Allon v RMIT University
[2018] VSC 167
•13 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 02715
| EDWARD ALLON | Plaintiff |
| v | |
| RMIT UNIVERSITY | Defendant |
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JUDICIAL OFFICER: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2018 |
DATE OF RULING: | 13 April 2018 |
CASE MAY BE CITED AS: | Allon v RMIT University |
MEDIUM NEUTRAL CITATION: | [2018] VSC 167 |
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PRACTICE AND PROCEDURE – Subpoena objection – public interest immunity - legitimate forensic purpose – whether subpoena an abuse of process – interpretation of Evidence Act 2008 (Vic) s 130 - ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559 – Morris v Riverwild Management [2009] VSC 654 - Commissioner for Railways v Small (1938) SR NSW 564.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Haddad, Solicitor | Shine Lawyers |
| For the Defendant | Mr B House, Solicitor | Minter Ellison |
| For the Victorian Ombudsman | Ms V Twigg, Solicitor | Victorian Ombudsman |
JUDICIAL REGISTRAR:
This is an objection by the Victorian Ombudsman to a subpoena for production of documents sought by Mr Allon issued on 25 October 2017 (‘the subpoena’). The hearing of the objection did not occur until 16 March 2018.
The subpoena sought the ‘complete file relating to an investigation into an allegation of improper conduct with RMIT’s School of Engineering (TAFE) – Aerospace dated July 2010, including but not limited to any protected disclosure, document, complaint, memorandum, file note, audio/video recording, transcript, statement, letter, facsimilie, email and/or any other record received, procured, produced or otherwise held’.
Background
The plaintiff, Mr Allon, alleges that whilst employed by RMIT University (‘RMIT’) he obtained information and evidence that a colleague, Nihal Hana, was selling exam answers to students.
He says that he reported this to various senior people at RMIT and an investigation was conducted, but that the investigation was inadequate. He says that RMIT failed to take any disciplinary action against Mr Hana or terminate his employment, and instead required Mr Allon to supervise Mr Hana, enabling Mr Hana to take reprisal action, which included making false claims of bullying and harassment against Mr Allon.
Mr Allon made a public interest disclosure under s 6(1)(a) of the (now repealed) Whistleblowers Protection Act 2001 (Vic) (“the WP Act”)[1] to the Victorian Ombudsman. The Ombudsman conducted an investigation and made a report to Parliament in July 2010 which is available on the Ombudsman’s website (“the Report”).[2] The Report concluded that Mr Hana had assisted students to cheat and that:
The allegations that did come to light were either investigated poorly by the university, or not at all. As a consequence, those staff members who raised concerns were left unsupported and, in some cases, open to Mr Hana’s attempts at reprisals.[3]
[1]Repealed and replaced by Protected Disclosure Act 2012 (Vic).
[2]Victorian Ombudsman, Investigation into an allegation of improper conduct within RMIT’s School of Engineering (TAFE) – Aerospace, (2010).
[3]Ibid [35].
Mr Allon alleges that, in reprisal for his complaint to the Ombudsman, RMIT effectively or constructively dismissed him by restructuring the department so as to eliminate his position. Mr Allon claims that he is entitled to damages pursuant to ss 18 and 19 of the WP Act. Mr Allon also alleges that he has suffered psychological injury as a result of the negligence of RMIT for which he is entitled to compensation.
The Ombudsman’s Objections
The Ombudsman has provided to the Prothonotary 6 discs of documents. By letter dated 20 December 2017, the Ombudsman attached a schedule identifying the documents on the discs and the basis of the objection taken in relation to each document or group of documents.
The following table sets out in summary form the Ombudsman’s position in relation to the documents provided:
Disc Document description Objection Disc 1 Various emails and recordings. No objection to production and inspection. Disc 2 Witness interviews, recordings and transcripts. Objection: public interest immunity in that production would discourage people from coming forward. Disc 3 Various documents obtained from RMIT Objection: production is an abuse of process on the grounds that the subpoena process is being used as a substitute for further and better discovery.
Public interest immunity
Disc 4 Administrative documents Objection: no relevance and/or are the subject of client legal privilege as they contain internal legal advice.
Disc 4 Emails from RMIT computer system. Objection: public interest immunity and relevance Disc 4 Telephone records obtained from telecommunications provides for Mr Hana and others. Objection: Telecommunications Act 1997 restrictions on disclosures. Disc 4 Analysis of phone records from Mr Hana, Students A and B. Objection: Telecommunications Act 1997 restrictions on disclosures. Disc 5 Documents relating to Mr Hana’s banking records. Objection: Public interest immunity and relevance. Disc 6 Witness interviews RMIT students. Objection: relevance
At the hearing of the objection, Mr Allon no longer pressed for production or inspection of documents on discs 5 and 6 but continued to press for production of documents on discs 2, 3 and 4, except for documents subject to restrictions on disclosure by virtue of the Telecommunications Act 1997 (Cth).
In summary, the Ombudsman’s objections are:
(a) the documents on disc 3 are documents that do not relate ‘directly to the Plaintiff and are not relevant to issues in the current proceedings’[4] (“the relevance argument”);
(b) alternatively, the documents on disc 3 are documents of the defendant and are discoverable. Obtaining these documents from a non-party such as the Ombudsman is not in ‘the public interest’ and ‘would be an abuse of process’[5] (“the abuse of process argument”); and that
(c) the entirety of the documents on discs 2-6 are ‘not relevant to the issues in the current proceedings’ and are ‘immune from production pursuant to s 130 of the Evidence Act 2008 (Vic)’[6] (“the public interest immunity argument”).
Analysis of the Arguments
[4]Affidavit of Megan Philpot affirmed 16 March 2018 [10] (“Philpot Affidavit”).
[5]Ibid [11].
[6]Philpot Affidavit [12].
The Relevance Argument
The Ombudsman submitted that documents that do not relate directly to Mr Allon are not relevant to the issues in the current proceeding.
It is difficult for a non-party to surmise what is or might be relevant to the litigation, a difficulty acknowledged by the Ombudsman:
The Ombudsman as a third party in these proceedings has a very limited knowledge of what has previously been produced, the issues in the proceedings and cannot easily make decisions on relevance of material sought.[7]
[7]Ombudsman’s submissions filed 16 March 2018 [24] (“Ombudsman’s submissions”).
Setting aside the characterisation of the Ombudsman as a ‘third party’ in the proceeding, which has a technical legal meaning in this context which is clearly unintended, the above submission is correct. As a non-party, the Ombudsman cannot know what is or is not relevant. Therefore to broadly assert that a document that does not relate directly to the plaintiff is not relevant must be wrong. As far as a subpoena goes, the relevance of a document is only one consideration.
Derham J in ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor[8] succinctly states the principles for determining whether a subpoena ought to be set aside (omitting citations):[9]
a) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
b) except in cases where the subpoena is plainly too broad or merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;
c) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable that the documents will materially assist the case of the party;
d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;
f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied; and
g) where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.
[8][2017] VSC 559.
[9]Ibid [20].
In essence, there must be a legitimate forensic purpose in seeking the documents, and the subpoena must not be a fishing expedition.
The Report included conclusions relating to Mr Hana and RMIT’s conduct of the investigation into Mr Allon’s allegations. RMIT did not accept all of the findings of the draft report. The Vice Chancellor and President of RMIT considered that ‘any potential risk to public safety…has been greatly overstated.’[10] The Report notes that the Vice-Chancellor defended the discipline process at RMIT[11] and submitted that the conclusions and criticism by the Ombudsman were ‘an unreasonable extrapolation based on anecdotal evidence’.[12] It is therefore highly likely that the conclusions reached by the Ombudsman will be matters of dispute in Mr Allon’s claim. The conduct of the investigation into Mr Hana, the systems in place for investigation of such complaints, the systems in place for investigation of complaints against Mr Allon, and the supervision provided to Mr Allon are all squarely issues in this proceeding and are, or might be, matters that go to the safety of the workplace that RMIT provided. Given that RMIT does not accept the entirety of the Report, Mr Allon will be required to prove the allegations in his pleading. It is ‘on the cards’, and there is a ‘reasonable possibility’ that the documents subpoenaed will materially assist Mr Allon’s case. They are relevant to Mr Allon’s claim that he was not provided with a safe workplace.
[10]Victorian Ombudsman, above n 2, 16.
[11]Ibid [23].
[12]Ibid [29].
Further, the primary material that supported the finding by the Ombudsman that staff were ‘left unsupported’ and in some cases ‘open to reprisals’ is also relevant to Mr Allon’s claim.
I find that Mr Allon has established that there is a legitimate forensic purpose in issuing the subpoena and the subpoena is not a fishing expedition.
The Abuse of Process Argument
The Ombudsman’s primary objection to production of the documents on disc 3 is that it is an abuse of process. The Ombudsman submits that ‘if these documents are in any way relevant to the proceeding, they are discoverable and must be or have been in the possession of the defendant’.[13]
[13]Ombudsman’s submissions [13].
The Ombudsman submitted that this was sufficient grounds to set the subpoena aside and referred the Court to the cases of Commissioner for Railways v Small (1938)[14] and Morris v Riverwild Management Pty Ltd [2009][15]. The Ombudsman submitted that these cases stood for the proposition that it was not legitimate to use a subpoena as a substitute for an application for discovery of documents.
[14]SR NSW 564.
[15]VSC 654 [30].
RMIT have sworn the following Affidavits of Documents:
(a) Affidavit of Documents sworn by Catherine Green dated 19 August 2016 identifying documents 1- 169;
(b) Affidavit of Documents sworn by Marcia Cough dated 1 September 2016 identifying documents 170 – 174;
(c) Further Affidavit of Documents sworn by Marcia Gough dated 26 September 2016 identifying documents 175 – 297;
(d) Further Supplementary Affidavit of Documents sworn by Marcia Gough dated 16 December 2016 identifying documents 298 – 302; and
(e) Further Further Supplementary Affidavit of Documents sworn by Catherine Green dated 7 July 2017 identifying documents 303-380.
Counsel for RMIT informed the Court that RMIT was in the process of completing a further Affidavit of Documents in compliance with its ongoing discovery obligations.
Discovery has been an ongoing issue between the parties to this litigation. Mr Allon’s claim has evolved significantly during the course of this proceeding, from a claim primarily about overwork in a stressful environment to a claim about psychological injury caused by the conduct of Mr Hana and RMIT’s response to that conduct. On the basis of Mr Allon’s original Statement of Claim, RMIT would not necessarily have identified that documents relating to the Ombudsman’s investigation were in issue and ought to be discovered. The allegations relating to Mr Hana and the investigation have come to the fore through the course of the proceeding, including an application for specific discovery before me on 7 April 2017. In that application I relied on the decision of Dixon J in Holloway v Commonwealth of Australia[16] who said:
The root causes of this debate and the genesis of the solution lie in the pleadings. The plaintiff’s statement of claim was likely pleaded when his instruction about the incidents was less well informed by discovery and other investigations….It is likely that with the benefit of analysis of discovery, the statement of claim might be differently structured and would require a differently structured defence.[17]
[16][2016] VSC 317.
[17]Ibid [150].
That application was in relation to RMIT’s knowledge of other psychiatric workplace injuries at RMIT, rather than in relation to the Ombudsman investigation.
Mr Allon’s Further Amended Statement of Claim, which was only filed on 20 March 2018, puts the Ombudsman’s investigation squarely in issue. RMIT has not yet had an opportunity to respond to the amended pleading, and I anticipate that the forthcoming Affidavit of Documents will identify the documents it provided to the Ombudsman as discoverable documents in this proceeding.
However, it is unlikely that that will be the end of the matter. Counsel for RMIT alluded to the difficulties that RMIT has encountered in making discovery in this matter. Although it is a large tertiary institution, it has had difficulty accessing documents, due in part to a changeover of computer servers, and other technological difficulties. For example, by letter dated 30 March 2017,[18] the solicitors for RMIT advised Mr Allon’s solicitors that they had been unable to open Mr Allon’s email archive despite various attempts.
[18]Affidavit of Benjamin Harry House sworn 6 April 2017, Exhibit BHH03.
If the documents provided by RMIT to the Ombudsman are documents no longer within RMIT’s possession because they are documents that are incapable of being located or identified due to technological or other difficulties, then I must consider whether it is an appropriate use of subpoena to obtain those documents from a non-party.
In Morris v Riverwild Management[19] the plaintiff issued a Notice to Produce to the defendant and a subpoena to the defendant’s solicitors. The defendants objected on the basis that the documents sought were not reasonably likely to add to the relevant evidence in the case, constituted a ‘fishing expedition’ and were an abuse because they were employed as an alternative to an application for further and better discovery. Orders had been made for very limited discovery which the defendant said it had complied with. Associate Justice Gardiner held that the subpoena and notice to produce were being used as an alternative to an application for further and better discovery in circumstances where the plaintiff had provided no explanation as to why an application for further discovery had not been made. The plaintiff was not entitled to pursue the documents sought in such a manner.
[19][2009] VSC 654.
In Commissioner for Railways v Small[20] the plaintiff had served a subpoena on the defendant requiring the production of various documents. Prior to opening his case, plaintiff’s Counsel asked leave to call an officer of the defendant to be questioned about the nature and whereabouts of documents referred to in the subpoena. On appeal it was held that the use of the subpoena in that way resulted in an improper reception of evidence ‘by which the defendant had been severely prejudiced‘.[21] The Court found that:
It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place.[22]
[20](1938) SR NSW 564.
[21]Ibid 565.
[22]Ibid 574.
In contrast to the current proceeding, in both these cases the subpoena or Notice to Produce had been served on the defendant, a party to the proceedings who had obligations to make discovery and against whom the plaintiff had the ability to bring an application for further and better discovery.
The subpoena in this case goes beyond the subset of documents that might be, or once were, within the custody of RMIT. Perhaps Mr Allon could have foreseen at the time of issuing the subpoena that documents sought would include discoverable documents of the defendant. However, there is no foundation for a suggestion that the subpoena is an attempt to subvert or avoid the usual discovery process.
The current situation is similar to the many cases in which a defendant subpoenas employment records from the employer of a plaintiff who is making a claim for loss of earnings. The subpoena would typically seek the contract of employment, description of duties and pay slips. These documents at some point would have been in the possession of the plaintiff and would be discoverable. However, there is every likelihood that, in the time between the cause of action arising and the Affidavit of Documents being filed, the plaintiff has lost or misplaced some or all of those documents. Subpoenaing those documents from the most likely repository, the employer, does not make the subpoena an abuse of process.
In this case, the documents have already been provided to the Prothonotary. The Ombudsman did not object to the subpoena on the basis that it was onerous. Whilst any subset of documents within the documents subpoenaed that are or were discoverable documents of the defendant ought to be discovered, I do not accept that obtaining the documents via a subpoena is an abuse of process.
The Public Interest Immunity Argument
The Ombudsman further objects to the production of the documents on disc 3, as well as the documents on all the other discs, on the grounds that they are subject to immunity pursuant to s 130 of the Evidence Act 2008 (‘Evidence Act’) which provides:
130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
There is a substantial body of case law concerning the nature and application of the doctrine of public interest immunity. Derham AsJ in Matthews v SPI Electricity (No. 11)[23] has, once again, provided a useful summary of the principles:[24]
[23][2014] VSC 65.
[24]Ibid [24] (citations omitted).
a) the content and operation of s 130 of the Evidence Act is informed by the common law;
b) the common law recognises a “rough, but acceptable” division of public interest immunity claims into “class” and “contents” claims;
c) documents can be immune from disclosure on the basis of their class because their disclosure would injure the public interest, irrespective of the actual contents of the documents;
d) documents that do not belong to such a class may still be immune from disclosure, on the basis that their contents, if disclosed, would injure the public interest;
e) a claim in respect of a class of documents is, by its nature, general and that claim will normally be upheld if the class is one that is recognised as being, prima facie, subject to public interest immunity;
f) it is well recognised that the proper working of government relies on ministers and other senior servants of the Crown being able to engage in policy development and decision-making on the basis that their deliberations are kept confidential and that the convention of collective responsibility for government decisions is maintained. Documents that could disclose such deliberations fall within a class that attracts the public interest immunity;
g) governmental processes directed to obtaining a Cabinet decision upon a matter of policy and Cabinet’s decision upon that matter should not, in the public interest, be disclosed by the production of Cabinet papers, including papers which have been brought into existence within the governmental organisation for the purpose of preparing a submission to Cabinet. Such papers belong to a class of documents that are of a nature that ought not to be examined by the Court, except in very special circumstances;
h) Cabinet documents extends to –
i.Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments;
ii.papers prepared as submissions to Cabinet;
iii.any documents which relate to the framing of government policy at a high level;
i) immunity from disclosure is not automatically accorded to documents falling within such a class claim. There is no absolute immunity from production and inspection of Cabinet documents. The court must still weigh the public interest in the proper functioning of government with the public interest in the proper administration of justice whereby all relevant documents are available to a party seeking to litigate a claim;
j) in weighing the competing public interests under s 130 of the Evidence Act, the Court is required to give weight to the assertion of a responsible representative of government that there is a public interest, which would be placed in jeopardy by the production of the document;
k) in order for the public interest in the administration of justice to arise in the balancing process, the documents must contain ‘material evidence’. Relevance to the proceedings is of itself insufficient. The documents must have an important bearing upon the ultimate decision on the relevant questions;
l) in civil cases it will only be where exceptional circumstances give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it would be necessary or appropriate to order production of the documents to the Court;
m) where such exceptional circumstances exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure;
n) the judge ought not to order the disclosure of the contents of documents recording Cabinet deliberations unless the judge is satisfied that the material is crucial to the proper determination of the relevant proceeding;
o) even though years may have passed since a relevant document was brought into existence, and government may have changed, it does not follow that the matters that are the subject of such documents have ceased to be current or controversial;
p) documents recording the actual deliberations of Cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet. They have ‘a pre-eminent claim to confidentiality’;
q) other documents including ‘papers brought into existence for the purpose of preparing a submission to Cabinet’ and ‘documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet’ are recognised classes prima facie entitled to protection on the grounds of public interest immunity; and
r) documents relating to a topic that is current or controversial will attract a high level of confidentiality.
In the current case, the documents are documents obtained or produced by the Ombudsman in investigating a complaint made by Mr Allon. Many of the considerations to be taken into account when assessing whether Cabinet documents ought to be disclosed therefore do not apply.
For the purposes of this application, the matters to be considered are:
(i) Can the Ombudsman make a claim for public interest immunity on the basis that documents it produces are involved with ‘matters of state’?
(ii) If so, is the claim made on the documents as a class, or on the basis of the contents of the documents?
(iii) Is there a public interest in not releasing the documents which outweighs the public interest in disclosure?
Matters of State
There is a substantial body of case law that indicates that the categories of documents that may pertain to ‘matters of state’ are not to be regarded as ‘immutably fixed’.[25] As Lord Salmon stated in Rogersv Home Secretary:[26]
‘The principle is that wherever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity.’[27]
[25]Rogers v Home Secretary[1973] AC 388, 412.
[26]Ibid.
[27]Ibid.
In The Australian Statistician v Leighton Contractors Pty Ltd[28] the Western Australian Supreme Court of Appeal accepted that raw data provided to the Australian Bureau of Statistics was protected from disclosure for the purposes of litigation as it:
would, or had significant potential to, seriously damage the workings of the Statistician and ABS….Such an outcome would impair the efficient or proper functioning of the Australian Government in the management of, inter alia, the economy.[29]
[28][2008] WASCA 34.
[29]Ibid [42].
In Ryan v State of Victoria[30] the Victorian Supreme Court of Appeal was satisfied that internal documents of Victoria Police concerning the operational tactics of the Mounted Branch attracted public interest immunity.
[30][2015] VSCA 353.
The Court found that what must be considered is not merely the level of sensitivity of the information sought to be disclosed, but the effect of disclosure upon the proper functioning of government.[31]
[31]Ibid [115].
In AS v Minister for Immigration and Border Protection (public interest immunity ruling)[32] her Honour Associate Justice Daly accepted that documents of Red Cross Australia attracted a public interest immunity. Notwithstanding that some of the documents were materially relevant to claims made by the plaintiff, her Honour found that the public interest in protecting the confidentiality of the Red Cross documents outweighed the public interest in disclosure of the documents to AS. Her Honour stated that:
The primary basis for my determination that the disclosure of the Red Cross documents would be contrary to the public interest would be the risk that disclosure would impede the ARC’s wiliness and ability to provide frank and fearless advice to the Department concerning humanitarian issues in detention centres.[33]
[32][2017] VSC 162.
[33]Ibid [103].
In that case, her Honour was satisfied that the operation of detention centres is ‘clearly a governmental function’ and that, as the recipient of the Red Cross documents, the Department’s role, status and responsibilities in performing that government function would be impacted if the documents were released.[34]
[34]Ibid [98].
Her Honour further noted that:
Any potential ‘chilling effect’ upon the ability of the ARC to communicate fully and frankly with the Department with respect to concerns about humanitarian matters in detention centres runs the real risk of compromising the very important work the ARC does, and has yet to do in detention centres.[35]
[35]Ibid [109].
It has not been established that the Ombudsman’s work involves ‘matters of state’, however it is possible that disclosure of documents in some investigations could have a detrimental effect on the functioning of government so as to enliven the protection of s 130 of the Evidence Act. Parliament has established the office of the Ombudsman so as to provide a level of oversight into the administrative actions of authorities, including tertiary institutions such as RMIT. Anything that might significantly impede the capacity of the Ombudsman to carry out its primary purpose has the capacity to detrimentally effect the functioning of the government. If the release of documents in any particular investigation would be likely to significantly impede the function of the Ombudsman in future investigations, this could be sufficient to attract public interest immunity.
Class v Content
The submissions put forward by the Ombudsman were based on the ‘class’ of documents subpoenaed. That is, that because they are documents that were obtained or produced during the course of an investigation, their release would have the following detrimental effects:
(a) persons unconnected with the performance by the Ombudsman of her functions might seek to use compulsory evidence gathering processes in order to trawl through confidential and highly sensitive material provided to the Ombudsman by members of the public;
(b) the Ombudsman would be less likely to receive information from members of the public in the future because they might fear exposure and/or retribution;
(c) persons with information relevant to the conduct by the Ombudsman of an investigation would be less likely to provide the Ombudsman with detailed and comprehensive information if they feared that that information could be subpoenaed in a subsequent civil action brought by a third party; and
(d) people might be less candid and honest in providing information if they knew that that information might be used in legal proceedings against them.
There was no evidence before the Court, and no submissions made, that the contents of any individual document attracted public interest immunity, separate from the general immunity sought on the basis that disclosure would discourage people from coming forward. There was nothing before the Court to suggest that, for example, disclosure of the documents would identify particular investigatory tactics undertaken by the Ombudsman that should not be disclosed. In fact the Report sets out the Investigation methodology.[36]
[36]Victorian Ombudsman, above n 2, 57.
The Ombudsman has claimed the same privilege over witness interviews, administrative documents and documents provided to it by RMIT. As I understand the submissions, the Ombudsman’s position is that the release of any documents would ‘have a chilling effect on the provision of information by members of the public to the office of the Ombudsman’.[37]
[37]Ombudsman’s submissions [24].
There was no evidence that it was the content of individual documents that would, if disclosed, have the ‘chilling effect’ claimed above.
As the claim of public interest immunity relates to the class of documents, I have not examined the contents of the discs provided to the Prothonotary and have considered the public interest immunity to be claimed over the entire class of documents, being documents obtained or produced in the course of the Ombudsman’s investigation.
Does the Public Interest in Non-disclosure outweigh the Public Interest in Disclosure?
Role of the Ombudsman
The Ombudsman Act 1973 (Vic) (‘Ombudsman Act’) sets out at s 13 that:
1)The principal function of the Ombudsman is to enquire into or investigate any administrative action taken by or in an authority, other than administrative action—
(a) that appears to involve corrupt conduct; or
(b) that is taken under the Freedom of Information Act 1982.
Section 18 gives the Ombudsman broad powers to investigate complaints, including the power to summons witnesses, compel attendance and enter premises occupied or used by an authority to which the Ombudsman Act applies.
The Ombudsman has powers to report, including to other agencies. In this case, the Ombudsman produced a public report that was tabled in Parliament.
The Ombudsman’s Case
The Ombudsman submits that protecting the confidentiality of information obtained by the Ombudsman is central to her ability to carry out her statutory function of enquiring into and investigating complaints made.
There was no evidence before the Court about how the disclosure of documents would cause or be likely to have a ‘chilling effect’ on people coming forward or providing information to the Ombudsman or cooperating with investigations. There was simply an assertion that this was the case.
The Ombudsman submits that, in this case, the Report did not contain all the material collected during the course of the investigation, and redacted names of students, teachers other personnel at RMIT. The Ombudsman submitted that its decision to redact names of individuals other than Mr Hana was in order to maintain confidentiality and that this confidentiality, in some unspecified way, protects the process that the Ombudsman undertakes. Witnesses are not, as I understand it, guaranteed confidentiality but, according to the Ombudsman’s submissions, have an ‘expectation’ of confidentiality.[38] It is not clear to me on what basis that ‘expectation’ arises. The Ombudsman informed the Court that it provided ‘procedural fairness’ by ensuring that parties against whom it was making adverse findings were given an opportunity to respond to those adverse findings – it did not, as far as I am aware, provide a guarantee that names would not be published.
[38]Ibid [23].
The redaction of names was at the discretion of the Ombudsman, though people were identified by their role, for example ‘Head of School’ , ‘Senior Advisor, People and Culture’, and ‘Principal Adviser, Employee Relations’. A motivated person could, I assume, relatively easily identify those office holders. It is the identity of the complainant, not other participants in the investigatory process, which is protected by the operation of s 53 of the Protected Disclosure Act 2012 (‘PD Act’).
The protections afforded by the PD Act are not disturbed by the subpoena process in this instance. This is not a situation in which a party is using the subpoena process to try to identify the complainant – rather it is the complainant who has issued the subpoena.
In any event, the production of the documents on subpoena does not necessarily result in public disclosure of those documents. The parties to litigation to whom disclosure is made have obligations in relation to the use of those documents. An application can be made that names be redacted or that documents not be published. If there is a sound reason not to publicly disclose the identity of an individual, that application can readily be made during or prior to the tendering of any particular document into evidence at the trial of a proceeding.
Next I turn to the specific concerns raised by the Ombudsman. I will deal will each submission in turn. The Ombudsman firstly submitted that:
Persons unconnected with the performance by the Ombudsman of her functions might seek to use compulsory evidence gathering processes in order to trawl through confidential and highly sensitive material provided to the Ombudsman by members of the public.[39]
[39]Ibid [20].
It is difficult to see how the disclosure of documents on subpoena could give rise to the scenario described above. A subpoena, by its nature, requires legal proceedings to be on foot. This means that the Court has oversight in relation to which material is subpoenaed and can hear any objection. Strangers to the litigation cannot simply ‘trawl’ through subpoenaed material and nor can non-parties issue subpoenas.
The Ombudsman secondly submitted that:
The Ombudsman would be less likely to receive information from members of the public in the future because they might fear exposure and/or retribution.[40]
[40]Ibid.
There was no evidence to substantiate this claim or to explain in what way the disclosure of these documents would mean that members of the public would fear exposure or retribution. In circumstances where the complainant is not the person issuing the subpoena, the protection afforded to the complainant under the PD Act would be a significant matter for the Court to consider in undertaking the balancing exercise between the public interest in disclosure and the public interest in non-disclosure. I accept that identifying complainants against their will may well have the ‘chilling effect’ the Ombudsman identifies. But that is not this case.
The Ombudsman thirdly submitted:
Persons with information relevant to the conduct by the Ombudsman of an investigation would be less likely to provide the Ombudsman with detailed and comprehensive information if they feared that that information could be subpoenaed in a subsequent civil action brought by a third party.[41]
[41]Ibid.
Once again, there was no evidence before the Court to explain in what way persons with relevant information would be less likely to provide that to the Ombudsman.
The Ombudsman has wide powers to compel attendance and to summons witnesses and is not dependent on witnesses willingly cooperating with investigations. The Ombudsman has not satisfied me that the disclosure of documents in this particular case would have a generalised negative impact on others who might wish to come forward with information.
In any event, in this case the documents are not subpoenaed by a ’third party’; they are subpoenaed by the complainant.
Section 29B of the Ombudsman Act provides that information obtained or received by a party from the Ombudsman is not admissible in evidence in any legal proceeding, with some exceptions. One of the exceptions is that such information can be used as evidence in an action for damages brought under s 47 of the PD Act. This section is the successor to sections 18 and 19 of the WP Act which provide that an action for damages for reprisal can be brought. That is one of the actions brought in this proceeding.
The fact that the Ombudsman Act specifically carves out a damages action for reprisal as an exception to the use of information as evidence suggests an intention to ensure that persons who suffer consequences from making a complaint, as Mr Allon alleges, ought not be unreasonably prejudiced in prosecuting their action.
It would be a perverse outcome if Mr Allon was prevented from obtaining documents which would assist him in his claim that RMIT terminated him in reprisal for his having made a complaint to the Ombudsman, on the basis that to disclose those documents would have a ‘chilling effect’ on people coming forward to make complaints to the Ombudsman. Indeed, people who are likely to come forward may be deterred from doing so if they considered that the protection provided by s 47 of the PD Act was compromised by the inability to obtain relevant documents. That protection ought not be watered down unless a very strong case for non-disclosure is made out.
Relevantly, and removing those subsections concerned with criminal offences, s 130(5) of the Evidence Act requires the Court to consider the following:
(a) the importance of the information or the document in the proceeding;
…
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication; and
(e) whether the substance of the information or document has already been published.
Other matters may also be considered.
Conclusion
I am satisfied that:
(a) the documents are likely to be of great significance to the proceeding;
(b) the documents are closely related to the subject matter of the proceeding;
(c) there is no evidence that disclosing the documents will have the effects suggested by the Ombudsman, or any other effects on the functioning of government. There are means available to limit the publication of the material, including redaction of names and identities if such is considered appropriate by the trial judge; and
(d) although the substance of some of the information has already been published in the Report, the primary material upon which the Report was based has not been published in full or at all.
I am not satisfied that these documents concern matters of State nor that their disclosure would have the capacity to interfere with the proper functioning of government. If I am wrong about that, in undertaking the necessary balancing exercise, I have concluded that the public interest in their disclosure is not outweighed by the public interest in keeping them confidential. Thus, as the documents are relevant and the subpoena is not an abuse of process, the documents in discs 2, 3 and 4 should be disclosed. However, documents that:
(a) attract legal professional privilege; or
(b) were obtained by the Ombudsman pursuant to the Telecommunications Act.
should not be disclosed.
I will hear from the parties as to how inspection should take place and on the question of costs.
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