Attorney-General for the State of Victoria v Kay
[2009] VSC 337
•14 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 6562 of 1998
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| V | |
| IAN KAY | Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2009 | |
DATE OF JUDGMENT: | 14 August 2009 | |
CASE MAY BE CITED AS: | Attorney-General for the State of Victoria v Kay | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 337 | |
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Practice and Procedure – Vexatious litigant – Application to set aside or revoke orders made under s 21 of the Supreme Court Act 1986 – Whether there was a relevant change in applicant’s circumstances – Whether rights under the Charter of Human Rights and Responsibilities Act 2006 amount to new facts or circumstances – Whether there is no real risk that applicant will engage further in conduct of the kind which attracted the making of the order – Application refused
Application for leave to proceed with appeal lodged with the Victorian Civil and Administrative Tribunal (“VCAT”) – Whether court could be satisfied that proposed proceeding is not an abuse of process – Whether proposed proceeding is foredoomed to fail – Whether decision of Victims of Crime Assistance Tribunal (“VOCAT”) under s 42A of Victims of Crime Assistance Act 1996 to refuse access to documents is reviewable by VCAT – Whether VOCAT is an “agency” under Freedom of Information Act 1982 – Application refused
Supreme Court Act 1986 ss 21(4), 21(5) – Charter of Human Rights and Responsibilities Act 2006 – Victims of Crime Assistance Act 1996 s42A - Freedom of Information Act 1982 s5.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | Mr Ian Kay in person |
HIS HONOUR:
Before the Court are two summonses filed by Mr Ian Kay. The first is a summons filed 5 May 2009 in this proceeding addressed to the Victorian Attorney-General by which Mr Kay applies, in effect, for an order under s 21(5) of the Supreme Court Act 1986 (“the Act”) revoking or setting aside the orders made by Eames J under s 21(2) of the Act on 23 February 1999. By those orders Mr Kay was declared to be a vexatious litigant and it was provided that, subject to one presently irrelevant exception, Mr Kay must not without leave of a Judge of this Court commence or continue any legal proceedings in this Court, the County Court, the Magistrates’ Court or any Victorian tribunal.[1] The second summons was filed on 15 May 2009 in this proceeding. It was not addressed to the Attorney-General or to any other particular party. By the second summons, in effect, Mr Kay seeks leave pursuant to the orders of Eames J and pursuant to s 21(4) of the Act to proceed with an appeal or application for review which he has purported to lodge with the Victorian Civil and Administrative Tribunal.
[1]Attorney-General for the State of Victoria v Kay [1999] VSC 30. Application for leave to appeal dismissed: [2000] 2 VR 436.
Both summonses were made returnable in the Practice Court – the first on 18 May 2009 and the second on 19 May 2009. On 15 May 2009, an order was made amending the return date of the first summons to 19 May 2009 so as to match it with that of the second summons. By a letter dated 18 May 2009 (copied to Mr Kay), which referred to “Mr Ian Kay’s application[2] on summons”, the Victorian Government Solicitor’s Office, acting for the Attorney-General, advised that the Attorney-General did not wish to present submissions or other material “in relation to Mr Kay’s application[3] and merely wished to abide the decision of the Court”. I infer that the second summons was not served on the Attorney-General. Even if it was, no different outcome would be called for.
[2]Singular.
[3]Ditto.
The Supreme Court lists for 19 May 2009 included a matter listed for judgment at 10.20 am in the Court of Appeal in which the parties were Mr Kay and the Attorney-General. Noticing this, I arranged for copies of the judgment to be brought to the Practice Court when available. A copy was supplied to Mr Kay. It transpired that the judgment related to an application by Mr Kay for leave to appeal from a judgment of Smith J given on 5 March 2009. At first glance the judgment appeared to be of potential significance for the two applications by Mr Kay returnable in the Practice Court that day. Mr Kay apparently agreed, in that he said that he wanted to “digest”[4] the reasons of the Court of Appeal. The Practice Court was otherwise busy that day and Mr Kay said that it would suit him to adjourn the hearings. They were adjourned accordingly to 26 May 2009 in the Practice Court.
[4]Transcript p 1.
When the summonses came on again for hearing on 26 May 2009, Mr Kay appeared but, as foreshadowed in the letter of 18 May 2009, there was no appearance for the Attorney-General. Mr Kay submitted that it was illegal for the Attorney-General not to appear. However, I pointed out to him that it had been indicated in the Court of Appeal’s judgment of 19 May 2009[5] that there was no obligation on the Attorney-General to attend in applications of the present kind. In response, Mr Kay said[6]:
“Yes, I haven’t bothered to read the judgment because as far as I’m concerned it would just be a white wash and I’m just going to keep attacking the system until I get justice.”
I determined that the hearings could proceed in the absence of the Attorney-General.
[5]Kay v Victorian Attorney-General and Another, Court of Appeal, no 3726 of 2009, unreported, 19 May 2009, at [4]-[5] per Nettle JA with whom Coghlan AJA agreed.
[6]Transcript p 3.
Next Mr Kay submitted – “as usual” (to use his own words)[7] – that his applications should be heard by judge and jury. A similar submission by Mr Kay was rejected by Warren CJ on 16 June 2006[8] and a challenge to that ruling was rejected by the Court of Appeal in 2008.[9] Accordingly, I adopted the same approach, and proceeded to hear the two summonses.
[7]Transcript p 4.
[8]Kay v Attorney-General, unreported, Warren CJ, 16 June 2006.
[9][2008] VSCA 285 at [23]-[25] per Maxwell P and Forrest AJA.
As mentioned above, the first summons seeks, in substance, revocation of the order made in 1999 declaring Mr Kay to be a vexatious litigant.
Subsection 21(5) of the Supreme Court Act 1986 provides:
“The Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so.”
An application under s 21(5) to set aside an order declaring a person to be a vexatious litigant should not be allowed unless the court is persuaded that there has been such a change in relevant circumstances since the making of the order as to make it appropriate that the order be set aside.[10] The Court must be satisfied that there is no real risk of the applicant engaging further in conduct of the kind which attracted the making of the order.[11] Even if fresh evidence has been found, it has to be directed to the issue of a change of circumstances on the applicant’s part; for the question is not whether the vexatious litigant declaration should have been made in the first place but whether the applicant can demonstrate that it should not continue.[12]
[10]Kay v Victorian Attorney-General and Another, Court of Appeal, No 3726 of 2009, unreported, 19 May 2009, per Nettle JA, at [5], citing Kay v Attorney-General (Vic) (2000) 2 VR 436, [23] and Kay v Attorney-General (Vic) [2008] VSCA 285.
[11]Ibid.
[12]Ibid.
The conduct of Mr Kay which attracted the making of the declaration involved the bringing of numerous unsuccessful proceedings and was summarised by Eames J, in his painstaking reasons for judgment of 23 February 1999, as follows:[13]
“… the conduct of the defendant is manifestly that of a vexatious litigant. The proceedings, to a significant degree, have failed to disclose a proper cause of action and have manifested a determination to ignore past adverse rulings and to re-litigate matters which he has repeatedly been told can not be litigated. Mr Kay is using the legal process for the purpose of waging a campaign, primarily against the Family Court. His pleadings often employ the strident language which he uses in his campaign waged outside the court precincts, and his pleadings are similarly unrestrained by reference to legal principle. Furthermore, Mr Kay has brought proceedings in Victorian courts habitually, persistently, and without reasonable cause, and will continue to do so unless restrained from so doing without the leave of the Court … .”
[13][1999] VSC 30 at [177].
I am not satisfied that there is no real risk of Mr Kay engaging further in conduct of the kind which attracted the making of the order. By his own admission, he has been to court some 32 times since the declaration, with little result.[14] He continues to manifest “a determination to ignore past adverse rulings and to re-litigate matters which he has repeatedly been told can not be litigated”.[15]
[14]Transcript 21.
[15]To use the language of Eames J: [1999] VSC 30 at [177]. See also Kay v Attorney-General (Vic) and Another [2009] VSC 71 (Smith J) at [2]-[6]; Kay v Victorian Attorney-General and Another, Court of Appeal, no 3726 of 2009, unreported, 19 May 2009 at [7], [13].
The matters on which he relies in support of his present application for revocation of the declaration do not differ, in substance, from the matters on which he has relied numerous times in the past, without success. By the summons itself, and orally,[16] he continues to protest that a certain restraining order made against him in 1995 was invalid and that “therefore” his “status of being declared a vexatious litigant has been invalid”. Before Smith J in March this year, and before the Court of Appeal (in seeking leave to appeal from the decision of Smith J) in May this year, Mr Kay sought to make much the same case, on much the same material. On each occasion the reasons why his attack on the validity of the order of Eames J cannot succeed were carefully explained to Mr Kay but, it seems, to no avail. For example, he raised once again what he described as the “parent alienation syndrome”, but, as Nettle JA pointed out in the most recent appeal,[17] that matter is “directed at the merits of the order whereby Mr Kay was declared a vexatious litigant. It does not suggest any change in the circumstances on which the order was based”. Before me, Mr Kay asserted that he had new grounds, not raised before the Court of Appeal, for claiming that the intervention order and “therefore” the declaration were invalid. Even though that approach was misconceived, I invited Mr Kay to identify any new grounds or new issues not raised before the Court of Appeal. He declined to do so until he was represented by a “qualified QC” or “experienced barrister”.[18]
[16]See, eg, transcript 19-20.
[17]At [8].
[18]Transcript 20.
Mr Kay did make extensive reference before me to commentaries by the Victorian Government on the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”). He said that his rights under the Charter amounted to “new facts or circumstances”. However he had already made, in substance, the same submissions to the Court of Appeal. With respect I adopt the response of Nettle JA to those submissions, as follows:[19]
[19]Kay v Victorian Attorney-General and Another, Court of Appeal (Nettle JA and Coghlan AJA) unreported, 19 May 2009, paras 11-13 per Nettle JA with whom Coghlan AJA agreed.
“10In oral argument, the applicant advanced a number of further contentions as to what he said amounted to a change in circumstances since he was declared a vexatious litigant. In substance they were that the order declaring him a vexatious litigant:
1)Violated his right of access to the courts under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’);
2)Restricted or prevented his access to legal aid, and therefore violated his right to a fair hearing under s 24 of the Charter;
3)Violated his right to equality of treatment before the law under s 8 of the Charter;
4)Deprived him of the ability to obtain discovery of documents and subpoena witnesses in order to prove that a previous prosecution of him was corrupt;
5)Thus deprived him of the opportunity to establish that there had been a relevant change in circumstances.
11Apart from it being questionable whether any of those matters amounts to a change in relevant circumstances since the order was made, it seems to me that each is premised upon a misconception that the right of access to the courts is absolute. It is not. European and English decisions establish that a right of access of the kind which is enshrined in s 24 of the Charter may be subjected to reasonable restrictions aimed at achieving legitimate objectives if the means used to achieve those objectives are proportionate thereto: Golder v United Kingdom (1975) 1 EHRR 524; Ebert v Official Receiver [2002] 1 WLR 320. Since a right of access of the kind enshrined in s 24 of the Charter is informed and limited by the ‘needs and resources of the community and individuals’ it is recognised that it is in the interests of justice and thus a legitimate aim to restrict the access of vexatious litigants: Ashingdane v United Kingdom (1985) 7 EHRR 528. Consequently, in England, where the procedures for the declaration of vexatious litigants and for review and appeal are not dissimilar to those which apply in this State, it has been accepted that the general system relating to vexatious litigants complies with the requirements of the European Convention for the Protection of Human Rights: Ebert v Official Receiver [2002] 1 WLR 320, 323 [6]-[9]. Similarly, in my view, the procedures in this State which govern the making of an order to declare a litigant vexatious, and the rights of appeal and review to which such an order is subject are consistent with s 24 of the Charter.
12I allow that the right to a fair hearing may include a right to legal aid in some cases, especially in criminal cases. Dietrich v The Queen (1992) 177 CLR 292. But as the European Commission of Human Rights has held in relation to Article 6(1) of the European Convention for the Protection of Human Rights, it is only in exceptional circumstances, namely, where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of proceedings, that a right to legal aid under the convention can be invoked: X v United Kingdom (1984) 6 EHRR 136, [3]; cf. R(Jarrett) v Legal Services Commission [2002] ACD 25, in which it was held that in custody proceedings the issues were such as to make legal advice practically essential. It seems to me that the position under the Charter is the same. There are also a number of European decisions in which it has been held that a legal aid scheme which selects cases for assistance according to merit and provides for the selective exclusion of other cases does not necessarily violate the right to a fair hearing: Airey v Ireland (1979) 2 EHRR 305, X v United Kingdom (1981) 21 DR 95, 101; Thaw v United Kingdom (1996) 22 EHRR CD 100. As at present advised, I should think that the same holds true under the Charter.
13No doubt, so long as the applicant remains a vexatious litigant, his ability to attack previous determinations in this and other courts will be restricted. But I am not persuaded that the restrictions to which he is subject at all compromise his ability to put before the court any change in circumstances which may have occurred since the original order was made, or to prove its existence. His difficulty in this case is that he is unable to identify any relevant change in circumstances. Most if not all of his contentions are simply a regurgitation of arguments previously advanced and rejected.”
The summons of 5 May 2009 seeking an order revoking or setting aside the declaration of Eames J must be dismissed.
I turn to the summons seeking leave to proceed dated 15 May 2009. By that summons Mr Kay:
“seeks leave of the court to be able to proceed with his appeal lodged with VCAT tribunal re the decision of the Victims of Crime Assistance Tribunal refusing him access to documentation re a compensation payment involving his children and himself, and other related issues.”
So far as relevant, s 21(4) of the Act provides:
“Leave must not be given unless the Court … is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.”
The onus is on Mr Kay to show that the proceedings will not be an abuse of process.[20]
[20]Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538 at [116] and see also at [113]-[114]; Attorney-General v Clemens (No 3) [2009] VSC 297 at [2].
From the affidavit material filed by Mr Kay in support of his summons it was difficult to discern the jurisdictional basis or the terms or even the date of commencement of the “appeal” (or application for review) which he had apparently purported to lodge with the Victorian Civil and Administrative Tribunal (“VCAT”). No copy of any appeal or application for review was supplied. In an endeavour to assist him[21] I invited Mr Kay to provide the Court with any further documents he might have relating to the VCAT proceeding. He handed up a letter from the Freedom of Information Officer of the Victoria Police to him dated 20 May 2009 conveying a decision under the Freedom of Information Act 1982 (Vic) together with an edited version of a statement of one Detective Sergeant Sestokas marked as having been released under the Victorian FOI Act. These were copied as a bundle and marked as exhibit “A”. However the decision conveyed in the letter could not have been the decision purportedly under review at VCAT because it post-dated the issue of Mr Kay’s summons of 15 May 2009. Mr Kay also handed up a folder of miscellaneous documents. I arranged for all the documents in the folder that appeared to me to have any possible connection with the VCAT proceeding to be copied as a bundle and marked as exhibit “B”. Unfortunately no copy of the application to VCAT was contained in the folder.
[21]Cf Tomasevic v Travaglini (2007) 17 VR 100 at [89]-[142].
Doing the best I can from the court file and from Mr Kay’s documents and submissions, the sequence of relevant events appears to be as follows. In 1996 Mr Kay was jailed for 8 months, with 4 months suspended, for what he describes as “postal breaches” of a restraining order. The restraining order had apparently prohibited him from contacting his former wife. (More details of that matter are contained in the reasons of Eames J.) While he was in jail (in 1996) an application for compensation under the Victims of Crime Assistance Act 1996 was apparently made to the Victims of Crime Assistance Tribunal (VOCAT) by or on behalf of Mr Kay’s former wife and his children. Mr Kay believes that compensation was paid. He believes that the claim was based on allegations of “stalking” his former wife made against him in his absence, and that VOCAT may not have been fully and truthfully informed of the relevant facts, including, he says, the fact that “stalking” charges filed against him relating to his former wife were dismissed in 1996. He believes that his children were turned against him in the process.
Mr Kay has been pursuing information and documents about the compensation matter in one way or another for many years. It appears from the judgment of Smith J of 5 March 2009[22] that one of Mr Kay’s summonses on that occasion included the following:
“Take Notice that the above mentioned applicant, approaches the Supreme Court to seek leave compel [sic] the defendants to provide him with all relevant documents re a compensation payment which was made to Ms McIntosh[23] and involved the applicant’s children.
The applicant claims that the documents he requires are absolutely necessary for him to prove he is not a vexatious litigant, and how he has been gaoled based on conspiracies and perjury and how this has denied him contact with his children for 14 years and poisoned their minds against him.”
Smith J noted that Warren CJ had refused a similar application for access to documents concerning the compensation matter on 16 June 2006 and that Mr Kay’s appeal to the Court of Appeal against that decision had been dismissed.[24] Likewise Smith J noted that applications for production of the documents concerned had been unsuccessfully made before Hansen J[25] and Osborn J[26] on earlier occasions. Smith J dismissed the three applications before him (including the application for production of the documents) as an abuse of process.[27] The Court of Appeal was not satisfied that the orders of Smith J were attended by sufficient doubt to warrant the grant of leave to appeal.[28]
[22][2009] VSC 71 at [1]-[2].
[23]Mr Kay’s former wife.
[24][2008] VSCA 285.
[25][2005] VSC 426 at [11].
[26][2006] VSC 9 at [3].
[27][2009] VSC 71 at [5].
[28]Kay v Victorian Attorney-General and Another, Court of Appeal, no 3726 of 2009, unreported, 19 May 2009 at [9], [14].
In his oral submissions before me as to why he wanted access to the documents,[29] Mr Kay yet again referred mainly to his professed desire to demonstrate that fraud and corruption had led to many past judicial decisions adverse to him, including his declaration as a vexatious litigant. Indeed the fact that Mr Kay’s desire to obtain the compensation documents continues to be linked to his complaints about the vexatious litigant declaration is confirmed by the material filed by Mr Kay in relation to the first summons, including the statement in that summons that the matter should not proceed until Mr Kay was supplied with all of the documents he requested in that regard, being the compensation documents which VOCAT had refused to release.[30]
[29]See, eg, transcript 21-24.
[30]See Mr Kay’s affidavit of 5 May 2009 in support of the first summons, and in particular the reference therein to exhibit E thereto.
However, this may be the first time that Mr Kay has approached this Court to advance his quest for access to the compensation documents otherwise than by applying to the Court itself for specific discovery or for the issue of a subpoena. In form, what he seeks is leave to proceed at VCAT. Does that make any difference? Probably not, in this particular case.
It would not be appropriate for this Court to authorise Mr Kay to pursue documents in another forum for a litigious purpose in relation to which the Court would not authorise him to pursue documents in this Court; and it remains clear enough that Mr Kay’s purpose in pursuing the documents is to continue with his misconceived campaign to overturn old judicial decisions that are now beyond permissible challenge, including, in particular, the declaration made by Eames J in 1999.
On the other hand, the situation might arguably be different if Mr Kay were seeking at VCAT to enforce a legal right of access to documents which did not depend on his purpose in seeking access. For example, generally speaking, rights of access to documents under the Freedom of Information Act 1982 (“FOI Act”) do not depend on the requester’s purpose, but rather on the identity of the possessor of the documents and on the nature of the documents. Although there is no direct mention of the FOI Act in Mr Kay’s second summons or in his affidavit material filed in support of that summons, his affidavit cross-refers to and relies upon another (misidentified) affidavit which I take to be his affidavit of 5 May 2009 filed in support of the first summons. That affidavit, in turn, has an exhibit E in which there is a document[31] written by Mr Kay containing a reference to Mr Kay having made a “request to VOCAT” under the FOI Act for certain specified documents relating to the compensation matter. However no actual copy of any request to VOCAT expressly referring to the FOI Act is contained in any of the material before this Court.
[31]Another copy of this document is contained in exhibit B in this proceeding.
What seems to have happened is as follows. By a letter dated 13 December 2008 addressed to the Victoria Police,[32] Mr Kay made a request to the Victoria Police under the FOI Act for access to documents relating to the compensation matter. The documents sought were specified in terms later reproduced in the document mentioned above in which Mr Kay’s “request to VOCAT” is described. On 23 December 2008 the FOI request to the Victoria Police was transferred in whole or in part to the Department of Justice. By letter dated 6 January 2009, the Department of Justice informed Mr Kay that, after preliminary inquiries, it had determined that VOCAT was likely to be in possession of the specified documents, but that VOCAT was not subject to the FOI Act; and that “therefore” the specified documents “cannot be accessed through freedom of information”. However, the letter proceeded to inform Mr Kay that an “application to access information about an application for assistance and/or documents contained in a VOCAT file can be made in writing directly to VOCAT itself”. Details of the relevant form for requesting access were provided. It seems that Mr Kay followed this advice, at least in part. Mr Kay’s bundle of documents (exhibit B) contains a partial copy of a VOCAT “application to access information” form completed by Mr Kay and date stamped as received by the Deputy Registrar of the Magistrates’ Court on 21 February 2009.
[32]Not produced, but referred to in a subsequent letter from the Department of Justice dated 6 January 2009.
It seems that the completed VOCAT form was initially sent by Mr Kay to the Attorney-General’s Office under cover of a letter from Mr Kay dated 10 February 2009. However the letter and attachment were apparently read by their recipient as a further request under the FOI Act. By a letter dated 2 March 2009 the FOI Officer of the Department of Justice referred to Mr Kay’s letter of 10 February 2009 and to the Department’s earlier letter of 6 January 2009 and repeated the advice that the specified documents were likely to be with VOCAT, but that VOCAT was not subject to the FOI Act. The prior advice about direct requests to VOCAT was not repeated.
By letter dated 24 March 2009, the Principal Registrar of VOCAT wrote to Mr Kay as follows:
“Dear Mr Kay,
Application for access to information and/or documents
I refer to your application to the Victims of Crime Assistance Tribunal to access information and/or documents regarding Ms Heather McIntosh.
Please be advised that the Tribunal has considered your application and made the following orders in relation to files held by the Tribunal regarding Heather McIntosh, Cameron McIntosh, Nerissa McIntosh and Lachlan McIntosh:
1. the application for access in refused; and
2. until further order, the files remain confidential pursuant to s 42A of the Victims of Crime Assistance Act 1996.
I have enclosed a copy of section 42A for your reference.
Yours sincerely,”
I infer that the decisions conveyed by this letter are the decisions from which Mr Kay sought to “appeal” to VCAT, although, as mentioned above, no copy of Mr Kay’s application to VCAT has been produced to this Court.
VCAT wrote to Mr Kay on 7 May 2009[33] referring to and apparently enclosing correspondence to VCAT from the Victorian Government Solicitor’s Office (VGSO) about the “above proceeding”, namely (according to the heading to the letter) ”Ian Kay v Victims of Crime Assistance Tribunal – Melbourne”. No copy of the enclosed VGSO letter has been provided to this Court. However it is apparent from VCAT’s letter of 7 May 2009 that the VGSO had raised the need for Mr Kay, as a declared vexatious litigant, to obtain leave from this Court before he could commence or proceed with any proceeding at VCAT. It is not clear whether the VGSO raised any other objection to the proceeding.
[33]Exhibit “B” to Mr Kay’s affidavit of 15 May 2009.
In any event, it seems to me that the proceeding before VCAT is “foredoomed to fail” and that therefore I cannot be satisfied that it would not be an abuse of process.[34] The decisions of VOCAT conveyed by the letter of 24 March 2009 appear to have been decisions made under s 42A of the Victims of Crime Assistance Act 1996 - more particularly, an order under s 42A(3) that the specified documents remain confidential and a consequential decision that Mr Kay’s application for access[35] be refused. If that be the proper characterisation of the decisions, then VCAT has no jurisdiction to review them or to entertain any “appeal” from them. VCAT has only such jurisdiction as is specifically conferred on it by enactments. While s 59 of the Victims of Crime Assistance Act 1996 confers jurisdiction on VCAT to entertain applications for review of certain specified kinds of decision made by VOCAT under the Act (being, in substance, decisions about the grant of assistance), no provision of any enactment confers jurisdiction on VCAT to review decisions made by VOCAT under s 42A.
[34]See Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538 at [20], [85], [86], [121].
[35]Regarded as having been made under s 42A.
Even if VOCAT should be taken to have made a decision[36] to refuse an application made by Mr Kay under the FOI Act, and even if Mr Kay’s application at VCAT should be characterised as an appeal against or an application to review such a decision, still the proceeding would be foredoomed to fail. It is clear, in my opinion, that the Department of Justice was correct in advising Mr Kay that VOCAT is not subject to the FOI Act.
[36]Either conveyed by the letter of 24 March 2009 or otherwise signified.
VOCAT is established under s 19 of the Victims of Crime Assistance Act 1996. It consists of the Chief Magistrate and all other persons who hold the office of magistrate or acting magistrate. Rights of access under the FOI Act extend only to (non-exempt) documents of an “agency” (as defined) and (non-exempt) official documents of a Minister. VOCAT’s documents are obviously not the documents of a Minister. Nor, in my opinion, is VOCAT an “agency”. That term is defined (by s 5 of the FOI Act) to mean “a department, council or a prescribed authority”. VOCAT is plainly not a department (as defined) or a council (as defined). The definition of “prescribed authority” comprises four categories identified in paragraphs (a), (b), (c) and (d) of the definition. VOCAT cannot fall within (a) because it is not a “body corporate” within the meaning of that paragraph. It cannot fall within (b) because it is not declared by the regulations to be a prescribed authority. It cannot fall within (d) because none of its members, as such, holds an appointment relevantly declared by regulations made pursuant to (d). Paragraph (c) covers “the person holding, or performing the duties of, an office established by an Act” but it is expressed to operate “subject to subsection (3)”. The Chief Magistrate and each magistrate and acting magistrate might be said to be holding an office established by an Act (the Victims of Crime Assistance Act 1996). However, in my view, they are taken outside the definition of “prescribed authority”, and therefore outside the FOI Act, by s 5(3)(c) of the FOI Act, which provides that a person shall not be taken to be a prescribed authority by virtue of his holding, or performing the duties of, “an office or member of a body”. VOCAT is, in my opinion, clearly a “body” within the meaning of s 5(3)(c) and the Chief Magistrate and each magistrate and acting magistrate is clearly a member of that body. Similarly, the Adult Parole Board and each of its members have been held to be outside the FOI Act,[37] and so has the County Court and each Judge of the County Court.[38]
[37]Re Clarkson and Office of Corrections (1989) 4 VAR 1.
[38]ReSmith and County Court of Victoria (1992) 5 VAR 329.
Since the proceeding at VCAT in respect of which leave is sought is foredoomed to fail, Mr Kay is unable to satisfy the Court that it will not be an abuse of process.[39] Accordingly the second summons, as well as the first summons, must be dismissed.
[39]Cf Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538 at [20], [85], [86], [121]. There is no need to consider whether Mr Kay would have been likely to present his case appropriately at VCAT: cf Attorney-General (Vic) v Kay [1999] VSC 30 at [189]; Phillip Morris Ltd v Attorney-General (Vic) (2006) 14 VR 538 at [102]-[106].
There will be no order as to costs.
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