Marke v Victoria Police
[2021] VSC 483
•13 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02544
| LANCE MARKE | Applicant |
| v | |
| VICTORIA POLICE | Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2021 |
DATE OF JUDGMENT: | 13 August 2021 |
CASE MAY BE CITED AS: | Marke v Victoria Police |
MEDIUM NEUTRAL CITATION: | [2021] VSC 483 |
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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Application for leave to appeal and appeal if leave is granted — Appeal on a question of law – VictorianCivil and Administrative Tribunal Act 1998 (Vic), ss 117(5), 119(1) & (2) & 148(1) – Freedom of information – Statutory exemptions to disclosure — Freedom of Information Act 1982 (Vic), ss 3(1) & (2), 33(1) & (2), 35(1)(b) & 50(4)—Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | EA Bennett | Victoria Police Legal Services Division |
HIS HONOUR:
A Background
The applicant was a member of Victoria Police for 36 years until 2009. For at least part of that period he appears to have been stationed at Seymour. When he resigned from Victoria Police he was issued with a certificate of service.
During his period of police service, in 2003, it seems that the applicant was referred to in a media report as having been involved in covering up child sexual abuse by a priest. The media entity involved later apologised. When the matter was the subject of internal investigation by the then Ethical Standards Division, the charges involved were found to have been ‘unfounded’. The matter still rankles the applicant.
In 2014, the applicant applied to become a bail justice. There was apparently then a need for bail justices in the Seymour area. He reached the latter stages of the application process.
In the course of that process, in June 2014 a senior officer of Victoria Police contacted the Honorary Justice Office (‘HJO’) with information relating to the applicant’s application. The information had been conveyed to that officer by other persons, including by two other police officers. The officer came later to say that she did not personally object to the applicant becoming a bail justice.
The applicant was told that there were potential issues with his application and prepared a response directed to his version of the events in 2003. He was later sent an email that itemised the substance of the matters concerned, and he responded in writing on 22 July 2014
Later in July 2014 the applicant complained to Victoria Police concerning the report of information by the police officer to the HJO. His complaints have come to be referred to as the ‘Privacy Complaint’ and the ‘Conduct Complaint’ respectively. The former was dealt with by the Victoria Police Privacy Unit. The latter prompted an internal investigation by Professional Standards Command.
In August 2014, the applicant also complained to the Independent Broad-based Anti-Corruption Commissions (‘IBAC’). That complaint was in the same form as the Conduct Complaint and came to be referred to Professional Standards Command and investigated by the same officer dealing with the Conduct Complaint. The determination of the Conduct Complaint, in February 2015, seems to have been taken also to address the IBAC Complaint. An aspect of the applicant’s complaint via IBAC came to bear upon his later pursuit of access to documents and resulted in a separate proceeding in the Tribunal.[1]
[1]Marke v Victoria Police FOI Division [2018] VCAT 1320.
In respect of both the Privacy Complaint and the Conduct Complaint, underlying sources of information were apparently investigated and considered. It seems that in each instance it was concluded that there had been some miscommunication between the officer concerned and the HJO. In neither instance was the complaint upheld. As I have noted, the Conduct Complaint was determined in February 2015. The Privacy Complaint was determined in June 2015.
In respect of the Privacy Complaint, the applicant was informed that he had a right to further pursue the matter with the Commissioner for Privacy and Data Protection. That occurred, but the Commissioner declined the complaint. The applicant did not request that the matter be referred to the Tribunal in the time allowed. The applicant later applied to the Tribunal for review of that decision, but the application was dismissed for want of jurisdiction.[2]
[2]Marke v Victoria Police (Amended) [2016] VCAT 704.
In respect of the Conduct Complaint, the applicant sought advice and later came to pursue the defamation proceeding referred to below.
The applicant was, and has remained, aggrieved by the failure of his complaints to be accepted. In both written submissions and orally, the applicant claims, in substance, that he has been the victim of ‘Police Misconduct’ and ‘Malfeasance in a Public Office’ said by him to have been committed by ‘a senior police officer’. He also says that there was and has been ‘corruption’ and a ‘cover up’. He says that these are matters of ‘public interest’ in respect of which it is now necessary to ‘clear the air’.
It is evident that, in his mind, the applicant links these more recent events with the outcome of the earlier events commencing in 2003. He says –
Primarily, I also want this Court to know and comprehend that in all this messy saga that has gone on for over 18 years now, I have never done anything wrong.
On two separate occasions I have been the victim of scandalous, false and misleading accusations at the hands of wicked police. Further to this, I have suffered from inept internal police investigations that have failed to ascertain and report the truth.[3]
[3]Applicant’s final submissions and conclusion to Appeal Court, 2.
As I have indicated, in mid-2015 the applicant commenced defamation proceedings in the Supreme Court of Victoria against the Victoria Police and the State of Victoria. In about that time, it seems that he also withdrew his application for appointment as a bail justice.[4]
[4]It seems that he later sought to reinstate the application, but by that time the HJO was not recruiting in the applicant’s area.
In about September 2015, the defamation proceeding was settled. The terms were confidential, however, a letter of apology was provided to the applicant, which read, relevantly, as follows –
To whomever it may concern
Apology
Upon retired Detective Sergeant Lance Marke applying for a position as a Bail Justice, on 20/6/14 Victoria Police communicated to the manager [HJO], words which were defamatory of Lance Marke and which were without foundation (“the defamatory statements”).
The Deputy Commissioner of Victoria Police, on behalf of the State of Victoria, wholly retracts the defamatory statements and apologises to Lance Marke and his family for any harm, embarrassment and distress caused and accepts that retired Detective Sergeant Lance Marke’s police record indicates that there are no matters which would exclude Lance Marke from being appointed as a Bail Justice.
Far from being mollified by receipt of the apology, the applicant’s beliefs concerning police misconduct and the like appear to have at least persisted, if not grown.
At some point, the applicant made two separate but overlapping applications to Victoria Police under the Freedom of Information Act 1982 (Vic) (‘the FOI Act’) seeking access to documents relevant to at least the contact made by the senior police officer with the HJO and the outcomes of his subsequent Privacy Complaint and Conduct Complaint. The FOI applications seem to have had something of a tortured history.
Ultimately, Victoria Police determined to disclose some material but claimed exemptions over particular documents or parts of documents. It seems that reliance was placed on –
(a) sub-s 33(1) of the FOI Act, on the basis that disclosure would involve an unreasonable disclosure of information relating to the personal affairs of persons; and
(b) sub-s 35(1)(b) of the FOI Act, on the basis that information was provided in confidence and it would be contrary to the public interest to disclose it in that it would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future.
As I have indicated in general terms, the applicant describes his present quest as a ‘search for truth’ in order to ‘clear the air’. In that regard, among other things, he points to what he considers to be an inconsistency between Victoria Police failing to reveal all of the documents sought by him in his FOI applications while having earlier apologised to him in settlement of his defamation action.
B Review
The applicant sought review of Victoria Police’s determination in the Tribunal.
In connection with that process, the extent of the exemptions claimed in respect of the disputed documents and parts of documents came to be further narrowed. Ultimately, the disputed documents and parts of documents came to be referred to as documents 1, 2, 3a, 3b, 5 and 9.
For present purposes, only four of those documents are relevant and may be described as follows –
(a) Document 1: Final Professional Standards Investigation report dated 6 February 2015;[5]
[5]That is, the final report concerning the investigation into the Conduct Complaint.
(b) Document 3a: Third party statement to Professional Standards Command;
(c) Document 3b: Third party statement to Professional Standards Command;
(d) Document 9: Final report into the Privacy Complaint dated 15 June 2015.
The Tribunal hearing took place before a Senior Member. The applicant made a witness statement, gave evidence and was cross-examined. For Victoria Police, Inspector Craig Matters, Deputy Freedom of Information Officer, made two witness statements and also gave evidence and was cross-examined.
The Senior Member had access to the disputed documents in un-redacted form. There seem to have been 31 police officers and other individuals variously referred to in the documents.
For the reasons which she gave, the Senior Member rejected a significant number of the respondent’s claims to statutory exemption. Documents 2 and 5 were released either in full or essentially in full. Particular parts of the documents 1 and 9 were released. The Senior Member explained why that was so in lengthy and detailed reasons.[6]
[6]Marke v Victoria Police (Review and Regulation) (Corrected) [2020] VCAT 557 (‘VCAT Reasons’)
The Senior Member described her reasons as ‘long and complex’.[7] She explained why that was so; in short, no ‘blanket’ approach could be or was adopted. The Senior Member plainly performed her task with care and diligence.
[7]VCAT Reasons, [19].
The Senior Member discussed the presently relevant statutory provisions and legal principles.[8] No particular part of that discussion is said by the applicant to have been erroneous.
[8]VCAT Reasons, [82]-[101] & [183]-[186].
The Senior Member discussed the evidence and features of the dispute in some detail,[9] also not distinctly said to be erroneous.
[9]VCAT Reasons, [117]-[176].
That discussion included detailed consideration of the evidence of Inspector Matters concerning the role and functions of Professional Standards Command in the investigation of complaints and concerns relating to other police, and the confidential circumstances usually or often attending that process, including in respect of statements.[10] The Senior Member considered the cross-examination of Inspector Matters,[11] and the applicant’s own evidence, particularly concerning the taking of witness statements.[12]
[10]VCAT Reasons, [123]-[134].
[11]VCAT Reasons, [136]-[144].
[12]VCAT Reasons, [145]-[154].
In respect of documents 3a and 3b – the two statements made to Professional Standards Command – the Senior Member considered the form and content of the statements and accepted the evidence of Inspector Matters concerning the circumstances and way in which such statements to Professional Standards Command are usually taken and constructed. The Senior Member was satisfied that the two statements were made in confidence. The Senior Member also accepted the evidence of Inspector Matters concerning the anticipated effect upon Victoria Police’s capacity to obtain such information in the future if such statements were disclosed. The Senior Member also considered the statements to contain personal affairs information of the makers and that ‘disclosure of that would neither clarify or add to the information Mr Marke has or seeks’. For that reason, the Senior Member considered it to be unreasonable for the content to be disclosed. It followed that in respect of documents 3a and 3b, the Senior Member accepted that the statutory exemptions to disclosure stated in both sub-s 33(1) and 35(1)(b) were made out.[13]
[13]VCAT Reasons, [177]-[182].
In respect of the ‘public interest override’ – which applied only to the exemption otherwise established under sub-s 35(1)(b) – the Senior Member surveyed the applicable principles and noted the applicant’s contentions concerning the ‘public interest’. However, the Senior Member was not satisfied that documents 3a and 3b ‘required’ release. In that regard, the Senior Member specifically considered the contents of those documents as follows –
Having reviewed those documents and considered his submissions, I cannot accept his submission that these two documents will unveil corruption or wrongdoing of the kind which calls for release under s 50(4).[14]
[14]VCAT Reasons [188].
Thereafter, the Senior Member considered in great detail the claims made and issues arising in respect of documents 1 and 9 – the Final investigation report of Professional Standards Command and the Final report into the Privacy Complaint.[15] That exercise was one of considerable complexity. The documents contained ‘a wide mix of information about individuals and other matters’.[16] However, it is evident that the issues and evidence in respect of the claims made in respect of documents 1 and 9 were considerably less clear cut than those considered earlier and the documents had evidently already been released in part. In each case, the issue was the extent of release.
[15]VCAT Reasons [194]-[326].
[16]VCAT Reasons [194].
In this context, the applicant pressed for essentially full release (albeit that he generally disclaimed an interest in personal details such as telephone numbers and email addresses);[17] to which the respondent claimed various exemptions in respect of various parts of the reports, again under sub-ss 33(1) and/or 35(1)(b).
[17]VCAT Reasons [88]. In the present proceeding the applicant may have been seeking to take issue with an aspect of that proposition, seemingly by reference to T17 below – see Applicant’s final submissions to Appeal Court dated 16 July 2021, p.7. In any event, what the Senior Member stated is essentially consistent with the passage at T17 and also with what the applicant stated at T93 below. Further, in his written and oral submissions in the present proceeding the applicant largely disclaimed any desire to obtain such personal details. However, in the Applicant’s summary conclusion re FOI & VCAT legislation to Appeal hearing provided after the present hearing, he stated that he generally only sought ‘what persons or police officers said or conveyed about the Applicant’, albeit that he said that he also seeks the names of Officers 14 and 15 and Persons 28 and 29 – see, p.1. Those are evidently two of the persons that provided information to the senior police officer who contacted the HJO in June 2014.
In respect of documents 1 and 9, the Senior Member accepted some of the claimed exemptions – particularly, in respect of personal affairs information under sub-s 33(1), although the extent of those claims was confined, and some were not accepted. The claims advanced by reference to sub-s 35(1)(b) were largely or wholly refused. Ultimately, the Senior Member granted the applicant access to additional parts of those reports subject to the redactions carefully specified in Schedule A to her reasons.
C The present proceeding
On 9 June 2020, the applicant filed a notice of appeal in this Court. The applicant has prepared his own documents and appeared in person. That said, it will be evident that he is not a complete stranger to processes of litigation, certainly not in the Tribunal.[18]
[18]Marke v Victoria Police [2006] VCAT 1364, Marke v Victoria Police [2007] VCAT 747, Victoria Police v Marke [2008] VSCA 218, Marke v Victoria Police (Amended) [2016] VCAT 704, Marke v Victoria Police FOI Division [2018] VCAT 1320 and Marke v Department of Justice and Regulation [2019] VCAT 479.
On the face of the notice of appeal it is apparent that it was filed some four days out of time:[19] it refers to ‘issues with internet service and use of the RedCrest lodging system’ together with an intervening public holiday. The applicant came to depose to these matters in a little more detail in his affidavit filed in support of his application.
[19]Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), sub-s 148(2).
The respondent took no issue with the applicant’s application for a short extension of time. The applicant has explained the delay. No prejudice is evident. I will grant the extension of time sought.
The applicant’s notice of appeal states the following purported questions of law –
Question of law 1:
In its published ‘Reasons’ did the Tribunal adequately abide by the construction, scope and application of Section 117(5) of the Victorian Civil and Administration (sic) Tribunal Act 1998; which requires the Tribunal to make findings on material questions of fact, particularly in this case to matters relating to the allegations of malfeasance by Victoria Police raised by the appellant?
Question of law 2:
Did the Tribunal in its analysis and deliberations of the construction, scope and application of Sections 33(1) and 35(1)(b) of the Freedom of Information Act 1982 faithfully abide by the “Objects” of the Act defined in section 3(1) to its fullest extent?
Question of law 3:
Did the Tribunal in its analysis and deliberations faithfully reflect upon the intentions of our Parliament provided for in the construction, scope and application of Section 3(2) of the Freedom of Information Act 1982; that any discretions conferred to by this Act shall be exercised so far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information?
Question of law 4:
Did the Tribunal in its analysis and deliberations of the construction, scope and application of Section 35(1)(b) [of] the Freedom of Information Act 1982 adequately reflect upon the “contrary to Public Interest” requirement in this exemption legislation?
Question of law 5:
Did the tribunal in its analysis and deliberations of the construction, scope and application of Section 50(4) of the Freedom of Information Act 1982 faithfully and adequately reflect upon this Public Interest override regarding the Section 35(1)(b) exempt material?
Question of law 6:
Did the Tribunal have any legal authority to support its decision not to disclose the actual names of identities referred to as “officers” and “persons” with allocated individual numbers in the “Reasons”, when most of those actual names have either already been released by the Respondent to the Appellant in various pre-case correspondence or were previously known to the Appellant?
Question of law 7:
Did the Tribunal fail to correct a factual misleading mistake, in the Orders and Reasons under the Section 119(2)(b) of the VCAT Act upon an application by the Appellant?
In detailed and lengthy written submissions dated 30 October 2020, the applicant applied to add an eighth ‘question of law’ directed to the application and effect of sub-s 33(2) of the FOI Act. The form of question 8 came to be stated later and in the following terms –
Did the Tribunal in its analysis and deliberations of s 33(2) of the FOI Act have due regard to disclosure of information relating to the personal affairs of the Applicant?[20]
[20]Applicant’s final submissions to Appeal Court dated 16 July 2021, p.12.
In his notice of appeal, various written submissions and oral argument, the applicant did not distinguish between what he identified as ‘questions of law’ and his grounds of appeal. Rather, he directed argument generally to the various identified sections of the FOI Act and other topics sought to be identified by his ‘questions of law’. To some extent, the points made in respect of his various ‘questions’ tended to overlap or be repetitive. That is not a criticism; just the fact.
D Appeal on a ‘question of law’
Section 148(1) of the VCAT Act provides, relevantly –
A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a) …
(b) to the Trial Division of the Supreme Court in any other case –
if the … Trial Division, as the case requires, gives leave to appeal.
Section 148(1) does not confer a general right of appeal.[21] Appeal is by leave, from an order, and only on a question of law. The jurisdiction of the Court is confined and conditional. Appeal under sub-s 148(1) is not a right.
[21]Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167 (‘Patsuris’), [43].
The identification of a ‘question of law’ is the subject matter of such an appeal. Without a such question, there can be no appeal. In that regard, ‘it is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal’.[22]
[22]Ibid [44].
In Patsuris v Gippsland and Southern Rural Water Corporation, the Court of Appeal referred with approval to the earlier decision of the Full Court of the Supreme Court of Victoria in Transport Accident Commission v Hoffman,[23] in which Young CJ and McGarvie J stated, in respect of the predecessor provision to s 148 –
It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal’s decision.
[23][1989] VR 197.
In Patsuris and in other cases, the Court of Appeal has given examples of errors that may constitute relevant questions or errors of law ‘involved’ in the decision of a Tribunal, such as –
(a) whether the Tribunal identified and applied the correct legal test;
(b) whether there was any evidence at all to support a finding of a material fact; and
(c) whether the facts fell within a statutory provision properly construed.
In that context, the Court of Appeal has emphasised that appeal will not lie in respect of complaints concerning the weight afforded to evidence.[24] A complaint of that kind does not give rise to a question of law.
[24]Karakatsanis v Racing Victoria Limited (2013) 42 VR 176, [21].
A ‘question of law’ stated in broad and general terms may also fail to engage the statutory jurisdiction. That is because such a ‘question’ is at risk of advancing argument beyond any issue posed and involved in the decision below.
Such a ‘question’ may also fail to engage the statutory jurisdiction because it does not bear directly upon the relief sought.[25]
[25]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [28]-[29].
Allowance must be and is made for the fact that the applicant is unrepresented. However, as I have indicated, the present jurisdiction of the Court is strictly limited. No appeal under s 148 can be entertained in respect of a jurisdiction that the Court does not possess. Further, leave to appeal cannot be granted unless justice demands it.
In this sense, albeit that the applicant submits that ‘it is the task of the Court to consider whether the Tribunal erred when it deliberated over the FOI and VCAT Act provisions’, the present jurisdiction, even if leave were granted, is necessarily and considerably more confined than the documents of the applicant would evidently seek to contend.
In that context, I should turn to the applicant’s eight proposed ‘questions of law’ and associated ‘grounds’ of appeal (which, as I have indicated, are in an argumentative and somewhat overlapping form evidently intended to engage with the relevant stated ‘question’).
E Question/ground 1: sub-s 117(5) of the VCAT Act
As noted, ‘question of law’ 1 reads as follows –
In its published ‘Reasons’ did the Tribunal adequately abide by the construction, scope and application of Section 117(5) of the Victorian Civil and Administration (sic) Tribunal Act 1998; which requires the Tribunal to make findings on material questions of fact, particularly in this case to matters relating to the allegations of malfeasance by Victoria Police raised by the appellant?
As is evident from its terms, question of law 1 is directed to sub-s 117(5) of the VCAT Act, which provides –
If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.
The applicant contends, in substance, that sub-s 117(5) required the Tribunal to make certain findings of ‘fact’ concerning ‘the allegations of malfeasance by Victoria Police raised by the Appellant’. Those ‘facts’ are identified and stated in 47 enumerated paragraphs in the applicant’s written submissions.
Many of the 47 paragraphs are in an argumentative and discursive form. In a general sense, the sequence becomes more argumentative as it proceeds. It amounts to an articulation, of sorts, of the applicant’s various grievances concerning the contact made by the senior police officer with the HJO and the manner in which his subsequent Privacy and Conduct Complaints were handled and determined.
More broadly, the applicant directs argument to the principles found in the authorities concerning legal sufficiency of reasoning.[26] He contends that the requirement of an ‘intelligible explanation of the process of reasoning’ and the requirement to explain the ‘path of reasoning’ required the Tribunal ‘to conduct a forensic analysis of the evidence available to help decide on allegations of Police Misconduct which relates to the Public Interest in this case’.
[26]The applicant relied particularly upon WUT v Victoria Police [2020] VSC 586. There are many other such authorities: see, among others, Hunter v Transport Accident Commission (2005) MVR 130.
I am not satisfied that the reasoning of the Tribunal gives rise to any ‘question of law’ with respect to sub-s 117(5) of the VCAT Act. Even if such a ‘question’ might be said to have been ‘raised before’ the Tribunal and ‘involved’ in its decision in the sense earlier discussed (a proposition about which I am very doubtful), sub-s 117(5) requires only that the Tribunal state ‘its’ findings of material fact if written reasons are provided. In the present instance that was done. Breach of the sub-section is not necessarily established by simply pointing to ‘findings’ which the Tribunal did not make.
More particularly, as stated by Kyrou J (as his Honour then was) in Secretary to the Department of Justice v YEE[27] -
In determining whether the VCAT’s reasons are adequate, the Court does not scrutinise those reasons over-zealously with a view to finding error. Nor does the Court expect the VCAT to address every issue raised in the proceeding. The reference to ‘material questions of fact’ in s 117(5) of the VCAT Act is to factual matters that affected the VCAT’s findings or conclusions. Accordingly, under s 117(5), it is enough for VCAT to make findings on the facts upon which its decision turns and to explain the logic of the decision. The VCAT is also expected to set out the law that it has applied in reaching its decision.
[Emphasis added]
[27][2012] VSC 447, [96].
In the present circumstances, that is what the Tribunal did: it made findings of fact on which its decision turned and the logic of its decision is quite evident. It must follow from the above that there was no breach of sub-s 117(5) and no ‘question of law’ arises in respect of it.
More generally, it will be evident that the applicant has claimed to have been a victim of serial police misconduct or, as he describes it, ‘malfeasance’.
The Senior Member did not overlook the applicant’s endeavour to pursue and establish that issue and recorded the following in a manner that has not be criticised as either relevantly incomplete or wrong –
145 I mentioned earlier Mr Marke’s 18 November 2019 witness statement. He also filed written submissions and made oral submissions at the hearing, some of which included statements as to his own experience as a police officer and about certain factual matters. I have treated material such as that as parts of his evidence for the purpose of these reasons.
146 Consistent with some of his cross-examination of Inspector Matters, Mr Marke introduced his witness statement saying he believed there had been police corruption and conflict of interest in the way his complaints had been investigated. He referred to past comments on police cover ups in internal investigations.
147 Mr Marke recounted his professional background and his application to be a bail justice. He set out his understanding of the history of the Conduct and Privacy Complaints. He emphasised what he saw as the disconnect between the findings those Complaints were not substantiated and the terms of the Apology letter.
…
151 Mr Marke made a number of assertions about the information given to Officer 2 which led to the contact with the HJO. He said it must have been passed on for vindictive motives given the Apology letter and given how far he had progressed in the bail justice application process. He asserted the information conveyed to the HJO about him was false and misleading and, as he believed Officer 2 knew that was the case, it was wickedly passed on. Those matters (and others) were said to be relevant to the public interest override contained in section 50(4) of the FOI Act.
As to the applicant’s questions of Inspector Matters directed to those issues, the Senior Member stated –
137 I leave aside questions asked of him as to whether he thought the relevant investigations were completed professionally and what steps he would take if he saw unethical or questionable investigations. I have treated questions about the basis for or reasonableness of opinions former by various officers dealing with the complaints the same way. I have not canvassed here questions directed at how it came to be that the complaints were found not to have been substantiated but Mr Marke was later given the Apology letter. I also leave aside questions about the number of documents in the relevant files given the narrowed list of documents in dispute in the proceeding. None of those issues was relevant to my task under the FOI Act.
A further aspect concerned documents 3a and 3b – the two statements made to Professional Standards Command – which were in many respects central to the present dispute. The Senior Member inspected un-redacted copies of those documents and rejected the contention that either would unveil corruption or wrongdoing.[28]
[28]VCAT Reasons, [188]. I should say that the applicant sought that I have access to the un-redacted documents. The present relevance of that course was not debated and is unclear. In any event, the respondent did not oppose that course and I received the documents. I agree with the observation made by the Senior Member at [188] concerning documents 3a and 3b.
The applicant is plainly aggrieved that the Tribunal would not make ‘malfeasance’ findings of the kind that he pressed and continues to press. But it is evident from the passages referred to above that the Tribunal understood the applicant’s contention that ‘malfeasance’ findings should be made and, in the circumstances identified and explained, determined that they should not.
I am unable to see that any ‘question of law’ arises that would amount to error in the manner in which the Tribunal determined the matter. Put simply, the Tribunal was hearing an FOI matter. The applicant is convinced of ‘malfeasance’, that may be accepted; but the applicant was plainly not involved in the ‘malfeasance’ that he contended had been perpetrated by others, and so could not give direct evidence of it in the sense of what he had seen or heard. He was firmly of the view that he had been a victim of ‘malfeasance’, and in that regard sought to commentate upon selected events and the contents of particular documents, but that is another matter.
The only other witness was Inspector Matters. He was the Deputy Freedom of Information Officer and also not involved in the underlying events. Although the applicant evidently set about cross-examining him to establish the ‘malfeasance’ that he contended for, the overall lack of utility in that course of action is unsurprising.
Finally, the documents centrally involved in the applicant’s quest were reviewed by the Senior Member in an un-redacted form and did not support the applicant’s contentions of ‘malfeasance’ either.
In short, none of the persons said to have been involved in the underlying events were before the Tribunal owing to the nature of the matter. The applicant firmly believed and continues to believe that he has been a victim of ‘malfeasance’, but his ‘evidence’ of that really amounted to high level submissions concerning the overall circumstances that, notwithstanding the seriousness of the allegations involved, were of a quality that was somewhat speculative and, at best, open to debate.
Further, any debate of that kind that could essentially go nowhere because none of the persons directly involved were before the Tribunal and the documents involved were at best debateable as to their meaning and significance. Indeed, the central documents involved were considered by the Senior Member and did not support the ‘malfeasance’ claims.
In the circumstances, I reject the proposition that any ‘question of law’ of the kind now pressed arises and is indicative of error in the decision of the Tribunal. In particular, I do not accept that any question of law arises in respect of the failure of the Tribunal to make the 47 ‘malfeasance findings’ now pressed.
In that regard, the 47 paragraphs are strewn with bold and essentially conclusory assertions of ‘fabrication’, ‘corruption’, ‘police misconduct’ and the like. Many are in respect of the acts or omissions of individuals not directly before the Tribunal. Nor, on their face, do the documents and acts and omissions referred to unarguably bespeak the kind of serious misconduct alleged. There is and was another perspective, and, among other things, that is evident from the outcome of the Privacy and Conduct Complaints. It may be acknowledged that the applicant is convinced of ‘malfeasance’ and the like, but I can quite understand how it was that the Tribunal was cautious about such matters in the circumstances presented.
In these circumstances, the applicant is evidently in equal parts outraged and mystified by the fact that his Privacy and Conduct Complaints were not made out, yet he received the letter of apology in the context of the defamation proceeding. As I have noted, he perceives inconsistency and from that attributes a quality of malice to those involved. However, the two are not necessarily inconsistent, as the same issue is not presented in each instance, and to infer malice from such circumstances is much bolder than a Tribunal or Court would or could ever be.
Moreover, as I have indicated, it is a feature of the applicant’s stance at each stage in the process to this point that he evidently sees the present point to be, in effect, the proper point at which he should seek to redress and vindicate what he sees as being a failure at an earlier point to grasp the vast injustices that he claims to have been a victim of. In that, he seems to have regarded his FOI proceedings as being, in effect, an appeal in the nature of a rehearing (if not a hearing de novo) from the outcome of his Privacy and Conduct Complaints, and to have regarded the present proceeding as being of a similar nature. However, for the reasons that I have indicated, that is not so. The proceeding before the Tribunal was not an appeal from the Privacy and Conduct Complaints and the evidence before the Tribunal was relevant to the issues there presented, but the issues and evidence before the Tribunal was ill suited to achieving the outcome that the applicant ultimately sought. And the present proceeding – limited by the confined jurisdiction of the Court to which I have referred – is even less suited to achieving the applicant’s ultimate objective.
In this sense, that the applicant regards it as erroneous that the Tribunal did not make the ‘findings’ that he presses may broadly be understood, but for the reasons which I have endeavoured to explain, it does not follow from what the Tribunal did that it was in error in doing so. Indeed, in my view, it was quite correct.
For these reasons, there is also no force in the applicant’s resort to the ‘reasons’ authorities and principles. The Tribunal’s reasons are lengthy and comprehensive. The paths of reasoning are quite apparent. That the applicant evidently does not like the reasons given, and would have preferred reasons in another form, does not mean that any ‘question of law’ or associated error now arises.
Question/ground 1 must be rejected.
E Questions/grounds 2 & 3: sub-s 3(1) & (2) of the FOI Act
Question of law 2 reads as follows –
Did the Tribunal in its analysis and deliberations of the construction, scope and application of Sections 33(1) and 35(1)(b) of the Freedom of Information Act 1982 faithfully abide by the “Objects” of the Act defined in section 3(1) to its fullest extent?
In a similar way, question of law 3 reads –
Did the Tribunal in its analysis and deliberations faithfully reflect upon the intentions of our Parliament provided for in the construction, scope and application of Section 3(2) of the Freedom of Information Act 1982; that any discretions conferred to by this Act shall be exercised so far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information?
Questions 2 and 3 their associated ‘grounds’ are directed to the objects provisions of the FOI Act, namely sub-s 3(1) and (2). The contention is that the Tribunal did not, as the case may be, ‘abide … to the fullest extent’ or ‘faithfully reflect upon’ the object concerned.
In this regard, the applicant variously advances several arguments that also appear in connection with some of his other questions or grounds, especially with respect to the ‘public interest override’.
In respect of question/ground 2, the notice of appeal goes so far as to seek to proscribe the order or manner in which, it is contended, the Senior Member should have determined matters in her reasons.
As I have indicated, the reasons of the Senior Member referred extensively to the applicable statutory provisions and legal principles concerned, including those with respect to the ‘public interest override’.
Further, the relevant passage of the Senior Member’s reasons commenced with reference to the objects provisions of the FOI Act.[29] Clearly the Senior Member took those provisions into account when thereafter considering both the operative provisions of the FOI Act and applying those provisions and associated principles to the evidence.
[29]VCAT Reasons, [82]-[84].
As above, I am doubtful that any ‘question of law’ could be said to arise in respect of either of these ‘questions’ or ‘grounds’. It is not apparent that any such ‘question’ was substantively raised or ‘involved’ below. Certainly, no such question arose independently of approaching the construction and application of the relevant statutory provisions as a whole.
In any event, objects provisions of the kind now pointed to by the applicant do no more than express the overall intention of the Parliament in enacting the Act. Such provisions do not operate independently of or in substitution for the operative provisions of the Act and do not command a particular outcome in respect of a particular dispute. Such provisions do no more than express a legislative indication to which a court can have resort when interpreting operative provisions if the meaning of those provisions – in the context of the Act as a whole – is ambiguous or uncertain.[30]
[30]Pearce & Geddes, Statutory Interpretation in Australia, 7th edition, 2011, [4.49].
In the present instance, no issue of statutory ambiguity or uncertainly arose and, in any event, the objects provisions were plainly taken into account by the Senior Member. I do not accept that the Senior Member failed to ‘abide’ or ‘faithfully reflect’ upon those provisions.
Nor can it be accepted that the objects provisions of the FOI Act required that the Senior Member address and determine issues in accordance with the schema sought to be mandated by the applicant.
Questions 2 and 3 and their associated grounds must be rejected.
F Questions/grounds 4 & 5: sub-s 35(1)(b) & 50(4) of the FOI Act
Question 4 reads –
Did the Tribunal in its analysis and deliberations of the construction, scope and application of Section 35(1)(b) [of] the Freedom of Information Act 1982 adequately reflect upon the “contrary to Public Interest” requirement in this exemption legislation?
Similarly, question 5 reads –
Did the tribunal in its analysis and deliberations of the construction, scope and application of Section 50(4) of the Freedom of Information Act 1982 faithfully and adequately reflect upon this Public Interest override regarding the Section 35(1)(b) exempt material?
It will be evident that ‘questions’ 4 and 5 and the arguments directed at the associated ‘grounds’ are directed to the differing manifestations of the issue of ‘public interest’ appearing in sub-s 35(1) (b) and 50(4) of the FOI Act respectively. In each instance the complaint is that the Senior Member failed to ‘adequately reflect’ on the particular aspect of ‘public interest’.
In respect of ‘question’ 4, it is evident from the notice of appeal that the applicant submits that the Tribunal failed ‘to give sufficient weight’ to the applicant’s own evidence as against the evidence of Inspector Matters.
As I have earlier identified, the Senior Member considered Inspector Matters’ evidence at length, and had the benefit of seeing him cross-examined and gauging the quality of his responses, recorded particularly at [143] as follows –
Mr Marke put it to Inspector Matters that, if documents 3a and 3b were released, it would not have any effect on Victoria Police’s ability to obtain statements in the future. Inspector Matters disagreed relying on the reasons given in his witness statements.
The Senior Member accepted that evidence at [179]. Albeit that the applicant contested that evidence – which the Senior Member also recorded, in detail – it was preferred. For reasons earlier explained, no question of law can arise in respect to questions of weight of evidence.
More generally, as I have earlier identified, the reasons of the Senior Member addressed both sub-s 35(1)(b) of the FOI Act and the applicable principles.[31] No part of that discussion or approach is erroneous.
[31]VCAT Reasons, [97]-[102].
In argument, however, the applicant contended that the Senior Member had erred specifically in the following passage at [181] –
On the question of the public interest test in section 35(1)(b), it is relevant that the makers were willing to provide the information in the voluntary sense mentioned by Inspector Matters in the context of the Conduct Complaint investigation being undertaken by PSC. They were under no legal or professional compulsion to do so and I consider that, together with their content, weighs in favour of a finding that the public interest lies in not disclosing them because to do so may impair Victoria Police’s ability to obtain similar information in the future.
[Emphasis added]
The substance of the contention was that the use of the word ‘may’ in that passage bespeaks error in that the word appearing in sub-s 35(1)(b) is ‘would’, and the use by the Senior Member of the word ‘may’ indicates that she ultimately applied a ‘lesser standard or threshold’.
I cannot accept that a single word in reasons of the present length and complexity is sufficient to demonstrate material error. More must be shown, as such reasons are essentially narrative in character and not to be read as if they are a statute.[32]
[32]Pateras v State of Victoria [2017] VSCA 31, [52].
In that regard, as I have noted, the Senior Member referred earlier and correctly to sub-s 35(1)(b) and the applicable principles.[33]
[33]VCAT Reasons, [97]-[102].
Then, a little later, and with respect to the relevant evidence of Inspector Matters, the Senior Member noted the distinction in that evidence between effects that, in the opinion of Inspector Matters, ‘could’ as opposed to ‘would’ arise[34].
[34]VCAT Reasons, [129].
Thereafter, as I have noted, the Senior Member took specific account of the response of Inspector Matters in oral evidence, and by reference to the word ‘would’.[35]
[35]VCAT Reasons, [143].
All of that occurred prior to [181], and tends to show that the Senior Member did not have any error in principle in mind when she came to that paragraph in which she used the word ‘may’.
Somewhat confirmatory of the above, it is not unimportant that later in her reasons, the Senior Member addressed the applicable principles again in respect to parts of documents 1 and 9 and determined that in those instances the evidence was insufficient. Particularly, at [257], the Senior Member stated –
I have ordered that some additional information be released to Mr Marke because Victoria Police did not meet the onus of establishing that a decision adverse to Mr Marke should be given in respect of section 35(1)(b) of the FOI Act. That is because, for some of the information, the evidence did not establish that the information was provided in confidence and that disclosure would be contrary to the public interest because it would impair Victoria Police’s ability to obtain similar information in future.
In that regard, the Senior Member highlighted the relative paucity in Inspector Matters’ evidence with respect to circumstances of a kind quite different to that earlier considered. The Senior Member also considered relevant authority, including Ryder v Booth.[36] In the different circumstances there presented, the Senior Member was ultimately unpersuaded that ‘the public interest requirement’ in sub-s 35(1)(b) had there been proved (in contrast to earlier).[37]
[36][1985] VR 869.
[37]See, in particular VCAT Reasons, [255]-[289]. See also, [290]-[293], [305], [308], [315] and [319].
In context, therefore, it is evident that the Senior Member gave extensive consideration to the ‘public interest requirement’ in sub-s 35(1)(b), including by reference to relevant authority, both prior and subsequent to [181], and there can be and has been no suggestion that any of that is in error.
In these circumstances, I cannot accept that the single word ‘may’ appearing at [181] is indicative of material error in that aspect of the judgment of the Senior Member, let alone a feature giving rise to a ‘question of law’ within the meaning of sub-s 148(1) of the VCAT Act.
As to ‘question’ 5, the so-called ‘public interest override’ is presently relevant only to the exemption established by the respondent by reference to sub-s 35(1)(b) of the FOI Act. The present complaint cannot displace the separate basis upon which exemption was established by reference to sub-s 33(1) of the FOI Act.
In any event, in many respects the applicant’s arguments in respect of this ‘question’ and ‘ground’ are a recapitulation of arguments earlier noted and rejected.
In particular, the applicant again contends that the Tribunal erred in failing to undertaking ‘a far greater inquisition into the material facts of this case’ and is critical of the Tribunal for having included in its reasons ‘little or no commentary on the Applicant’s allegations about Police Misconduct and/or Malfeasance in Public Office’. I have already indicated why it is that contentions of this kind cannot be accepted.
A further difficulty is exposed by the contention in the notice of appeal that –
the Tribunal’s Reasons fail to devote sufficient adjudication, therefore adequate weight to the critical statutory importance and proper construction of the s 50(4) ‘Public Interest’ override.
I have already indicated that no construction issue arose concerning sub-s 50(4) of the FOI Act. The reasons of the Senior Member correctly stated and addressed that provision and the principles associated with it. Relevantly, the Senior Member was not persuaded, in the circumstances, that the public interest ‘required’ release.[38] No error is evident in that consideration and to the extent that it involved an evaluation of the weight to be attributed to aspects of the evidence that was for the Tribunal and does not give rise to any ‘question of law’.
[38]VCAT Reasons, [185]-[188].
‘Questions’ 4 and 5 and their associated ‘grounds’ must be rejected.
G Question 6: the 31 individuals
Question 6 reads –
Did the Tribunal have any legal authority to support its decision not to disclose the actual names of identities referred to as “officers” and “persons” with allocated individual numbers in the “Reasons”, when most of those actual names have either already been released by the Respondent to the Appellant in various pre-case correspondence or were previously known to the Appellant?
It will be evident that this ‘question’ and the argument concerning it is directed to an aspect of the form in which the Tribunal chose to write its reasons.
The reason why the Senior Member wrote that aspect of her reasons in that manner was specifically identified and explained –
(a) the respondent had contended that all such names were exempt as personal affairs information, even if the applicant knew some of those names;
(b) the Senior Member did not accept any such ‘blanket’ claim;
(c) in deference to any application that might thereafter be made by the respondent to seek leave to appeal in respect of that aspect, the Senior Member anonymised and enumerated all such names in her reasons.[39]
[39]VCAT Reasons, [15] & [18].
The Senior Member’s approach to the issue is both evident and orthodox. None of the ‘open justice’ and other authorities to which the applicant refers are relevant to or operate to displace that approach. There was no error and no ‘question of law’ arises.
Further, the present complaint cannot engage sub-s 148(1) of the VCAT Act: notwithstanding the form of sub-s 117(6) of the VCAT Act, an appeal under s 148 is from an order of the Tribunal, not from its reasons.[40] In that regard, whether the Tribunal used numbers or names in its reasons can say nothing about whether or not any of the Tribunal’s orders ultimately disposing of the matter were either erroneous or correct.
[40]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248, [85].
Question 6 must be rejected.
H Question 7: s 119 of the VCAT Act
Question 7 reads –
Did the Tribunal fail to correct a factual misleading mistake, in the Orders and Reasons under the Section 119(2)(b) of the VCAT Act upon an application by the Appellant?
Sub-s 119(2)(b) concerns the making of application for correction in the circumstances identified in sub-s 119(1) as follows –
(1) The Tribunal may correct an order made by it if the order contains –
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
(d) a defect of form.
As I have noted, sub-s 117(6) of the VCAT Act provides that the reasons for an order form part of that order. Nonetheless, sub-s 119(2) plainly confers a very wide discretion upon the Tribunal.
It seems that the Tribunal has taken the view that, as a matter of discretion, sub-s 119(2) should be used to correct ‘substantive matters’ in reasons, not matters of expression. Without saying anything specific concerning the notion of ‘substantive matters’, plainly the statutory language has the potential to give rise to a need for reconciliation.[41]
[41]Cf., Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
In that regard, notwithstanding sub-s 117(6), I can quite understand why the Tribunal would refuse to exercise the very wide statutory discretion vested in it by sub-s 119(2) in respect of mere matters of expression appearing in reasons.
In the present instance, it is evident that the applicant purported to make application under sub-s 119(2)(b) in respect of a sentence appearing in the Senior Member’s reasons at [154], which reads –
He explained that it appeared senior officers had not been informed of the outcomes of the sexual offences investigation against him nor about other matters.
The Tribunal did not accede to the application.
In his written submissions the applicant described the identified sentence as a ‘defaming mistake’. In that regard, he said that –
It is factual that the Applicant was never alleged to have committed nor ever investigated over sexual offences and this false statement wrongly attacks the character and reputation of the Applicant.
The sentence must, however, be considered and read in proper context.
Earlier in the reasons, and in some detail, the Senior Member recorded the details of the applicant’s police career including an allegation made against him in 2003 of having been involved in covering up child sex abuse by a priest. At [24], the Senior Member stated –
At the end of an investigation by Victoria Police’s Ethical Standards Division, it was found that the charges were “not substantiated” and later the characterisation was changed to “unfounded”. Mr Marke received an apology from the ABC.
Later, at [77], the Senior Member referred to ‘Person 26’ (not the applicant) as the ‘alleged offender who was the subject of enquiries into sexual abuse’.[42]
[42]See also VCAT Reasons [243].
Later still, at [140], the Senior Member referred to the ‘sexual offences matter’.
Finally, later in [154] itself, the Senior Member referred to the applicant’s dissatisfaction with Victoria Police ‘not clarifying with the community … the outcome of the 2003 investigation into his conduct’.
In this context, it seems to be tolerably clear that no one – least of all the Tribunal – has been suggesting that the applicant had personally been investigated ‘over sexual offences’.
For these reasons, it does not seem me to be reasonable to extract a single sentence from [154] and read it in the manner contended for by the applicant. In my view, in proper context, the meaning of the sentence is quite clear. Indeed, in my view, not even an error of expression arises.
It follows that I can entirely understand why it is that the Tribunal did not amend its reasons upon the application of the applicant. There has been no evident miscarriage of the Tribunal’s very wide discretion.
Further, as above in respect of question 6, whether the Tribunal used the sentence objected to, or some other sentence to slightly different effect, cannot amount to any question of law or error in the orders made by the Tribunal in disposition of the matter. In that further sense, the present complaint does not engage the jurisdiction conferred upon the Court by sub-s 148(1) of the VCAT Act.
Question 7 must be rejected.
Question 8: sub-s 33(2) of the FOI Act
As I have noted, the form of ‘question 8’ was ultimately stated in the following terms –
Did the Tribunal in its analysis and deliberations of s 33(2) of the FOI Act have due regard to disclosure of information relating to the personal affairs of the Applicant?
In the course of argument, the applicant confirmed that this ‘question’ did not arise below.[43] For that reason alone, it was not ‘raised before’ the Tribunal and is not ‘involved’ in it decision. It follows that the question does not engage the jurisdiction conferred upon the Court by s 148 of the VCAT Act.
[43]T35.
In any event, the applicant has advanced his argument with respect to sub-s 33(2) of the FOI Act with a view to contending, in substance, that sub-s 33(1) of that Act ought not to apply to him if the information in question amounts to or involves information concerning him.
Sub-s 33(2) of the FOI Act provides as follows –
Subject to subsection … (4), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
[Emphasis added]
On the construction of sub-s 33(2) of the FOI Act evidently contended for by the applicant, the exemption stated in sub-s 33(1) of the FOI Act would be without effect where any material concerning a person such as him is referred to in a document, even if it is there referred to in a manner that also amounts to the personal affairs of another person.
Sub-section 33(1) is in broad terms and has been broadly construed. The construction of sub-s 33(2) contended for by the applicant would significantly erode or nullify the operation of the sub-section which precedes it and to which it is evidently intended to be no more than a distinct exception.
Sub-sections 33(1) and (2) must be read in the order and terms in which they appear.[44] Sub-section 33(2) is plainly only an exception to the general terms of an exemption stated in sub-s 33(1). The former will displace the latter where the material included within the document relates ‘only’ to the person in question. That is not the present instance.
[44]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
It follows that ‘question’ 8 must be rejected.
J Miscellaneous
In the course of his written and oral submissions, the applicant sought to advance several further complaints.
Some concerned matters such as the respondent’s alleged non-compliance with pre-trial directions at early or particular times. Others concerned matters such as alleged deficiencies in the Tribunal’s catchwords and the fact that parts of the legal analysis appearing in the Tribunal’s reasons were in one part rather than another. Others were recapitulations of the essential complaints to which I have already referred, either sought to be bolstered or advanced anew by reference to or reliance upon various identified authorities (including some Tribunal decisions), an academic paper, the Charter of Human Rights and Responsibilities Act 2006 and various other statutes. Another was a request for the identities of Officers 14 and 15 and Persons 28 and 29. Yet another was an asserted inconsistency between the Tribunal’s consideration of document 5 (which was released) and documents 3a and 3b (which were not).
I have read the applicant’s material carefully and considered this collection of further arguments. In my view, none of it serves to displace any of the analysis of the ‘questions’ considered above or, more generally, to expose error in the decision of the Tribunal related to a ‘question of law’.
K Conclusion
The applicant has been granted the short extension of time sought.
Nonetheless, notwithstanding the complexity of some of the issues that have arisen, I am not satisfied that the applicant has identified any ‘question of law’ important to the success or failure of a substantive appeal if leave were allowed. For that reason, leave to appeal must be refused.[45]
[45]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [28].
I will hear the parties concerning the form of orders, and costs.
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