Mees v University of Melbourne
[2009] VSC 493
•5 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 6955 of 2009
| PAUL ANDREW MEES | Plaintiff |
| v | |
| UNIVERSITY OF MELBOURNE | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2009 | |
DATE OF JUDGMENT: | 5 November 2009 | |
CASE MAY BE CITED AS: | Mees v University of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 493 | |
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ADMINISTRATIVE LAW – Freedom of Information – Exempt documents – Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal refusing access to documents – Freedom of Information Act 1982 (Vic) ss 30(1), 35(1)(b), 50(4).
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APPEARANCES: | Counsel | Solicitors |
| Plaintiff appeared in person | ||
| For the Defendant | Ms D Mortimer SC and Mr J Whelen | FOI Solutions |
HIS HONOUR:
This is an appeal by the plaintiff against an order by Associate Justice Daly made on 20 August 2009, refusing leave to appeal against a decision of a senior member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) dated 6 May 2009. The proceeding before the Tribunal was an application by the plaintiff for review under the Freedom of Information Act 1982 (“the FOI Act”). By its decision, the Tribunal affirmed the decision of the defendant, the University of Melbourne, to refuse access to the plaintiff to certain documents, on the grounds that they were exempt from production under the FOI Act.
Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) provides that a party may appeal from a decision of the Tribunal on a question of law, if the Court gives leave to appeal. In order to succeed on such an appeal, if the plaintiff were granted leave by me, the plaintiff must establish that the Tribunal made an error of law in affirming the decision of the defendant to deny him access to the documents in question. In order to be granted leave to appeal, it is not necessary that the plaintiff establish that the Tribunal made the errors, upon which he seeks to rely. It is sufficient that the plaintiff demonstrates that there is a real or significant argument, which may be advanced by him, that an error of law was made by the Tribunal in determining his application before it. Furthermore, the plaintiff must demonstrate that if the error was permitted to go uncorrected, he would suffer a substantial injustice.[1] In seeking to be granted leave to appeal, the plaintiff must identify a question, or questions, of law sought to be agitated in the proceeding. The Supreme Court Rules[2] reflect that requirement, by stipulating that the notice of appeal set out both the question of law upon which the appeal is brought, and the grounds of appeal.
[1]Secretary to the Department of Premier and Cabinet v Hulls [1993] 3 VR 331, 335-336 [10]-[12] (Phillips JA); Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 55-57 [28]-[31] (Warren CJ).
[2]Chapter 2 Rule 4.11(1)(b)(iv) and (v).
In support of his application for leave to appeal, the plaintiff has provided, as an exhibit to his affidavit, a draft notice of appeal. That notice specifies nine grounds of appeal, which are also identified as “the questions of law”. In submissions before me, the plaintiff, who appeared in person, stated that he did not rely on the eighth ground of appeal set out in that notice.
Background
In order to understand the issues raised by this appeal, it is necessary to set out, briefly, some matters by way of background.
In approximately 1998, the plaintiff commenced employment as a senior lecturer in the Faculty of Architecture Building and Planning of Melbourne University. In 2005 and 2006, a number of allegations were made about the plaintiff, which resulted in disciplinary proceedings being commenced against him by the defendant. A preliminary investigation was conducted into those allegations by the Acting Vice Principal (Human Resources), Mr Nigel Waugh. As a result of that investigation, Mr Waugh considered that the allegations constituted serious matters requiring investigation under the Unsatisfactory Performance and Misconduct Policy of the University. Accordingly, he referred them to an external investigator, Dr Michael King, of Monash University.
In due course, Dr King conducted an investigation, which involved interviewing a number of witnesses, including some complainants, and the plaintiff. After concluding the investigation, Dr King wrote a report, in which he concluded that all the allegations against the plaintiff, save one, had been proven.
The plaintiff then requested a review of Dr King’s findings. In accordance with the university’s review policy, a Review and Appeals Committee was constituted. The committee found that there had been procedural irregularities in the investigation conducted by Dr King. It recommended that the Vice Chancellor should not act on the recommendation contained in Dr King’s report.
Before the review committee had concluded its deliberations, the plaintiff resigned from the university, to take up a position at a different university. As a result, the Vice Chancellor of Melbourne University wrote a letter to the plaintiff, noting the report of the Review and Appeals Committee, and stating that he had determined not to accept the recommendation of the investigator that disciplinary action be taken against the plaintiff. The letter concluded:
“My decision brings to an end the disciplinary process in relation to the allegations against you and no penalty will be applied.”
The plaintiff’s request for access to documents under the Act
The plaintiff, in the meantime, had made a request for access to a number of documents relating to the allegations made against him, and to Dr King’s investigation of them. After a meeting with a representative of the defendant, the plaintiff refined his request to some 23 documents. In the hearing before the Tribunal, sample documents were identified, in order to facilitate the decision making processes of the Tribunal. As a result, document number 9 was identified as representing five documents; document number 10 was identified as representing eight documents; document 22 was identified as representing two documents; and documents 18 and 19 were also identified, although they did not represent other documents. The parties before the Tribunal agreed that it was appropriate for the Deputy President, in his decision, to group documents 9 and 10 together and documents 18 and 19 together.
The Tribunal’s decision
In his reasons for decision, the senior member of the Tribunal found that documents 9 and 10, and documents 18 and 19, were each exempt documents pursuant to s 30(1) and s 35(1)(b) of the FOI Act. He found that document number 22 is an exempt document by reason of s 32 of the Act. The senior member further concluded that the “public interest override” in s 50(4) of the Act did not apply to any of the documents. Accordingly, he affirmed the decision of the defendant to refuse the plaintiff access to each of those documents.
As I stated, the plaintiff now seeks to rely on eight grounds of appeal contained in his draft notice of appeal.
Grounds 1, 2
The first two grounds of appeal, sought to be relied on by the plaintiff, relate to a decision made by the Tribunal, at the commencement of the hearing before it, to set aside a subpoena issued by the plaintiff against Professor Glyn Davis, the Vice Chancellor of the University of Melbourne. Ground 1 alleges that the Tribunal erred by setting aside that subpoena. Ground 2 alleges that in setting aside the subpoena, the Tribunal: did not act fairly and in accordance with the substantial merits of the case; did not comply with the rules of natural justice; and did not allow the plaintiff a reasonable opportunity to call evidence as required by s 102(1) of the VCAT Act.
In order to understand those grounds, it is necessary to set out a little by way of background. In response to the plaintiff’s application to the Tribunal, the defendant had filed a witness statement of Mr Mitchell Bown, the Director, Workplace Relations and Health, of the University of Melbourne. In that statement, Mr Bown explained the disciplinary processes which had been set up by the University. In particular, he stated that, in accordance with the Enterprise Agreement entered into by the university with a number of unions and staff members, the university had developed a Personnel Policy and Procedures Manual, which included an elaboration of the processes to be applied in dealing with allegations in accordance with the enterprise agreement. In addition, in about 2006 the Human Resources area of the university had developed internal guidelines. Those guidelines, which were exhibited to Mr Bown’s statement, provide that the investigating officer shall inform the staff member, who is being investigated, that confidentiality should be maintained throughout the process. They also require that other persons interviewed should be advised that their statements shall be confidential. In his witness statement, Mr Bown further stated that when the university conducts investigations of allegations against staff, it “invariably treats information obtained from participants in that process as having been received on a confidential basis”. Mr Bown stated that unless such complaints could be treated as confidential, he believed that the ability of the university to investigate, and deal with, complaints against members of staff would be seriously undermined.
After receiving Mr Bown’s witness statement, the plaintiff caused a witness summons to be issued to Professor Davis. The defendant applied to set the witness summons aside. That application was heard by the Tribunal as a preliminary point. After hearing submissions from the plaintiff and the defendant, the senior member set aside the subpoena, on the ground that he was not persuaded that the Vice Chancellor could give any evidence which would serve a useful purpose in the proceeding.
In this application, the plaintiff has submitted that the senior member erred in setting aside the subpoena. In particular, he submitted that there were relevant matters in respect of which the Vice Chancellor could give evidence. Further, he submitted that in setting aside the subpoena, and thus denying him the opportunity to call the Vice Chancellor on his case before the Tribunal, he had been denied natural justice. In response, Ms D Mortimer SC, who appeared with Mr J Whelen for the defendant, submitted that the Tribunal had not made any relevant error in setting aside the subpoena. Further, she submitted that any error, if made by the Tribunal, could only be an error of fact, and not of law. However, she did accept that if the Tribunal had erred in setting aside the subpoena, it was arguable that the Tribunal had thereby denied the plaintiff natural justice in the substantive hearing before it.
In the hearing before the Tribunal, and on the application before me, the plaintiff submitted that the evidence to be called from the Vice Chancellor was potentially relevant, because it related to whether the university had a policy, as attested by Mr Bown, whereby the identities of complainants concerning staff members were kept confidential. The plaintiff also submitted that it was relevant to call the Vice Chancellor to give evidence, because he wished to ask him whether he agreed with such a policy, if it did exist.
In considering the plaintiff’s submissions, it is important to understand the context in which the ruling, concerning the subpoena, was made. After the plaintiff had issued that subpoena, a directions hearing was held before Deputy President Coghlan on 3 April 2009. On that date, the Deputy President directed that the plaintiff file with the Tribunal, and serve on the respondent, a written statement of the evidence, which the plaintiff expected to adduce from the Vice Chancellor. In response, the plaintiff wrote a letter to the Registrar of the Tribunal, which he copied to the solicitors for the defendant. In that letter he stated:
“I am not able to file a written statement of the evidence I anticipate from the Vice Chancellor, as I have not had the opportunity to discuss his evidence with him. However, I advise that I wish to ask him about the matters covered in paragraphs 4 and 7 to 17 inclusive of my witness statement dated 31 March 2008.
I believe the Vice Chancellor is the appropriate person to answer these questions, as he is in charge of the disciplinary procedures under the university’s enterprise agreement, and also because he is the chief executive officer of the university under section 15(2)(b) of the Melbourne University Act 1958.”
At the commencement of the hearing before the Tribunal, the senior member questioned the plaintiff why he had not complied with the direction given by the Deputy President on 3 April. The plaintiff responded “ … it’s very simple, sir. I have no idea what the Vice Chancellor’s going to say”. He then proceeded to submit that the matters, about which he wished to question the Vice Chancellor, were relevant to his “substantive complaint”, namely, the apparent adoption by the university of disciplinary procedures which involved keeping confidential the identities of complainants. He argued that not only was the “so called policy” not published by the university, but that it had been adopted without the knowledge of the Vice Chancellor “and that he wouldn’t approve of it”.
In considering the submissions made by the plaintiff on this aspect of the case, it is important to bear in mind that the substantive issue before the Tribunal was whether the documents, sought by the plaintiff, were exempt under s 30 and s 35 of the FOI Act. The plaintiff clearly had a grievance with the “policy”, described by Mr Bown in his witness statement, whereby the university had kept confidential complaints made to it concerning the conduct of a staff member. In particular, in paragraph 10 of his witness statement before the Tribunal, the plaintiff stated that he believed that the policy had been developed in secret by the personnel department, and that it had not been adopted by any decision making organ of the university. However, the issue before the Tribunal was not how the alleged policy had been developed, nor did it concern the merits of any such alleged policy. Rather, the issues before the Tribunal, on the FOI application, were somewhat different. The question under s 30(1) was whether disclosure of the documents would disclose a matter relating to internal working documents of the university, and would be contrary to the public interest. The issue under s 35(1)(b) of the Act was whether disclosure of the documents would divulge information imparted in confidence, and whether such disclosure would impair the ability of the university to obtain similar information in the future.
In the hearing before the Tribunal, it was necessary for the plaintiff to identify how the Vice Chancellor could give evidence which was relevant to any of the issues, which I have thus described, arising under ss 30 and 35 of the FOI Act. The plaintiff candidly conceded, before the Tribunal, and in his letter to the Tribunal, that he was unable to specify what relevant evidence the Vice Chancellor would be able to give on either of those issues. As pointed out by Ms Mortimer, in his submissions before the Tribunal, and before me, the plaintiff tended to conflate the question of the potential relevance of the evidence of the Vice Chancellor to the issues on the FOI application before the Tribunal, with the question of the relevance of the Vice Chancellor to the broader question, namely, the disciplinary processes undertaken by the university in respect of the complaints against him. However, as I have stated, the plaintiff was unable to identify any relevant evidence which could be adduced from the Vice Chancellor in relation to the issues arising out of his application to the Tribunal under the FOI Act. In those circumstances, the plaintiff has not made out an arguable case that the Tribunal erred in setting aside his subpoena. Nor has he identified a real or significant argument that he was denied his rights of procedural fairness.
Ground 3
The third ground of appeal is that the senior member of the Tribunal erred by rejecting the application to disqualify himself on the grounds of apprehended bias.
After the senior member made his ruling, setting aside the subpoena, the plaintiff made an application that he should disqualify himself from hearing the proceeding, on the basis that he had prejudged the evidence, which the plaintiff was proposing to give, and as outlined in his witness statement. The plaintiff submitted that, by his ruling, the senior member had concluded that the evidence, contained in paragraphs 4, and 7 to 17, of his witness statement, could not be relevant to the matters at hand.
The senior member of the Tribunal rejected that submission. In doing so, he stated:
“I made no ruling as to the relevance of matters in the witness statement (of the plaintiff). The ruling I was making was in relation to the relevance and helpfulness of the evidence which Professor Davis could give. Under those circumstances it cannot be said that I have in any way prejudged the evidence of the applicant.”
In my view, the Tribunal member was clearly right in that ruling. In the course of his earlier ruling relating to the subpoena, the Tribunal member had stated that he could not understand, from the matters contained in the relevant paragraphs of the plaintiff’s statement, how the evidence of the Vice Chancellor could assist him in determining the issues on the substantive application before him. As he pointed out in his ruling on the bias application, the senior member, in making the earlier ruling (concerning the subpoena), did not state, or conclude, that the evidence thus contained in the plaintiff’s statement was irrelevant. Thus, there was no basis for the bias application made by the plaintiff. Nor is it reasonably arguable that the Tribunal member erred in failing to disqualify himself. Indeed, I note that the plaintiff did not make any oral submissions to me on ground 3. His written submissions on this point constitute no more than a reiteration of the ground itself.
Ground 4
Ground 4 of the grounds of appeal concern the use by the Tribunal of a document described as “summary of section 53A responses”.
Section 53A provides that if an agency makes a decision refusing to grant access to a document, and a reason for that decision is that the document is exempt under s 33(1) of the Act, because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person, the agency must give written notice to the person to whom the information in the document relates, upon receipt of any application under s 50(2) of the FOI Act.
After the compulsory conference in the proceeding before the Tribunal, a letter was sent to various individuals, who had made a complaint about the conduct of the plaintiff, pursuant to a practice note published by the Tribunal. Seventeen responses were received to that notice. A summary of the responses was prepared, omitting information from which the identity of the respondents could be determined. A copy of that summary was provided to the Tribunal, and became known as the “summary of section 53A responses”.
In paragraph 23 of his decision, the senior member noted that of the seventeen responses received, eleven persons consented to the disclosure of their personal information, and six persons opposed that disclosure.
In the present application, the plaintiff submits that the Tribunal should not have taken the s 53A summary into account. In particular, he submits that the document was irrelevant, and further that it was a selective summary, and thus of no weight.
In my view, the responses made to those submissions by Ms Mortimer are correct. First, s 98 of the VCAT Act provides that the Tribunal is not bound by the rules of evidence, and that the Tribunal may inform itself “on any matters as it sees fit”. The responses provided by the persons who had made complaints, and summarised in the s 53A document, were relevant, namely, as to the circumstances in which they had made their complaints, and their understanding as to the confidentiality with which the complaints had been made. Secondly, as pointed out by Ms Mortimer, in his oral submissions to the Tribunal, the plaintiff had, to some extent, relied positively on the s 53A document, by noting (correctly) that eleven of the seventeen individuals had consented to disclosure of the information contained in their complaints. The plaintiff did not object to the receipt by the Tribunal, or the use by it, of the s 53A summary, in the proceeding before it.
Accordingly, I do not consider that the plaintiff has made out a real or significant basis for contending that an error of law was made by the Tribunal in considering the s 53A summary.
Ground 5(a)
Ground 5(a) of the grounds of appeal alleges that the Tribunal erred in its application of s 30(1)(b) of the FOI Act, by having regard to an irrelevant consideration, namely, “a supposed principle that the investigation or prosecution of complaints made to university authorities should be kept confidential, instead of applying the terms of the FOI Act to the facts of the case”.
In his submissions in support of that ground, the plaintiff referred to paragraphs 35 and following of the Tribunal’s ruling. In those paragraphs, the senior member referred to an unreported decision of the Tribunal in a matter of O’Sullivan v Department of Education, Employment and Training[3], in which the Tribunal had previously concluded that it would be contrary to the public interest to disclose a note of a conversation which formed part of an investigation into a complaint about a school principal.
[3](Unreported VCAT Megay SM, 1 November 2002).
The plaintiff did not contend that the senior member, in this case, had expressly adopted the decision of O’Sullivan as authority for the principle that, in all cases, complaints to university authorities should be kept confidential. However, he submitted that it was implicit, from the text of the decision, that that principle had been derived, by the senior member, from his reference to O’Sullivan’s case.
In my view, it is not reasonably arguable that the Tribunal, in this case, did proceed on the basis of any such principle, whether derived from the decision in O’Sullivan or otherwise. In referring to the decision in O’Sullivan, the senior member was doing no more than identifying a previous case, in which the issue before the Tribunal was similar. In doing so, the senior member did not purport to rely on O’Sullivan as authority for any general principle relating to the confidentiality of complaints made to universities. The senior member had accepted, as a matter of fact, that if the complaints concerning the plaintiff were not kept confidential, it would inhibit persons raising complaints against the staff of the university. The senior member accepted that any impediment to the free flow of information between the university authorities and their staff, or the authorities and students, should not be impeded. He also accepted that it was in the public interest that the university authorities should be aware of any alleged misconduct by its staff. Based on those three propositions, the senior member accepted that it would be contrary to the public interest to disclose information as to complaints made to the university on a confidential basis. That conclusion was supported by the reference by the senior member to O’Sullivan’s case. However, the structure and process of reasoning adopted by the senior member, as I have outlined above, did not involve any blind application of the type of principle or doctrine referred to in paragraph 5(a) of the grounds of appeal. Accordingly, no significant or real basis has been made out for that ground of appeal.
Ground of appeal 5(b)
Ground of appeal 5(b) alleges that the Tribunal erred, in its application of s 30(1)(b) of the FOI Act, by failing to have regard to a relevant consideration, namely, the fact that the respondent’s policy of keeping complaints confidential, from those against whom they are made, was contrary to law. The plaintiff submits that the policy of the Tribunal was contrary to law, because it constituted a breach of the Enterprise Agreement entered into between the university and its staff members. The plaintiff, in his submissions to the Tribunal, and before me, referred to the decision of the Federal Court in McAleer v The University of Western Australia[4].
[4][2007] FCA 52.
I assume that the submission made by the plaintiff is based on paragraph 65.9 of the Enterprise Agreement, which is referred to in paragraph 10 of the senior member’s decisions. That provision requires that the university, in taking disciplinary action against a staff member, must advise the staff member in writing of allegations made against him, and must give him a reasonable opportunity to be heard. The plaintiff has not identified any specific provision of the Enterprise Agreement which, in terms, specifically required the university to provide to him the identity and contents of any complaint made about him. He has thus not been able to identify any specific provision of the Enterprise Agreement, which would be in direct conflict with the policy relied upon by the university, in support of its assertion that complaints made to it about staff members are kept confidential.
In my view, Ms Mortimer is correct in pointing out the underlying fallacy in the proposition contained in paragraph 5(b) of the grounds of appeal, namely, that compliance with the general obligation contained in clause 65.9 of the Enterprise Agreement did not require, in each case, disclosure of the identities of complainants and witnesses, nor the precise terms of their complaints or statements about the plaintiff. In this respect, this case is quite different to the decision referred to by the plaintiff, namely, McAleer v The University of Western Australia. In that case, it was common ground that the university had breached a particular clause (clause 6.1.1) of the Enterprise Agreement, by which it was required to give the applicant detailed particulars of the allegation made against him. Accordingly, I do not consider that the plaintiff has established a significant or real argument that the Tribunal failed to take into account a relevant consideration.
Ground 6
Ground 6 of the grounds of appeal was in the following terms:
“The Tribunal misconstrued section 35(1)(b) of the FOI Act, by asking whether some potential witnesses would be inhibited from speaking, rather than making the inquiry required by the words of the section, which asks whether there would be such a severe impairment that the result would be contrary to the public interest.”
In paragraphs 42 to 60 of his reasons, the senior member ruled that documents 9 and 10 are exempt documents under s 35(1)(b) of the FOI Act. For the same reasons, in paragraph 79, he held that documents 18 and 19 are exempt under s 35(1)(b). Ground 6 of the proposed grounds of appeal focuses on paragraph 58 of the senior member’s reasons, in which he concluded that documents 9 and 10 are exempt. In that paragraph it is stated:
“In my view, this is sufficient to show that there is an actual likelihood that similar information would not be forthcoming in the future. It is not necessary for the respondent to show that each person involved would not complain or give evidence in future if their identity was disclosed.”
The plaintiff submits that in that passage the senior member erred, by failing to determine whether disclosure of the information in the documents would be contrary to the public interest. He submitted that it was insufficient for the senior member to conclude that disclosure of the documents would be reasonably likely to impair the ability of the university to obtain similar information in the future, unless the senior member also concluded that disclosure of the information would, as such, be contrary to the public interest. In support of that submission, the plaintiff referred to the judgment of King J in the decision of the Full Court in Ryder & Anor v Booth[5], in which his Honour stated:
“I do not think that section 35(1)(b) can be read to require proof only that the disclosure would be reasonably likely to impair the ability of the defendants to obtain similar information in the future. The reference to ‘public interest’ is an additional requirement and means that in addition to an answer in favour of the appellants to the last mentioned question the person or persons applying section 35(1)(b) must find that such impairment is so damaging to the public as to warrant non-disclosure of the documents under consideration.”
[5][1985] VR 869, 885.
In my view, ground 6 fails to disclose an arguable basis for appeal in this case, for a number of reasons. First, in construing s 35(1)(b) in the passage quoted above, King J expressed views which were inconsistent with the majority view in that case in the judgments of Young CJ[6] and Grey J[7]. In their separate judgments, their Honours each expressed the view that s 35(1)(b) identified, or defined, one aspect of the public interest. Their Honours held that, in order that a document be exempt under s 35(1)(b), it is only necessary to establish that disclosure of the document would be reasonably likely to impair the ability of the relevant agency to obtain similar information in the future. Thus the senior member of the Tribunal articulated, and applied, the correct test, as defined by the majority of the Full Court in Booth’s case.
[6]At 872-873.
[7]At 880.
On the other hand, if it had been necessary for the Tribunal to be satisfied that there were a relevant public interest which would be impaired by the disclosure of the information, it would seem that in his decision in respect of s 30(1)(b) the senior member had already found and upheld that public interest. As I have already stated, in finding that documents 9 and 10 were exempt under that subsection, the senior member had concluded that disclosure of the documents would be contrary to the public interest, because it would inhibit persons making complaints against staff of the university, which complaints might be justified. Thus, if it had been necessary for the senior member to apply the test postulated by King J in Ryder v Booth, it is clear that he would nonetheless have upheld the exempt status of the documents.
Ground 7
The plaintiff candidly conceded that ground 7 in his proposed grounds of appeal was “less significant”. Ground 7 states:
“The Tribunal erred by finding that the appellant had committed a breach of confidence, when such a finding was not open on the evidence and the law covering breach of confidence.”
In support of that ground, the plaintiff referred to paragraphs 45 and 71 of the reasons of the Tribunal, in which the senior member found that the plaintiff had committed a breach of confidence by disclosing to the Age newspaper, in summary form, the information which was contained in Dr King’s report. The plaintiff submitted that the question whether his conduct, in so disclosing Dr King’s report, constituted a breach of confidence, is a matter of law, and he contended that it is arguable there was no such breach.
In my view, the passages referred to by the plaintiff do not identify any conclusion of law by the Tribunal. Rather, the senior member, in those passages, made a finding of fact. There was sufficient evidence before the Tribunal to justify that finding. Further, as argued by Ms Mortimer, the finding was on the periphery of the Tribunal’s decision. Accordingly, ground 7 does not identify a real or significant argument that an error of law was made by the Tribunal.
Ground 8
As I have already stated, ground 8 was abandoned by the plaintiff.
Ground 9
Ground 9 of the proposed grounds of appeal states:
“The Tribunal misconstrued section 50(4) of the FOI Act by holding that ‘considerations personal to the applicant’ are irrelevant under that subsection.”
In determining that the public interest “override”, contained in s 50(4), did not apply, the senior member of the Tribunal noted that the plaintiff relied on issues relating to the disciplinary processes undertaken against him by the university. The senior member characterised the applicant’s concerns as being “purely private”, and held that, as such, they were not relevant to a consideration of public interest under s 50(4). In doing so, the senior member referred to a passage from the judgment of Maxwell P in Secretary to the Department of Justice v Osland[8].
[8][2007] VSCA 96, [98] and following.
The plaintiff contends that the decision of the senior member, relating to s 50(4), contains an arguable error, because the Court of Appeal did not hold that matters which are purely private may not constitute matters of public interest. Further, he submitted that the decision of the Court of Appeal in Osland on s 50(4) was reversed by the High Court[9].
[9]Osland v Secretary to the Department of Justice (2008) 234 CLR 275.
Although the High Court in Osland’s case did overturn the decision of the Court of Appeal in respect of the application of s 50(4), it did so on a narrow ground, namely, that the Court of Appeal had erred in deciding that there was no basis upon which it could have been concluded that s 50(4) applied, without first inspecting the documents in question. The High Court did not express any disagreement with the construction of s 50(4) relied on by the Court of Appeal. That construction was consistent with the previous decision of the Full Court of the Supreme Court of Victoria in Director of Public Prosecutions v Smith[10]. Thus, I do not consider that the plaintiff has identified any basis upon which he might contend that the senior member applied the wrong test.
[10][1991] 1 VR 51, 75.
The plaintiff also contended that the senior member misapplied the relevant test. He supported that submission by reference to the judgment of Kirby J in Osland’s case, in which his Honour accepted that there may be a relevant public interest in the public perception of justice being properly done[11].
[11]Para [118]-[130].
The submission by the plaintiff in this regard seeks to derive a relevant public interest, in the plaintiff having access to the documents, from his grievance with the disciplinary processes undertaken by the university in respect of him. However, he has not demonstrated how access by him to the documents would serve a relevant public interest of the kind identified by Kirby J. Nor has he demonstrated how any such public interest would sufficiently outweigh the factors, which otherwise caused the documents to be exempt, so as to require their disclosure. Thus, the plaintiff has not demonstrated how it is arguable that the Tribunal erred in failing to conclude that the public interest (of the kind referred to by Kirby J) would so “require” that he be granted access to the documents, as to override the factors which otherwise caused the documents to be exempt.[12] Accordingly, I am not persuaded that he has a real or significant argument that the Tribunal member made an error of law by misapplying the correct test under s 50(4) of the FOI Act.
[12]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 343 (Phillips JA).
Conclusion
For the foregoing reasons, I do not consider that any of the grounds of appeal, sought to be relied upon by the plaintiff, demonstrate that there is a real or significant argument, which may be advanced by the plaintiff, that an error of law was made by the Tribunal in its decision of 6 May 2009. Accordingly the appeal of the plaintiff from the decision of Associate Justice Daly made on 20 August 2009 should be dismissed.
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