Huang v Frankston City Council
[2024] VSCA 38
•19 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0010 |
| KAI YUAN HUANG | Applicant |
| v | |
| FRANKSTON CITY COUNCIL | Respondent |
| S EAPCI 2023 0014 | |
| KAI YUAN HUANG | Applicant |
| v | |
| FRANKSTON CITY COUNCIL | Respondent |
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| JUDGES: | BEACH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 March 2024 |
| DATE OF JUDGMENT: | 19 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 38 |
| JUDGMENTS APPEALED FROM: | In proceeding S EAPCI 2023 0010, [2022] VSC 595 (Irving AsJ) In proceeding S EAPCI 2023 0014, [2022] VSC 733 (Tsalamandris J) |
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FREEDOM OF INFORMATION – Appeal – Application for leave to appeal from decision refusing leave to appeal from VCAT – Applicant dissatisfied with VCAT decision refusing to grant access to documents – Applicant’s application for leave to appeal to Trial Division refused on basis that proposed grounds of appeal had no real prospect of success – Failure of applicant to identify any question of law upon which an appeal from VCAT would enjoy any prospects of success – Proposed appeal from Trial Division having no real prospect of success – Application for leave to appeal refused.
PRIVACY – Appeal – Application for extension of time within which to seek leave to appeal from VCAT decision dismissing claims for breach of privacy principles – Applicant’s application for extension of time refused by Trial Division on basis that proposed appeal devoid of merit – Failure of applicant to identify question of law upon which an appeal from VCAT would enjoy any prospects of success – Proposed appeal from Trial Division having no real prospect of success – Futile to grant applicant extension of time within which to seek leave to appeal from Trial Division – Application for extension of time within which to seek leave to appeal refused.
Freedom of Information Act 1982, Privacy and Data Protection Act 2014.
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| Counsel | ||
| Applicant: | In person | |
| Respondent in S EAPCI 2023 0010: | Mr G Lake | |
| Respondent in S EAPCI 2023 0014: | Ms FL Batten | |
Solicitors | ||
| Applicant: | ||
| Respondent in S EAPCI 2023 0010: | Barry Nilsson Lawyers | |
| Respondent in S EAPCI 2023 0014: | Maddocks Lawyers | |
BEACH JA
NIALL JA:
Kai Yuan Huang (‘the applicant’) owns a short-stay rental property in Frankston (‘the property’),[1] which he leased through Airbnb. Since at least early 2018, the property has been the subject of complaint by neighbours and the applicant has been in dispute with the Frankston City Council (‘the respondent’).
[1]While evidence suggests that the property is owned by the applicant and his wife, Jin Hui Lu, nothing turns on this as the litigation we are about to describe in relation to the property only involved the applicant.
The various complaints and disputes, and the handling of them by the respondent, led the applicant to commence proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’) against the respondent: first, under the Freedom of Information Act 1982 (‘the FOI Act’); and secondly, alleging that the respondent had contravened the Information Privacy Principles (‘the Privacy Principles’) set out in Sch 1 of the Privacy and Data Protection Act 2014 (‘the PDP Act’). We will refer to these proceedings as ‘the FOI proceeding’ and ‘the PDP proceedings’ respectively.
The FOI proceeding involved an application by the applicant to review a decision of the Victorian Information Commissioner (‘the Commissioner’) made on 17 January 2020 about FOI requests which the applicant had made to the respondent. On 15 June 2021, following a hearing conducted in September 2020, a Senior Member of VCAT affirmed the Commissioner’s decision.[2] Being dissatisfied with VCAT’s decision, the applicant sought leave to appeal to the Supreme Court.
[2]Huang v Frankston City Council (Review and Regulation) [2021] VCAT 634 (‘FOI VCAT Reasons’).
On 15 December 2022, following a hearing conducted in September 2022, and pursuant to reasons delivered on 30 November 2022,[3] Tsalamandris J dismissed the applicant’s application for leave to appeal from VCAT. The applicant now seeks leave to appeal to this Court from her Honour’s orders dismissing his application for leave to appeal from VCAT.
[3]Huang v Frankston City Council [2022] VSC 733 (‘FOI Appeal Reasons’).
The PDP proceedings involved two applications by the applicant in which, as we have said, the applicant alleged that the respondent had contravened the Privacy Principles. In each proceeding, the applicant sought an order for compensation in the sum of $100,000 in respect of the alleged breaches. On 12 January 2022, following a hearing conducted in November 2021, a Member of VCAT dismissed the PDP proceedings.[4] Being dissatisfied with VCAT’s decision, the applicant commenced a proceeding seeking leave to appeal to the Supreme Court. The proceeding was, however, out of time, having been filed on 8 April 2022.
[4]Huang v Frankston City Council (Human Rights) [2022] VCAT 24 (‘PDP VCAT Reasons’).
On 7 October 2022, following a hearing conducted in August 2022, Irving AsJ refused the applicant’s application for an extension of time to file his application for leave to appeal.[5] The applicant now seeks an extension of time within which to file and serve an application for leave to appeal from his Honour’s orders refusing his application for an extension of time for leave to appeal from VCAT.
[5]Huang v Frankston City Council [2022] VSC 595 (‘PDP Appeal Reasons’).
Background
After receiving complaints about the property and conducting its own investigation, the respondent charged the applicant with four offences: failing to comply with an emergency order;[6] failing to fence a spa at the property;[7] failing to ensure that a barrier was in place to restrict access to the part of the property containing the spa;[8] and failing to register prescribed accommodation with the respondent.[9]
[6]Contrary to s 118(1) of the Building Act 1993.
[7]Contrary to regulation 703(b) of the Building Interim Regulations 2017.
[8]Contrary to regulation 703(c) of the Building Interim Regulations 2017.
[9]Contrary to s 67 of the Public Health and Wellbeing Act 2008.
In March 2019, on the second of these charges, the applicant was sentenced to a 3 month bond without conviction and was ordered to pay costs in the sum of $122.40. In June 2019, on the hearing of an appeal to the County Court, the respondent withdrew all charges and was ordered to pay $7,960 in costs to the applicant.
Following the withdrawal of the charges, the applicant made the FOI request of the respondent, which subsequently resulted in the commencement of the FOI proceeding. In his FOI request, the applicant sought documents relating to complaints made about the property and the charges brought against him. The Council provided the applicant with some documents, but refused to provide him with others (in whole or in part) which it claimed were exempt documents under Part IV of the FOI Act.
The PDP proceedings arose out of complaints made by the applicant that the respondent contravened the Privacy Principles in the PDP Act in communications it had with third parties. In total, the applicant made 19 distinct allegations that the respondent contravened the Privacy Principles. The contraventions were alleged to have occurred between early 2018 and early 2020, and involved Privacy Principles 1.2, 2.1 and 4.1.[10]
[10]See Sch 1 of the PDP Act.
The FOI proceeding
Seven days after the withdrawal of the charges in the County Court, the applicant made the FOI application that ultimately became the subject of the FOI proceeding. The documents the applicant sought from the respondent included Council meeting minutes relating to the property; related internal documents; and related correspondence between the Council, its internal ombudsman, the Victorian Ombudsman and the Magistrates’ Court of Victoria.
On 2 September 2019, the respondent informed the applicant that it had identified 147 documents which fell within the terms of his request. It determined that, of those documents, the applicant should be granted access to 101 documents in full, and 35 documents in part. It refused him access to six documents in full. In addition, the respondent noted that the remaining five documents would have been available to the applicant in the course of the criminal proceedings, and were therefore able to be given to him outside the formal FOI process. As Tsalamandris J put it, those five documents were provided to the applicant ‘by administrative release’.[11]
[11]FOI Appeal Reasons, [22].
Subsequently, the applicant sought a review of the respondent’s decision by the Commissioner pursuant to s 49A of the FOI Act. On 17 January 2020, pursuant to s 49F of the FOI Act, the Commissioner determined that 27 of the 42 documents the Council had claimed were exempt were not subject to review as they contained personal affairs information. The Commissioner noted that, at the time, the applicant did not seek personal affairs information in relation to any complainant and therefore, pursuant to s 33 of the FOI Act, such documents were not subject to the Commissioner’s review.
In the course of the review by the Commissioner, and in the subsequent hearing at VCAT, the 15 documents held to be open to review were categorised as follows:
(i)Category 1 — irrelevant documents: documents which were considered irrelevant to [the applicant’s] request pursuant to s 25 of the FOI Act and thus were exempt from release.
(ii)Category 2 — personal information documents: documents which related to reports from Victoria Police of callouts made to the property over a 12 month period, as well as correspondence which related to complaints about the property. [The Commissioner] considered that these documents were exempt from release under s 33(1) and s 35(1)(b) of the FOI Act.
(iii)Category 3 — legal professional privilege documents: documents which comprised email correspondence between Council officers and external legal advisers. [The Commissioner] considered that these documents were exempt under s 32 of the FOI Act on the basis that they were confidential communications subject to legal professional privilege.[12]
The FOI proceeding in VCAT
[12]Ibid [25].
On 30 January 2020, pursuant to s 50(1)(b) of the FOI Act, the applicant applied to VCAT for a review of the Commissioner’s decision. On 1 September 2020, the application was heard at VCAT. Evidence was given by the respondent’s senior FOI officer, as well as its governance legal adviser. As we have already said, on 15 June 2021, VCAT made orders affirming the Commissioner’s decision.
The application for leave to appeal to the Supreme Court
On 12 July 2021, the applicant filed a notice of appeal in which he sought leave to appeal to the Supreme Court pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). Notwithstanding the apparent width of the notice of appeal, the applicant subsequently made it clear that the object of his proposed appeal was access to two category 2 documents — documents numbered 6 and 7;[13] and seven category 3 documents — documents numbered 9 to 15.[14]
[13]Referred to by the Commissioner as documents numbered 32 and 33.
[14]Referred to by the Commissioner as documents numbered 36 and 42.
As is well known, an appeal to the Supreme Court pursuant to s 148(1) of the VCAT Act is an appeal on a question of law only, and one requiring the leave of the Supreme Court.[15]
[15]Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521, [10] (Croft J); Weldemichael v Ha [2023] VSCA 230, [12] (Beach JA).
In August 2021, the respondent asserted that the notice of appeal did not adequately identify any questions of law, and applied for the application for leave to appeal to be dismissed pursuant to r 4.08(viii) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (‘the Miscellaneous Proceedings Rules’). In response, the applicant sought leave to amend his notice of appeal ‘to clarify the questions of law and his grounds of appeal’.[16]
[16]FOI Appeal Reasons, [36].
On 15 December 2021, after hearing the respondent’s application to dismiss the application for leave to appeal under r 4.08(viii) of the Miscellaneous Proceedings Rules and the applicant’s application to amend his notice of appeal, an Associate Judge (Ierodiaconou AsJ), in denying each party the relief they sought, ordered that the application for leave to appeal (and the appeal) would proceed on the basis of the following questions of law:
(i)Did the Tribunal err in law by failing to identify the relevant legal test to determine whether there was a loss of legal professional privilege with respect to documents 6, 7, 9–15? (question of law 1)
(ii)Did the Tribunal err in law by failing to apply the relevant legal test to determine whether there was a loss of legal professional privilege with respect to documents 6, 7, 9–15? (question of law 2)
(iii)Did the Tribunal err in law by failing to apply s 33(2A) of the FOI Act with respect to documents 6 and 7? (question of law 3)[17]
[17]Ibid [36].
The applicant’s application for leave to appeal was heard by Tsalamandris J on 27 September 2022. At the hearing of the application, there was a dispute between the parties in relation to the scope of the application. The applicant submitted that there had been a loss of legal professional privilege with respect to documents 6 and 7. The respondent submitted that it (the respondent) had never claimed legal professional privilege in relation to those documents, and thus the applicant’s assertion of this was ‘nonsensical’.[18]
[18]Ibid [45].
At the commencement of the hearing before her Honour, the applicant sought leave to amend his notice of appeal to rely on s 33(1) of the FOI Act. The respondent opposed the application, observing that the applicant had not provided a version of his proposed amendment, or offered any explanation for his late proposal, or given any notice to it of the proposed amendment prior to the hearing. The judge refused the amendment, later saying as part of the FOI Appeal Reasons:
I refused to grant Mr Huang leave to amend his notice of appeal for the following reasons:
(a)There had been multiple directions hearings and oral applications in this matter.[19] At no stage did Mr Huang indicate that he wanted to rely upon this section of the FOI Act;
(b)At hearing, Mr Huang had not prepared a written version of the proposed amended notice of appeal;
(c)Mr Huang had not given notice to the Council of his proposed amendment prior to the commencement of the hearing; and
(d)The parties (and the Court) were otherwise in a position to hear the application on the day of the hearing.
In view of those factors, and in accordance with the overarching purposes of the CPA, I did not consider it to be in the interests of justice to allow such an amendment, and thus refused Mr Huang’s application.[20]
The judge’s decision
[19]Such hearings were conducted on 1 September 2021, 15 September 2021, 13 October 2021, 15 December 2021 and 2 March 2022.
[20]FOI Appeal Reasons, [51]–[52].
After setting out the background and describing the issues, the judge summarised the applicant’s submissions as follows:
In relation to documents 9–15, Mr Huang asserted that the Council had acted illegally by requiring him to apply for a permit under the Public Health and Wellbeing Act, and in its search of his property.
Mr Huang asserted that in view of these illegal acts, the Council could not assert legal professional privilege over its communication with its lawyers. Mr Huang specifically alleged that:
After the council consulted with the lawyer firm (Maddocks), they knowingly involve in the fraud or offence, they knew the law and broke the law, and playing with the law, they were doing illegal things in the name of the law and abused their power, they deceived the court to obtain the search warrant through falsification of an investigation report. The Applicant had tried to communicate with the staffs, CEO, internal ombudsman of the council and Vic Ombudsman and Maddocks lawyer to avoid any human errors, they claimed all illegal actions were consulted with lawyers and refused to rectify them. I haven't got a chance to read the contents of Maddocks lawyer's emails, but according to Bruce's email ‘there were a number of critical mistakes made by Maddocks during the life of this matter’.
Mr Huang submitted that, at common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest. That is, no privilege will arise where the communication is made in furtherance of an illegal or improper purpose, regardless of whether or not the legal adviser knows of that purpose. In addition, Mr Huang sought to rely upon s 125 of Evidence Act 2008 (Vic) (the Evidence Act) and asserted that this section also prevented the Council claiming legal professional privilege over the documents, as he alleged they were made in furtherance of an abuse of legal power.
…
Mr Huang acknowledged that he had not expressly referred to s 125 of the Evidence Act at the VCAT hearing, nor expressly submitted that the Council had waived its legal professional privilege based on common law principles. However, as I understood his submission, Mr Huang contended that the Court should apply this common law principle (and s 125 of the Evidence Act) without it having been articulated by him, as the Court should be concerned with ensuring that laws are followed, and illegal conduct is not enabled or sanctioned by the Court.
In relation to documents 6 and 7, Mr Huang submitted that the Member had erred in law by failing to correctly apply s 33(2A) of the FOI Act and in determining that the documents were exempt.
Mr Huang submitted that the Council had illegally provided his personal information to others and in doing so, had breached Information Privacy Principles 2.1 and 4.1 contained in Schedule 1 of the Privacy and Data Protection Act 2014 (Vic). As I understood Mr Huang’s submission, he asserted that there had been a breach of his privacy that, in turn, constituted a waiver by the Council of any privacy privilege it held in respect of others’ personal information.
Further, Mr Huang stated that disclosure by the Council of information relating to the personal affairs of his neighbours was reasonable, as his neighbours’ names are able to be found in the public domain, including on the Council’s website, in the newspaper, in council meeting minutes, and via the search engine Google.
Finally, Mr Huang contended that pursuant to s 33(2A) of the FOI Act, there was no risk of physical danger to the complainants if they were to be identified. Instead, Mr Huang claimed he was a ‘victim’, and that intervention was required to protect him from harm by the complainants.[21]
[21]Ibid [56]–[64] (footnote omitted).
The judge was not satisfied that any of the applicant’s proposed grounds of appeal had any real prospect of success. Accordingly, her Honour refused the applicant’s application for leave to appeal from the orders made by VCAT.
In concluding that she was not satisfied that any of the grounds of appeal had a real prospect of success, the judge noted that the applicant did not expressly raise, at any time during the course of the VCAT hearing, his assertion now made that the respondent’s legal professional privilege in respect of documents 9 to 15 had been lost pursuant to s 125 of the Evidence Act 2008 or by reason of the common law.[22] Additionally, her Honour observed that there was ‘no prima facie evidence to support an allegation of illegal or improper purpose in respect of the commission and/or creation of documents 9–15’.[23] Her Honour concluded her analysis in relation to this issue as follows:
Notwithstanding such flagrant accusations, Mr Huang was non-specific in respect of the basis of the alleged illegality or impropriety and failed to establish any facts that supported such allegations.
The Member accepted the evidence of Ms Bugia as to why she sought external legal advice. This was open to him, and there was no basis to infer impropriety from Ms Bugia doing so.
Adopting the language of Viscount Finlay in O’Rourke, I am therefore not satisfied there was sufficient evidence ‘to give colour’ to Mr Huang’s charges. Applying the test articulated by Brennan CJ in Propend yields a similar outcome: there were ‘no reasonable grounds for believing’ the communications effected by the documents were made for some illegal or improper purpose, contrary to the public interest.
For the sake of completeness, I note that there was no support for Mr Huang’s contention that s 125 of the Evidence Act is of relevance to an FOI request, and I consider it unnecessary for me to discuss this further.[24]
[22]Ibid [67], [79].
[23]Ibid [81].
[24]Ibid [82]–[85].
As to the applicant’s submission that, in relation to documents 6 and 7, VCAT had erred in law by failing to correctly apply s 33(2A) of the FOI Act, the judge said:
Mr Huang failed to set out a ground of appeal in respect of the Member’s application of s 33(2A) of the FOI Act. That alone is a basis upon which to dismiss the question of law relating to this section.
Even if Mr Huang had adequately identified this as a ground of appeal, there is nothing before me to support a finding that the Member erred in respect of his consideration of s 33(2A) of the FOI Act. Mr Huang’s assertion that he was at risk of harm, as opposed to the complainants, was without foundation. Further, I consider it irrelevant to an appeal on an error of law.
Mr Huang alleged the Council had, without permission, released his personal information and that, doing so constituted a waiver of privacy privilege over documents containing the complainants’ personal information. This is without foundation and must be rejected.
Further, even if I had been persuaded that there was an error by the Member in respect of his application of s 33(2A), Mr Huang made no complaint as to the Member’s reasoning that s 35(1)(b) also justified the exemption of such documents. The consequence of this is that documents 6 and 7 are exempt, irrespective of any criticism advanced by Mr Huang in respect of the Member’s application of s 33(2A).[25]
The application for leave to appeal to this Court
[25]Ibid [86]–[89].
On 3 February 2023, the applicant filed the application now before the Court for leave to appeal from the orders of Tsalamandris J. In his application for leave to appeal, the applicant set out the three questions of law identified by Ierodiaconou AsJ in her Honour’s order of 15 December 2021 as the questions of law on which the proposed appeal to this Court is to be brought. The actual proposed grounds of appeal are set out in the application for leave to appeal as follows:
Ground of appeal relating to Question of law 1–2:
Evidence Act
Section 125 of the Evidence Act 2008 (VIC) provides that a confidential communication will not be privileged if made or prepared in furtherance of a fraud, offence, an act attracting penalty, or a deliberate abuse of a power conferred by an Australian law.
Common law
At common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest; that is, where the communication is made in furtherance of an illegal or improper purpose, whether or not the legal adviser knows of that purpose.
Ground of appeal relating to Question of law 2:
Section 33(2A) of the FOI Act 1982 (VIC) provides that, 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 take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.
On 12 March 2024 (the day before the hearing in this Court), the applicant gave notice of an intention to rely on a proposed amended application for leave to appeal. In the proposed amended application for leave to appeal, the applicant sought to add a number of paragraphs, while deleting others. Specifically, he sought to:
•delete the third of his questions of law, while adding two others;
•modify one of his grounds of appeal; and
•provide new reasons why leave to appeal should be granted.
In his proposed amended application for leave to appeal, the applicant contends that the Tribunal erred in law by ‘failing to apply the relevant legal test to determine whether there was a loss of privilege with respect to documents 6 and 7’. The suggestion now made is that legal professional privilege (or client legal privilege) in these documents has been lost because the respondent contravened Privacy Principle 2.1.
In support of his application for leave to appeal, the applicant filed a written case, headed ‘Applicant’s Outline of Submissions’ (‘the applicant’s written case’). The first 48 paragraphs of the applicant’s written case contains a detailed factual chronology, dealing with the period from when the applicant purchased the property in July 2017 until the VCAT hearing held in September 2020. These paragraphs in the applicant’s written case do not contain any reference to any questions of law upon which an appeal to this Court might be brought. The applicant’s written case, however, concludes as follows:
49.According to section 125 of Evidence Act 2008 (Vic) and Common law, there was a loss of legal professional privilege for documents 9-15. After the council consulted with the lawyer firm (Maddocks), they knowingly involve in the fraud or offence, they knew the law and broke the law, and playing with the law, they were doing illegal actions in the name of the law and abused their power, they deceived the court to obtain the search warrant through falsification of an investigation report. The Applicant had tried to communicate with the staffs, CEO, internal ombudsman of the council and Vic Ombudsman and Maddocks lawyer to avoid any human errors, they claimed all illegal actions were consulted with lawyers and refused to rectify them. I haven’t got a chance to read the contents of Maddocks lawyer’s emails, but according to Bruce’s email ‘the reason for the unlawful court charges was because there was a number of critical mistakes made by Maddocks during the life of this matter’.
50.According to section 125 of Evidence Act 2008 (Vic) and Common law, there was a loss of personal privacy privilege concerning documents 6–7, because, within these documents, the council had illegally leaked my personal information to my neighbour which breached S2.1 and S4.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (VIC).
51.According to Section 33(2A) of the Freedom Information Act 1982 (VIC), disclosure of information relating to the personal affairs of my neighbour is reasonable. Because my neighbour’s names can be found in the public including Frankston city council website, newspapers, council meeting minutes and Google, they are all relative to my house and Applicant’s name. I never did anything against my neighbour, I was a victim and seek intervention order to protect myself.
52.At common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest; that is, where the communication is made in furtherance of an illegal or improper purpose, whether or not the legal adviser knows of that purpose.[26]
Consideration
[26]Emphasis in original.
The applicant was not granted access to documents 6 and 7 because they were considered by the Commissioner and by VCAT to be exempt under ss 33(1) and 35(1)(b) of the FOI Act. Before the judge, and in his original application for leave to appeal to this Court, the applicant complains that VCAT erred in failing to apply s 33(2A) of the FOI Act. Section 33 of the FOI Act relevantly provides:
33 Document affecting personal privacy
(1)A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
...
(2A)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 take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.
…
(9)In this section—
‘information relating to the personal affairs of any person’ includes information—
(a)that identifies any person or discloses their address or location; or
(b)from which any person’s identity, address or location can reasonably be determined;
To the extent that the applicant still asserts that failure to disclose documents 6 and 7 would, in the terms of s 33(2A) of the FOI Act, ‘be reasonably likely to endanger [his] life or physical safety’ (that assertion having now been crossed out in his proposed amended application for leave to appeal), the following points should be made:
(1)First, the question of whether any failure to disclose documents 6 or 7 would be reasonably likely to endanger the applicant’s life or physical safety is a question of fact, not one involving any question of law.
(2)Secondly, there was no evidence led at VCAT that any failure to disclose either documents 6 or 7 would be reasonably likely to endanger the applicant’s life or physical safety.
(3)Thirdly, and more importantly, the applicant’s submission involves misconstruing s 33(2A) of the FOI Act as a section concerned with the consequences of a failure to disclose information — rather than a section which deals with the consequences of a potential disclosure of information. Specifically, s 33(2A) says nothing about the consequences of any failure to disclose information; nor whether any failure to disclose information would, or would be reasonably likely to, endanger the life or safety of any person.
As to the new complaint in the applicant’s proposed amended application for leave to appeal that VCAT ‘err[ed] in law by failing to apply the relevant legal test to determine whether there was a loss of privilege with respect to documents 6 and 7’, the short answer is that the respondent has never claimed any privilege in respect of these documents. There is thus no privilege for the respondent to have lost, whatever the truth of the allegation that the respondent breached Privacy Principle 2.1.
In short, there is simply no basis for any assertion that VCAT erred in law (or indeed erred at all) in rejecting the applicant’s application for access to documents 6 and 7. Moreover, even if there were any such basis by reference to s 33(2A) or some alleged loss of privilege, the applicant has failed to advance any argument in this Court (or below) on the alternative basis upon which access to these documents was refused; namely, s 35(1)(b) of the FOI Act. The application of that section alone (unchallenged as it is in this Court) is a sufficient basis to conclude that the applicant’s contentions in respect of documents 6 and 7 are not reasonably arguable.
Turning now to documents 9 to 15, the applicant’s proposed appeal is no more arguable with respect to those documents than it is with respect to documents 6 and 7. Section 32 of the FOI Act relevantly provides:
32 Documents affecting legal proceedings
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
The difficulty with the applicant’s application for leave to appeal to the Supreme Court in relation to documents 9 to 15, and his application for leave to appeal to this Court in relation to those documents, is that the point he sought to run before Tsalamandris J, and which he now seeks to run in this Court, was not run at VCAT. Moreover, even if the applicant were now permitted to take this course, there is simply no evidentiary foundation for the assertion he now makes that, by reason of the respondent’s unlawful conduct, legal professional privilege and/or client legal privilege has been lost. As such, there is simply no basis upon which it can be contended that VCAT erred in law (or at all) in not concluding that the respondent could not rely on s 32(1) of the FOI Act because of some disentitling conduct in which it had engaged.
In summary, the applicant has not identified any question of law upon which an appeal from VCAT would enjoy any prospects of success. More specifically, for the reasons given above, the applicant’s proposed appeal from the orders of Tsalamandris J does not have any real prospect of success. Accordingly, leave to appeal from her Honour’s orders must be refused.[27]
[27]Supreme Court Act 1986, s 14C.
The PDP proceedings
As we have already noted, the PDP proceedings arose from allegations made by the applicant that the respondent contravened the Privacy Principles in the PDP Act in communications it had with third parties. The applicant lodged two complaints about these matters with the Office of the Victorian Information Commissioner (‘OVIC’): the first of which was made in around April 2020, and the second of which was made in around May 2021.
In his first OVIC complaint, the applicant alleged that the respondent had disclosed his personal information in relation to a fencing complaint made by him in December 2019, and a soil dumping complaint made by him in January 2020. In his second OVIC complaint, the applicant alleged that the respondent had made inappropriate disclosures to his neighbours; had inappropriately disclosed his personal information to Airbnb and a journalist; had unfairly and unlawfully collected his personal information by trespassing on the property; and had unfairly and unlawfully collected his personal information through the use of a security service.
Subsequent to making the two OVIC complaints, the applicant requested that the OVIC complaints be referred to VCAT for hearing and determination. As a result, each OVIC complaint became a proceeding in VCAT.
The PDP proceedings in VCAT
The PDP proceedings were heard together over three days in November 2021. Evidence was given at the hearing by the applicant, his wife, the respondent’s Coordinator Freedom of Information and Privacy, a person described as a ‘female officer’ of the respondent and the journalist to whom the respondent had allegedly disclosed the applicant’s personal information.
On 12 January 2020, Member I Scott made orders dismissing the PDP proceedings. At the conclusion of detailed, thorough and comprehensive reasons delivered by him on that day, the Member concluded that the applicant had failed to prove that the respondent had breached any of the Privacy Principles or any provision of the PDP Act.[28]
The application for leave to appeal to the Supreme Court
[28]PDP VCAT Reasons, [259].
On 8 April 2022, the applicant filed a notice of appeal in which he sought leave to appeal to the Supreme Court pursuant to s 148(1) of the VCAT Act. As the time limited for filing a notice of appeal had expired, in his notice of appeal, the applicant sought an extension of time. The notice set out a number of matters purporting to explain the applicant’s delay between 9 February 2022 and 8 April 2022.
The notice of appeal set out five questions of law as follows:
1.Did the Tribunal err in law by failing to give up relevant sworn evidences with respect to the orders of ‘The fencing complaint’ and ‘The dumping complaint’?
2.Did the Tribunal err in law by failing to identify the falsified evidence with respect to the order of ‘The dumping complaint’?
3.Did the Tribunal err in law by failing to verify the truth and consequently to use the falsified evidence with respect to the order of ‘The dumping complaint’?
4.Did the Tribunal err in law by failing to apply S2.1 and S4.1 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (Vic) in respect to the order of ‘Alleged inappropriate disclosures to the neighbours’ and ‘Alleged inappropriate disclosure to journalist’?
5.Did the Tribunal err in law by failing to apply S1.2 of Schedule 1 (Information Privacy Principles) of Privacy and Data Protection Act 2014 (Vic) and S228E(2) of the Building Act 1993 (Vic) in respect to the order of ‘Alleged unfair and unlawful collection of personal information by trespass’?
The notice of appeal then set out grounds of appeal which were said to relate to the five questions of law. The grounds of appeal could not be described as traditional grounds. Rather than alleging error, they make reference to various legislative provisions, including ss 55 and 101A of the Evidence Act 2008, s 83A of the Crimes Act 1958, s 228E(2) of the Building Act 1993 and Privacy Principles 1.2, 2.1 and 4.1.
The hearing and determination of the application for an extension of time
The application for an extension of time was heard by Irving AsJ in August 2022. On 7 October 2022, his Honour dismissed the application.[29]
[29]PDP Appeal Reasons.
While his Honour was satisfied that the applicant had ‘provided a cogent and reasonable explanation for the delay’,[30] and while he also concluded that ‘the prejudice to the applicant if an extension of time is not granted slightly outweighs the prejudice to the respondent if an extension of time is granted’,[31] he concluded that the proposed appeal was ‘so devoid of merit that to grant an extension of time would be futile’.[32] Specifically, his Honour said:
After considering the terms of the applicant’s notice of appeal and his submissions, both oral and written, I understood the applicant’s case to be that VCAT erred because the applicant’s evidence should have been accepted. This does not identify an error of law by VCAT. Pursuant to r 4.08 of the Rules, the Court may dismiss an application for an extension of time if it is satisfied that the notice of appeal does not identify sufficiently or at all a question of law on which the proposed appeal may be brought. I am satisfied that this is the case with the applicant’s notice of appeal.
During the course of the hearing the applicant said that identifying a question of law and grounds of appeal is very complicated. I agree and accept that the task may be even more difficult for a non–lawyer working in a language that is not his first language. In my view, however, the bases for the applicant’s notice of appeal were his disagreement with the factual findings of VCAT, rather than errors or questions of law. As such, despite other factors favouring the grant of an extension of time to the applicant, it is my opinion that the appeal itself is so devoid of merit that to grant an extension of time would be futile.
I am satisfied that the issues raised by the applicant in his notice of appeal are not questions of law, and as such even if the applicant had made an application within the statutory 28–day time limit, his application would have been bound to fail. I will order that the applicant’s application for an extension of time to file a notice of appeal be dismissed.[33]
The application for leave to appeal to this Court
[30]Ibid [36].
[31]Ibid [40].
[32]Ibid [52].
[33]Ibid [51]–[53].
On 17 January 2023, the applicant filed an application for leave to appeal to this Court from the orders of Irving AsJ, together with a supporting written case. Because his application for leave to appeal was out of time, the applicant also filed an application for an extension of time within which to file his application for leave to appeal.
In his application for leave to appeal, the applicant identified six questions of law, five of which were the same as those he identified in his notice of appeal from the orders made at VCAT in the PDP proceedings; and the sixth of which referred to s 109(1) of the VCAT Act. The application for leave to appeal contained five grounds of appeal. Like the grounds of appeal in the notice of appeal from VCAT, the grounds of appeal in the application for leave to appeal could not be described as traditional grounds. Again, rather than alleging error, they make reference to various legislative provisions — this time, including s 55 of the Evidence Act, s 83A of the Crimes Act, s 228E(2) of the Building Act, s 109(1) of the VCAT Act and Privacy Principles 1.2, 2.1 and 4.1.
On 12 March 2024 (the day before the hearing in this Court), the applicant gave notice of an intention to rely on a proposed amended application for leave to appeal. In the proposed amended application for leave to appeal, the applicant sought to add a ground of appeal; and to replace the five questions of law relied upon below, and in his original application for leave to appeal to this Court, with ten new questions of law (making 11 in total when added to the question of law which refers to s 109(1) of the VCAT Act).
As with the five original proposed grounds of appeal, the new proposed ground of appeal does not allege error. The proposed new ground of appeal merely sets out (incorrectly) the definition of ‘personal information’ in s 3 of the PDP Act.
The new questions of law set out in the proposed amended application for leave to appeal all begin with the words, ‘Did the Tribunal err in law to …’. The first point to be observed is that none of these supposed questions of law were questions of law relied upon or articulated in the proceeding before Irving AsJ. The second point to be made is that many of them finish with a proposition that could only be described as one involving a question of fact, not a question of law. To the extent that one of the new questions of law could be construed as involving the proper interpretation of the definition of ‘personal information’ in s 3 of the PDP Act, nothing in the proposed application gives any hint as to the way in which it is alleged that VCAT might have misconstrued this definition.
While the applicant’s written case, filed in support of his application for leave to appeal to this Court, refers to issues as ‘questions of law’, it in fact sets out evidence; makes various assertions of fact; and otherwise asserts that the Tribunal ‘erred in law’, by failing to identify falsified evidence, by failing to verify the truth of evidence, and by failing to apply Privacy Principles. Additionally, the written case asserts that VCAT erred in law ‘by failing to apply s 109(1) of [the VCAT Act]’ in respect of an order made by the Member on 8 April 2022. We take the reference to the VCAT order of 8 April 2022 to be a reference to a limited costs order the Member made against the applicant on that day,[34] noting that that order was not the subject of the proceeding heard and determined by Irving AsJ.
Consideration
[34]See Huang v Frankston City Council (Costs) (Human Rights) [2022] VCAT 368.
The question of whether the applicant should be granted the extension of time he seeks falls to be determined by reference to the length of the applicant’s delay, his explanation for the delay, whether the delay has occasioned any other party to suffer prejudice, and the merits of the applicant’s proposed appeal. Having considered the applicant’s material, we are satisfied that the relatively short delay is well explained and that the delay has occasioned no relevant prejudice to any other party. The question of whether the extension should be granted thus falls to be determined by reference to whether the applicant’s proposed appeal has any merit.
In our view, the proposed appeal is devoid of merit. Notwithstanding the applicant’s repeated references to ‘errors of law’ in the material he has filed, no actual error of law is identified. The so-called errors of law referred to by the applicant are merely labels which he has attached to questions of fact, or conclusions of the Tribunal, with which he takes issue. The PDP VCAT Reasons largely consist of a thorough and detailed analysis of the evidence, the facts which were the subject of dispute between the parties at VCAT and the parties’ submissions about those matters. There is no disputed question of law which the applicant now points to and which might be capable of supporting an appeal of the limited kind given by s 148(1) of the VCAT Act.
Put shortly, the applicant has simply not identified any issue or question of law upon which the applicant might successfully establish error in relation to VCAT’s dismissal of the PDP proceedings.
Accordingly, for the reasons given by Irving AsJ, his Honour was entirely correct in refusing the applicant the extension of time sought by him. It also follows that an appeal to this Court from his Honour’s refusal of the extension of time application would enjoy no prospects of success. Thus, it would be futile to grant the applicant the extension of time he now seeks in this Court.
Conclusion
For the reasons given above:
(a)the applicant’s application for leave to appeal from the orders made by Tsalamandris J on 15 December 2022 must be refused; and
(b)the applicant’s application for an extension of time within which to file and serve an application for leave to appeal from the orders of Irving AsJ made on 7 October 2022 must be refused.
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