Huang v Frankston City Council
[2022] VSC 733
•30 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02605
| KAI YUAN HUANG | Appellant |
| v | |
| FRANKSTON CITY COUNCIL | Respondent |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 September 2022 |
DATE OF JUDGMENT: | 30 November 2022 |
CASE MAY BE CITED AS: | Huang v Frankston City Council |
MEDIUM NEUTRAL CITATION: | [2022] VSC 733 |
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ADMINISTRATIVE LAW – Judicial review – Victorian Civil and Administrative Tribunal decision – Alleged error of law – Litigant in person – Request for documents by appellant under freedom of information legislation – O’Rourke v Darbishire [1920] AC 581 – Grant v Downs (1976) 135 CLR 674 – Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 – Lysaght Building Solutions Pty Ltd v Blanalko PtyLtd (2013) 42 VR 27 – Civil Procedure Act 2010 (Vic) s 63 – Evidence Act 2008 (Vic) s 125 – Freedom of Information Act 1982 (Vic) ss 25, 32, 33, 33(1), 33(2A), 35(1)(b), 49A, 49F, 50(1)(b), 50(4) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the Defendant | F Batten | Maddocks |
HER HONOUR:
Preliminary
This is an application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT or the Tribunal) in respect of whether certain documents held by the Frankston City Council (the Council) ought be provided to the applicant, Mr Huang, under freedom of information (FOI) legislation.
Mr Huang co-owned a residential property on Nursery Avenue, Frankston (the property), which he rented for short term accommodation, including on Airbnb. Mr Huang’s neighbours complained to the Council, alleging nuisance in respect of his use of the property (the Council thereafter referred to these people as the complainants). On 23 May 2018, the Council filed four charges against Mr Huang, which included failure to register the property as ‘prescribed accommodation’ and failure to restrict access to a spa located on the property, in accordance with relevant legislation. On 8 March 2019, a hearing in respect of three of those charges proceeded in the Magistrates’ Court of Victoria. Mr Huang was found guilty of one of the charges. On 5 June 2019, on an appeal to the County Court of Victoria, all charges against Mr Huang were withdrawn. Mr Huang subsequently made a request for records from the Council pursuant to the Freedom of Information Act 1982 (Vic) (the FOIAct). These records related to complaints made by the complainants and the charges brought against him. The Council provided Mr Huang 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 Council claimed that certain documents related to legal advice it obtained regarding the prosecution of Mr Huang and were therefore exempt due to legal professional privilege. The Council claimed that a number of other documents were also exempt under the FOI Act as they contained personal information of the complainants.
Mr Huang challenged the Council’s decision to deny him access to those documents. Initially, Mr Huang made a complaint to the Office of the Victorian Information Commissioner (OVIC) pursuant to s 49F of the FOI Act. OVIC conducted a review and affirmed the Council’s determination in respect of the documents (the OVIC decision). Mr Huang subsequently sought a review of the OVIC decision at VCAT.
On 15 June 2021, a Senior Member (the Member) at VCAT affirmed the OVIC decision (the VCAT decision). Mr Huang now seeks leave to appeal the VCAT decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).
Mr Huang alleges that the Member erred in failing to identify and apply the relevant legal test to determine whether the Council had waived legal professional privilege in respect of some of the documents. Further, Mr Huang alleges that the Member failed to apply s 33(2A) of the FOI Act in determining whether certain documents containing personal information of complainants should be released.
For the reasons that follow, I will not grant Mr Huang leave to appeal and dismiss his application.
Background to the proceedings
The following background material gives context to Mr Huang’s request for documents from the Council, and the grounds upon which the Council refused to release the documents. The asserted facts are derived from material the parties agreed should be before me in my consideration of this case.[1] Such facts do not appear to be in issue, and any assertions made by a party are identified as such.
[1]Although not formally tendered, the parties agreed that the following affidavits could be before me: affidavits of Mr Huang affirmed 15 November 2021 and 29 March 2022 and affidavits of Ms Maryam Popal affirmed 21 February 2022 and 27 April 2022. Also before me were the OVIC and VCAT decisions.
Mr Huang purchased the property in July 2017.
Mr Huang asserted that in early 2018, one of his neighbours complained to the Council about the property being used for short term accommodation.
By letter dated 5 February 2018, the Council advised that it considered the property to be ‘prescribed accommodation’ as defined under the Public Health and Wellbeing Act 2008 (Vic). The Council requested that Mr Huang attend the Frankston Council Civic Centre for an interview and requested that he contact the Council to organise an inspection of the property. This did not occur.
On 6 April 2018, the Council’s municipal building surveyor issued an emergency order under the Building Act 1993 (Vic) in respect of an in ground spa located at the rear of the property. The municipal building surveyor considered that the in ground spa was a ‘danger to life’ as there was no barrier in place to restrict access to the spa in accordance with AS 1926 Part 1 and 2. On 7 May 2018, the emergency order was subsequently cancelled as the spa had been drained. On the same day, a second emergency order was issued as, notwithstanding the drainage, there was still no barrier in place and the spa was therefore considered non-compliant with the Building Interim Regulations 2017 (Vic).
In mid-2018, Mr Huang was charged with four offences: failing to comply with an emergency order; two charges of failing to restrict access to the spa; and failure to register prescribed accommodation. When the charges were heard in the Magistrates’ Court in March 2019, one of the charges relating to the spa was adjourned without conviction and Mr Huang released on an undertaking. The other charge relating to the spa was withdrawn. The charge relating to the emergency order was dismissed.
Mr Huang subsequently appealed to the County Court and on 5 June 2019, with the consent of the Council, all the charges were withdrawn and Mr Huang’s sentence was set aside. On 11 July 2019, the County Court ordered that the Council pay Mr Huang’s costs in the sum of $7,960. Further, on 2 August 2019, the Council issued an apology to Mr Huang for the stress and inconvenience caused by the proceedings
Mr Huang considered it relevant to this application that Mr Bruce Gardiner (who he understood was responsible for the coordination of the Council’s prosecution of him) sent an email on 12 July 2019 to other Council employees in which he stated that, in his opinion, there had been a number of critical mistakes made by the solicitors acting for the Council in the prosecution of the matter.
Mr Huang alleged that the following actions by the Council were illegal acts:
(a) the unsuccessful prosecution
(b) the making of the emergency orders
(c) the requirement that he seek a permit to enable him to rent the property for short term accommodation; and
(d) obtaining a search order in respect of the property.
Separately, Mr Huang made complaints to the Council about some of his neighbours, including that his neighbours had erected promotional signs which advocated against short term rentals, and that his property had been damaged.
Mr Huang also made a privacy complaint to OVIC in which he alleged that the Council inappropriately disclosed his personal information to a neighbour, Airbnb, and a journalist. He alleged that the Council’s officers trespassed and used a security service to patrol and monitor his property in a manner that was unfair and unreasonably intrusive.
Mr Huang’s request under the FOIAct
On 12 June 2019, Mr Huang made an application to the Council for certain documents pursuant to the FOI Act. Such documents included Council meeting minutes relating to the property;[2] related internal documents; and related correspondence between the Council, its internal ombudsman, the Victorian Ombudsman, and the Magistrates’ Court of Victoria.
[2]Such minutes included allegations about noise nuisance, the search warrant, the formal interview, the in ground spa, the emergency orders, specified Council officers and departments, the Magistrates’ Court charges and County Court appeal, and his complaint about the neighbours.
Under Part IV of the FOI Act, a request for documents may be refused if such documents are either exempt or irrelevant. The sections contained in Part IV of the FOI Act relevant to this application are as follows:
25 Deletion of exempt matter or irrelevant material
Where -
(a)a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;
(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and
(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy -
the agency or Minister shall grant access to such a copy of the document.
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 …
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;
…
35 Documents containing material obtained in confidence
(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and
…
(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
Decisions of the Council, OVIC and VCAT
On 14 June 2019, the Council sought clarification from Mr Huang in respect of the terms of his FOI request, including the relevant period and whether he wanted the documents to identify the names of the complainants and council officers. At that time, Mr Huang advised the Council that he required the names of the complainants included on the documents, but not their contact details.
On 10 July 2019, the Council advised Mr Huang that in accordance with the FOI Act, it was required to consult with third parties before it could make a decision regarding his FOI request and had therefore extended the determination date of the request by 15 days. On 26 July 2019, the Council sought Mr Huang’s consent to a further extension of time in which to make its decision. Mr Huang did not agree to this extension and instead lodged a complaint with OVIC in respect of the Council’s delay.
On 2 September 2019, the Council informed Mr Huang that it had identified 147 documents (including one video file) which fell within the terms of his request. It determined that, of those documents, Mr Huang should be granted access to 101 documents in full and 35 documents in part. It refused him access to 6 documents in full. In addition, the Council noted that the remaining 5 documents would have been available to Mr Huang during the court process and were therefore able to be provided outside the formal FOI process. Those latter documents were provided to Mr Huang by ‘administrative release.’
Subsequently, Mr Huang sought a review of the Council’s decision by OVIC pursuant to s 49A of the FOI Act.
On 17 January 2020, pursuant to s 49F of the FOI Act, OVIC determined that 27 of the 42 documents the Council had claimed were exempt were subject to review as they contained personal affairs information.[3] OVIC expressly noted that, at that time, Mr Huang did not seek personal affairs information of the complainants and therefore, pursuant to s 33 of the FOI Act, such documents were not subject to OVIC’s review.[4]
[3]As noted by the Member, there appears to be some disparity between the Council’s decision and OVIC’s decision in respect of the number of documents to which access was granted in part or refused. However, it is somewhat irrelevant for the purpose of this decision as it is clear that, once OVIC put aside the documents which it considered were not subject to review, 15 documents remained.
[4]At the VCAT hearing Mr Huang requested that the Member consider his right of access to these 27 documents. However, as Mr Huang had previously accepted the OVIC decision that these documents were not subject to review, it was determined that VCAT had no jurisdiction to subsequently review Mr Huang’s access to these documents.
The 15 documents open to review by OVIC were subsequently categorised by the Member as follows:
(i) Category 1 – irrelevant documents: documents which were considered irrelevant to Mr Huang’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. OVIC 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. OVIC 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.
On 30 January 2020, Mr Huang made an application to VCAT for review of the OVIC decision pursuant to s 50(1)(b) of the FOI Act.
In respect of a review by VCAT as to whether such documents are exempt, the relevant section of the FOI Act is as follows:
50 Applications for Review by the Tribunal
(1) Subject to this section, an applicant may apply to the Tribunal for review –
…
(b) a decision of the Information Commissioner refusing to grant access to a document in accordance with a request; …
(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
…
On 1 September 2020, the matter proceeded at VCAT. At that hearing, oral evidence was given by the Council’s senior FOI officer, Ms Carole Fleeman, as well as its governance legal advisor, Ms Louise Bugiera. Mr Huang was self-represented at the hearing.
On 15 June 2021, the Member made orders affirming the decision of OVIC. In his written reasons (Reasons), the Member agreed that access to documents in category 1 should be denied as they were irrelevant to Mr Huang’s request.
Further, the Member concluded that on the basis of the totality of the evidence before him, the documents in category 2 contained personal affairs information and were therefore exempt under ss 33(1) and 35(1)(b) of the FOI Act, such that Mr Huang’s request for access should be refused. In respect of s 33(1), the Member was satisfied that disclosure would be reasonably likely to endanger the safety of persons identified in those documents. In respect of s 35(1)(b), the Member was satisfied that the information contained in the category 2 documents was communicated to the Council in confidence, and that disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of the Council to obtain similar information in the future. The Member concluded that there was no ‘public interest override’[5] which would require that access to the documents be granted pursuant to s 50(4) of the FOI Act.
[5]Reasons, [36].
The Member determined that access to the category 3 documents should be denied pursuant to s 32 of the FOI Act. In so deciding, he referred to the decision in Graze v Commissioner of State Revenue,[6] in which it was stated that a document will attract legal professional privilege in at least the following circumstances:
(a) it contains a confidential communication between the client (or the client’s agent) and the client’s professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation;
(b) it contains a confidential communication between the client’s professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or
(c)it contains a confidential communication between the client (or client’s agent) and third party that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.[7]
[6][2013] VCAT 869, [29] (Graze).
[7]Reasons, [61].
It was further noted by the Member that:
Legal professional privilege attaches to documents generated by private legal practitioners or prepared for submission to them, and to documents brought into existence by or for the consideration of in-house counsel in their capacity as such.[8]
[8]Ibid, [62] approving Graze (n 6), [31] (citations omitted).
The Member stated that Ms Bugiera gave evidence that she had arranged for Mr Huang’s prosecution to be managed by external counsel for a period of time. Further, it was noted that Ms Bugiera’s evidence was that she sometimes sought external legal advice on matters outside her area of expertise.
The Member was satisfied that the category 3 documents were exempt on the basis of legal professional privilege in that they were made for the dominant purpose of obtaining or providing legal advice, or were referrable to pending or contemplated litigation. Further, the Member was satisfied that those documents were of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege. The Member noted that, as the documents had been treated confidentially and had not been distributed or released publicly, there had not been an express or implied waiver of the privilege. The Member concluded that the documents were exempt pursuant to s 32 of the FOI Act.[9]
[9]Ibid, [65]-[67].
Grounds of Appeal
On 12 July 2021, Mr Huang issued a notice of appeal in this Court in respect of the VCAT decision. Mr Huang stated that the object of his appeal was to access the correspondence contained in the category 2 documents (documents numbered 6 and 7)[10] and category 3 documents (documents numbered 9 to 15).[11]
[10]These documents were numbered 32 and 33 by OVIC.
[11]These documents were numbered 36 to 42 by OVIC.
In August 2021, the Council asserted that Mr Huang’s notice of appeal did not adequately identify any questions of law, and applied for the proceedings to be dismissed pursuant to r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018. Soon thereafter, Mr Huang sought leave to amend his notice of appeal to clarify the questions of law and his grounds of appeal. On 15 December 2021 and 2 March 2022, Ierodiaconou AsJ heard both applications. Her Honour did not grant either party the relief sought and instead ordered that Mr Huang’s application for leave to appeal, and the appeal, were to proceed on the basis of the following questions of law:
(iv) 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)
(v) 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)
(vi) 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)
Statutory provisions and principles relevant to this application
Pursuant to s 148(1)(b) of the VCAT Act, Mr Huang may only appeal the VCAT decision with leave of this Court.
The nature of such an appeal was explained by Davies J in Commissioner of State Revenue v STIC Australia Pty Ltd & Anor:[12]
[12][2010] VSC 608.
The jurisdiction of the Court to hear an appeal from VCAT is conferred by s 148 of the VCAT Act, which permits an appeal only on a question of law. The right of appeal conferred by s 148 is of a limited nature only. In Osland v Secretary to the Department of Justice, the High Court recently affirmed that the Court’s jurisdiction conferred by s 148 to hear an appeal from the Tribunal is enlivened only if there is a question of law, which is not merely a qualifying condition to ground the appeal but which is to constitute the subject matter of the appeal. Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re-determine facts or re-exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court under s 148 is not a merits review nor is it an appeal that merely involves a question of law. The matter comes before the Court solely by way of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made. As Mason J stated in Minister for Aboriginal Affairs v Peko- Wallsend Ltd:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
The role of the Court is limited to reviewing the legal limits of the exercise of power. “Merits” review resides with the Tribunal and the Court is not to intervene in an essentially evaluative matter.
The requirement that the leave of the Court be obtained in order for a party to appeal a decision of the Tribunal also evidences the legislature’s intention that the question of law as framed must be one that is supported by the proposed grounds of appeal. In other words, the proposed notice of appeal must disclose that the Court’s jurisdiction to hear the appeal from VCAT is enlivened by the notice of appeal. The leave requirement is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal. The question of law is framed by the grounds. Where the grounds do no more than indicate that the subject matter of the proposed appeal invites reconsideration of the merits of the decision, the jurisdiction of the Court is not enlivened, even though the question of law identified may be expressed in judicial review terms. The proposed notice of appeal must identify that the issues sought to be agitated on the appeal raise a question of law. If the question of law, properly analysed, is not a question of law, the form of its expression does not turn it into a question of law.[13]
[13]Ibid, [9]-[10] (citations omitted).
The requirement for leave under s 148(1) was described by Pagone J in Commissioner of State Revenue v Frost:[14]
… [It] “is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal”. It also confers a discretion about whether to grant leave which an applicant must persuade the court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave. It will ordinarily be necessary (in addition to a clearly articulated question of law) for an applicant to make out a prima facie case and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[15]
[14](2011) 83 ATR 832.
[15]Ibid, 833-4 [3] (citations omitted).
Section 148(2A) of the VCAT Act also requires an applicant to demonstrate that the appeal has a real prospect of success. The wording of this test under s 148(2A) is similar to the test applicable to applications for summary judgment under s 63(1) of the Civil Procedure Act 2010 (Vic) (CPA). Under s 63 of the CPA, the court must be satisfied that the claim, a defence or a counter claim, has ‘no real prospect of success’. Noting the similar wording, I am guided by the Court of Appeal’s consideration of s 63 of the CPA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[16]
[There must be] a “real“ as opposed to a “fanciful“ chance of success; that the “real chance of success“ test is to some degree a more liberal test than the “hopeless“ or “bound to fail” test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not “hopeless“ or “bound to fail”, it does not have a real prospect of succeeding.[17]
[16]Lysaght Building Solutions Pty Ltd v Blanalko PtyLtd (2013) 42 VR 27.
[17]Ibid, 39 [29].
If leave to appeal a VCAT decision is granted, the appeal must be made on a question of law. It is not a merits review. Further, it is worth noting that in such an appeal the Court ‘is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal.’[18]
[18]Boucher v Dandenong Rangers Steiner School (2005) 145 LGERA 21, 26 [15].
I am also mindful of the sentiments recently expressed by Croft J in Krajcar v Eastern Central Real Estate (Krajcar),[19] that it ‘is clear from the authorities…that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.’[20]
[19][2022] VSC 173.
[20]Ibid, [11].
Mr Huang objected to the Council’s reliance on Krajcar as it had not been included in the Council’s list of authorities filed and served in accordance by the order of Ierodiaconou AsJ dated 2 March 2022. I therefore provided an extended period of time after the oral hearing for Mr Huang to make written submissions in respect of the relevance or applicability of this decision. Despite being given that opportunity, Mr Huang’s further submissions on this were simply a restatement that I not consider this authority. In the circumstances, given its relevance, I have had regard to this authority and the quotation above.
Further, in considering this application, I should not examine the Tribunal’s reasons ‘with an eye keenly attuned to the perception of error’,[21] or overzealously with a view to finding error.[22] Reasons for decision have to be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the trial.
[21]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu), 272 citing Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287.
[22]Wu (n 21), 272.
Clarification as to the scope of this application
Mr Huang submitted that there was a loss of legal professional privilege with respect to documents 6 and 7. The Council submitted that it had never claimed legal professional privilege in respect of those documents, and thus Mr Huang’s assertion on this was nonsensical. Further, even if a claim of privilege had been made, the Council denied that Mr Huang had alleged that it had been waived at the VCAT hearing, and therefore there could be no error of law amenable to review.
Mr Huang submitted that he had relied upon the Council’s waiver of legal professional privilege in respect of documents 6 and 7 before the Tribunal, but that the Member had not addressed this in his Reasons. At hearing, when I invited Mr Huang to identify where in the VCAT transcript he had made this submission, he was unable to do so.
I accept that the Council never claimed legal professional privilege in respect of documents 6 and 7. Further, I am not persuaded that Mr Huang ventilated this aspect of his claim at VCAT. In view of those two findings, my consideration of the proposed questions of law 1 and 2 will be limited to documents 9 to 15, and will not include any consideration of documents 6 and 7.
At the commencement of the hearing, Mr Huang sought leave to amend his notice of appeal to rely upon s 33(1) of the FOI Act.
I note that Mr Huang did not provide a version of this proposed amendment, offer an explanation for this late proposal, or foreshadow with the Council his proposal to amend his notice of appeal in this way.
The Council opposed the application to amend and indicated that, if Mr Huang was granted leave to amend, an adjournment would be required to enable it to respond to this additional ground of appeal. Further, it submitted that it would be inconsistent with the CPA for an unexplained amendment to be made at this late stage of the proceeding.
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.[23] At no stage did Mr Huang indicate that he wanted to rely upon this section of the FOI Act;
[23]Such hearings were conducted on 1 September 2021, 15 September 2021, 13 October 2021, 15 December 2021 and 2 March 2022.
(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,[24] I did not consider it to be in the interests of justice to allow such an amendment, and thus refused Mr Huang’s application.[25]
[24]ss 7-9.
[25]In email correspondence sent to my chambers on 20 October 2022, Mr Huang provided a document entitled amended notice of appeal, in which he sought to allege additional grounds of appeal in respect of s 33(1) of the FOI Act (as well as s 35 (1)(b)). In reply, my chambers reminded Mr Huang of my ruling that I would not allow such an amendment, and indicated that the contents of the proposed amended notice of appeal would not be considered by me.
Further, in Mr Huang’s reply to the Council’s submissions dated 11 May 2022, he submitted that the Member erred in respect of his determination that documents 6 and 7 were exempt under s 35(1)(b) of the FOI Act. This was a further matter that had not previously been raised by Mr Huang in his notice of appeal, nor at any of the previous directions hearings. Although Mr Huang did not make a formal application to amend his notice of appeal to include this point, I indicated to him that for reasons similar to those I articulated in relation to his application to amend and rely upon s 33(1) of the FOI Act, it was also too late to seek to rely upon this additional ground of appeal at hearing. I confirmed that, as s 35(1)(b) was not included in the notice of appeal and was not referred to in the questions distilled by Ierodiaconou AsJ, it would not be considered as part of my substantive judgment.[26]
[26]See (n 25), on 20 October 2022, Mr Huang was also informed that I would not consider this proposed additional ground of appeal.
For the sake of completeness, I also note that on 25 October 2022, Mr Huang sent email correspondence to my chambers in which he alleged that the hearing of this proceeding, was ‘not just and fair.’ I proposed to hear from the parties in respect of his complaint and listed the matter for directions by way of a directions hearing on 28 October 2022. At Mr Huang’s request, this hearing was adjourned to 14 November 2022. Shortly prior to that date, Mr Huang sought a further adjournment and the hearing was relisted for 28 November 2022. On 25 November 2022 at 3:31am, Mr Huang sent correspondence to my chambers (and the Council) setting out the basis for his complaint. Mr Huang sent further correspondence on 25 November 2022 to my chambers (and the Council) at 11:42am in which he confirmed that his previous correspondence sufficiently detailed his concerns and that he did not seek to be heard at the scheduled directions hearing. In view of this, I vacated the directions hearing and indicated to the parties that I would proceed to deliver judgment.
I have read Mr Huang’s email of 25 November 2022, and do not consider that there is any substance to the matters contained in it, which require an additional written response from me, beyond the matters covered in my judgment.
Mr Huang’s submissions
At hearing, Mr Huang predominantly relied upon his written submissions dated 11 May 2022. 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.
Section 125 of the Evidence Act is as follows:
125 Loss of client legal privilege—misconduct
(1) This Division does not prevent the adducing of evidence of—
(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—
(a) the fraud, offence or act, or the abuse of power, was committed; and
(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power— the court may find that the communication was so made or the document so prepared.
(3)In this section, power means a power conferred by or under an Australian law.
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.[27]
[27]This assertion was made in his written submissions, however Mr Huang’s grounds of appeal merely restated the provisions of s 33(2A) of the FOI Act.
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.
The Council’s submissions
The Council urged me to refuse to grant Mr Huang leave to appeal, or alternatively if leave was granted, urged me to dismiss the appeal. The Council noted that this appeal was not a merits review, and suggested that Mr Huang’s submissions were, in large part, either irrelevant to the application, and/or were matters that had not been agitated at VCAT, and therefore ought be disregarded.
The Council asserted that questions 1 and 2 (set out at [36] above) did not arise out of the Member’s Reasons for several reasons.
First, the Council submitted that Mr Huang did not allege before the Tribunal, in clear and definite terms, that the Council’s legal professional privilege in respect of documents 9-15 had been lost by reason of the common law, or pursuant to s 125 of the Evidence Act. This point was conceded by Mr Huang.
Second, the Council submitted that s 125 of the Evidence Act cannot be engaged in the context of a review by the Tribunal under s 50 of the FOI Act. It submitted that s 125 relates only to the ‘adducing of evidence’ and, as an application for access to documents under the FOI Act is not adducing evidence (either in court or in preliminary proceedings in accordance with s 131A of the Evidence Act), s 125 does not apply and is thus irrelevant to this current application.
Third, the Council submitted that even if I considered that s 125 of the Evidence Act did apply to a review by the Tribunal under s 50 of the FOI Act, the requirements of s 125 were not satisfied. It submitted that s 125(2) permits findings to be made for the purposes of s 125(1) where the court has reasonable grounds for such findings. Further, it put that such findings must be based on evidence, and that the phrase ‘deliberate abuse of power’ in s 125(1)(b) necessitates that the decision maker be made aware that there is an abuse of power. The Council submitted the objective evidence did not disclose ‘reasonable grounds’ to find that a fraud or deliberate abuse of power was committed, nor that a communication was made in furtherance of the commission of any such fraud or abuse of power.
Further, the Council submitted that for there to be a waiver of privilege at common law, it was necessary for Mr Huang to have alleged, in clear and definite terms, that the communications contained in documents 9-15 were made for an improper purpose. The Council contended that at the Tribunal hearing Mr Huang had made bare, vague, and generalised allegations that the Council had acted illegally and that he was merely ‘suspicious’ as to why the Council had obtained the legal advice.
The Council expressly denied that the communications in documents 9-15 were made for an illegal or improper purpose or in a deliberate abuse of power. In addition, the Council contended that there was no prima facie evidence to support such a finding or ‘to give colour’ to such a charge. To the contrary, it asserted that the Council’s actions were motivated by an intention to provide a safe environment for all members of the community, demonstrated by the history of the prosecution of the matter. The Council conceded that it made a series of technical errors in respect of the prosecution of Mr Huang, but that this was distinct from a deliberate abuse of power, or any illegal or improper purpose.
In respect of question of law 3, which related to documents 6 and 7, the Council submitted that Mr Huang’s notice of appeal did not identify the proposed ground of appeal. In his proposed amended notice of appeal dated 18 November 2021,[28] Mr Huang merely recited s 33(2A) of the FOI Act and did not set out how the Member had fallen into error.
[28]Leave to amend the notice of appeal in the form of the proposed amended notice of appeal was not granted.
Notwithstanding this threshold objection, the Council submitted that the Member had correctly identified the principles relevant to this section of the FOI Act, and applied the words of the statutory test. As the Member was satisfied on the whole of the evidence that disclosure would be reasonably likely to endanger the safety of persons in the sense described in the relevant authorities,[29] the Council contended that there was no error of law in his Reasons.
[29]Being Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at 842; O’Sullivan v Victoria Police [2005] VCAT 532; Morse v Building Appeals Board (No. 2) [2007] VCAT 2344, [15].
In any event, the Council noted that the Member had found that documents 6 and 7 should also be exempt under s 35(1)(b) of the FOI Act. Therefore, even if question of law 3 was answered in the way contended by Mr Huang, those documents would be exempt under s 35(1)(b). As noted by the Council, Mr Huang did not challenge the Tribunal’s finding under that sub-section.[30]
[30]As noted at [53], Mr Huang attempted to raise this on the day of the hearing, but I indicated this would not be allowed.
Analysis
Legal Professional privilege
At the outset, it is worth noting the importance of the principle of legal professional privilege, as explained by the High Court in Grant v Downs,[31] in which Stephen, Mason, and Murphy JJ said:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.[32]
[31](1976) 135 CLR 674.
[32]Ibid, 685.
An exception to legal professional privilege exists in circumstances where the relevant communication is made for the purpose of being guided or helped in the commission of a crime or fraud, for a dishonest reason, to frustrate the processes of the law, or for an ulterior purpose.[33]
[33]Attorney General (NT) v Kearney (1985) 158 CLR 500, 511-515 (Kearney).
However, privilege is not displaced by the making of a mere assertion of crime, fraud, or an abuse of power.[34] As was expressed by Viscount Finlay in O’Rourke v Darbishire (O’Rourke),[35] what is required is ‘something to give colour to the charge’.[36] By way of further explanation his Lordship said:
The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact…. The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probity of truth to make it right to disallow the privilege of professional communications.[37]
[34]Ibid, 516.
[35][1920] AC 581 (O’Rourke), approved by Gibbs CJ in Kearney (n 33), 516.
[36]Kearney (n 33), 516 citing O’Rourke (n 35), [604].
[37]Ibid.
In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (Propend),[38] Brennan CJ expressed the criterion for resisting a claim of legal professional privilege as being ‘reasonable grounds for believing’ that the relevant communication effected by the document (for which privilege is claimed) was made for some illegal or improper purpose. [39]
[38](1997) 188 CLR 501.
[39]Ibid, 514.
Although Mr Huang did not expressly raise this ground before the Member, such a matter can be raised on appeal, if it is in the interests of justice to allow this.[40] As was explained by the Court of Appeal in Commissioner of State Revenue v Mondous & Anor:
That is consistent with the view that, if a conclusion reached by the Tribunal is affected by legal error, it cannot lose its character as such merely because the source of the error lay in the submissions of the parties, or their common approach to the issue in question. Those circumstances might explain, but do not deny, the error.[41]
[40]Commissioner of State Revenue v Mondous & Anor (2018) 55 VR 643.
[41]Ibid, 661-2 [77].
For the reasons that follow, I am not satisfied that the circumstances are such that it is in in the interests of justice to allow this to be raised now. However, even if I was, I am not satisfied there was any such error of law committed by the Member.
Mr Huang alleged that the Member had erred in his identification and application of the correct legal test to determine whether Mr Huang’s claim of legal professional privilege should be upheld. There was no prima facie evidence to support an allegation of an illegal or improper purpose in respect of the commission and/or creation of documents 9-15. At the Tribunal, Mr Huang repeatedly referred to an ‘under table deal’, alleged that every step taken by the Council in respect of his prosecution was illegal, asserted that the Council had misused its power, and alleged that the Council had consulted lawyers for an improper purpose. Further, Mr Huang suggested that an improper purpose could be inferred from the Council seeking legal advice on the applicability of particular laws, which he submitted it would have known more about than any lawyer.
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.
Personal information documents
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).
Conclusion
In view of the above, as I am not satisfied that any of Mr Huang’s grounds of appeal have a real prospect of success, I will not grant leave for him to appeal the VCAT decision. I therefore dismiss this application.
I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.
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