Luck v Principal Officer of Ibac
[2014] VSCA 239
•1 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0168
| GAYE LUCK | |
| Applicant | |
| v | |
| PRINCIPAL OFFICER OF INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION & ANOR | Respondents |
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JUDGES: | WARREN CJ and WHELAN JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 March 2014 | |
DATE OF JUDGMENT: | 1 April 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 239 | |
JUDGMENT APPEALED FROM: | Unreported, VCAT, Judge Jenkins, 10 October 2013 | |
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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal (‘Tribunal’)— Leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) s 148(1).
ADMINISTRATIVE LAW - Freedom of information – Exemptions – Whether Police Integrity Act 2008 s 51 applies to complaints referred to Chief Commissioner under Police Regulation Act 1958 Pt IVA Div 2 – Whether documents sought by applicant fell within Police Integrity Act 2008 s 51.
COURTS AND JUDGES – Apprehended bias – Whether Tribunal’s behaviour apt to create a reasonable apprehension of bias in the general public – Whether Tribunal not competent, independent and impartial.
DISCRIMINATION – Disability discrimination – Direct and indirect discrimination under Disability Discrimination Act 1992 (Cth) ss 5 and 6 – Whether applicant refused reasonable adjustments for her condition.
PRACTICE AND PROCEDURE – Suppression orders – Suppression of Tribunal’s reasons under VCAT Act s 101(4)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | In person | |
| For the respondents | Ms E Bennett | Victorian Government Solicitors Office |
WARREN CJ
WHELAN JA:
The applicant seeks leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) against the judgment and orders of a Vice President of the Victorian Civil and Administrative Tribunal (‘Tribunal’) dismissing her request for documents under the Freedom of Information Act 1982 (‘FOI Act’). The applicant also seeks leave to appeal the Vice President’s decision not to order that the publication of the Tribunal’s reasons for judgment be supressed.
Background
The applicant made nine complaints to the Office of Police Integrity (‘OPI’) between January and April 2012. Each complaint concerned members of the Victoria Police and was made pursuant to s 40 of the Police Integrity Act 2008 (‘PI Act’). Seven of the complaints were referred to the Chief Commissioner for investigation pursuant to s 40(2) of the PI Act and subsequently transferred to the Victorian Police Ethical Standards Department (‘ESD’) for investigation.[1]
[1]In respect of two of the complaints, a decision was made not to proceed with a formal investigation.
On 16 March 2012, the applicant requested that the OPI investigate the complaints rather than the ESD. On 11 April 2012, the OPI advised her that it would oversee and review the investigations conducted by the ESD.
On 20 June 2012, the OPI advised the applicant that the investigations into each of the complaints had been completed and would be reviewed by the OPI. On 7 August 2012, the OPI advised her that it had completed its review of the ESD investigations and confirmed that no further action would be taken.
On 13 August 2012, the applicant made a request pursuant to s 17 of the FOI Act that the OPI provide her with documents falling within six identified categories, each of which related in broad terms to the applicant or her complaints.
On 10 September 2012, she was advised that the OPI had decided to refuse the applicant’s request in relation to documents within four of the categories and that it did not have any documents within the other categories she had specified.
The applicant sought an internal review of this decision.
The internal review decision was made under the PI Act and affirmed the decision that the documents in the OPI’s possession were not subject to the FOI Act due to an exemption provided by s 51 of the PI Act. This section provided:
51Exemption from Freedom of Information Act 1982
(1)The Freedom of Information Act 1982 does not apply to a document that is in the possession of a relevant person or body to the extent to which the document discloses information that relates to —
(a)a complaint investigated by the Director under this Part; or
(b)an investigation under this Part (whether in relation to a complaint or otherwise); or
(c)a report on that investigation, including a report on the progress of the investigation.
Pursuant to s 50(1)(a) of the FOI Act, the applicant applied to the Tribunal for review of the OPI’s decision.
The hearing before the Tribunal
At the hearing before the Tribunal, the Independent Broad-based Anti-corruption Commission (‘IBAC’) had taken the place of the OPI in the proceeding pursuant to s 4(s) of the Schedule to the Independent Broad-based Anti-corruption Commission Act (‘IBAC Act’). No point was taken in relation to this, and it was noted that s 51 of the PI Act continued to apply to any document falling within that section despite the repeal of the PI Act and the commencement of the IBAC Act.[2]
[2]See VCAT Reasons [43]-[45]. Following the commencement of the IBAC Act, statutory references to ‘the Director’ were replaced with references to ‘the IBAC’. For the purposes of this application, the change is immaterial.
IBAC contended that the Tribunal did not have jurisdiction to review its internal review decision since its decision did not come within any of the categories set out in s 50 of the FOI Act, which enlivens the Tribunal’s jurisdiction. It submitted that the decision to deny access to the documents was made under s 51 of the PI Act, which excluded the operation of the FOI Act in respect of documents falling within the categories specified in ss 51(1)(a), (b) and (c). Accordingly, it submitted that the Tribunal did not have jurisdiction to review the decision.
In the alternative, IBAC submitted that the Tribunal’s review jurisdiction was confined to the determination of whether the documents to which access was refused in fact fell within s 51 of the PI Act.
The applicant submitted that the investigations took place pursuant to s 86M of the Police Regulation Act 1958 (‘PR Act’) and that since the investigations had not taken place under the PI Act, the FOI Act was not excluded by s 51.
The applicant’s appearance at the hearing was brief. It appears she quickly became indignant when it was brought to the Tribunal’s attention that she was using a recording device without having previously sought leave from the Vice President.[3] She threatened to walk-out of the hearing. The Vice President offered to stand the matter down for a short time to allow the applicant to regain her composure. The applicant declined the offer. The Vice President observes in her reasons that:
After another approximately five minutes of shouting, in which there was very little opportunity for anyone, apart from Ms Luck [the applicant], to get in a word, Ms Luck only became more fortified in her resolve to leave.[4]
The applicant left shortly after.
[3]VCAT Practice Note PNVCAT1 – Common Proceedings 12 [56] forbids, inter alia, the recording of VCAT proceedings except with leave of the presiding member.
[4]VCAT Reasons [10].
Because the applicant left the hearing, the question of whether she was permitted to use the recording device was not decided. The Vice President continued the hearing on the merits of the application relying on the oral submissions of IBAC and the written submissions filed by both parties.
The Vice President rejected IBAC’s submission that the Tribunal’s review jurisdiction was excluded. Whilst the decision to refuse access to the documents may have been made on the basis of s 51 of the PI Act, the decision itself was properly classified as having been made pursuant to s 50(1)(a) of the FOI Act. Accordingly, the Tribunal’s review jurisdiction was enlivened.
However, the Vice President accepted IBAC’s submission that the Tribunal’s task was confined to determining whether the documents sought by the applicant in fact fell within s 51 of the PI Act.
The Vice President found that the investigations of the complaints referred to the Chief Commissioner were conducted pursuant to s 86O of the PR Act.[5] However, the Vice President held that an investigation conducted under 86O of the PR Act that was referred to the Chief Commissioner pursuant to s 40(2) of the PI Act was clearly ‘related’ to an investigation under Part 3 of the PI Act within the meaning of s 51.
[5]And not under s 86M as the applicant submitted.
Having so found, the Vice President proceeded to determine whether, as a matter of fact, the documents requested fell within s 51 of the PI Act. She found that the documents would disclose information relating to an investigation under Part 3 of the PI Act, and therefore held that the documents were excluded from the operation of the FOI Act by virtue of the exemption created by s 51 of the PI Act.
The application for review was summarily dismissed pursuant to s 75(1) of the VCAT Act.
Preliminary matters
The applicant filed two affidavits on 6 November 2013 in support of her application for leave. On 14 February 2014, the applicant swore a further affidavit which she sought, in her words by way of a ‘reasonable adjustment’, to rely on at the hearing. We received the further affidavit and the exhibits which were very extensive and permitted the applicant to address us on the matters contained therein.
In her further affidavit the applicant deposes that she is a disabled person who suffers from a range of acute and chronic conditions and therefore requires reasonable adjustments including the granting of adjournments, extensions of time and the use of assistive technology by way of a digital note-taking device.
The applicant has, at her request, been provided with the following assistance by the Court: a fee waiver upon filing her summons; a listing of the application not before 10.30am; a referral to the duty barrister scheme (which she subsequently rejected); and an extension of time for filing submissions.
Application for adjournment
As was foreshadowed in the applicant’s further affidavit, an adjournment was sought pending the hearing of matters now on foot in the High Court. It was submitted that these matters raise, inter alia, issues in relation to the granting of ‘reasonable adjustments’ under the Disability Discrimination Act (Cth).
The application for an adjournment was refused. The applicant did not identify how the matters currently before the High Court were relevant to the issues for determination in this Court and did not point to any prejudice she would suffer if an adjournment was not granted.
As was made clear in Aon Risk Services Australia Ltd v Australian National University, the Court and the community share a legitimate interest in the effective resolution of disputes which may transcend the interests of the parties themselves.[6] The volume of business in this Court means that applications for adjournment will be granted only when the justice of the occasion requires it. In our view, an adjournment in this case would be of no utility.
[6](2009) 239 CLR 175, 182 [5] (French CJ), 217 [111]–[112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). French CJ also noted there is ‘an irreparable element of unfair prejudice in unnecessarily delaying proceedings’ and drew attention to ‘the waste of public resources’, the ‘strain and uncertainty imposed on litigants’ and ‘the potential for loss of public confidence in the legal system’ arising from adjournment of trials without adequate justification.
Proposed grounds of appeal
The applicant’s proposed notice of appeal identifies 25 grounds.
In summary, the applicant contends that she has been discriminated against, harassed and victimised by the failure of the Tribunal (and others) to allow her the use of assistive technologies, namely, a digital note taking device. She also contends that she has been denied procedural fairness, denied natural justice and that the Tribunal has improperly exercised its powers. Of the proposed grounds that deal with questions of law, these can be grouped into four main points:
a) The applicant was denied procedural fairness when the Tribunal proceeded in her absence,[7] failed to make allowances for her disabilities[8] and mishandled her documentation;[9]
[7]Applicant’s Draft Notice of Appeal 3 [2].
[8]Ibid 4 [17].
[9]Ibid 4 [9].
b) The Tribunal’s behaviour was apt to create a reasonable apprehension of bias in the general public,[10] and that the Tribunal was in fact not competent, independent and impartial;[11]
c) The Tribunal incorrectly applied the FOI Act,[12] particularly by neglecting the object of that Act;[13] and
d) The Tribunal misinterpreted the terms ‘relates to’ and ‘an investigation under [Part 3]’ when constructing s 51 of the PI Act.[14]
[10]Ibid 4 [16].
[11]Ibid 5 [24].
[12]Ibid 3 [3].
[13]Ibid 3 [4]–[5].
[14]Ibid 4 [7]–[8].
It is difficult to discern the specific errors identified, or the basis upon which these complaints are advanced from the applicant’s material.
Decision
Grounds asserting discrimination and disability
The applicant claims that she has been ‘the victim of disability discrimination, harassment and victimisation’ by IBAC, VCAT and the Supreme Court,’[15] by the refusal of ‘reasonable adjustments’ for her condition.[16] These refusals are said to constitute direct and indirect discrimination in violation of ss 5 and 6 of the Disability Discrimination Act 1992 (Cth). The applicant’s complaints are not limited to her treatment in the proceeding that is the subject of this appeal.[17]
[15]Ibid 7 [29].
[16]Ibid 6 [27].
[17]Ibid 9 – 10 [34–[35].
As is stated in the Vice President’s reasons, no decision was made on the question of whether the applicant was permitted to use a recording device because the applicant walked-out before the question could be addressed.
The Vice President noted that the applicant had become similarly belligerent and had walked-out of a hearing before another Vice President of the Tribunal when the issue of the use of a digital recording device was raised. In that proceeding, the Vice President struck out the application. In reasons refusing the application for leave to appeal the Vice President’s decision, Nettle JA stated:
[i]f litigants like the applicant behave as discourteously toward courts and tribunals as the applicant behaved towards the Vice President in this case, they ought not be surprised if the results turn out to be not to their liking. To adapt and adopt the observations of Tracy J in Gaye Luck v University of Queensland, the business of the court, and the business of VCAT no less, cannot and will not be dictated to by the uncontrolled demands of litigants who refuse to abide the rules, practices and a modest degree of courtesy essential to keep the system in operation.[18]
[18]Luck v Principal Officer of Department of Justice & Anor (Unreported, 24 May 2013) (Nettle and Ashley JJA) [51].
With respect, the observations of Nettle JA are apposite.
I note that the Vice President observed that
Ms Luck’s applications, which span from the year 2000 to present, are consistently proving to be misconceived and vexatious in nature. It could easily be argued that Ms Luck has been afforded a disproportionately large amount of scarce public resources in order to give her fair hearings across a multitude of Tribunal and Court applications.[19]
[19]VCAT Reasons [81] (citation omitted).
The applicant, having agitated the issue of the use of a digital recording in a previous proceeding and having had the benefit of a judgment of this Court following her application for leave to appeal, must be taken to be well aware of the need to seek leave from the presiding judge before taking a recording of proceedings. Her failure to seek leave from the Vice President in this case demonstrates a conscious refusal on her part to abide by the Tribunal’s rules.
When faced with what could only be described as the abusive and discourteous behaviour of the applicant, the Vice President did not strike out the application as she was entitled to do, but proceeded to determine the application on the merits, having regard to the applicant’s written submissions.
I observe also that the Vice President had regard to these submissions despite the fact that they were only filed at the commencement of the hearing and that because of this, the respondent had only limited time to consider and respond to them.[20]
[20]VCAT Reasons [61].
There is no merit in the applicant’s claims on this basis.
Grounds asserting that the tribunal was not competent, independent and impartial
Before the Vice President, the applicant expressed concern about some of the material filed by respondents as part of their submissions. The applicant wrote to the Tribunal Registry stating that the documents should not have been disclosed to anyone but herself, and expressed concern that the Tribunal may become biased against her by viewing them. The applicant asked that the material be removed from the file. Upon receipt of the request from the applicant, a registry officer sealed the documents in an envelope.
The Vice President states in her reasons:
The contested documents remain in a sealed envelope and I have not viewed them to date. I advised Ms Luck at the commencement of the hearing of that fact and she was content to accept my word and continue with the hearing.[21]
[21]VCAT Reasons [17].
The documents remain sealed at the applicant’s request and have not been viewed by this Court.
The reasons of the Vice President are comprehensive and careful and engage with the substance of the applicant’s submissions.
There is no material before the Court which provides any basis for an appeal on these grounds.
Grounds asserting errors of construction
The applicant submits that a complaint referred to the Chief Commissioner for investigation under Division 2 of Part IVA of the PR Act is, necessarily, neither a complaint investigated by the Director under Part 3 of the PI Act, nor an investigation under Part 3 of the PI Act generally.[22] Therefore, she submits, s 51 does not apply.
[22]Applicant’s Draft Notice of Appeal 5 [21]–[23].
This submission was made and rejected in the Tribunal.
Part 3 of the PI Act commences with s 38. Section 38 of PI Act, states that Part 3, Division 1 of that Act ‘applies to a complaint made to the Director under section 86L of the [PR Act].’ Section 40 of the PI Act allows for the referral of a complaint to the Chief Commissioner for investigation ‘under Division 2 of Part IVA’ of the PR Act.
The Vice President held that Division 2 of Part IVA of the PR Act sets out a clear scheme for the handling of disputes. The investigations of the applicant’s complaints that were referred to the Chief Commissioner were conducted pursuant to s 86O of the PR Act. The complaints fell under s 86L. The section stated in a legislative note that ‘[c]omplaints made to the Director are investigated under Part 3 of the Police Integrity Act.’ At the time the complaints were made, the relevant provisions provided:
86L. Making of complaints
(1)A complaint about the conduct of a member of the force may be made-
(a)to another member of the force; or
(b)to the Director.
Note Complaints made to the Director are investigated under Part 3 of the Police Integrity Act 2008.
…
86O. Investigations by the Chief Commissioner
(1) The Chief Commissioner must as often as requested by the Director report in writing to the Director on the progress of an investigation.
(2) The Chief Commissioner may attempt to resolve a complaint by conciliation and must-
(a)before commencing to conciliate, notify the Director of the proposed attempt; and
(b)notify the Director of the results of the attempt.
(3) After completing an investigation the Chief Commissioner must in writing report to the Director on the results of the investigation and the action (if any) taken or proposed to be taken.
The Vice President observed that while investigating a complaint, the Chief Commissioner has an ongoing reporting relationship with IBAC (formerly ‘the Director’). She found that investigations under Division 2 of Part IVA of the PR Act have ‘an indisputable relationship’ with Part 3 of the IBAC Act, which governs the investigation of complaints made to IBAC, and concluded that an investigation conducted under s 86O is undoubtedly ‘related’ to an investigation under Part 3 of the PI Act.[23]
[23]VCAT Reasons [59]–[60].
The Vice President also relied on the Tribunal’s decision in Zeqaj v Office of Police Integrity,[24] which held that complaints investigated by the ESD on behalf of the Chief Commissioner following a referral by the Director are covered by s 51 of the PI Act.
[24][2010] VCAT 479.
The Vice President held that the exemption created by s 51 of the PI Act had the effect of taking the documents outside of the regime of the FOI Act. Accordingly, there was no requirement for the Tribunal to determine whether the s 51 documents fell within an exempt category under the FOI Act.
In determining whether the requested documents in fact fell within the s 51 exemption the Vice President held that the term ‘relates to’ as used in the exception is very broad and refers to ‘any type of connection or relation between the two subject matters to which the words refer’. The Vice President relied on a recent decision of the Court of Appeal to support this proposition.[25]
[25]VCAT Reasons [70], citing Office of the Premier v Herald and Weekly Times [2013] VSCA 79 which in turn cited with approval the formulation by McHugh J in O’Grady v Northern Queensland Co Ltd (1996) 169 CLR 356.
The Vice President concluded that any document which can be accurately described as being in the possession of a relevant person or body which discloses information that relates to a complaint investigated by the Director under Part 3, or an investigation under Part 3 (whether in relation to a complaint or otherwise), or a report on that investigation, including a report on the progress of the investigation, is excluded from the operation of the FOI Act.
In our view, there is no error in the Vice President’s construction of the relevant legislation.
In so far as the applicant seeks to challenge the finding that the requested documents fell within s 51, this is essentially a question of fact.[26] The applicant has not shown that the Tribunal has arrived at a conclusion which was not open to it; indeed, given the description of the categories of documents requested, the conclusion is plainly open.
[26]Australand Investments Ltd v Commissioner of State Revenue [2009] VSC 453 [74] (Mandie J).
In our view, there is no basis for an appeal on these grounds.
The suppression order application
In addition to seeking leave to appeal against the Vice President’s judgment, the applicant seeks leave to appeal against the failure of the Vice President to make an order suppressing publication of the Tribunal’s reasons. At the time of the Tribunal hearing, the relevant section governing suppression and closed tribunal orders was s 101 of the VCAT Act:
101. Hearings to be public unless otherwise ordered
[…]
(3) In the circumstances set out in subsection (4) the Tribunal may order—
(a)that any evidence given before it;
(b)that the contents of any documents produced to it;
(c)that any information that might enable a person who has appeared before it to be identified—
must not be published except in the manner and to the persons (if any) specified by the Tribunal.
(4) The Tribunal may make an order under subsection (3) if the Tribunal considers it is necessary to do so—
(a)to avoid—
i.endangering the national security or international security of Australia; or
ii.prejudicing the administration of justice; or
iii.endangering the physical safety of any person; or
iv.offending public decency or morality; or
v.the publication of confidential information or information the subject of a certificate under section 53 or 54; or
(b)for any other reason in the interests of justice.
[…]
The respondent submits that the Vice President was correct to refuse to suppress her reasons as the jurisdictional preconditions contained in s 101(4) were not satisfied. In particular, the respondent submits that no obligation of confidentiality could arise over the history of communications disclosed in the Vice President’s reasons.
The applicant does not address s 101 directly in her written submissions, except that she requests an order that:
the Court uphold and relevantly apply the conditions of the order sought by the applicant in her submissions to the Tribunal of 23 August 2013, pursuant to section 101(2) of the [VCAT Act], that the matter be heard in private and the judgment, orders and transcript of Tribunal hearing or hearings of and incidental to this application and matter be made subject to a publication suppression order in respect of this freedom of information matter, on the basis that such public hearing and publication would disclose personal and sensitive information of the applicant, would be an interference in her privacy, and further disclose the contents of the applicant’s assessable disclosure complaint information.
In oral submissions, the applicant submitted that the Vice President should have exercised her discretion under s 101(4)(b).
In our view, there is no basis for the submission that the publication of the Tribunal’s reasons would reveal information confidential to the applicant or that it would otherwise be in the interests of justice to suppress the publication of the Tribunal’s reasons.
Leave to appeal should not be granted
In order for leave to be granted under s 148(1) of the VCAT Act, the applicant must identify a question of law and show that the decision below is attended by sufficient doubt to warrant the grant of leave to appeal and that the decision will be productive of substantial injustice unless it is reversed.[27]
[27]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 336 [13]-[14] (Phillips JA).
In our view, the applicant has not shown that the decision below is attended by sufficient doubt to warrant the grant of leave.
We would refuse leave to appeal.
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