leave to appeal in each of the four SCV proceedings were heard by me on 11 July 2024.
At the commencement of the hearing I made an order that any evidence received in any one of those proceedings could be used for the purposes of any of the other proceedings.
In the lead-up to the hearing, there had evidently been controversy between the parties as to competing proposed court books that each had prepared.
At the hearing, I ultimately accepted into evidence Mr Akers’ court book dated 24 June 2024.
The evidence in the four SCV proceedings consisted of that court book and an additional copy of an exhibit from one of Mr Akers’ affidavits, which in the event was not needed because it turned out to have already been included in complete form in the court book.
During the hearing, Mr Akers made some submissions which he wished to support with references to material in the court book he was unable to locate.
After the hearing, by email from my chambers, Mr Akers was given leave to provide list of any such references by a deadline in the following week. No such list was received.
Applicable principles
The four SCV proceedings were brought under s 148 of the VCAT Act.
Section 148(1) provides that a person may seek leave to appeal from a decision of VCAT on a question of law.
I am required to determine whether leave should be granted and, if so, whether the appeal should be granted, leading to the orders of VCAT (or any of them) being set aside or varied.
What is the function of the Court in an application for leave to appeal under s 148 of the VCAT Act?
The Court will only grant leave to appeal if the proposed appeal has a real prospect of success.[12]
[12]VCAT Act s 148(2A); Chopra v Department of Education and Training [2019] VSC 488, [21], [23]; Lucic v Henry (2021) 64 VR 252, [44].
Such an appeal is limited to questions of law. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[13] The appeal does not extend to correction of alleged errors of fact unless VCAT made a finding of fact that was not open to it.[14]
[13]Miller v Martin [2021] VSCA 108, [71], citing Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44].
[14]Tanah Merah Vic Pty Ltd v Owners’ Corporation No 1 of PS613436T [2021] VSCA 72, [198]; Miller v Martin [2021] VSCA 108, [72]; Heng Yang Developments Pty Ltd v Red Earth Developments (Aust) Pty Ltd [2022] VSC 231, [40].
However, the limits of the Court’s function in a proceeding under s 148 do not altogether prevent a court from considering mixed questions of fact and law. In some circumstances, it will be permissible to consider whether VCAT erred in law in reaching conclusions on mixed questions of fact and law.[15]
[15]See Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, [50] (Warren CJ); Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315, [192].
Generally speaking, whether primary facts as found fall within a statutory provision properly construed is a question of law.[16] The exceptions are where the statute has been properly interpreted and the question of whether the circumstances fall within it is one of degree, or one involving an element of value judgement or evaluation on which minds can legitimately differ;[17] and where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words.[18]
[16]Hope v Bathurst City Council (1980) 144 CLR 1, 7; Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287; FCT v Trail Bros Steel & Plastics (2010) 186 FCR 410, [13]; Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [24] (Gleeson CJ, Gummow and Callinan JJ); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, [48] (Warren CJ), [167]–[168] (Whelan JA); Chopra v Department of Education and Training (2019) 60 VR 505, [88]; but compare S v Crimes Compensation Tribunal [1998] 1 VR 83, 89. The Court of Appeal’s decision in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771 was reversed on appeal on different grounds, without affecting the remarks noted here: see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, [24]–[27], [69].
[17]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.
[18]Chopra v Department of Education and Training (2019) 60 VR 505, [88].
Consideration
Tribunal’s Orders and Reasons
In its Reasons,[19] the Tribunal explained that it had in essence decided to affirm OVIC’s decision in each proceeding, adding:
However, because the RSPCA released further material to Akers during the Tribunal processes, the parts of documents the RSPCA claimed were exempt changed considerably from when the matters were before OVIC. To ensure certainty, I have set aside OVIC’s decisions and made findings on each of the documents which remained in dispute as at the time of the hearing in December 2022.
[19]Reasons [9].
The Tribunal’s orders in each of the four VCAT proceedings under appeal are reproduced under separate headings for each proceeding below.
After giving a brief overview, the Tribunal’s Reasons[20] addressed the objects of the FOI Act, the provision that places the onus on an agency claiming an exemption (FOI Act s 55), and the exemptions RSPCA relied on: FOI Act ss 33(1), 31(1)(d), and 31(3). The Reasons also addressed the s 50(4) ‘public interest override’ provision, which can apply to s 31(1)(d), but not to ss 33 or 31(3).
[20]Reasons [11]–[28].
The Tribunal’s Reasons[21] then addressed evidence and submissions which were relevant to more than one proceeding, including by giving an overview of the evidence of Ms Leah Marshall, an officer of the RSPCA. In a passage that assumed some significance in the proceedings in this Court, the Tribunal said:
36. Akers made a broad complaint to the effect that the RSPCA had delayed these proceedings, including by failing to comply with Tribunal orders and, as I understood it, in his view it was not cooperative in exchanging documents with him. I understood those complaints to apply to each of the proceedings.
37. At a directions hearing which proceeded the final hearing, I expressed concerns about the way in which the RSPCA had prepared what was intended to be a joint Tribunal Book. Akers had difficulty understanding how the documents were arranged and readily identifying which documents had been released for each access request and which were in dispute. That led to me directing that the RSPCA produce further individual Tribunal Books which contained the relevant OVIC decision, all documents released to Akers and all documents which remained in dispute (including redactions) (‘Individual Tribunal Books’). While I accept that it would seem the preparations for the final hearing were less than perfect, I was satisfied the Individual Tribunal Books enabled Akers and myself to identify the documents in dispute and the issues in dispute. Akers had the opportunity to refer me to all materials he relied on at the hearing. As a result, I can take the particular complaint no further.
38. Akers raised concerns about the RSPCA releasing further content or documents to him after the proceedings had commenced. It is clearly preferable for agencies to complete their careful consideration and assessment of access requests under the FOI Act as early as possible so that the maximum amount of information is released before an application is made to the Tribunal. Having said that, it is positive that agencies reconsider their position again once an application is made. The later release of content does not impact on the Tribunal’s assessment of whether FOI Act exemptions apply although I am aware that in this case, by the time of the hearing, some of the evidence relied on and submissions made by the parties were no longer current.
[21]Reasons [29]–[73].
The Tribunal’s Reasons went on to identify four key issues which arose in more than one of the proceedings: the issue of adequacy of searches undertaken to locate documents;[22] the issue of consultation with and notification of people whose ‘personal affairs’ information may be disclosed pursuant to FOI Act ss 33(2B) and 53A;[23] the issue of the impact on third parties who may be referred to in documents the subject of requests;[24] and the issue of the relevance of a person’s professional role to the ‘personal affairs’ exemption.[25]
[22]Reasons [41], referring to a later passage in the Reasons, which may be found at [345]–[349].
[23]Reasons [42]–[46].
[24]Reasons [47]–[57].
[25]Reasons [58]–[73].
After that, the Tribunal turned to the individual proceedings. Senior Member Dea began by explaining her approach, both at the hearing and in structuring her Reasons:
Approach to the individual proceedings
74. At the start of the hearing, the parties and I reviewed the documents in each Individual Tribunal Book which contained redactions and Akers identified the redacted content he maintained he wished to have disclosed to him. The effect of that process was that Akers confirmed he sought all withheld names but did not seek other personal details such as home addresses, personal email addresses or personal telephone or mobile numbers. I understood he sought what I have referred to as business email addresses.
75. Both Marshall and Akers were then sworn in at the commencement of the first matter and were treated as being sworn in thereafter. They were treated as having adopted their witness statements.
76. In my Reasons for each proceeding I set out the terms of the relevant request in issue, I then summarise the evidence relevant to each request, the submissions made and give my decision on each proceeding.
77. Where there were submissions before me touching on the above topics, I have noted them but not made additional findings and instead have applied the above conclusions.
78. I next address each of the requests which formed the basis for the proceedings in the order they were considered at the hearing.
In five sections of the Reasons that follow, the Tribunal then set out its reasoning and conclusions in the five VCAT proceedings in turn. To the extent that four of these sections are relevant to the four SCV proceedings before me, I summarise and quote from them under the separate headings that appear in the remainder of my reasons for judgment, below.
First SCV proceeding (S ECI 2023 02850) — appeal from VCAT proceeding Z681/2021
Overview
The request for access the subject of this VCAT proceeding was recorded by the Tribunal as being:[26]
I apply for document[s] on the RSPCA knowing “[Aker’s]” to be violent.
[26]Reasons [155].
The Tribunal also noted that OVIC clarified the request as seeking access to the following:[27]
… my applicant is on the RSPCA referring, nothing, reporting, document[s] where RSPCA have stated [Aker’s] is Violent!
[27]Reasons [156].
The Tribunal addressed the request for access the subject of VCAT proceeding Z681/2021, the identified documents falling within that request, the relevant claims of exemption, the competing evidence and submissions of the parties, and the Tribunal’s reasoning and conclusions, in its Reasons at [155]–[228] and in part of Attachment A to the Reasons.
The Tribunal identified six documents in dispute before it (numbered 5–10). Its decision ultimately turned on s 33(1), the ‘personal affairs’ exemption.[28] All the documents had been released in part, with certain names, email addresses and telephone numbers withheld. The Tribunal upheld the claims of exemption under s 33(1).[29]
[28]The Tribunal noted a claim under s 35(1)(b) of the FOI Act, but ultimately found at Reasons [227] that it was unnecessary to decide it.
[29]Reasons [226].
The Tribunal’s order in relation to this VCAT proceeding was:
3 The Public Access Deputy Commissioner’s decision made on 17 August 2021 is set aside and substituted with a decision that parts of Documents 5 to 10 are exempt (as identified in Attachment A to these Reasons).
Grounds of appeal
Grounds 1 and 2
Ground 1 states:
In the reasons stating the requests all arise from events that occurred in 2016, this statement in the reasons is misleading.
Paragraph 2 of the Tribunal’s Reasons states:
The requests all arise from events which occurred in 2016 when horses were seized from [Mr] Akers’ residence. Some of those events involved the RSPCA.
Mr Akers explained to me that he regarded this statement as misleading because some aspects of the facts relevant to his requests for access went back a significant period of time before 2016. The request for access the subject of VCAT proceeding Z681/2021 appears to be one such request.
In this regard, Mr Akers explained that there was a link between Ground 1 and Ground 2.
Ground 2 states:
The respondent applied the opinion that Bruce Akers as being violent in various submissions, outside the dates referred to in the reasons/
iEvidence was given by the respondent referring to Akers being violent years before 2016.
iiThe applicant had made various freedom of information applications, where submissions were required. From concerns by the applicant, the government agencies addressed the Akers as being violent.
iiiThe applicant became aware of the use by agencies of the term Bruce Akers is Violent.
The requests for access to documents made by Mr Akers and relevant to the proceedings in this Court are reproduced (in some cases, partially) in the Tribunal’s Reasons.[30] As noted in paragraph 56 above, the request the subject of VCAT proceeding Z681/2021 could capture documents generated before 2016 or referring to occurrences before 2016.
[30]Reasons [155] as to the access request the subject of VCAT proceeding Z681/2021 on appeal in the first SCV proceeding; Reasons [79] as to the access request the subject of VCAT proceeding Z671/2021 under appeal in the second SCV proceeding; and Reasons [229] as to the access request in VCAT proceeding Z782/2020 under appeal in the third SCV proceeding. The access request the subject of VCAT proceeding Z881/2020 the subject of appeal in the fourth SCV proceeding 02853 is not reproduced in the Reasons and Mr Akers was not able to identify it in the court book.
Not all of the requests were for documents generated at the time of the events in 2016; some requests could extend to documents generated earlier in time. In this sense, depending on what ‘arise’ in Reasons [2] means, the statement at Reasons [2] may be said to be incomplete and not precisely correct.
Nevertheless, broadly speaking, it was open to the Tribunal to consider that all the requests had a connection with events which occurred in 2016, at least in the sense that they probably would not have been made if those events had not occurred. If ‘arise’ in Reasons [2] is read broadly and in this manner, then the description adopted by the Tribunal was correct and it was not misleading
It is well established that the reasons of administrative decision makers are not to be scrutinised over-zealously ‘by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[31]
[31]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
I interpret ‘arise’ in Reasons [2] broadly and do not think there was any error or misdescription of facts in that paragraph.
In any event, there was no explanation from Mr Akers of whether or how any misdescription of the facts in Reasons [2] could have had any impact on the critical reasoning of the Tribunal leading the Tribunal to its conclusions.
Further and in any event, grounds 1 and 2 do not allege errors of law. A misdescription of background facts of this kind would be a mere error of fact.
I conclude that grounds 1 and 2 have no real prospects of success.
Ground 3
Ground 3 reads:
Reasons as to the disadvantage that the respondent had caused the applicant could have been addressed by orders for all witness statements and evidence of being included in the Tribunal Book.
iThe applicant in June 2020, wrote to the respondent and Tribunal as to the disadvantage that the respondent had caused and continues to cause by way of not including all documents, witness statements, and legal contentions in the final Tribunal Book with the hearing listed for 19 December 2022.
iiNoting the Tribunal listed directions hearing on the 9 December 2022, with further orders by the Tribunal for further documents to be included which should of previously been included.
Mr Akers explained to me that he felt disadvantaged by the way in which the RSPCA had prepared the materials for consideration by the Tribunal in the final hearing of the review of the OVIC decisions concerning his access requests.
The Tribunal was clearly conscious of issues concerning the preparation of these materials, and called a directions hearing on 9 December 2022 to deal with them. The Tribunal’s Reasons [37] (extracted in paragraph 52 above) sets out the learned Senior Member’s account of these issues and the solution she adopted.
I am not satisfied that there is any real prospect of Mr Akers being able to establish a breach of procedural fairness in this regard. I can see no basis in any of the material to which he took me for thinking that he was deprived of a fair opportunity of presenting his case.
On a number of occasions during the hearing before me, Mr Akers expressed to me how confusing he found the process and how difficult it was. I do not doubt the sincerity of these impressions. But that does not mean that Mr Akers has established a real prospect of the success of a denial of procedural fairness claim. He did not take me to any concrete example of a document relied upon by the Tribunal which he had not had an opportunity to consider or make a submission about. He did not take me to any example of any critical aspect of reasoning by the Tribunal which relied on any document or material which had taken him by surprise.
I conclude that ground 3 has no real prospect of success.
Ground 4
Ground 4 reads:
Redacted witness statements and verbal evidence was given as to the person(s) who may have objected to the applicant receiving the names of the person(s), this verbal evidence should not of be accepted and orders could have been made for the respondent to send section 53A notices.
Mr Akers explained to me that he claims the Tribunal relied on evidence of the RSPCA’s witness Ms Marshall to the effect that not all persons whose names appeared in documents the subject of his access requests had been notified of his claim for access to those documents. He sought to have documents provided to him in unredacted form referring to the names of those people. He said that there was a prospect that, if those people had been served notices under s 53A of the FOI Act, they might have indicated that they were content for Mr Akers to receive their names.
The Tribunal addressed this issue in the passage of its reason headed ‘Consultation under sections 33(2B) and 53A of the FOI Act’ at Reasons [42]–[46].
Section 33(2B) of the FOI Act does not impose any requirement that directly applies to proceedings in the Tribunal. It imposes requirements that apply at an earlier time: the time the agency is considering a request for access to a document. I have extracted s 33(2B) in paragraph 18 above. As that extract shows, the agency, in consulting a person whose personal affairs could be unreasonably disclosed if access is granted to the document, must seek that person's view as to whether disclosure of the document should occur, and tell them that if they consent, they will not be able to apply for review by the Tribunal.
I have summarised relevant aspects of s 53A in paragraphs 19 to 22 above. It applies directly at the time of the proceedings in the Tribunal.
The requirement imposed on the agency or the Information Commissioner by s 53A is ‘if practicable’ to ‘give written notice in accordance with subsection (2) to the person to whom the information relates’. The notice in s 53A(2) is required to inform the person to whom the information relates of their right to intervene and to request them to inform the Tribunal whether or not they intend to intervene. I will call the person in question the ‘affected person’. There is no requirement imposed on the affected person to inform the Tribunal in accordance with the request. Further, the notice is not required to request that the affected person indicate whether or not they consent to disclosure.
There were three key aspects of the Tribunal’s reasoning at Reasons [42]–[46]. First, the Tribunal had regard to confidential evidence from Ms Marshall about efforts she made to contact relevant people, or why it was decided not to attempt to contact relevant people, and about the outcomes of consultations with many people. Second, the Tribunal was satisfied on this evidence that the RSPCA had complied with its obligations under s 33(2B). Third, the Tribunal was satisfied that for some people, it was not practical for them to be consulted (or, I interpolate, practicable for them to be notified) under either s 33(2B)[32] or s 53A. Fourth, the Tribunal was satisfied, in the case of individuals who expressed views about the release of their personal information via the RSPCA’s section 33(2B) process, that there would have been no utility in the RSPCA undertaking further consultation under section 53A of the FOI Act.
[32]There was a typographical error in the reference to this provision at this point in the Reasons.
There is no discernible error of law in this passage of reasoning, and no reason to think that the factual conclusions reached by the Tribunal were not open on the evidence. Mr Akers has not demonstrated a real prospect of establishing that the Tribunal erred in accepting that it was not ‘practical’ to send notices to any affected person who did not receive them.
Further, the question of ‘practicability’ is a question of fact. There is no indication that the Tribunal misunderstood the meaning of s 53A. The question of whether the facts as found by it fell within the concept of practicality was a matter for it to evaluate and does not raise an error of law.
Further, on my reading of s 53A, including when read in conjunction with s 33(2B) and the FOI Act as a whole, the function of a notice under s 53A is to allow an affected person an opportunity to intervene for the purpose of opposing disclosure. As already noted, the notice is merely required to notify the affected person of their right to intervene and request them to inform the Tribunal whether or not they intend to do so; it does not seek an indication of the affected person’s consent to release of their personal information; and it does not require them to inform the Tribunal if they have chosen not to intervene.
Unlike the case of consultation under s 33(2B), there is no suggestion that an affected person’s response to a notice under s 53A may involve any form of consent to disclosure capable of preventing the affected person from resisting disclosure at any later time. On the contrary, s 53A(3) accords a 28-day stay of any order of the Tribunal to disclose the information in the event that the person has not intervened. That period of grace must, I think, be intended by Parliament to allow an affected person who has not intervened in the Tribunal proceeding to commence an application for leave to appeal from any decision of the Tribunal to allow disclosure, and to seek a stay of disclosure while that application and appeal are heard.
It is for these reasons that I consider the statutory purpose of the notice to be confined to providing the affected person with an opportunity to oppose disclosure of the information.
It follows that a breach of s 53A is only material to the outcome of the Tribunal proceeding if the Tribunal ultimately decides to disclose the personal information. In that event, it might be open to the affected person to assert a breach of a procedural condition. In the event of a decision against release of the information, it would not matter that the person had not been given the opportunity in intervene. In those circumstances, the breach could not be said to have affected the decision.
I conclude that ground 4 has no real prospect of success.
Ground 5
Ground 5 states:
The respondent should have given a written statement as to the respondent filing with the applicant’s previously withheld documents after the OVIC decision and before the review by the Tribunal.
Mr Akers explained to me that this ground relates to what he regards as a failure by the RSPCA to provide a ‘section 49 statement’ in relation to decisions the RSPCA made during the proceedings before VCAT to allow access to parts of documents where it previously had not allowed this, and to claim exemptions in relation to documents the subject of Mr Akers’ access requests that had not previously been claimed.
Section 49 of the VCAT Act requires that, if a person applies to VCAT for a review of a decision, the respondent is to lodge with VCAT a statement of the reasons it has given for the decision and a copy of every other document in its possession that it considers is relevant to the review of the decision. This statement and this material must be lodged within 28 days after the day the decision maker receives notice of the application for review.
Separately, FOI Act pt VI, div 1 ‘Review by Information Commissioner’ also requires a statement of reasons to be provided. As mentioned above, s 49P requires the Information Commissioner to give the parties notice in writing of the decision setting out reasons for the decision and the rights of parties to apply to the Tribunal for review under s 50 of the FOI Act.
Mr Akers had a number of grounds in his appeal notices in the four proceedings in this Court which relate to this issue. He contended that, as a result of shifts in position on the part of the RSPCA, the decision VCAT was reviewing was no longer the same decision. He contended that VCAT was in effect conducting ‘de novo’ decision making rather than decision making on review of decisions that had been explained in statements provided under s 49. That meant he was deprived of the benefit of explanations of such de novo decisions in a s 49 statement for each. He contended that this was contrary to the statutory scheme, under which he should be entitled to be notified of fresh primary decisions by the RSPCA. He contended that those fresh notifications of decisions should be accompanied by fresh s 49 statements. He contended that this would make the process of dealing with a review of decision making under the FOI Act and the VCAT Act less confusing. Only if such notifications and s 49 statements were provided to him could he then make an informed choice whether or not to seek review of them.
The Tribunal addressed issues of this kind in Reasons [274] and [275], and at [299], in the context of two documents relevant to proceeding Z782/2020, on appeal in the third SCV proceeding (S ECI 2023 02852).
As the Tribunal noted in those paragraphs of its Reasons, the RSPCA sought to rely on a newly raised exemption for certain content of documents 4 and 5 in that proceeding, despite that exemption not having been raised before OVIC. Documents 4 and 5 had been withheld entirely in the decision made by OVIC. The RSPCA wished to release documents 4 and 5, subject to redaction of material falling within a newly identified exemption — the exemption in s 31(3) of the FOI Act.
The RSPCA’s submissions drew attention to Quigley J’s decision in Crozier v Department of Health (Crozier).[33] In that decision, her Honour, sitting as President of VCAT, said that under the statutory regime the Tribunal has a broad power of review and is at large and not constrained to a consideration of the provisions of the FOI Act considered by the original decision maker. Her Honour described the nature of the review as effectively ‘de novo review’.[34]
[33][2022] VCAT 1301.
[34][2022] VCAT 1301, [13].
The RSPCA submitted that, in reliance on Crozier, it is entitled to rely upon exemptions that were not considered by OVIC.
The Tribunal accepted RSPCA’s submission. The Tribunal said:[35]
Having regard to Crozier, I accept that when the Tribunal is exercising its review powers to make a fresh decision on exemptions under the FOI Act, it is entitled to hear and determine additional claims. Accordingly, the RSPCA is entitled to seek to rely on section 31(3) of the FOI Act in respect of parts of Documents 4 and 5.
[35]Reasons [299].
There is no reason to doubt the correctness of Crozier. Respectfully, I am of the view that her Honour’s reasoning is correct. Likewise, there is no reason to doubt the correctness of the Tribunal’s reasoning and conclusion, consistent with Crozier, that the Tribunal is able to consider exemptions that were not raised by a primary decision-maker or by OVIC, on a review of OVIC’s decision in relation to a request for access.
There is a common misconception that, because a matter in the Tribunal is called a ‘review’, then it must be confined to whether there was error in the decision under review. This is not so. The Tribunal conducts review proceedings as ‘de novo’[36] hearings with a view to reaching the correct or preferable decision on the merits regardless of any defects in the decision under review.[37] It follows that the Tribunal is free to take into account fresh evidence and newly raised exemptions as it sees fit, provided that will assist it to reach the correct or preferable decision as to the request for access.
[36]‘De novo’ means from the start or afresh.
[37]See, eg, Garde-Wilson v Legal Services Board (2008) 19 VR 398, [96]; Mond v Perkins Architects Pty Ltd [2013] VSC 455, [10]; Hoskin v Greater Bendigo City Council (2015) 48 VR 715, [113]; CZG (A Pseudonym) v Victims of Crime Assistance Tribunal (2020) 61 VR 644, [4].
That being so, there is no reason to think that s 49 of the VCAT Act or any other aspect of the statutory scheme requires either the primary decision maker (the RSPCA) or the Information Commissioner to prepare a new s 49 statement in the event that new exemptions are raised during the proceedings before the Tribunal. As already recounted, the requirements of VCAT Act s 49 apply at the time of commencement of a review application before VCAT, and they relate to the decision under review. There is nothing in s 49 which suggests that, in the event that an additional exemption is identified, or in the event that a change in position on the release of a document occurs, the obligations of that provision are re-enlivened and must be performed again.
I conclude that ground 5 has no real prospects of success.
Ground 6
Ground 6 states:
The reasons why the applicant required the names of the person(s) involved in the incident(s) are misleading and incorrect.
I asked Mr Akers to identify where, in the Reasons of the Tribunal, he claims the Tribunal adopted a misleading and/or incorrect description of the reasons or purposes for which he (Mr Akers) required access to the names of people referred to in the documents the subject of his request for access. I also asked him for any references to material in the Court Book providing evidence of what he had told the Tribunal his reasons or purposes were.
By the end of the hearing on 11 July 2024, Mr Akers had not provided these references. I granted him leave after the hearing to provide a list of any such references. No such list of references was provided.
I conclude that ground 6 has no real prospects of success.
Ground 7
Ground 7 states:
The final Tribunal Book was not agreed by the applicant.
Mr Akers explained that this was a matter arising from the difficulties he encountered as a result of the RSPCA’s preparation of materials for hearing before the Tribunal, as already mentioned under ground 3 above.
I accept for the purposes of consideration of this ground that, as Mr Akers told me, he did not agree to the final form of the Tribunal Book. Nevertheless, as explained under ground 3 above, I can discern no basis for thinking that a procedural fairness claim could be sustained. There appears to be no other way in which the absence of agreement about the Tribunal Book could give rise to a question of law affecting the Tribunal’s decision.
I conclude that there is no real prospect of success of ground 7.
Conclusion regarding first SCV proceeding
In summary, none of the grounds of the notice of appeal in the first SCV proceeding (S ECI 2023 02850) have real prospects of success, and so leave will be refused and the proceeding will be dismissed.
Second SCV proceeding (S ECI 2023 02851) — appeal from VCAT proceeding Z671/2020
Overview
The request for access considered in VCAT proceeding Z671/2020 was recorded by the Tribunal as follows:[38]
[38]Reasons [79].
1. A copy of any documents showing the rehoming of horses seized from . . .
2. Any document showing donations made to RSPCA Victoria for the rehoming of horses seized from . . .
3. A copy of any documents stating the outcome of the horses seized from . . . which may include horses that were euthanised (shot or destroyed), horses that died of natural causes, and horses that were sent to the knackery.
4. A copy of the most recent documents on file for the horses seized at . . . stating their location.
5. A copy of any documents showing the branding and markings of the horses seized from . . . including any re-branding information if this occurred.
6. Instructions to RSPCA staff to round up the horses, which may include which person/s are responsible for rounding up the horses, and what methods to use to round up the horses.
7. A copy of any documents stating the reasons for removing the cameras from . . .
8. A copy of any documents stating the reasons for damaging the buildings at . . .
9. A copy of statement provided by [Akers] during an interview at the Sunbury Police Station on 4 April 2016.
10. A copy of any documents regarding the entry of RSPCA into . . . prior to a warrant being issued.
The Tribunal addressed the request for access the subject of VCAT proceeding Z671/2020, the documents identified as falling within that request, the relevant claims of exemption, the competing evidence and submissions of the parties, and the Tribunal’s reasoning and conclusions, in its Reasons at [79]–[114] and in part of Attachment A to the Reasons.
The Tribunal identified only one document that remained in dispute by the end of the review before it (document 4), and also noted that Mr Akers accepted a claim of exemption in relation to another document (document 3).The review decision turned on s 33(1), the ‘personal affairs’ exemption. The Tribunal upheld the claim of exemption under s 33(1) in relation to those documents.
The Tribunal’s order in relation to this VCAT proceeding was:
1 The Public Access Deputy Commissioner’s decision made on 13 August 2021 is set aside and substituted with a decision that parts of Documents 3 and 4 are exempt (as identified in Attachment A to these Reasons).
Grounds of appeal
Ground 1
Ground 1 states:
The Learned Senior Member errored in not making orders for the respondent to do a further and better search for documents in clarification points-1,2,3 & 10 Pursuant to the Act.
In Reasons [41], the Tribunal recorded that the adequacy of searches was not a matter it could consider, for the reasons it provided in detail in relation to VCAT proceeding Z881/2020.
For the reasons set out in the final section of these reasons, relating to the fourth SCV proceeding, I discern no error in the Tribunal’s reasoning. In my view, it is clear that the Tribunal does not have any power of review of a decision of the Information Commissioner or any other officer of OVIC in response to a complaint about the adequacy of searches by an agency. Neither party addressed s 49KA of the FOI Act, and whether the power conferred on the Information Commissioner by that provision might also have been available to the Tribunal on review, and, (if so) whether some kind of error of law might be said to have arisen in the Tribunal’s reviews in this regard.
I conclude that ground 1 has no real prospect of success.
Ground 2
Ground 2 states:
Senior Member erred in limiting the reasons as to the disadvantage that the respondent had caused the applicant.
Mr Akers explained to me that this ground was similar to the complaint made in the first SCV proceeding, grounds 3, 5 and 7, relating to alleged disadvantage to Mr Akers by reason of the final Tribunal Book used by the Tribunal, the redaction of witness statements and the form of witness statements included in the materials before the Tribunal.
For the reasons I have already given in relation to the first SCV proceeding, grounds 3, 5 and 7, I conclude that this ground has no real prospect of success.
Ground 3
This ground states:
The Tribunal was written to by the applicant in June 2022, about the disadvantage the respondent and Tribunal had caused and continue to cause by way of not including all documents, witness statements, and legal contentions in the final Tribunal Book with the hearing listed for 19 December 2022. Noting the Tribunal listed directions hearing on the 9 December 2022, with further orders by the Tribunal for further documents to be included which should of previously been included.
Mr Akers likewise explained to me that this ground was also similar to grounds 3, 5 and 7 of the first SCV proceeding.
For the same reasons, I conclude that it has no real prospects of success.
Ground 4
This ground stated:
Redacted witness statements, and verbal evidence given as to the person(s) who may have objected to the applicant receiving the names of the person(s).
I gave leave for this ground to be amended to add the words ‘and orders could have been made for the respondent to send section 53A notices’.
This ground, in amended form, is similar to ground 4 of the first SCV proceeding. For the reasons I gave above in relation to ground 4 of the first SCV proceeding, I conclude that this ground also has no real prospect of success.
Ground 5
Mr Akers obtained leave to amend ground 5 to the following form:
The respondent should have given a written statement as to the respondent filing with the applicant’s previously withheld documents after the OVIC decision.
This ground is almost identical to ground 5 of the first SCV proceeding. For the same reasons I gave in relation to that ground, I conclude that this ground has no real prospect of success.
Grounds 6 and 7
Ground 6 states:
The Senior Member should have given no weight to the verbal evidence by the respondent.
Mr Akers explained to me that ground 6 runs ‘parallel’ with ground 7, which states:
Section 53A notices should they of be sent to the person(s) involved in incidents, would have answered the question of whether the person(s) involved objects to the information being given to the applicant.
Mr Akers explained to me that he objected to the verbal evidence of Ms Marshall about the likely responses of affected persons whose personal information was sought by Mr Akers being given any weight. He submitted that, rather than giving any weight to those opinions, the Tribunal should only have acted on direct responses of affected persons whose personal information was covered by Mr Akers’ request for access to documents. Mr Akers submitted that if s 53A notices had been sent, that would have answered the question of whether the affected person objected to providing information.
I repeat my reasons in relation to ground 4 of the first SCV proceeding, above. For the same reasons, I conclude that these two grounds, grounds 6 and 7 of the second SCV proceeding, have no prospects of success.
Grounds 8 and 9
Ground 8 states:
The Senior Member errored in the reasons as to why the applicant required the names of the person(s) involved in the incident(s).
Ground 9 states:
The applicant has been in situations where the person(s) are weary of the applicant, make false understanding, etc.
Mr Akers explained to me that these grounds are combined. Ground 8 in the second SCV proceeding is the same ground 6 in the first SCV proceeding.
Ground 9 is incidental to ground 8.
As already mentioned, I gave Mr Akers an opportunity to provide references to relevant material in support of these grounds. No references were provided. I conclude that these grounds have no real prospects of success.
Ground 10
This ground states:
The Senior Member erred in the reasons by stating all requests arise from events that occurred in 2016 when horses were seized from Akers’ residence.
This ground is similar to ground 1 of the first SCV proceeding.
For the reasons I gave in relation to that ground, I conclude that this ground has no real prospect of success.
Ground 11
This ground states:
The Senior Member errored in the reasons and decision by addressing witness statements by the respondent that were not in the updated Tribunal Book.
This ground rested on the same contentions that underpinned grounds 3 and 7 of the first SCV proceeding. In addition, Mr Akers wished to provide additional references to material in support of this ground. However, no such list of references was received.
For the same reasons as I gave in relation to each of grounds 3 and 7 of the first SCV proceeding, I conclude that this ground has no real prospect of success.
Ground 12
This ground states:
The statements and witness statements that were included in the reasons, that were not in the Final Tribunal Book were not sworn or affirmed.
It appears from the materials before me that the Tribunal received evidence in written and oral form from both Mr Akers and Ms Marshall.[39]
[39]Applicant’s e-court book dated 24 June 2024, item A.3, Transcript of Proceedings, VCAT Review and Regulation list numbers: Z673/2020, Z782/2020, Z881/2020, Z671/2020, Z681/2020 dated 19 December 2022, 90–93.
In any event, the Tribunal was not bound by the rules of evidence and was not subject to any limitation requiring it to exclude evidence in unverified form.
In my view, this ground has no real prospect of success.
Ground 13
This ground states:
The final Tribunal Book was not agreed to by the applicant.
This ground was based on similar contentions to those in support of ground 7 of the first SCV proceeding, save that each SCV proceeding relates to a different VCAT proceeding.
Although Mr Akers’ complaint in relation to the process for the production of the Tribunal Book in each VCAT proceeding differs, and the content relevant to each VCAT proceeding may have differed, the process which led to the production of the relevant materials was materially the same.
For the same reasons I gave in relation to ground 7 of the first SCV proceeding, I conclude that ground 13 of the second SCV proceeding has no real prospect of success.
Ground 14
This ground states:
The respondent should have applied under the Open Court Act, if the respondent had any documents that the respondent did not want the applicant to see and not cloud the review by filing and set of documents to the applicant and another to the Tribunal.
My understanding is that the Tribunal was provided with unredacted versions of the documents in dispute. Mr Akers was only provided with versions of the documents from which text had been redacted where disclosure to Mr Akers of such text would render futile the claims for exemption the RSPCA was making.
In effect, this meant that various items of personal information, such as names, were made known to the Tribunal but not to Mr Akers.
Mr Akers has not established that this process necessitated any application under the Open Courts Act 2013, or powers under that Act.
Mr Akers did not explain to me how precisely he contended that the Open Courts Act was engaged. He referred me to s 30 of that Act. That Act relates to the power of a court or tribunal to close a proceeding to the public. That is irrelevant to the present issue.
I conclude that this ground has no real prospect of success.
Conclusion regarding second SCV proceeding
In summary, none of the grounds of the notice of appeal in the second SCV proceeding (S ECI 2023 02851) have real prospects of success, and so leave will be refused and the proceeding will be dismissed.
Third SCV proceeding (S ECI 2023 02852) — appeal from VCAT proceeding Z782/2020
Overview
The request for access the subject of VCAT proceeding Z782/2020 was recorded by the Tribunal as initially being in this form:[40]
I apply for documents, emails, dairy notes, on – Contract between the [RSPCA], Victorian Police, Racing Victoria and /or Victorian Racing Club.
Between the dates of 2 April 2016 to [20] April 2016.
[40]Reasons [229].
The Tribunal noted that it was refined as follows:[41]
A copy of emails, notes of telephone discussions, or letters, between RSPCA Victoria to Victoria Police, Racing Victoria and Hume City Council, regarding [Akers], and [Akers] livestock at the property . . ., between 2 April – 20 April 2016.
[41]Reasons [230].
At the start of its Reasons,[42] the Tribunal noted that, in proceeding Z782/2020, the RSPCA sought to rely on an additional exemption (under section 31(3)) in respect of two documents, despite the fact this exemption had not been considered in the original decision the RSPCA made, or in the decision on review by OVIC.
[42]Reasons [6].
The Tribunal addressed the request for access the subject of VCAT proceeding Z782/2020, the identified documents falling within that request, the claims of exemption, the competing evidence and submissions of the parties, and the Tribunal’s reasoning and conclusions, in detail in its Reasons at [229]–[307] and in part of Attachment A to the Reasons.
The Tribunal noted that there were eight documents identified by the RSPCA (documents 1–8). Both the RSPCA and OVIC decided to release six of them in part, and withhold two in full (documents 4 and 5). The grounds of exemption were s 33(1) and, in respect of documents 4 and 5, another exemption that was ultimately not relied upon by the Tribunal, s 31(1)(d).[43] Mr Akers contended that the RSPCA had again failed to comply with s 53A of the FOI Act.[44] The RSPCA relied on s 31(3) and s 31(1)(d) in relation to parts of documents 4 and 5.[45] The Tribunal noted that the RSPCA agreed that documents 4 and 5 included the same document as document 8 in VCAT proceeding Z681/2021, and that it should be released subject to the same redactions as had been made for that document under s 33(1).[46] Otherwise, the RSPCA sought to rely on s 31(3) for some of the remaining content of documents 4 and 5, even though this exemption had not been claimed before OVIC.[47] The RSPCA submitted, by reference to Quigley J’s decision in Crozier, that this was permissible.[48]
[43]Reasons [239]–[243].
[44]Reasons [255].
[45]Reasons [273]–[277] as to the claim under s 31(3) and [278]–[281] as to the claim under s 31(1)(d).
[46]Reasons [273].
[47]Reasons [274].
[48]Reasons [274], referring to Crozier v Department of Health [2022] VCAT 1301, [13].
The Tribunal upheld the claims of exemption under s 33(1) in relation to documents 3, 6, 7, and 8.[49] It accepted that the RSPCA could rely on s 31(3) in relation to documents 4 and 5, and upheld the claims under that provision, otherwise releasing documents 4 and 5 subject to some redactions under s 33(1) and rejecting the claims of exemption under s 31(1)(d).[50]
[49]Reasons [290]–[297].
[50]Reasons [298]–[307].
The Tribunal’s order in relation to this VCAT proceeding was:
4 The Public Access Deputy Commissioner’s decision made on 12 October 2020 is set aside and substituted with a decision that parts of Documents 1 to 8 are exempt (as identified in Attachment A to these Reasons).
Grounds of appeal
Ground 1
Ground 1 comprises various elements.
The first, sub-paragraph (i), is:
A substantial breach of natural justice has been occasioned due to the Learned Senior Member: … not ordering the respondent to conduct a further and better search,
For the reasons I give in relation to the fourth SCV proceeding below, I can see no error in the Tribunal’s conclusion that it had no power to review OVIC’s response to Mr Akers’ complaint that the RSPCA’s searches for documents had been inadequate. I conclude that this sub-paragraph has no real prospect of success
The second, sub-paragraph (ii), is:
A substantial breach of natural justice has been occasioned due to the Learned Senior Member: … Accepting the respondent’s verbal submission at the Final Hearing, followed by the respondent’s written submission, that the tribunal has the authority to review document(s) where the respondent had made no decision and was not reviewed by the office of the Victorian Information Commissioner.
Mr Akers explained to me that this argument was to the same effect as his argument that the Tribunal should not have entertained any claims of exemptions that differed from the claims originally made by the RSPCA or the claims it made to OVIC. For the reasons I have already given in relation to ground 5 of the first SCV proceeding, I conclude that this sub-paragraph has no real prospect of success.
The third, sub-paragraph (iii), is:
A substantial breach of natural justice has been occasioned due to the Learned Senior Member: … 53A notices not sent to person(s) where the respondent claimed exception to section 33.
This sub-paragraph raised the same argument as was raised by ground 4 of the first SCV proceeding and ground 7 of the second SCV proceeding. For the reasons I have already given in relation to those grounds, I conclude that the argument in this sub-paragraph has no real prospect of success.
The fourth, sub-paragraph (iv), is:
A substantial breach of natural justice has been occasioned due to the Learned Senior Member: … Accepting the respondent’s documents, which had yet to be discovered before the hearing for a De Nova. The applicant needed to gain knowledge of and could not cross-exam the undiscovered documents or submit acceptance for disputing the acceptance of the De Nova application.
Mr Akers explained to me that this sub-paragraph complains of the denial of an opportunity of cross-examining the witness on information included in documents available to the Tribunal but redacted in the versions of the documents to which Mr Akers had access. This point is repeated in the fifth element of ground 1, sub-paragraph (v), which is:
A substantial breach of natural justice has been occasioned due to the Learned Senior Member: …The respondent served the appellant’s redacted witness statements, not allowing the evidence to be cross-examined on the reductions.
As Mr Akers submitted, there is intuitively something that may seem unfair about the Tribunal being provided with information in documents sought by him, in circumstances where that same information is withheld from him.
However, the requirements of procedural fairness are not absolute. There are some instances of apparent unfairness that they do not remedy. The requirements of procedural fairness depend on all the circumstances, including any applicable statutory regime. A key aspect of the statutory regime here is that an agency may claim various statutory exemptions under the FOI Act in response to a request for access. Disclosure to Mr Akers of the redacted text in question would have rendered the claims for exemption being made by the RSPCA futile. It follows that the requirements of procedural fairness did not extend so far as to provide Mr Akers with access to the redacted information. For these reasons, I conclude that this sub-paragraph has no real prospect of success. Further, the RSPCA submitted that the redacted content was explained to him in general terms before he cross-examined Ms Marshall. This was probably as far as the RSPCA or Tribunal could go without rendering the statutory exemption futile.
Ground 2
Ground 2 states:
The learned Senior Member errored by not inviting the respondent to reconsider a decision, the Tribunal can do any of the following —
aaffirm the decision; or
bvary the decision.
cset aside the decision and substitute a new decision for it.
The Following case is deemed a refusal of documents by agencies and remitted back to the agencies for further decision(s) — … [the ground then refers to three authorities].
The appellant was at an extreme disadvantage in cross-examining the respondent, as some witness statements were outside the Tribunal Book, and the witness statements in the Tribunal Book were redacted.
Mr Akers explained to me that, by this ground, he contends that the Tribunal should have sent the matter back to the agency for the agency to make a decision. This submission hinged on the point Mr Akers had previously made about the Tribunal accepting arguments from the RSPCA that were based on newly claimed exemptions. Mr Akers’ submission was that in such circumstances, the Tribunal was not permitted to make a de novo decision and was required to remit the matter back to the agency for the process to begin again. I am not persuaded that this is correct. For the reasons I have already given in relation to ground 5 of the first SCV proceeding, I conclude that this ground has no real prospect of success.
Ground 3
This ground states:
The effect of the respondent’s oral evidence and accepted in the decision of the Tribunal, on claimed s 33 and refusal to send 53A notices to person(s) to whom the respondent applied section 33, gave an abuse of the act.
Mr Akers explained that this ground was based on the same arguments he had already advanced in relation to his other grounds relying on FOI Act s 53A; namely, ground 4 of the first SCV proceeding and grounds 6 and 7 of the second SCV proceeding. For the same reasons as I have already given in relation to those grounds, I conclude that this ground has no real prospect of success.
Ground 4
This ground is entitled ‘Section 55 Onus’, and begins:
Under section 55 of the FOI Act, the RSPCA has the onus of establishing that the A decision given regarding the request was justified, or the Tribunal should given a decision adverse to Akers.
The ground contended that the RSPCA had not discharged this onus.
Following this, there was a reference to FOI Act s 50(4) and the ‘public interest override’.
Mr Akers did not explain to me the basis for his contention that the RSPCA had failed to discharge its onus in this matter. I see no basis for concluding that the RSPCA failed in this manner, or that the Tribunal erred in relation to the public interest override. I conclude that this ground has no real prospect of success.
Ground 5
This ground states:
The application: under review by the tribunal.
ithe respondent on the appellant’s application does not address the application.
iidocuments were not discovered before the final hearing.
iiiand likely hood of inadequate searches.
Mr Akers explained to me that in his view the documents that were produced did not fall within his access request, and he also explained that this ground otherwise repeated his contention that it was not open to the Tribunal to conduct a de novo review entertaining newly raised claims for exemption.
Mr Akers did not explain how any production by the RSPCA of a document not falling within his request gave rise to a material error of law. As to his contentions to the effect that the Tribunal was somehow constrained in considering newly raised claims of exemption, I repeat the reasons I have already given in relation to ground 5 of the first SCV proceeding. I conclude that this ground, ground 5 of the third SCV proceeding, has no real prospect of success.
Ground 6
Ground 6 referred to Crozier, and made various references to the circumstances in that case.[51] Mr Akers explained to me that he was contending that the decision in Crozier, relied on by the RSPCA and by the Tribunal in this matter, was distinguishable from the present case. Perhaps the factual circumstances of Crozier differed, but the point of principle referred to in that decision is, in my respectful view, correct. The Tribunal is not constrained in its consideration of newly raised claims of exemption, for the reasons I have already given in relation to ground 5 in the first SCV proceeding. This ground has no real prospect of successfully leading to the Tribunal’s decision being overturned on appeal.
[51]See paragraph 101 of these reasons, above.
In addition, ground 6 referred to FOI Act ss 31(1)(d) and (3). As well as setting out those provisions, the text under ground 6 stated:
The respondent gave the appellant or the Tribunal no oral or known written evidence on their claimed exceptions section 31(1) or 31(3).
Mr Akers explained to me that these matters supported his argument that the Tribunal should not have made a de novo decision, but rather should have ensured that the agency made a primary decision by reference to the exemptions it ultimately relied on, providing an appropriate statement of reasons for the decision and any supporting evidence. This is in essence the same as the arguments I have addressed under ground 5 of the first SCV proceeding. For the same reasons as I expressed there, I conclude that ground 6 of the third SCV proceeding has no real prospect of success.
Ground 7
This ground states:
The parties disagreed on the contents of the Tribunal Book used in the final hearing.
This ground was based on the same arguments as ground 7 in the first SCV proceeding and ground 13 in the second SCV proceeding. For substantially those reasons, this ground has no real prospect of success either.
Conclusion regarding third SCV proceeding
In summary, none of the grounds of the notice of appeal in the third SCV proceeding (S ECI 2023 02852) have real prospects of success, and so leave will be refused and the proceeding will be dismissed.
Fourth SCV proceeding (S ECI 2023 02853) — appeal from VCAT proceeding Z881/2020
Overview
The Reasons do not record the precise terms of the request for access the subject of VCAT proceeding Z881/2020, and Mr Akers did not take me to any document in his court book recording it in a form that referred to any precise locations.
The Tribunal said that the access request in that VCAT proceeding was for:[52]
·A copy of the transfer document between [the RSPCA] and the horse rescue group for the surviving horses seized from …
·A copy of any agreement between [the RSPCA] and the above-mentioned horse rescue group.
·A copy of the financial receipt if any funds were exchanged between [the RSPCA] and the horse rescue group in regard to the transfer of horses seized from . . .
[52]Reasons [341].
In the final section of its Reasons,[53] the Tribunal noted the request for access the subject of VCAT proceeding Z881/2020, mentioning that the RSPCA had identified four documents falling within that request — releasing one in full and withholding access to some contents of the others by reference to ss 33(1) and 34(1)(b) of the FOI Act, and also noted that OVIC had varied the decision relating to s 34(1)(b).[54]
[53]Reasons [308]–[351].
[54]Reasons [341]–[351].
At the start of its Reasons and again at the end when specifically addressing VCAT proceeding Z881/2020,[55] the Tribunal said that all issues had been resolved in this VCAT proceeding except the question of whether the Tribunal could consider a complaint about the adequacy or thoroughness of the RSPCA’s search for documents, a matter it considered by reference to s 61B(3) of the FOI Act.
[55]Reasons [7], [308].
The Tribunal characterised the outcome of this VCAT proceeding as turning on whether the Tribunal had power to review the Information Commissioner’s consideration of whether a search had been completed adequately or thoroughly. The Tribunal summarised the competing contentions of the parties, and applicable authorities.[56] The Tribunal concluded that it did not have any such power, giving reasons as follows:
344. OVIC’s decision expressly addressed a complaint Akers made about the RSPCA’s search, as he believed documents were missing. The decision described how enquiries were made with RSPCA staff and ultimately OVIC was satisfied that there was no basis to make further inquiries or take any further action. Implicit in that conclusion is that the complaint about the RSPCA’s search had not been upheld by OVIC.
345. I accept the RSPCA’s submissions as to the design of the FOI Act provisions concerning complaints about searches. I agree there is no express power in the FOI Act or VCAT Act which empowers the Tribunal to review a decision made by the Information Commissioner under section 61B of the FOI Act.
346. As is apparent from section 51(1)(a) of the VCAT Act, when exercising review powers, the Tribunal has all of the original decision making powers of the relevant decision maker. That means, when undertaking its merits review task in relation to a decision which falls within the Tribunal’s jurisdiction, it stands in the shoes of the original decision maker. Sections 51(2) and 124 of the VCAT Act are powers the Tribunal may rely on when undertaking its decision making task.
347. The manner in which the Tribunal may exercise its powers is different to which decisions it can consider. As there is no provision in the FOI Act enabling the Tribunal to review the outcome of the Information Commissioner’s consideration of a complaint about searches, sections 51 and 124 cannot be relied on to create a power to do so.
[56]Reasons [312]–[340].
The Tribunal’s order in relation to this VCAT proceeding was:
5 The application is struck out.
Grounds of appeal
Ground 1
Ground 1 states:
The learned Senior Member errored in concluding that the evidence was truth and correct as all statements by the witness were not included in the Tribunal Book and were not sworn.
Under this ground, the notice of appeal also stated:
The evidence given on the witness statements which were not included and not sworn in the Tribunal Book should have been inadmissible.
I refer to the reasons I have already provided in relation to grounds 3 and 7 of the first SCV proceeding, grounds 11, 12 and 13 of the second SCV proceeding, and ground 7 of the third SCV proceeding. For the reasons I have given in relation to those grounds, I conclude that this ground has no real prospect of success.
Ground 2
This ground states:
The learned Senior Member erred in concluding the Tribunal, did not have the authority to order better or further searches, the Victorian Civil and Administrative Tribunal Act, section s50, 51, 51A. given the Tribunal the authority to take the original decision maker.
This is one of four grounds in the fourth SCV proceeding that, in different ways, challenge the Tribunal’s conclusion that it had no power to review the Information Commissioner’s or OVIC’s response to his complaint that the RSPCA had not performed adequate searches in response to his request for access to documents.
I can discern no error in the Tribunal’s reasoning on this issue. There is no reference in s 50 of the FOI Act to the Tribunal being permitted to review a decision or any other form of response on the part of the Information Commissioner or OVIC to a complaint about the adequacy or thoroughness of an agency’s search for documents. The statutory regime in relation to such complaints provides various options for the Information Commissioner, each of which is referred to in a provision of Part VIA of the FOI Act, noted in paragraphs 26 to 29 of these reasons above. As I noted in paragraph 30 of these reasons above, s 50 of the FOI Act does not confer any power of review on the Tribunal in relation to the Information Commissioner’s decisions under Part VIA. In my view, the Tribunal was correct to draw the conclusion that it had no power to review any such decision. Further, the Tribunal was correct to reject Mr Akers’ submissions relying on VCAT Act ss 51(2)(d) and 124. In my view, these provisions confer powers on the Tribunal, but only in matters in which it is already exercising jurisdiction. Neither of them enlarge the subject matter over which the Tribunal has review jurisdiction.
As already noted, neither party addressed the possibility that the Information Commissioner’s power under s 49KA of the FOI Act might have been available to the Tribunal, say under s 51(1)(a) of the VCAT Act. Mr Akers did not demonstrate how it might be argued that the Tribunal might have erred, in any event, in omitting to order further searches. Mr Akers did not demonstrate the need for any such further searches.
I conclude that this ground has no real prospect of success.
Ground 3
This ground states:
The learned Senior Member erred in concluding the review was complete and striking out the review, stating all documents have been foreword to the applicant.
This ground is similar in substance to ground 2, addressed above. For the same reasons as I have already expressed in relation to ground 2, I conclude that this ground has no real prospect of success.
Ground 4
This ground states:
The learned Senior Member erred by applying section 33 to names in documents, as the person(Is) name were employed professionally.
This ground disputes a conclusion of fact reached by the Tribunal. It does so without identifying any error of law. I conclude that this ground has no real prospect of success.
Ground 5
This ground states:
The learned Senior Member erred and failed to accord natural justice to the Applicant before concluding adversely to the respondent that the Tribunal had no authority to order further and better searches, names withheld, and struck out the application under review.
I infer that the reference to the ‘respondent’ in this ground should be a reference to the applicant, Mr Akers. In any event, the substance of this ground is the same as the matter I have already addressed by reference to grounds 2 and 3, above. For the same reasons, I conclude that this ground has no real prospect of success.
Ground 6
Ground 6 states:
The learned Senior Member ought to have determined that the respondent had yet to discover all of the documents, applied section 33 to documents which the respondent should not have done so, and ordered the respondent to do a further and better search for documents.
This ground is substantially reliant on the success of the argument relating to the Tribunal having the power to review the outcome of complaint before the Information Commissioner concerning the adequacy of searches, addressed with reference to grounds 2, 3 and 5, above. It also appears in part to rely on the success of ground 4, addressed above.
For the reasons I have provided in relation to my views on each of those grounds, I also conclude that this ground has no real prospect of success.
Conclusion regarding fourth SCV proceeding
In summary, none of the grounds of the notice of appeal in the fourth SCV proceeding (S ECI 2023 02853) have real prospects of success, and so leave will be refused and the proceeding will be dismissed.
Overall conclusion
All four of proceedings will be dismissed.
Costs ordinarily follow the event. The usual orders would be that the proceedings be dismissed with costs, meaning that Mr Akers will be required to pay the RSPCA’s costs of and incidental to the proceedings, on the standard basis.
However, at the hearing, the parties sought an opportunity to provide written submissions on the question of costs after I delivered reasons for judgment, and they agreed that I should then determine the question of costs on the papers.
The RSPCA may file and serve written submissions limited to three pages within seven days after the date these reasons for judgment are delivered and orders dismissing the proceedings are made, and Mr Akers may file and serve responding submissions limited to three pages within a further seven days. I will then make costs orders finalising the proceedings.
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