Akers v Victorian Police - [2024] VSC 621

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 01696

BETWEEN:

BRUCE AKERS	Applicant
v
VICTORIAN POLICE	Respondent

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2024
DATE OF JUDGMENT:	10 October 2024
CASE MAY BE CITED AS:	Akers v Victorian Police
MEDIUM NEUTRAL CITATION:	[2024] VSC 621

---

ADMINISTRATIVE LAW — Appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) concerning the dismissal of an application under s 39 of the Freedom of Information Act1982 (Vic) — Scope of the Court’s supervisory jurisdiction — Jurisdiction confined to questions of law involved in the decision — Transport Accident Commission v Hoffman (1989) 167 CLR 474 and Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109 referred to — Whether notice of appeal identifies a question of law — Notice of appeal raises procedural fairness grounds with no real prospects of success and otherwise raises no question of law— Notice of appeal struck out — Approach taken having regard to the applicant being a self-represented litigant — Materials before the Court reviewed to evaluate whether a question of law is involved in the decision.

FREEDOM OF INFORMATION — Application under s 39 of the Freedom of Information Act 1982 (Vic) to amend an investigation report following a complaint to the Independent Broad-based Anti-Corruption Commission — Proper application of s 39 FOI Act principles — Crewdson v Central Sydney Area Health Service (1995) 38 NSWLR 493 applied — Re Buhagiar v Victoria Police (1989) 2 VAR 530 referred to — Section 39 is concerned with accuracy of public records, not a vehicle to attack the validity of government action— Meaning of inaccurate, incomplete, out of date, or misleading information — Withdrawal of criminal charges post-report — Whether the report is out of date as a consequence — Relevance of subsequent developments to assessment of accuracy of information and whether information is out of date — Time for assessment of whether information is out of date is date of decision, not date of document — Leave to amend notice of appeal with respect to two questions of law granted —Appeal allowed upon first question of law — Respondent to draft notation for inclusion in investigation report to bring it up to date — Parties invited to make further submissions on the second question of law.

---

APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Ms E Latif of counsel	Legal Services Department, Victoria Police

HER HONOUR:

Introduction and background

This proceeding is an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) with respect to an application under s 39 of the Freedom of Information Act 1982 (Vic) (‘FOI Act') to amend information in a public document within the meaning of the FOI Act.

Section 39 of the FOI Act provides as follows:

Where a document containing information relating to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Akers v Victorian Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 621
Decision Date: 10 October 2024

CaseChat Overview and Summary

In Akers v Victorian Police, the applicant sought to appeal the dismissal of a Freedom of Information application. The applicant argued that the investigation report was inaccurate due to the withdrawal of criminal charges after the report was issued. The case was heard in the Supreme Court of Victoria, where the applicant's appeal against the decision of the Victorian Civil and Administrative Tribunal (VCAT) was considered. The VCAT had dismissed the applicant's Freedom of Information application, which sought to amend an investigation report following a complaint to the Independent Broad-based Anti-Corruption Commission.

The central legal issue before the Supreme Court was whether the VCAT's dismissal of the applicant's Freedom of Information application involved a question of law. The court also needed to determine if the applicant's notice of appeal identified a question of law and whether the applicant had grounds to amend the notice of appeal. The court considered whether the applicant's notice of appeal, which raised procedural fairness grounds, identified a question of law or if it was confined to matters of fact or mixed law and fact. Additionally, the court had to decide whether the information in the investigation report was out of date as a result of the withdrawal of criminal charges after the report was issued.

The Supreme Court found that the notice of appeal raised procedural fairness issues but did not identify a question of law. The court reviewed the materials before it to determine if the decision involved a question of law. The court concluded that the notice of appeal did not raise a question of law, but it granted leave to amend the notice of appeal to include two questions of law. The court found that the first question of law was that the information in the investigation report was out of date and should be amended to reflect the withdrawal of criminal charges. The court allowed the appeal on the first question of law and ordered the respondent to draft a notation to be included in the investigation report to bring it up to date. The parties were invited to make further submissions on the second question of law.

Orders