Secretary, Department of Treasury and Finance v Kelly
[2001] VSCA 246
•21 December 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5353 of 2001
| THE SECRETARY, DEPARTMENT OF TREASURY AND FINANCE | |
| Applicant/Appellant | |
| v. | |
| JOHN EDWARD KELLY | Respondent |
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JUDGES: | ORMISTON, CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15-16, 20 August 2001 | |
DATE OF JUDGMENT: | 21 December 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 246 | |
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Freedom of information – Whether multiple requests can be treated as one – Whether request would substantially and unreasonably divert the resources of the organisation – Power of VCAT to order release of documents – Issue Estoppel – Freedom of Information Act 1982, s.25A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | Mr G.A.A. Nettle, Q.C. | Freehills |
| For the Respondent | Mr J.E. Middleton, Q.C. | Middletons, Moore & Bevins |
| Mr P.J. Booth |
ORMISTON, J.A.:
In this matter, which has caused me great difficulty, I have had the advantage of reading the reasons of Chernov, J.A. in draft form. In substance I agree with both his conclusions and reasons, but I would prefer to express my own reasons for considering that the 321 requests made by the respondent may, in part or in whole, be dealt with together for the purpose of s.25A of the Freedom of Information Act 1982.
In the first place I agree, as I believe it was ultimately conceded by counsel for the appellant, that it is inappropriate to resolve the issue by an application of the “singular-plural” rule, as embodied in s.37 of the Interpretation of Legislation Act 1984. Section 25A, whatever be the proper interpretation of the word “request”, is intended to operate distributively, that is, it is intended to apply to each request made pursuant to s.17 of the Act. Ordinarily, therefore, each request is to be looked at separately for the purposes of s.25A.
That is not the end of the matter, however, for the issue here is whether the appellant could properly characterise all the requests as effectively a single request.[1] Despite the protestations of the respondent there is no real factual problem in treating all the requests as at the least related and directed to a single subject matter, namely the circumstances surrounding the explosion and fire on 25 September 1998 at the Esso/BHP plant at Longford in Gippsland, although some may have been drawn too widely. In addition, there was but one person who made all the requests,[2] which, though made in his name, were made on behalf of Esso Australia Pty. Ltd. and Esso Australia Resources Pty. Ltd.[3], they were all made in the same period, namely from 10 to 24 December 1999, and in most of the later requests reference was made to one group or other of the earlier requests, as a group in each case. The nature of and the connection between the requests in those cases may be gauged from one example[4]:
“I request that you provide me access to all documents comprising Memoranda prepared by the Department of Natural Resources and Environment or any consultant retained or instructed by the Department of Natural Resources & Environment in relation to the explosion and fire which occurred at the Esso/BHP plant at Longford in Victoria on 25 September 1998, excluding those documents to which access was requested in request numbers DNRE 1-30 (dated 10 December 1999).”
The connection between the 321 requests was so obvious that the parties and their solicitors corresponded and consulted, for the purposes of the section, by letters directed to the totality of the requests, not by separate letters relating to the individual requests: see also the “overview” discussed in para.[5].
[1]As will be seen, the appellant may not have been entitled to treat all 321 requests as one in that requests to four departments other than the Department of Treasury & Finance were transferred, at their instigation, to the appellant department.
[2]It is possible that, even if different persons had made the requests (say the partners or employees of the respondent’s firm of solicitors), it would have made no difference if they were made on behalf of the same client.
[3]As those companies were then named. Counsel for the respondent seemed unwilling to concede Mr Kelly’s role as acting on behalf of the companies, but it was stated in the Summary for the Court and was not otherwise disputed. There was, moreover, independent evidence in the form of an “overview” of the requests (discussed below in para.[5]) which directly referred to their being made on behalf of Esso.
[4]Amended request No. DNRE 35, 17 December 1999.
To my way of thinking the device employed by the respondent (and his clients) was as transparent a means of evading the requirements of s.25A as one could fairly imagine. Perhaps the transparency of the device led the appellant and its responsible officers too early into characterising the requests as likely to “substantially and unreasonably divert the resources” of the Department, and that is why, for the reasons stated by Chernov, J.A., the matter should be remitted to the appellant department to deal with according to the requirements of the section as we shall have interpreted it.
Subject to one matter, I consider that all the requests should have been included in a single document setting them all out in what would have been a far more intelligible form. During the course of the required consultations, the respondent prepared what he called an “Overview of the Esso FOI Requests – December 1999”, which in a slightly amended form was sent to the appellant as an attachment to a letter dated 24 February 2000. Ironically that “overview” stretched barely into a third page, in contrast to the 501 pages which the 321 separate requests took in the appeal books.[5] The one matter which could well have required some division of the requests was that the respondent sent 84 almost identical[6] requests to each of the five departments referred to in Chernov, J.A.’s judgment, so that it was by virtue of four of those departments’ transferring to the appellant pursuant to s.18 the requests directed to them that they came into the hands of the appellant for processing. Presumably that was done on the basis that “the subject matter of the document” was “more closely connected with the functions of another agency”: see sub-s.(2)(b)(ii). Consequently, although the matter was not argued in detail before the Court, it would seem hard to blame the respondent for choosing to direct the requests to more than one department, so that in this limited respect the aggregation of requests can most likely be attributed to the relevant department’s decision to transfer, with the consequence that the appellant could well think it appropriate to deal with each set of requests as a group rather than with all the requests as a whole, for the purposes of s.25A of the Act.[7]
[5]To be fair to Mr Kelly, he said that the “overview” “summarises (although not precisely)” those requests.
[6]Save for the name of the addressee in each case.
[7]Again, although the matter was not argued, the fact that certain requests had been transferred may also have a bearing on whether the Department’s resources had been substantially or unreasonably diverted in circumstances where the additional work arose from the need to obtain documents from the transferring department (notwithstanding the obligation as to sending documents in the last clause of s.18(2)) or to make enquiries of one or other of those departments for the purposes of the Act. They will remain issues for the appellant to resolve in the future.
Relevant parts of the Act, especially s.25A and of the report of the Legal & Constitutional Committee of the Parliament[8], which raised the issue of “voluminous requests”, have been set out in the judgment of Chernov, J.A. They point clearly enough to the desire of the Parliament to qualify the legislative scheme by permitting agencies to refuse access in the unusual circumstances that the necessary work to process a request would “substantially and unreasonably divert the resources of the agency from its other operations”. Counsel for the respondent said that s.25A should be read down by reason of the general objects of the Act, set out in s.3, “to extend as far as possible the right of the community to access to information in the possession of the government” (sub-s.(1)) and requiring that the discretions conferred by the Act shall be exercised “to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information” (sub-s.(2): see also s.13 giving “a legally enforceable right to access in relation to agency documents”. Obviously that must be qualified by the later legislative intention embodied in the 1993 insertion of s.25A, but, doing one’s best to read the new section consistently with the rest of the statute, I would accept that the new section should only be applied to a clear case of substantial and unreasonable diversion of a department or other agency. That, however, brings with it the consequence that it would be unlikely that any single request, if it were expressed in terms similar to those employed by the appellant in this case, would ever offend against the inserted section.[9] One can imagine more broadly stated requests, but they would almost invariably fall foul of s.17, especially sub-s.(2), which requires sufficient information “to identify the documents”. Requests must be for specific documents or groups of documents, not for every document in a broad category.
[8]Report Upon Freedom of Information in Victoria, being the 38th report of the Committee published in November 1989.
[9]The example given above in para.[3] gives a fair idea of the extent of each of the requests here made.
The consequence, therefore, of a strict construction is that, unless it were to apply to a group of like requests (whether expressed in a single document or in a series of documents), it would have little, if any, operation. It is only by a combination of detailed requests, whether set out in one or many “requests” within the meaning of the Act, that one is likely to find the circumstances which properly would entitle a minister, department or other agency to refuse to comply with the request on the grounds of substantial and unreasonable diversion.
That conclusion, as a matter of practical application, points to the right of the appellant to group the present requests together as a single request. The answer advanced in argument by the respondent was that s.25A must be construed as applying to a single request, in a form required by s.17, and to apply it further would be rewriting the statute in a manner inimical to the rights of a requesting party. There was, so it was said, no power to treat multiple requests as but one single request, by reason of there being thereby a perceived evasion of the requirements of the statute. So it was argued that a reading of the section to overcome any supposed evasion of that kind would be too uncertain and should be rejected in interpreting legislation such as the Freedom of Information Act.
That argument, to my way of thinking, misunderstands the law as to avoidance and evasion of statutes. It may have become unfashionable to view evasion as a possible basis for an ameliorative or otherwise purposive interpretation of a statute. It is barely touched upon in the latest edition of Pearce & Geddes: Statutory Interpretation in Australia (5th ed. 2001)[10], although Bennion on Statutory Interpretation (3rd ed.) devotes the whole of Part XXII to “Construction against Evasion”.[11] The last (12th) edition of Maxwell on the Interpretation of Statutes (1969) also contained a chapter on “Construction to Prevent Evasion or Abuse”[12]. It would seem that the general principle, at least as described by Bennion, became confused in recent years with the principle of “fiscal nullity” described and expounded in decisions of the House of Lords such as W.T. Ramsay Ltd. v. Inland Revenue Commissioners[13] and Furniss v. Dawson[14], which in turn was rebuffed in Australia by the High Court in decisions such as John v. Federal Commissioner of Taxation[15], in which it was held unanimously that the principle was not “appropriate to be adopted in the construction of the [Income Tax Assessment] Act generally”[16]. Moreover in relation to stamp duty, although the High Court had previously refused finally to rule on its applicability to that kind of legislation, it is more than apparent that they viewed it with disfavour: see Comptroller of Stamps (Vic.) v. Ashwick (Vic.) No. 4 Pty. Ltd.[17].
[10]The only direct discussion is in relation to taxation legislation, which has its own peculiar statutory rules: see paras.9.36-9.37. There may also be implicit recognition of the problems arising in a discussion in Chapter 2 of “Approaches to the Interpretation of Legislation”.
[11]At pp.785-803.
[12]At pp.137-145.
[13][1982] A.C. 300.
[14][1984] A.C. 474.
[15](1989) 166 C.L.R. 417.
[16]At 435. This conclusion seems to have rested on the fact that the Assessment Act had its own anti-avoidance provisions.
[17](1987) 163 C.L.R. 640 at 653-655.
In consequence, so far as I have been able to ascertain, little has been said about evasion as such in recent years by Australian courts, the emphasis being primarily on ascertaining the purpose of the legislation and to give specific provisions an interpretation consistent with that purpose. It is therefore necessary to look to general principle in the interpretation of statutes, in particular the purposive rule, to which the corollary ought to be that any deliberate attempt to evade the provisions of a statute should be taken to be caught by the provision itself. One aspect of the rule preventing evasion is said by Maxwell on Statutes[18] to be “that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act”.[19] As was said many years ago by Wilmot, C.J.[20], when the courts find any attempt at concealment, they should “brush away the cobweb varnish, and shew the transactions in their true light”. If one is prepared to accept that there is a general principle of interpretation, at least a desire, to give effect to substance rather than form in the face of attempted evasion of some statutory provision, as examined in some detail in Bennion[21], then one should be prepared, as I am, to adopt this statement of principle expressed by Bennion[22]:
“The Court will infer an intention by Parliament that evasion of an Act should not be countenanced where the method used is constant repetition of acts which taken singly are unexceptionable, but which considered together cumulatively effect an evasion of the purpose of the Act.”
One may allow that the authorities cited by the learned author are by no means direct or compelling in their support of the proposition, but there ought, in my opinion, to be no doubt that where a person affected by a statute deliberately chooses either to repeat or to break up into smaller parts a step or transaction required by that statute in order to avoid its outcome, the statute ought to be interpreted so that one looks at the substance, namely at the totality, of what the person affected is doing or purporting to do. If that amounts to a breach of the statute or otherwise to a circumstance which might bring into operation a provision of a statute, then the party affected ought not to be allowed to devise and use such a scheme merely for the purpose of avoiding the object of the provision. Although I know of no direct authority, I would suggest that a suitable analogy is the rule against splitting of causes of action or claims, which, though not applicable to courts of superior and unlimited jurisdiction, has been applied, more often than not in terms of a rule of court, to claims made in inferior jurisdictions for the very good purpose of preventing people avoiding the operation of the jurisdictional limits of those courts by breaking claims up into claims for sums which separately come within the jurisdiction of the inferior court: see the discussion and cases cited in Pioneer Concrete (Vic.) Pty. Ltd. v. L. Grollo & Co. Pty. Ltd.[23]. The authorities were by no means uniform and were probably correctly explained by Kaye, J. as not reflecting any common law rule, but they all came from an era when rules of court were given an essentially literal interpretation.
[18]12th ed. at 137.
[19]Cf. Hepples v. Federal Commissioner of Taxation (1992) 173 C.L.R. 492 at 510 per Deane, J.
[20]In Collins v. Blantern (1767) 2 Wils.K.B. 347 at 352.
[21]At pp.785-803.
[22]Section 324 at p.798.
[23][1973] V.R. 473.
The difficulty that is often seen in relation to this kind of statutory provision is that it is seen artificially to penalise a choice made by a person to organise a business or other transaction in a form appropriate to that transaction, albeit that if it had taken a different form the statute would have applied directly to it. Many judges both in England and in this country have been loath to put the tag of evasion or sham on transactions which can be perfectly easily explained in commercial or other terms, notwithstanding that the particular choice made has taken these outside the provisions of a particular statute. It is unnecessary to canvass the authorities, which include cases such as Ashwick, for this reason. The transaction here in issue is simply the making of the requests for documents pursuant to the Act. The exercise in all cases of statutory interpretation is to ask the question whether the particular transaction comes within the proper interpretation of the provision relied upon. In many of the cases where characterisation has been in issue the statute in question has sought to impose a fiscal liability upon a transaction entered into by the individual with other parties. There, I would concede, one must be careful not to characterise a transaction as something which it is obviously not, merely to bring it within the terms of a particular provision.
Here, however, we are not dealing with a transaction which has an independent existence or raison d’être or has as one of its purposes, at least, the creation of rights and duties between parties other than the appellant agency. What is presently in issue is merely the manner in which a request is made pursuant to the statute. The issue is how properly to characterise what the respondent did and to ask whether it is essentially but one request or whether it was, as the respondent sought to construct it, a series of 321 separate requests. The artificiality charged against the respondent, the evasion alleged for the purpose of the rule of interpretation, lies solely in the manner in which the requests were made under the statute. The only choice which the respondent had to make was one controlled by the nature of the statute and cannot be said to have been dictated by outside circumstances or purposes. If one looks at what the respondent did as a whole, then I have little doubt that his request should be viewed as a single request, or at least as five only separate requests, made up of the specific document categories contained in the 84 or 85 different “requests” served on the respondent and the other departments. The object was to serve requests which took them, so it was thought, outside the power of the departments or department to refuse to process them pursuant to s.25A. In my opinion the attempt failed and each request is properly to be characterised, in the manner I have described, as comprising all the requested documents sought from each of the five departments, or possibly from them all.
For that reason I consider that the first question should be answered adversely to the respondent. I would otherwise agree with the orders proposed by Chernov, J.A.
CALLAWAY, J.A.:
I gratefully adopt the statement of facts and issues in the reasons for judgment written by Chernov, J.A. and concur in the disposition of the case that his Honour proposes.
Not without misgivings, I agree with the other members of the Court that it will sometimes be permissible to group requests for the purposes of s.25A of the Freedom of Information Act 1982 in order not to defeat the purpose of the amendment made in 1993. I also agree that the 321 requests the subject of this proceeding may be grouped in the way their Honours describe.[24] I express no opinion about the criteria: whatever they are, they must be satisfied in this case.
[24]See especially the judgment of Ormiston, J.A. at [5].
I would refuse leave to appeal on the second question on the ground that, even if the Tribunal exceeded its powers by broadening the basis on which access to the gas file index was originally granted, its order does not occasion substantial injustice. The appellant must comply with s.25A(6)(c) in order to deny access, as it evidently desires to do. I would refuse leave to raise the third proposed question, on the ground that it lacks utility in this case. The Tribunal was doing no more than expressing a view on the evidence that was then before it. There is no issue estoppel.
CHERNOV, J.A.:
Application for leave
On 14 March 2001 the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by its President and one of its Deputy Presidents set aside the determination of the applicant (“the Department”) to refuse to give the respondent
access to certain documents under the Freedom of Information Act 1982 (“the Act”). The Department’s refusal to give such access was based on the ground that to process the respondent’s requests for the documents would substantially and unreasonably divert the resources of the Department from its operations within the meaning of s.25A(1)(a) of the Act. During the hearing of the matter, the Tribunal ordered that the Department release to the respondent’s counsel the Energy Project Division gas file index (“the gas file index”). The Department seeks leave to appeal from these decisions and intends to prosecute the appeal if leave is granted. The Department commenced the application for leave by summons which was filed on 11 April 2001. The summons came on for hearing before two judges of this Court on 27 April 2001. Because there was doubt as to whether the Department had sufficiently identified the necessary questions of law[25] that were sought to be raised by the proposed appeal, the hearing of the application was adjourned to 11 May 2001 to enable it to recast the questions and the proposed notice of appeal. On the adjourned date, the Department pursued its application for leave to appeal, which was strongly opposed by the respondent. In the result, the Court hearing the application directed that it be brought on for hearing before the Court that will hear the appeal if leave is granted.
[25]See Secretary to the Department of Premier and Cabinet v. Hulls [1999] 3 V.R. 331 at 335.
Background to proceeding
It is notorious that, on 25 September 1998, an explosion and fire occurred at the Longford gas plant in the State of Victoria with consequential interruption to the supply of natural gas to consumers. The plant was owned and operated by Esso Australia Pty. Ltd. (formerly Esso Australia Ltd.), Esso Australia Resources Pty. Ltd. (formerly Esso Australia Resources Ltd) and BHP Petroleum (Bass Strait) Pty. Ltd. I will refer to the three companies as “Esso”. Not long thereafter, a class action was commenced against Esso in the Federal Court of Australia in which the applicants claimed that, as a result of Esso’s negligence and misleading and deceptive conduct, they have suffered loss and damage. Although not a defendant to the proceeding, the State of Victoria was joined by Esso as a third party on the basis that it was negligent and had relevantly engaged in misleading and deceptive conduct. At or about the same time, third party proceedings were launched against a number of instrumentalities and authorities of the State which were involved in the distribution and sale of gas to consumers.
In November 1999 the State sought an order from the Federal Court which would limit the extent of discovery it was required to make in the proceeding. It claimed that, given the extent of the litigation, it would be oppressive if it had to provide discovery in the normal way. Notwithstanding Esso’s opposition, the judge acceded to the State’s application. His Honour agreed that it would be oppressive to the State if it were forced to provide normal discovery. At a later hearing, counsel for Esso agreed with that view[26]. In the result, his Honour ordered on 3 December 1999 that the State give discovery of only a limited category of documents and that its usual obligation to make inquiries for discovery purposes be also limited in the way set out in the order. More particularly, the order limited discovery to defined categories of documents which were in the possession of the Department and the Departments of Premier and Cabinet and of Natural Resources and Environment. Furthermore, the order limited and defined the State office holders who were required to make relevant inquiries for documents.
[26]Johnson Tiles Pty. Ltd. v. Esso Australia Ltd. (2000) 174 A.L.R. 701 at 704.
On 10 December 1999, Esso, through the respondent, who is a member of the firm of solicitors which represents Esso in relation to the Longford incident, filed 54 written requests pursuant to the Act for access to a range of documents. The requests were filed with the following government departments:
(a) the Department
(b) the Department of Natural Resources and Environment
(c) the Department of State and Regional Development
(d) the Department of Premier and Cabinet
(e) the Department of Infrastructure.
Each group of requests sought access to the same category of documents, which, it was said, related to the reticulation of gas in Victoria. On 24 December 1999 the respondent filed with the Department a further 51 written requests for access to documents. Thus, a total of 321 such requests were made by the respondent to the five agencies. The requests were later amended, but the amendments are not relevant for present purposes and can be disregarded.
In January 2000, the agencies, other than the Department, transferred the respondent’s FOI requests to the Department pursuant to s.18(2)(b)(ii) of the Act. The transfers were made on the basis that the subject matter of the relevant documents was more closely connected with the functions of the Department than with those of the transferors. It seems that no issue arises between the parties in respect of such transfers. The person who was appointed by the Department to process the respondent’s applications for access to documents was Karen Jean Macdonald (“Ms Macdonald”).
The relevant legislation
In order better to understand the circumstances leading to the present application, it is necessary to interrupt the chronology of events and to refer to some of the relevant provisions of the Act. A number of sections make it clear that the Act is to be given a wide operation. Thus, for example, s.3, which sets out the object of the Act provides, inter alia, by sub-s.(1) that the object of the Act is to extend as far as possible the right of the community to access to information in possession of agencies of the government. Sub-section (2) states that it is the intention of the Parliament that the provisions of the Act be interpreted so as to further the object set out in sub-s.(1) and that any discretion conferred by the Act is to be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. Similarly, s.13 provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to a document of a government agency other than exempt documents (which are defined but are not relevant for present purposes).
The Act deals, to some extent, with the form in which an application for access to documents is to be made. For example, it provides that such an application is to be made by a “request” which is defined in s.5(1) as meaning (unless the context or the subject matter otherwise indicates) a request made in accordance with s.17, which, in turn, provides by sub-s.(1) that:
“A person who wishes to obtain access to a document of an agency ... shall make a request in writing to the agency .. for access to the document”.
Although the sub-section speaks of a written request for access to “the document”, it was common ground that “document” in that provision includes “documents”. Section 17(2) requires the applicant for access to documents to provide in the request “such information concerning the document as is reasonably necessary to enable” the relevant officer “to identify the document”.
It seems that until 1993 the Act did not require an applicant for access to documents to pay a fee for that service. The 1993 amendments to the Act, however, introduced provisions which require payment of fees by applicants for access to information. For example, s.17(2A) stipulates that “a request must be accompanied by a fee of $20” and s.22 makes elaborate provisions as to the fees the agency is entitled to charge for its efforts to provide the documents sought.
Consistently with the object of the Act of facilitating the public’s access to documents held by the government and its agencies the Act, principally through s.17(3) and (4), requires relevant officers of agencies to which an application is made for access to documents to assist the applicant in formulating and pursuing the request. A time constraint is placed on the processing of the applications. Section 21 requires the relevant agency to notify the applicant of its decision with respect to the request as soon as practicable but, in any case, within 45 days of its receipt of the request. Section 53(1) provides that failure to provide access to a document within the statutory period is deemed to be a refusal for the purposes of the Act.
Section 25A is an important provision for present purposes. It deals, inter alia, with the circumstances in which the agency may properly reject the application for access to documents without necessarily first having processed the request. Under sub-s.(1)(a) such refusal may be made if the agency is “satisfied that the work involved in processing the request ... would substantially and unreasonably divert the resources of the agency from its other operations ...” Sub-sections (2) to (5) set out matters to which the agency can and cannot have regard in determining whether to refuse to grant access to documents under sub-s.(1). Relevantly for present purposes, sub-s.(6) operates to create, in effect, conditions precedent to the agency being able to refuse the request pursuant to sub-s.(1). It provides that before it can so reject an application for access to documents it must engage in a consultative process with the applicant and provide him or her with certain information. The sub-section is in the following terms:
“(6)An agency or Minister must not refuse to grant access to a document under sub-section (1) unless the agency or Minister has-
(a)given the applicant a written notice-
(i)stating an intention to refuse access; and
(ii)identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and
(b)given the applicant a reasonable opportunity so to consult; and
(c)so far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.”
An applicant who has been refused access to documents under sub-s.(1) is entitled under s.25A(9) to apply to the Tribunal for a review of the decision.
Section 17(2) consultations
I now return to the chronology of events that led to the Tribunal’s decision. The first matter that had to be resolved between the parties once the requests were filed by the respondent, was Ms Macdonald’s claim that the requests did not sufficiently specify the documents to which access was sought as is required by s.17(2). Thus, during February, March and April 2000 correspondence and consultations took place between the respondent and Ms Macdonald for the purpose of resolving the s.17(2) issue. The parties, however, did not reach agreement on the matter and on 20 April 2000 the Department’s solicitors, Freehill Hollingdale and Page (“Freehills”) wrote to the respondent stating that although the Department remained of the view that “on the whole, your requests do not specify documents with sufficient particularity to enable them to be readily identified ... [the Department] does now have a better understanding, albeit incomplete, of the type of documents to which, in general terms, you seek access.” The letter went on to say that the respondent refused to accept that his original requests did not comply with s.17(2) of the Act and that, because he had been unwilling significantly to modify the requests, the Department has “determined that the work which would be involved in processing [them] .. would substantially and unreasonably divert its resources from its other operations. Accordingly, you should regard this letter as written notice pursuant to s.25A(6)(a)(i) of the Act that our client intends to refuse access to the documents which you have requested.” Thus, the Department gave notice of its intention to refuse access pursuant to s.25A. The letter concluded by asking the respondent to contact Ms Macdonald with a view to consulting with her as to how the requests might be made in a form which would remove the ground for the Department’s intention to refuse access to the relevant documents. The respondent treated the letter as a refusal by the Department to grant him access to the documents on the alleged basis that his requests did not comply with the requirements of s.17(2). Consequently, on 20 April 2000, he applied to the Tribunal to review that decision, claiming that the refusal was constituted by the Department’s failure to make a decision to grant access to the documents within the time provided by s.21 of the Act.
Notwithstanding this application, the respondent and Ms Macdonald continued to “consult” with one another concerning his requests for access to documents and, in particular, whether they could be modified to remove the potential ground for refusal under s.25A(1). Such consultations, however, produced nothing more than allegations by or on behalf of the Department that the requests were not in a proper form and counter-claims by the respondent that Ms Macdonald was refusing to co-operate, contrary to the requirements of the Act. Finally, on 31 May 2000, Freehills wrote to the respondent advising that the Department had decided to refuse to grant him access to the documents on the basis that to do so would substantially and unreasonably divert the resources of the Department from its other operations. In amplifying the decision, the solicitors advised that the Department had formed that view:
“... because the scoping which it had conducted has revealed that to process your requests would require several thousand files to be retrieved and searched in order to obtain documents which might fall within the terms of the request... the present estimate is that there would be at least 4,800 files (each containing an average of 300 pages) and up to 12,000 files which would need to be reviewed in order to answer your request.”
By letter dated 2 June 2000, the respondent sought an internal review of that decision and, by letter dated 16 June 2000 the Department affirmed its decision to refuse access. On 20 June 2000, the respondent applied to the Tribunal for a review of the decision to deny him access to the documents on the ground that s.25A(1)(a) operated.
Hearing before Tribunal
The respondent sought to have his two applications for review heard together but the Tribunal ruled that it would first hear and determine the application relating to s.25A. Hence, the application that was referable to s.17(2) was postponed and heard after the Tribunal determined the s.25A application. At the time of the hearing of the matter before us, the decision on the s.17(2) application remained reserved.
The application to review the Department’s determination of 31 May 2000 was heard by the Tribunal on 4, 5 and 6 December 2000. There were two main issues between the parties. The first was whether the conditions of s.25A(1) were satisfied, namely whether the work involved in processing the request would substantially and unreasonably divert the resources of the Department from its other operations. More specifically, the Tribunal had to consider whether the Department could properly group the 321 requests for the purpose of determining whether the conditions in s.25A(1) were satisfied or whether each request had to be considered separately for that purpose. The second main issue was whether the Department had complied with its obligations under s.25A(6) to consult with the respondent with a view to making the request in a form that would remove the (intended) ground for the refusal to process and to provide the respondent with any information that would assist in the making of the requests in that form.
The principal witness for the Department was Ms Macdonald, who made the original decision to refuse access. It is convenient to say something at this point about Ms Macdonald’s qualifications, including her experience, which were strongly criticised by the respondent at the hearing of the matter before the Tribunal. At all relevant times, Ms Macdonald was the Senior Freedom of Information Officer of the Department, a position which she has held since 25 May 1998. She is a Bachelor of Laws from the University of Melbourne and was admitted to practice in Victoria in 1983. She was employed in the Victorian public service since January 1984. In a typical year, her unit in the Department processes approximately 60 requests for access to documents under the Act. She herself deals with about one-half of them, but as the Senior Officer, she has general knowledge of all FOI requests that are processed by her unit. In her evidence, Ms Macdonald said that she made the decision to refuse access to the respondent on the basis that to process the requests would substantially and unreasonably divert the resources of the Department from its other operations. It should be noted that, subject to one exception, in considering whether the 321 requests would substantially divert the resources of the Department, Ms Macdonald did not have regard to the requests individually, but as one group.
In determining which files to examine for the purpose of ascertaining whether they contained the documents which were sought by the respondent, Ms Macdonald undertook a sampling process with the assistance of a former employee of the Energy Project Division who had managed its records system. He examined the 321 requests of the respondent and told Ms Macdonald that there were approximately 12,500-13,000 files and 7,000 document records in existence which came from the Energy Project Division and that, of those files, approximately 2,600 related to the reform of the gas industry. Ms Macdonald said that she was told that virtually all of the 2,600 files would contain documents which would fall within the terms of the requests and it therefore seemed reasonable to her to select a sample of those files. Thus, she selected by way of random selection a sample of 21 files from the 2,600 files of which she reviewed ten. On the basis of the time taken to conduct a review of the ten files, she estimated that it would take one FOI officer working full-time approximately 14 years to review the 2,600 files.
In the course of the sampling exercise, the Department prepared the gas file index which was an index of the 2,600 files. Ms Macdonald, however, did not provide it to the respondent because, as she explained, she believed that it would not be helpful to him. At the hearing, the respondent’s counsel called for the file and, because the Department objected to producing it to the respondent, the Tribunal examined it for the purpose of ascertaining its relevance and whether it would be otherwise appropriate to provide it to the respondent. It formed the view that the gas index file showed that many files had no bearing on the information that was being sought by the respondent and therefore it might help him to narrow or otherwise reformulate his requests. Accordingly, it ordered that the gas file index be produced to the respondent.
The Tribunal concluded, in effect, that the Department erred when it processed the respondent’s requests as if they were one request. It was of the view that “request” in s.25A(1) meant an individual request and that the provision did not permit the Department to combine the respondent’s requests for the purpose of determining whether the work involved in processing them would amount to the oppression contemplated by the section. The Tribunal also held that the Department had failed to comply with s.25A(6)(c). It held in the alternative that, if it was wrong in its conclusion that the Department could not properly aggregate the 321 requests under s.25A(1), it had “failed to establish that any one of the 321 requests made in this case was of the kind that the processing of them [sic] would substantially and unreasonably divert the resources of the [Department]”. The Tribunal went on to say that it was not persuaded by the evidence that the processing of the respondent’s requests, even if grouped as a single request, would “more probably than not substantially and unreasonably divert the resources of the respondent.” It was very critical of the sampling process undertaken by Ms Macdonald and of her lack of experience and her almost total reliance upon the opinion of a former officer of the Department who was not called to give evidence. The Tribunal did not accept that a selection of ten files from a total base of 2,600 was a “convincing measure” of the time likely to be taken to review the 2,600 files.
Consequently, on 14 March 2001, the Tribunal set aside the Department’s determination by which it rejected the respondent’s requests and ordered that the matter be remitted to the Department. Paragraphs 1 and 2 of its order are in the following terms:
“1.The [Department’s] determination refusing to process the [respondent’s] requests is set aside.
2. The matter be remitted to the [Department] to:
(a)comply with the provisions of s.25A(6)(a)(b) and (c) of the Freedom of Information Act 1982;
(b)for recommendation of whether any one or more requests are exempt by reason of the provisions of s.25A(1) of the Freedom of Information Act 1982.”
Questions of law
The questions of law that have been identified by the Department in its draft notice of appeal as having been raised for determination are these:
(1)On its proper construction, is s.25A(1) of the Act capable of application to multiple related requests for access to documents (made at or about the same time by the same person) taken as a whole, or is this section confined in its operation to an individual request?
(2)Did the Tribunal have power to release, or order the release of, the gas file index to the respondent on the footing disclosed in paragraph 17 of its reasons.[27]?
Not long before the hearing of the application, the applicant gave notice that it would seek leave to add the following question of law:
(3)In concluding that it was not persuaded that the processing of the Respondent’s requests, even if grouped as a single request, would substantially and unreasonably divert the resources of the Department, did the Tribunal apply an incorrect test for determining whether the conditions of s.25A(1) were satisfied, alternatively come to a conclusion that was not open to it.
[27]The emphasised words in the proposed question (2) were sought to be added during the hearing of the appeal.
In the event that leave to appeal is granted and the appeal is successful, the Department proposes to seek orders that:
(a) the matter be remitted to the Department to be dealt with according to law.
(b)the decision of the Tribunal to release to the respondent the gas file index be set aside.
(c)the respondent deliver up to the Department all copies of the gas file index.
Is s.25A confined in its operation to individual requests?
It was the Department’s case in respect of the first question of law that, properly construed, s.25A(1) applies to multiple related requests for access to documents and that, given that there is relevant commonality between the 321 requests, the Department was entitled to aggregate them for the purpose of determining whether there was relevant oppression. It was contended that the purpose of s.25A(1) is to enable agencies to refuse to process voluminous requests, be they made in the form of one document or several documents where such processing would be oppressive in the sense contemplated by the provision. That this is the policy of s.25A(1), it was said, is evident from the wording and legislative history (to which reference will be made later).
At one stage it was contended for the Department that the singular “request” in s.25A(1) includes the plural “requests” having regard to s.37 of the Interpretation of Legislation Act 1984. It was submitted that no “contrary intention” for the purposes of that section is present in s.25A(1) or anywhere else in the Act and that, therefore, the decision of the Tribunal to the contrary was wrong. More particularly, Mr. Nettle argued that the Tribunal erred in reasoning that, because a contrary intention may be inferred in relation to s.17(2A)[28], the same contrary intention should be imputed to s.25A(1). It was further said for the applicant that just as it is to be supposed that an applicant is not intended to be able to avoid the payment of fees under s.17(2A) by claiming that a number of applications constitute but one application in respect of which only one fee applies, so too must it be concluded that an applicant is not intended to be able to avoid s.25A(1) by the expedient of dividing one application into several applications.
[28]Although the Tribunal in para.[20] of its reasons referred to s.17(2) it is clear that it meant to refer to s.17(2A).
Although Mr. Nettle did not formally abandon those arguments, he accepted the observation of Callaway, J.A. made during the hearing before us that, even if one were to read “request” as “requests”, this would nevertheless leave unclear which of them could be grouped for the purposes of determining whether s.25A(1) applied – is it only those that were filed on the same date and/or those that related to the same category of material and/or by the same parties, and so on? In other words, merely construing “request” as including “requests” does not answer the question whether the agency can group requests for the purposes of s.25A(1).
In the end, Mr. Nettle’s principal argument was that the real question was whether, as a matter of substance, the requests in this case amounted to “a request” for the purposes of s.25A(1). In considering this issue, said Mr. Nettle, an important consideration is that the respondent’s requests are all closely related to one another in the sense that they were all:
- made by the one person (on behalf of Esso);
-seek documents that are concerned with the same general subject matter;
- filed with the Department at or about the same time; and
-made as a result of the inability of Esso to obtain the documents sought pursuant to the ordinary discovery process.
Counsel emphasised that the respondent’s application should be contrasted with the situation where a number of requests are made to an agency by separate and unrelated persons albeit at or about the same time for access to a range of documents that might relate to the one general topic. In such a case it might be appropriate to consider each application as a separate request for the purposes of s.25A(1). In the present case, however, said Mr. Nettle, it is plain that the respondent is seeking to achieve under the Act what had been denied to his client by the Federal Court, namely, a discovery process by which it was sought to fish for documents that might be relevant to Esso for the purpose of the proceeding. It was claimed that notwithstanding that this de facto discovery application has been broken up into 321 separate written requests, it is but one application or request which has been characterised by the Federal Court (and apparently accepted by Esso) as being oppressive.
Mr. Nettle argued in the alternative that, even if one were to treat the requests as separate and individual requests, for the purpose of determining whether the processing of any one of them creates the oppression contemplated by s.25A(1), regard should be had to the fact that any particular request is to be processed in the context of the remaining requests thereby necessitating a review or at least some assessment of the remaining requests. Counsel submitted that it would be unrealistic for the purpose of ascertaining whether a particular request fell within s.25A(1) to disregard totally the demands on the agency’s resources that would be imposed by the accompanying requests made by the same person at or about the same time and which seek, generally, the same character of the information that is sought by the request in question. In any event, it was said, many of the requests would have to be read together given that a significant number of them in terms exclude documents that are referred to in other requests. Consequently, it was said, at least all of those requests would have to be considered for the purpose of determining whether they produce the oppression contemplated by the section.
Mr. Middleton, on the other hand, contended that it is clear from the language of the provisions in question and from the policy of the Act that agencies are required by the Act to process each request separately under s.25A(1). It was said that s.17(1) speaks of one written request and thus, “request” in s.25A(1) is a reference to a single request. Counsel for the respondent also emphasised the object of the Act to which reference has already been made. Importantly, it was said, sub-s.(2) of s.3 directs that the Act is to be interpreted so as to further the object set out in sub-s.(1) and that any discretion conferred by the Act must be exercised to achieve that object. Thus, Mr. Middleton claimed, in the light of those provisions of the Act, it is necessary to give s.25A(1) a construction that would further, rather than hinder, free access to information, as has been recognised in Victorian Public Service Board v. Wright[29]. Such a construction would necessitate treating “request” in s.25A(1) as a single request.
[29](1986) 160 C.L.R. 145 at 153; 64 A.L.R. 206 at 212.
It was further said by counsel for the respondent that to construe s.25A(1) as the Department seeks to do would deny the right to the applicant the benefit of the consultative process envisaged by s.25A(6). The respondent also pointed to the absurdity and the injustice that would flow from acceptance of the applicant’s construction of the legislation. More particularly, it was said, if two or more requests are relevantly related but none of them, taken singly, is oppressive, on the applicant’s argument the respondent would not be entitled to access to documents if, as a group, they could be said to be oppressive. Such a result would be contrary to the intention of the legislation because it would hinder, rather than promote, access to information.
Mr. Middleton also claimed that, in any event, by splitting up the requests as he did, the respondent facilitated their processing by the Department rather than seeking to avoid the operation of the Act. Such formulation of the requests, it was said, made the task of the Department of processing the requests easier than if it had been made in the form of one document. In any event, the respondent argued, even if one were to conclude that the requests were divided up in order to avoid the operation of s.25A(1) the Parliament has obviously not inserted into the Act an anti-avoidance provision and it is not for the court to do this of its own volition.
In my view, there are at least two reasons why in this case the 321 requests (or at least some of them) should be aggregated for the purpose of determining whether processing them will create the oppression contemplated by s.25A(1)(a). First, such a construction of the provision would promote its purpose and would give effect to substance rather than form. The respondent’s contention, however, has the unacceptable consequences of promoting form above substance and, in effect, disregarding the aim or purpose of the provision. The underlying purpose of the section can be deduced not only from its wording but also from the circumstances in which it came into existence. Section 25A (which is modelled on s.24 of the Freedom of Information Act 1982 (Cth)) was introduced following a recommendation to that effect by the Legal and Constitutional Committee of the Victorian Parliament made in its thirty eighth report published in 1989. The thrust of the recommendation was that it was necessary to amend the Act to strike a balance between its object of facilitating the individual’s rights of access to information held by government agencies, and the necessary diversion of resources of the agencies which results from processing voluminous applications for information. The Committee expressed its view in the following terms [30]:
“The Committee is of the view that the public interest in making the maximum possible amount of information available under FOI must be weighed against the public interest in efficient government administration. It considers that the public interest in efficient government requires that voluminous requests should be discouraged. However, in its present form, the Act provides no disincentive to the making of voluminous requests. Therefore, in the interests of good administration, the Committee believes that the enactment of a provision which would enable agencies to refuse to process voluminous requests is justifiable. If applied properly, such a provision should not undermine the important rights of access which the Act confers.”
It went on to recommend by way of recommendation 11 that there be inserted into the Act a provision modelled on s.24 of the Commonwealth FOI Act with additional provisions which the Committee enumerated. The Committee’s recommendations were accepted and took the form of s.25A.
[30]The thirty eighth report of the Legislative and Constitutional Committee upon Freedom of Information in Victoria, November 1989 para.5.19.
In the course of the Second Reading Speech relating to the Freedom of Information (Amendment) Act 1993, by which s.25A was inserted into the Act, the Attorney-General said this in relation to voluminous requests to agencies for information[31]:
“Voluminous requests have caused serious problems for the administration of freedom of information since its inception. Evidence given to the Legal and Constitutional Committee in its 38th report to Parliament suggested that although the number of voluminous requests was relatively small it nevertheless caused severe disruption to agencies. At present there is no provision in the Act to refuse to process a request on the grounds that it would unreasonably and substantially divert the agency’s resources.
The Bill permits agencies to refuse to process a request where to do so would unreasonably and substantially divert the resources of an agency. That provision is similar to the Commonwealth Freedom of Information Act. Applicants will be given the opportunity to relodge their request in a form that will remove the ground for refusal. There is also a right to complain to the Ombudsman where the request is refused on those grounds.
Most agencies could produce numerous examples of applicants who abuse the spirit of the Act by making requests the extent and scope of which unreasonably divert their resources. For example, one applicant lodged a request relating to a mining group which involved over 2000 documents in some 250 files.”.
[31]Hansard, Legislative Assembly, 7 May 1993 at 1738.
Thus, it is plain enough that s.25A was introduced to overcome the mischief that occurs when an agency’s resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. The emphasis of the amendment was on the prevention of improper diversion of the agency’s resources from their other operations. The provision was introduced to strike a balance between the object of the Act to which reference has already been made and the need to ensure that the requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of the government through its agencies. It would defeat all or much of that purpose if the provision were to be read so as to enable a person to avoid its operations simply by dividing what would otherwise obviously be a “voluminous” request which would fall within s.25A(1)(a), into several parts none of which, by itself, would offend the provision, but all of which, if considered together, would substantially and unreasonably divert the agency’s resources from its other operations.
On the respondent’s case, where an applicant files one written request in respect of, say, 100 documents which relate to the same general subject matter, it would be appropriate for the agency to consider, for the purpose of determining whether the request is oppressive under s.25A(1), what work would be involved in providing access to the 100 documents. On the other hand, the respondent says, if the same person makes 100 separate requests on the same day, one for each of the same 100 documents, the agency would only have to consider whether any one request for access to one document would be oppressive. Such a result would promote form above substance and would defeat the underlying purpose of s.25A. The purpose is, as I have said, to balance the object of the Act to give persons access to government information with the need to ensure that scarce resources of agencies are not substantially and unreasonably diverted from their core activities of implementing government policy in order to deal with voluminous requests for information. To construe s.25A(1) as entitling the agency in the above circumstances to aggregate these 100 requests for relevant purposes would be consistent with the purpose of the provision.
The common aspects of the requests which were highlighted by the Department as summarised in paragraph [41] above make it appropriate for them to be aggregated for the purposes of s.25A(1). This conclusion is consistent with the construction of s.24 of the Commonwealth Act, on which s.25A is based, adopted by the Hon. Sir William Prentice, a Senior Member of the Administrative Appeals Tribunal (Cth.) in Re Shewcroft and Australian Broadcasting Corporation[32].In that case the issue of whether the possible application of s.24 could be avoided by making many separate requests was considered. The respondent in that case treated Ms Shewcroft’s eight requests for documents as a general or “global” request. It was held by the Hon. Sir William Prentice that for the purposes of that provision, a number of requests can, in certain circumstances, be treated as if they were one general or “global request”. He said:[33]
“I believe that the respondent’s approach in treating the eight requests together as a general or ‘global’ request, accords with the facts. And it appears to me that the spirit of the Act calls for them to be so considered, when deciding whether s.24 be applicable to the situation existing once the requests had been made. It would appear to make nonsense of that section, if in a case where it would clearly apply to a request for a huge volume of nominated documents, that application of s.24 could be avoided by the mere breaking down of such an overall request to a multitude of virtually contemporaneous requests for single documents or parcels of them which would aggregate to the whole.” (Emphasis added.)
[32][1985] 2 AAR 496.
[33]At 498.
I now turn to the second reason why, in the circumstances of this case, it was permissible for the Department to have regard at least to some of the 321 requests for the purposes of s.25A(1). Even if, on a proper construction of the provision, “request” is confined to a single request, some of the requests in terms exclude documents that are referred to in other requests. Consequently, at least all those requests would have to be considered together to determine whether they are oppressive.
Consequently, in my view, the Department was entitled to group the requests in question for the purpose of determining if processing them would give rise to the oppression contemplated in s.25A(1). To the extent that the Tribunal decided to the contrary, it fell into error. In the circumstances, to leave that aspect of its decision stand would result in substantial injustice. It follows that leave to appeal should be granted in respect of the first question of law that has been raised and the appeal in respect of it should be allowed and the question answered in the affirmative.
The Tribunal’s release of the gas file index
I now turn to the second question which relates to the proposed ground of appeal under cover of which it is claimed that the Tribunal did not have the power to order the Department to release the gas file index pursuant to s.25A(6) of the Act (or any other statutory provisions). For the purpose of determining whether leave to appeal should be given in respect of this proposed ground, it is necessary to look first at the circumstances in which the copy document was produced to the respondent and at the Tribunal’s reasons for making the order for its production. During the course of the hearing before the Tribunal, the respondent’s counsel sought an order that the Department produce to the respondent the gas file index. Although the application was opposed by the Department, the Tribunal ordered it to produce a copy of the index to the respondent’s counsel. The President explained its decision in the following terms[34]:
[34]At 117 of the transcript.
“... I can’t see that [giving the gas file index to the respondent] prejudices [the Department]. I think it’s information that ought to be available to them and I think it’s information that ought to be available to them in an opportunity [sic] to ask Ms Macdonald further questions, particularly as to the nature of the sampling.”
As a result, a copy of the gas file index was made available to the respondent’s counsel and Ms Macdonald was recalled and further cross-examined by him in relation to it. The copy document has been retained by the respondent. It seems clear enough from the Tribunal’s above explanation for its order that the copy index was produced to the respondent for the purpose of facilitating the cross-examination of Ms Macdonald. The Tribunal had the power, under s.80(3) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), to make such an order although the respondent was subject to the implied undertakings identified in Home Office v. Harman[35] in relation to the copy document.
[35][1983] 1 A.C. 280.
In its published reasons, however, the Tribunal appears to have broadened, or added to, the explanation it had earlier given for ordering that the document be made available to the respondent. So far as is relevant, it said that, having examined the document, it was of the view that, although the file titles may reasonably be said to be expressed in general terms, in many cases, they at least indicate the possibility, if not the likelihood, that the file and its contents have no bearing on the information sought in the various requests. The Tribunal considered that, had the index been available to the respondent early in the proceedings, it may well have assisted him in either narrowing or refining his requests. It said that there was no doubt that it was reasonably practicable for the Department to have provided the index to the respondent and that it ought not to have denied his requests without first giving him the opportunity to consider the contents of the file. It concluded: “Accordingly, we ordered the index to be released to the applicant. The [Department ] has failed in that regard to comply with s. 25A(6)(c) of the Act and ought not on that basis alone, to have refused to grant access to the information requested. “
This explanation for the making of the order in question is different from that given at the time when the order was first made. But the two explanations are not necessarily inconsistent with one another. The reasons can be read as saying that the Tribunal had a second reason for making the order although it was not articulated at the time. On that basis, there were two grounds on which the Tribunal made the order in question. One was to facilitate the respondent’s cross-examination of Ms Macdonald. The other was that the copy gas file index should be released to the respondent because it was “information” (for the purposes of s.26A(6)(c)) that would assist him in making his request in a form contemplated by s.25A(6)(a)(ii). It is implicit in the second reason that the Tribunal considered itself as standing in the “shoes” of the Department in the context of a consultative process with the respondent that is contemplated by s.25A(6)(a)(ii), and that, in that capacity, it had reached the decision that the document should be made available to the respondent.
Given that the Tribunal gave two different reasons for making the order at different times, it seems that a doubt has arisen as to whether the respondent continued to be bound by the Home Office v. Harman implied undertakings in respect of his use of the copy gas file index. Probably in order to remove such doubt, the respondent applied to the Tribunal, after the publication of its reasons, for an order or a declaration that he be released from any implied undertakings in respect of the copy gas file index. The matter was heard by the Tribunal and, at the date of the hearing of this appeal, its decision was still reserved.
Be that as it may, the real question that is before us is whether leave to appeal should be given to enable the Department to argue, in effect, that the Tribunal had no power to order the release of the gas file index pursuant to s.25A(6)(c). It must be borne in mind that, Phillips, J.A. (with whom Brooking and Batt, JJ.A. agreed) considered in Victorian Casino and Gaming Authority v. Hulls[36] that, once the Tribunal assumed the jurisdiction to review the decision of the Department, it was at large and was, therefore, able to stand in its shoes and make orders accordingly. Thus, it is arguable that the Tribunal had the power under s.25A(6)(c) to order the Department to produce to the respondent a copy of the gas file index. On the other hand, Mr. Nettle contended that since the Tribunal had not engaged in any consultative process with the respondent, it had no power to order under this provision that the gas file index be released to the respondent. Counsel also submitted that, given the basis on which the copy document was produced to the respondent, he was obliged to return it to the Department at the conclusion of the cross-examination. Mr. Nettle further argued that the gas file index was confidential to the Department and that it was entitled to have it back and that the retention of it by the respondent will result in substantial prejudice to it.
[36][1998] 4 V.R. 718 at 725.
Whilst there may be some force in Mr. Nettle’s submissions, in considering whether leave should be given to appeal in relation to the Tribunal’s order in question, at least three matters should be borne in mind. First, the order itself has been spent in the relevant sense in that the document had been seen by the respondent and he has had the opportunity to make such use of it as he considered appropriate for the purpose of cross-examining Ms Macdonald and deciding whether the requests should be re-formulated in light of the information contained in it. These things cannot now be undone by any order of this Court. Secondly, the Department has not demonstrated that the document contains any confidential information. Thirdly, and critically, since the Department has advised the respondent that it intends to refuse his requests under s.25A, before it can take that step, it must consult with him under sub-s.(6) and in the course of it produce to him the gas file index. In the circumstances, it is difficult to see how the respondent will suffer substantial injustice[37] if the order were to remain on foot. Consequently, I would refuse leave to appeal against the making of this order.
[37]Hulls at 336.
Tribunal not persuaded that oppression would result even if requests grouped
I now turn to consider the application to add the third question of law and to make corresponding amendments to the proposed grounds of appeal. The applicant’s primary contention was that the Tribunal found as a fact that, even if the respondent’s requests were considered as a single request, the Department’s resources would not be relevantly diverted within the meaning of s.25A(1). It was said for the Department that this finding was not open to it and that this gave rise to the third proposed question of law – S v. Crimes Compensation Tribunal[38]. In particular, it was contended that the Tribunal wrongly considered that a complex sampling process had to be undertaken by the Department before it could establish that the requests amounted to oppression whereas no such requirement is imposed by the provision. Moreover, it was said, there was, in effect, unchallenged evidence that the processing would take a number of years to complete. In the circumstances, it was said, it was not open to the Tribunal to arrive at the conclusion which it reached.
[38][1998] 1 V.R. 83 at 89-90, 92.
The respondent argued, inter alia, that the Department should not be given leave to raise this issue. It pointed to the fact that it was out of time for appealing, having regard to s.148(2) of the VCAT Act and the rules of the Supreme Court, and that no reasons were advanced by the Department why the time limit should be extended. The Department’s principal concern in seeking to press this ground is that the Tribunal’s decision on this matter might create an issue estoppel against it and, for that reason, it seeks to establish that the decision was not open to the Tribunal or that its conclusion does not create an issue estoppel. The short answer to this point is that no issue estoppel arises in respect of this finding of the Tribunal for the reasons suggested by Callaway, J.A. during the hearing of the appeal, namely, that all the Tribunal said on this issue in paragraphs [27] and [28] of its reasons was that it was not persuaded on the evidence that was put before it that oppression would result from processing the requests. That it did not decide that no oppression could arise from the 321 requests is evident from the fact that it sent the whole matter back to the Department for reconsideration; had an issue estoppel been raised in relation to the 321 requests, it would have been pointless to send it back to the Department as it did. All the Tribunal said was that the evidence (essentially the sampling evidence) did not establish that for which the Department contended.
It was open to the Tribunal not to accept the Department’s claim that in order to process the requests it would have to examine 2,600 files. For one thing, the index shows that many of them were not relevant to the requests and, therefore, would not have to be examined. Similarly, it was open to the Tribunal to conclude that:
-Ms Macdonald had not made relevant inquiries from persons in the Department who might have been able to point to the location of a substantial number of documents sought by the respondent
-the sampling evidence was inadequate; Ms Macdonald did not explain why 21 files were selected and why she only examined ten of them. Moreover, some of the ten files took only a short time to examine
-Ms Macdonald was inexperienced compared with, say, Mr. Farlow
-Ms Macdonald did not assess the file index or the list of files given to her by Mr. Smith.
Given that all the 2,600 files would not have to be examined, the evidence of Ms Macdonald and Mr. Farlow as to the time that would be required to process the respondent’s requests are of little relevance, since the basic assumption on which it was given was not made out.
Thus, the Tribunal’s conclusion on this issue does not raise an estoppel and, in any event, it was open to it on the evidence to find, as it did, that it was not satisfied that the processing of the requests (even if they were grouped as a single request) would, as a matter of probability, give rise to relevant oppression. In those circumstances, it cannot be said that the Tribunal’s decision on this question is attended with sufficient doubt or that substantial injustice would be done if the decision were allowed to stand. In light of that, the application for leave to amend the grounds of the proposed notice of appeal so as to raise the third proposed question should be refused.
Conclusion
For the reasons given, I would propose the following orders:
(a)Leave be granted to the applicant to appeal from the orders of the Tribunal made on 14 March 2001 on the question whether the Department of Treasury and Finance is entitled to have regard to all the requests of the respondent for the purpose of determining whether s.25A of the Act operates in respect of the requests.
(b)The appeal in relation to this question be treated as instituted, heard instanter and allowed.
(c)Paragraphs 1 and 2 of the order of the Tribunal of 14 March 2001 be set aside.
(d)The matter be remitted to the Department of Treasury and Finance to be dealt with according to law.
(e)Leave to appeal against the Tribunal’s decision to release the gas file index to the respondent, be refused.
(f)Leave to raise the third proposed question of law be refused.
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