Secretary to the Department of Health v Victorian WorkCover Authority (No 2)
[2021] VSC 776
•24 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02082
| SECRETARY TO THE DEPARTMENT OF HEALTH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| KELLY WILLIAMS | Second Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2021 |
DATE OF JUDGMENT: | 24 November 2021 |
CASE MAY BE CITED AS: | Secretary to the Department of Health v Victorian WorkCover Authority & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 776 |
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DECLARATIONS – Application for summary judgment – Declaratory relief – Plaintiff issued notice to provide information and produce documents – Plaintiff sought declaration that it had a reasonable excuse on grounds of public interest immunity not to disclose information – Notice withdrawn – Whether legal controversy to be resolved – Utility in granting declarations – Proceeding dismissed – Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 – ACCC v Goldy Motors Pty Ltd [2000] FCA 1885 – Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42 – Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 – Occupational Health and Safety Act 2004 (Vic) ss 9, 98, 100 – Civil Procedure Act 2010 (Vic) ss 62, 63.
PRACTICE AND PROCEDURE – Suppression order – Whether suppression order necessary if proceeding dismissed – Maintenance of public confidence in response to COVID-19 pandemic – Application dismissed – Open Courts Act 2013 (Vic).
COSTS – No hearing on the merits – Order for costs appropriate – Costs incurred due to actions of the defendant in resiling position – Costs of the proceeding awarded to plaintiff on standard basis – Special costs order not justified – No order for costs of application for summary judgment – Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Quin (1997) 186 CLR 622.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr D Neal SC with M McLay | Minter Ellison |
| For the Defendants | C Young QC with M Hoyne | Baker McKenzie |
| For The Herald and Weekly Times Pty Ltd | C O’Beirne (solicitor) | Thomson Geer |
HIS HONOUR:
During 2020, the former Department of Health and Human Services (‘DHHS’), along with other Victorian State Government departments, was involved in a hotel quarantine program as part of the State’s response to the COVID-19 pandemic (the ‘program’). It is believed that staff who worked on the program at two hotels and became infected seeded the ‘second wave’ of COVID-19 cases in Victoria.
In late 2020, the Victorian WorkCover Authority (the ‘Authority’) began an investigation into suspected contraventions of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) by the DHHS in relation to its oversight and co-ordination of the program. In the course of the investigation, the defendants issued notices to the DHHS under the OHS Act requiring that it provide information and produce documents relevant to the program and the inquiry (the ‘notices’).
In February this year, the DHHS separated into two new departments, one of which is the Department of Health (the ‘Department’). The Department undertakes COVID-19 testing, contact tracing and outbreak management in response to the COVID-19 pandemic. When performing those functions, the Department provides undertakings of confidentiality to members of the public who are tested for COVID-19 or interviewed as part of contact tracing.
The Department produced some of the documents and information required by the notices to the Authority. However, the Department refused to disclose contact tracing information and documents sought by the Authority where doing so would breach the undertakings of confidentiality it has given (the ‘contact tracing information’), arguing that to do so would undermine the public confidence in contact tracing, with devastating effect. The Department issued this proceeding seeking declarations that by reason of public interest immunity, it had a reasonable excuse to not disclose the contact tracing information.
In late September this year, the Authority charged the Department with 58 breaches of the OHS Act in relation to the program. After doing so the Authority withdrew the notices, and stated it would not prosecute the Department for any failure to comply.
The Authority has applied under s 62 of the Civil Procedure Act 2010 (Vic) (‘CPA’) and r 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) for summary judgment, arguing that because the notices have been withdrawn there is no longer a legal controversy to be resolved in the proceeding, and accordingly it lacks utility and should be dismissed.
The Department opposes the application for summary judgment, arguing that the power to grant declaratory relief is unfettered, and whether to grant relief will depend on the facts of the case, which can only be determined after a hearing on the merits. The Department argued there was a continuing legal controversy in the proceeding about whether a public interest immunity exists in the circumstances of this case and is a reasonable excuse for not complying with the notices, whether there is a right to refuse to comply with the notices at all, and whether by failing to comply with the notices it has engaged in criminal conduct.
On 29 June 2021, I ruled in favour of the Department on its application for suppression and closed court orders under the Open Courts Act 2013 (Vic) (‘Open Courts Act’). The Department argues there should be a continuing suppression order if the proceeding is dismissed. The Authority and the Herald and Weekly Times Pty Ltd (the ‘Herald and Weekly Times’) opposed a continuing suppression order.
The parties are at odds as to what costs orders should be made if the Authority’s application for summary judgment is granted.
Evidence
The parties relied on the following affidavit evidence:
(a) Sean Selleck, solicitor for the Authority, sworn 8 October and 13 October 2021;
(b) Peter Collins, acting director of the Authority, sworn 13 October 2021;
(c) Caitlin Ible, solicitor for the Department, affirmed 8 October and 18 October 2021; and
(d) Jeroen Weimar, Commander of the COVID-19 Response, affirmed 18 October 2021.
The Department also relied on an earlier affidavit affirmed by Mr Weimar on 22 June and oral evidence given by him on 24 June 2021 on the application for suppression orders.
Relevant provisions of the OHS Act
The Authority has power to obtain information under s 9 of the OHS Act:
9 Power to obtain information
(1)For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to—
(a)give the Authority such information as the Authority requires; or
(b)produce a document in the custody or control of the person.
(2)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
Penalty:60 penalty units for a natural person;
300 penalty units for a body corporate.
An inspector of the Authority appointed under Part 9 of the OHS Act has power to enter a place that the inspector reasonably believes is a workplace.[1] An inspector who enters a place under s 98 of the OHS Act is given power under s 100 of the Act to require production of documents and answers to questions:
[1]Occupational Health and Safety Act 2004 (Vic) s 98.
(1)An inspector who enters a place under this Division may do any or all of the following—
(a)require a person to produce a document or part of a document; and
(b)examine that document or part; and
(c)require a person at the place to answer any questions put by the inspector.
(2)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
Penalty:60 penalty units for a natural person;
300 penalty units for a body corporate.
The notices and the Department’s response
On 11 November 2020, the Authority gave notice under s 9 of the OHS Act to the DHHS requesting information about the program, including contact tracing information related to the Rydges Hotel Carlton and the Stamford Hotel Melbourne. The date set by the Authority for compliance with the notice was 26 November 2020. The notice provided in part:
Compliance with this Notice
7.Pursuant to section 9 of the Act, it is a criminal offence if you refuse or fail to comply with a requirement of this Notice without reasonable excuse.
On 18 December 2020, lawyers for the Department wrote to the Authority. That letter reads in part:
The DHHS has further considered the Notice and the information that would be responsive to it. Set out below is information responsive to the Notice that the DHHS has formed the view it can provide to the Authority.
There is further information that is responsive to the Notice in respect of which the DHHS asserts a claim of Public Interest Immunity and therefore does not produce, on the basis that it has a reasonable excuse for not producing the information under s 9(2) of the Occupational Health and Safety Act.
By way of elaboration, the information over which a Public Interest Immunity claim is asserted is information that relates to, or was utilised in, contact tracing by the DHHS. As such, the DHHS is not able to respond to Part A Questions 1 to 4 (inclusive) and Questions 9 to 11 (inclusive).
As the Authority is no doubt aware, the efficacy of the contact tracing system is of critical importance to the State being able to combat any future outbreak of Covid-19 (or indeed any pandemic illness). This is particularly so given the recent reintroduction of the Hotel Quarantine program. One of the most important elements of an effective contact tracing system is that members of the public have confidence in the security and confidentiality of the personal information held by the Department and that those who test positive to Covid-19 engage freely and honestly with officers of the DHHS to enable an investigation of other possible infections and prevent further transmission. The information provided to the DHHS in these circumstances and the testing that is undertaken by individuals, is done on the basis that the information will be used solely for the purposes of contact tracing and that its confidentiality will be strictly maintained. If the DHHS were to provide personal information to other parties, including the Authority, that has come into its possession as a result of its involvement in the Hotel Quarantine Program or its contact tracing efforts, it would undoubtedly severely impede the ability of the DHHS to seek similar information from or test members of the public in the future.
For these reasons the DHHS is of the view that it is of paramount importance that members of the public have confidence in the security of personal information that is utilised within the contact tracing program and therefore the DHHS can only release the information to third parties by Order of the Court.
There may be alternative ways for the Authority to complete its investigation without pressing for that kind of information (as sought by the Notice). The DHHS is prepared to give the Authority its co-operation in identifying how this can be achieved, and we have been instructed to invite suggestions as to how the DHHS could assist the Authority without jeopardising the efficacy of the contact tracing system.
The Department sought an extension to 22 January 2021 to comply with the balance of the notice.
The Authority wrote to the Department, copying its lawyers, on 23 December 2020 agreeing to extend the time for compliance with the notice. The Authority responded to the public interest immunity claim as follows:
In relation to the DHHS asserting a claim of Public Interest Immunity (PII) in relation to the information sought in Part A: Questions 1 – 4 and 9 – 11 of the Notice, the Authority does not accept that PII applies to that information so as to constitute a reasonable excuse for refusing to comply with s 9(1) of the Occupational Health and Safety Act 2004.
The Department’s lawyers wrote to the Authority again on 25 January 2021 further expanding on the basis for the claim of public interest immunity. That letter concluded as follows:
We cannot stress more strongly that, while the DHHS is committed to working with the Authority in relation to this investigation, the risk of large scale compromise of the health and safety of all Victorians by failing to adhere to the confidentiality and privacy expectations of the contact tracing and testing regime is real and is precarious, with potentially disastrous consequences.
If the Authority maintains that the refusal to provide the information on the basis of a legitimate Public Interest Immunity claim does not constitute a reasonable excuse under s 9(1) of the OHS Act, we request that the basis for this opinion be provided to us as soon as is possible so that we can then take instructions from the DHHS about any further steps that may be necessary in response to the Notice.
The Authority responded on 3 February, stating the following:
(a) it did not accept it was in the public interest to preserve the confidentiality of the requested information;
(b) the legislative requirement that an employer notify WorkSafe upon becoming aware that an employee or independent contractor had received a diagnosis of COVID-19 and attended the workplace during the infectious period was comparable to requested information;
(c) if the excuse of maintaining information as confidential was accepted, the operation of the OHS Act would be impermissibly frustrated; and
(d) there was a significant public interest in it being able to conduct a thorough investigation into the program and COVID-19 outbreaks.
The Authority further extended the date for compliance with the notice to 17 February 2021.
On 17 February 2021, the Department’s lawyers again wrote to the Authority explaining at length the basis of the claim for public interest immunity. The Authority responded on 23 February stating briefly that it did not accept the assertion that a legitimate public interest immunity claim arose on the basis of any of the matters raised by the Department, so as to constitute a reasonable excuse for refusing to comply with the notice. The letter concluded:
The Authority maintains that the Department of Health is required to comply with Part A, Questions 2 – 4 and 10 - 11 of the Notice. As set out in paragraph 7 of the Notice, it is a criminal offence for a person to refuse or fail to comply with a requirement of the Notice without a reasonable excuse.
On 4 March 2021, the Department’s lawyers again wrote to the Authority. That letter reads in part:
It must now be beyond any doubt that there is a legitimate claim of Public Interest Immunity being made by the DoH, the basis of which has been explained to the Authority in detail. In our letters of 25 January 2021 and 17 February 2021, we detailed the basis upon which the Public Interest Immunity claim was asserted in relation to Part A, Questions 2 to 4 and 10 to 11 of the Notice. We refer to and repeat the matters set out in those letters, and confirm that the DoH maintains that it is of paramount importance that members of the public have confidence in the confidentiality of personal and health information that is utilised within the COVID-19 testing and contact tracing program.
As for the Authority’s suggestion that a privilege claim is not a reasonable excuse, we disagree. We draw your attention to the recent decision of the Queensland Court of Criminal Appeal, in Commissioner of Police v Barbaro. In Barbaro the Court of Appeal found that the protection of a privilege was a reasonable excuse for the purpose of similar legislation in the investigative stage.
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We are also instructed to place you on notice that, if the parties are unable to resolve this issue through further discussion, we expect to be instructed to make an application to the Supreme Court in relation to the DoH's Public Interest Immunity claim.
On 5 March 2021, the second defendant, Ms Williams, who is an investigator/inspector of the Authority, entered the Department’s premises pursuant to the power under s 98 of the OHS Act in order to issue a direction to the Department pursuant to s 100 of the Act to produce certain documents. The entry report served by Ms Williams on the Director of the Department, Ms Jennifer DeJong, reads in part:
Before requiring THE CROWN IN THE RIGHT OF THE STATE OF VICTORIA (DEPARTMENT OF HEALTH) to produce documents pursuant to s 100(1)(a) of the OHS Act, I produced my identity card for inspection and warned Ms Jennifer DeJong that a refusal or failure to comply with the requirement without reasonable excuse is an offence. I also informed Ms DeJong that she may refuse or fail to answer any question if answering the question would tend to incriminate her.
Under Section 100(2) of the OHS Act, any person who without reasonable excuse fails to produce any document required pursuant to Section 100(1)(a) of the OHS Act by an inspector shall be guilty of an offence. In the case of a body corporate, the offence carries a penalty of 300 penalty units. In any other case, the offence carries a penalty of 60 penalty units.
The Department was required to produce the documents by 12 March 2021.
On 12 March 2021, lawyers for the Department wrote to the Authority providing documents responding to the request, and informing the Authority that the Department asserted a public interest immunity claim in relation to contact tracing information redacted from some documents.
The parties maintained their respective positions in relation to the public interest immunity claim made by the Department in response to the notices in further correspondence that was exchanged until this proceeding was issued on 16 June 2021.
The case pleaded by the Department
The pleadings in the originating motion filed by the Department set out the following details of the program:
2.From 27 March 2020 to 27 July 2020, the DHHS, along with other government departments and agencies, was involved in the Victorian Government’s Hotel Quarantine program (the Program). The Program mandated 14-day quarantine of all international arrivals to Victoria (unless exempted), in various hotels in Melbourne. The aim of the Program was to address the concern that international arrivals were fueling the rise in domestic case numbers and to reduce the likelihood of transmission of COVID-19 in the community and associated death and disease. Approximately 21,821 travelers were quarantined in the program from 27 March 2020 to 30 June 2020.
3.In July 2020, a number of staff who had worked in the program at two hotels, the Rydges Hotel Carlton (Rydges) and the Stamford Hotel Melbourne (Stamford), tested positive to COVID-19. It is believed that the infected staff seeded the “second wave” of COVID-19 infection in Victoria. Subsequent genomic testing suggests that around 90% of COVID-19 cases in Victoria since late May 2020 were attributable to the outbreak at the Rydges. Just under 10 per cent of positive cases in Victoria since were attributable to the outbreak at the Stamford in mid-June.
The pleadings describe contact tracing as follows:
4.The Department of Health, through its COVID-19 Response Division, undertakes contact tracing. This is the process of gathering information about the people with whom someone with COVID-19 has had contact, and the locations the person has been when they are infectious. When a person is tested for COVID-19, the person also provides their contact details. If the test shows that the person has COVID-19, the person's test results and contact details are sent to the Department of Health. The Department of Health then contacts the person to undertake contact tracing. Contact tracing allows the Department of Health to understand how someone may have acquired COVID-19, and to identify any close contacts of the person to direct them to isolate at home. Isolation of those who have contracted COVID-19 and their close contacts is integral to slowing the spread of COVID-19 in the community.
A description of contact tracing is set out in greater detail in the suppression order ruling in this proceeding,[2] in particular in the summary of Mr Weimar’s evidence.
[2]Secretary to the Department of Health v Victorian Workcover Authority and Kelly Williams [2021] VSC 382R (‘Suppression Order Ruling’).
The Department sets out in the pleadings the undertakings of confidentiality it gives in exercising its functions in relation to contact tracing. It alleges that the contact tracing system is a critical measure to reduce the spread of infectious disease in Victoria. Fundamental to the efficacy of contact tracing is the confidence of the general public and of individuals who test positive to COVID-19 or any other notifiable infectious disease that the confidentiality undertakings will be adhered to, and personal and health information provided to the Department will not be disclosed to any third party.
The pleadings set out details of the notices, and the contact tracing information requested by the Authority that the Department has refused to disclose.
The Department seeks the following relief:
1.A declaration that the contact tracing information sought by the Authority pursuant to the Notice is subject to public interest immunity;
2.A declaration that the contact tracing information sought by the Second Defendant and thereby also the Authority pursuant to the section 100 request is subject to public interest immunity;
3. A declaration that, by reason of public interest immunity, the Plaintiff has a reasonable excuse pursuant to section 9 (2) of the OHS Act, and pursuant to section 100(2) of the OHS Act, to not disclose the information to the Authority.
Procedural history and the Authority’s application
The application by the Department for suppression and closed court orders under the Open Courts Act was heard on 24 June 2021, and I delivered my ruling on 29 June. In submissions opposing a suppression order the Authority characterised the proceeding as the Department seeking to restrict investigation into its own conduct in involvement in the program. The Department responded by submitting the proceeding was not about restricting the Authority’s investigation, or access to information or documents, which could be obtained by it from other sources.
The proceeding was listed for trial on 18 October 2021. The Authority was ordered to file and serve any lay or expert affidavits on which it intended to rely by 23 September. On 22 September, the Authority sought an extension of time to 5 October to file evidence.
In his affidavit Mr Collins said that the Authority published a news article on its website in which it announced that it had charged the Department with 58 breaches of the OHS Act in relation to the program on 29 September 2021.
On 30 September 2021, the lawyers for the Authority wrote to the lawyers for the Department stating that their client no longer pressed compliance with those parts of the notices which were the subject of the public interest immunity claims and this proceeding. The Authority’s lawyers stated that in those circumstances the proceeding had no utility and should be discontinued, with the trial date vacated. The Authority proposed that the suppression order should cease to apply, and that there should be no order for costs on the proceeding being discontinued.
The Department disagreed with the Authority’s proposal. It stated that the proceeding should be resolved by the declarations sought in the originating motion being made by consent, the suppression order continuing, and the Authority paying its costs. The Department advised that if consent in those terms was not forthcoming it intended to proceed to trial.
On 13 October 2021, the Authority applied for the following orders:
1.Pursuant to section 62 of the CPA and Rule 22.16 of the Rules, there be judgment for the Defendants.
2.Order 1 of the orders made under the Open Courts Act on 2 July 2021 is vacated.
3.The Department to pay the Defendants’ costs of the filing and hearing of this summons.
4.Each party otherwise bear its own costs of the proceeding including any reserved costs.
The trial date was vacated, and the Authority’s application listed for hearing in its place.
In his affidavit Mr Collins states:
[The Authority] will not prosecute [the Department] in relation to any failure by it to comply with the request or notice.
St Basil’s Home for the Aged
On 11 November 2020, the Authority issued the Department with a notice under s 9 of the OHS Act in relation to its investigation into potential contraventions of the Act by St Basil’s Home for the Aged following a COVID-19 outbreak.
On 22 January 2021, lawyers for the Department wrote to the Authority stating that contact tracing information requested in the St Basil’s notice was subject to public interest immunity, and there was a reasonable excuse for not providing the information. In her affidavit of 18 October 2021, Ms Ible said that as of that date no response had been received from the investigator or the Authority to the claim for public interest immunity in relation to the St Basil’s notice.
In oral submissions at the hearing of the Authority’s application on 20 October 2021, senior counsel for the Authority said his instructions were that the Authority considered there had been compliance with the St Basil’s notice, and had no intention to take any step to enforce the notice.
Summary dismissal
Submissions
The Authority
It is well established that a declaration should not be made:
(a) if it would lack utility;
(b) if it relates to an abstract or hypothetical question;
(c) if the relief claimed relates to circumstances that might never happen;
(d) if the Court’s declaration will produce no foreseeable consequences for the parties;
(e) if it amounts to an advisory opinion; and
(f) unless there is an extant legal controversy.[3]
Where there is no real controversy between the parties to be determined the Court should not permit an application for declaratory relief to proceed.[4]
[3]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582, 596 (‘Ainsworth’); Swift Australian Co (Pty) Limited v South British Co [1970] VR 368, 369–370.
[4]CE Heath Casualty and General Insurance v Pyramid Building Society (in Liquidation) [1997] 2 VR 256, 260.
The subject matter of the proceeding and the relief sought by the Department is compliance with the notices. Since they have been withdrawn there is no legal controversy remaining to be resolved in respect of the notices.
Carrati v The Commissioner of Taxation is a case with parallels to the present dispute.[5] In that case, a statutory notice was given by the Commissioner and then withdrawn. French J held that there was no cause of action to support the claim and no basis for the award of relief, including declaratory relief, that was sought.[6]
[5][1999] FCA 1296.
[6]Ibid [6], [21].
The Department in part justified the proceeding going to trial on the basis that it would be vulnerable to further requests or litigation seeking similar information. The hypothetical nature of the inquiry is exposed by the manner in which the reason is framed. It is not known what information might be sought in future, or how findings made in this case might impact on that possible future circumstance.
The Department’s submissions seek to extend the purpose of the proceeding to effectively determine the status of contact tracing information and to mark the boundaries of the powers in ss 9 and 100 of the OHS Act. The question posed would have no factual context, and therefore, no meaning and no consequences. In any other case that came before this Court where there was a dispute about the production of contact tracing information the competing aspects of the public interest, which are fundamental to resolution of public interest immunity claims, will be different. This means any declaration considered by the Court in this proceeding would now necessarily be advisory, and therefore impermissible.
While the time to respond to the notices expired, the Department and its officers are not exposed to the legal mechanism for enforcement of obligations created by the OHS Act because of Mr Collins’ statement that there will be no prosecutions. In the circumstance where the notices have been withdrawn, and there is no threat of prosecution, there is no real controversy capable of being determined by declaration by the Court.
The Department cannot rely on the St Basil’s notice because it is not part of the subject matter of the proceeding, and in any event the Authority has acknowledged that there has been compliance with the notice.
The Department
The considerations referred to by the majority in Ainsworth v Criminal Justice Commission (‘Ainsworth’) which mark the boundaries of judicial power are broad, and should be understood in light of the unfettered power of the Court to grant declaratory relief.[7]
[7]Ainsworth (n 3) 581–2; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421, 437.
It is arguable that each of the Ainsworth considerations is satisfied in this case. Further, there is an undoubted public interest in the subject matter of the proceeding given the following:
(a) the declarations sought concern actions taken in relation to the largest health crisis in Victoria’s modern history;
(b) consideration of the declaration on its merits, with regard to the considerable evidence available to the Court, is in the public interest;
(c) the rights sought to be protected affect thousands of Victorians and underpin one of the primary means of combatting the spread of infectious diseases; and
(d) both the Department and the Authority are model litigants with opposite views of the utility of the application.
In these circumstances, the questions of whether the Ainsworth considerations have been satisfied, and declaratory relief should be granted, ought to be decided after a full consideration of the matter on the merits, rather than at a summary stage.
This proceeding is analogous to cases where courts have made declarations in favour of regulatory authorities in respect of past breaches.[8] In those cases, the courts held that the declaratory relief was justified because the regulator concerned was likely to confront similar issues in future. In this proceeding the plaintiff is a government department and is likely to confront the exact same issue with the same regulator. Further, in circumstances where the Department holds the information of thousands of Victorians each affected by such a notice, the public interest in declaring that the information is protected cannot be overstated.
[8]ACCC v Goldy Motors Pty Ltd [2000] FCA 1885 (‘Goldy’); ACCC v Eurong Beach Resort Ltd [2005] FCA 1134 (‘Eurong’); Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42 (‘Mecon’).
The Authority has denied that public interest immunity can be a reasonable excuse for not responding to notices or requests under ss 9 and 100 of the OHS Act. There is an alive controversy in relation to that issue, and a substantial public interest in it being determined. If contact tracing was recognised as a category of case in which public interest immunity could arise, it would give parties the opportunity to consider whether, in the circumstances of a particular case, the privilege was a reasonable excuse.
There is a continuing controversy between the parties because criminal conduct was alleged against the Department for its failure to respond to the notices. Withdrawal of the notices, and Mr Collins’ statement that there will be no prosecution for non-compliance, leaves undetermined the question of whether the Department committed a criminal offence. If that situation remains unresolved, the Department and its officers face the continuing stain of an allegation that in a very substantial investigation they failed to comply with their obligations under the OHS Act, in a serious way. In circumstances where the Department is currently responsible for management of the State’s response to the COVID-19 pandemic, which requires public confidence, that outstanding allegation can have a very real impact.
Analysis
Although it also applied for summary judgment under r 22.16 of the Rules, the Authority relied principally on the more liberal test under s 63 of the CPA, namely whether it is established that the respondent to an application has no ‘real’ as opposed to a ‘fanciful’ prospect of success.[9] The power to give summary judgment should be exercised with caution,[10] and in accordance with the overarching purpose set out in s 7 of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the issues in dispute.[11]
[9]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] 42 VR 27, 40 [35] (‘Lysaght’).
[10]Ibid [33].
[11]Taylor v Minister for Education [2021] VSC 23 [9] (Richards J); Lighthouse Corporation Limited & Anor v Republica Democratica de Timor Leste & Anor (No 3) [2021] VSC 478 [23] (Osborne J).
In Ainsworth, while recognising the undesirability of fettering the broad discretionary power of superior courts to grant declaratory relief, the plurality said:
However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have) not occurred and might never happen’ or if ‘the Court's declaration will produce no foreseeable consequences for the parties.[12]
[12]Ainsworth (n 3) 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), 596 (Brennan J) (citations omitted).
The respondent in Ainsworth failed to accord natural justice to the appellant when it prepared and published a report which harmed the appellants’ reputation, without having given him the opportunity to be heard. The Court resolved the controversy about whether the respondent had a duty to accord procedural fairness, and concluded it was appropriate that a declaration be made in terms indicating that the appellants were denied natural justice in order to redress some of the harm done to their reputation by the respondent’s breach.
The question of the bounds of judicial power was considered in Bass v Permanent Trustee Co Ltd,[13] where the majority said:
[13](1999) 198 CLR 334 (‘Bass’). See also CE Heath v Pyramid Building Society (1997) 2 VR 256, 260 (Ormiston JA).
45.The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd, Kitto J said:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.
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47.Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:
a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.
By ‘not a real question’, his Lordship was identifying what he called the ‘hypothetical or academic’. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.
48.It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:
If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.[14]
[14]Bass (n 13) (citations omitted).
The Department asserts that despite the Authority’s withdrawal of the notices there remains legal controversy in the proceeding, and that resolution of the controversy will have real consequences for the parties. The controversies identified by the Department are:
(a) whether a public interest immunity exists in this case, and is a reasonable excuse for not complying with the notices;
(b) whether there is a right to refuse to comply with the notices at all;
(c) what are the bounds of the Authority’s powers under ss 9 and 100 of the OHS Act where a claim for public interest immunity is made by the recipient of a notice with respect to contact tracing information; and
(d) whether the Department, or individual officers involved in the failure to comply with the notices, have committed a criminal offence.
The issues in controversy in a proceeding should be identifiable from the pleadings and the relief which is sought. The controversy between the parties identified in the originating motion is whether the defendant was excused from disclosing to the Authority the contact tracing information required by the notices.
One way of testing whether there is a real, not merely hypothetical, controversy is to ask whether it is foreseeable that the declaration will produce consequences for the parties.[15] There were a number of consequences to the parties which might flow from resolution of the controversy pleaded in the originating motion. First, whether the Department was required to provide the contact tracing information which was the subject of the notices. Second, whether the Department or its officers might be subject to prosecution for refusing or failing to comply with the notices without reasonable excuse. Third, whether the Department could maintain its undertaking of confidentiality to members of the public from whom contact tracing information was obtained. The Department added as a fourth controversy that a declaration would resolve once and for all whether there was a reasonable excuse to not provide contact tracing information in response to a notice issued by the Authority as part of any future investigation.
[15]JD Heydon, Justice Leeming, PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014) [19-160] citing Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, 188–189 and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 613 [52].
The withdrawal of the notices by the Authority means that the first and second consequences no longer arise. The process by which the Authority sought to compel provision of information and documents is no longer being pressed. Accordingly, determination of the proceedings will not resolve the issue of whether the Department is required to produce the information and the documents in response to the notices. The Authority has said it will not prosecute for any alleged refusal or failure to comply with the notices. The Department raised the possibility of prosecution by the Department of Public Prosecutions. However, there was no evidence this might occur, and I discount it as a real possibility.
The Department strongly maintained that it had a reasonable excuse for not complying with the notices, and took the serious step of issuing this proceeding to obtain relief to that effect. The notices have now been withdrawn. In those circumstances, I do not accept that the Department and its officers face the continuing stain of an allegation that they failed to comply with obligations under the OHS Act.
The Department said that if, after a contested hearing on the merits, it failed to obtain the declaratory relief it sought, it could no longer give the undertaking of confidentiality to members of the public in relation to contact tracing information. The difficulty faced by the Department is that the question of public interest immunity, and therefore confidentiality of contact tracing information, could only ever be resolved on the statutory regime under which the notices were issued, in the context of the information required and the purpose for which the information was sought. A proceeding which concerned a public interest immunity objection by the Department to providing information sought from it under a different statutory regime, based on different factual circumstances, may have a different outcome. This means that even if the Department succeeds in obtaining the declaratory relief sought in this proceeding that determination would not resolve the question of whether the Department would be required in different circumstances, and perhaps under a different statutory regime, to produce contact tracing information or documents pursuant to the request of a regulatory authority.
I accept for the purposes of analysis that there is a public interest in maintaining the confidentiality of some of the information obtained by the Department when performing functions broadly described as contact tracing. However, whether there is a public interest in maintaining the confidentiality of particular information will depend on the nature of that information.
Further, whether, and to what extent, the public interest renders it necessary to withhold the information from disclosure requires an examination of the circumstances of the case. These include the nature of the information which is sought to be withheld, the reason disclosure of the information is sought, and the circumstances of disclosure. An examination of such circumstances allows for a consideration of whether the public interest in preventing disclosure outweighs the public interest in providing access to relevant information to a regulatory authority performing its functions.[16] There cannot be an absolute protection of contact tracing information on public interest immunity grounds which renders it immune from disclosure, irrespective of the precise information concerned, and when, in what circumstances, and for what purpose disclosure of the information is sought.
[16]Sankey v Whitlam (1978) 142 CLR 1, 38–9, 41 (Gibbs ACJ).
The question of whether public interest immunity generally, or specifically as related to contact tracing information, can be a reasonable excuse for not complying with notices under ss 9 and 100 of the OHS Act is not the subject matter of the pleadings or the relief sought. More fundamentally, resolution of that question in this proceeding would not be based in facts which are agreed or can be determined, but is entirely hypothetical, meaning that a declaration could only be advisory in nature.
The Department relies on four cases in support of a submission that the declarations will determine interests which are not purely hypothetical. Three of those cases involved declarations sought by a regulatory authority.
ACCC v Goldy Motors Pty Ltd (‘Goldy’)[17] concerned representations by the respondent which the applicant alleged breached the Trade Practices Act 1974 (Cth) (‘TPA’). The respondent admitted some of the breaches and did not oppose declarations to that effect. In relation to the remaining breaches, which the Court ultimately found had been committed, the respondent submitted no practical consequence would be served by making further declarations. Carr J disagreed, concluding the applicant was entitled to have the Court resolve the issue of the contraventions denied by the respondent, and that declarations to that effect would serve to vindicate the applicant’s claim that the contraventions had occurred, serve the public interest in the determination and declaration that the respondent had by its conduct contravened a further provision, and that the declarations may also, perhaps in a small way, assist in clarifying the law.
[17]Goldy (n 8).
In ACCC v Eurong Beach Resort Ltd (‘Eurong’),[18] the applicant alleged the respondent had breached provisions of the TPA. By the time the proceeding was heard the respondents had ceased their business. Proceedings for penalties for many of the periods of alleged contravening conduct were outside the limitation period, and could not be brought. The respondents sought to strike out those parts of the application, arguing that what was being sought were bare declarations with respect to past conduct involving no statement of legal rights and no resolution of a controversy. Kiefel J referred with approval to the judgment of Hill J in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2):[19]
There can be little doubt that a declaration might be obtained by a regulatory authority that particular conduct is in breach of a statutory provision, whether or not injunctive relief is appropriate: cf Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (Ex rel Corporate Affairs Commission) (1981) 148 CLR 121 at 125. It has never been suggested that no power exists to grant such declaratory relief merely because the consequence of a declaration is to declare the existence of a wrong. The declaration that an offence has been committed is the concomitant of the non-existence of a right. Semantically, it may be said to be the declaration of a negative right. It is appropriate, in my view, to refer to it as a declaration of right.[20]
Kiefel J concluded:
6.The statement of principle in that case should be followed in cases involving the public interest. Clearly this litigation is in that class. It follows that declarations would not lack utility.
[18]Eurong (n 8).
[19](1993) 41 FCR 89.
[20]Eurong (n 8) [5] (emphasis in original).
Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd (‘Mecon’)[21] concerned alleged contraventions of various provisions of the Fire Services Levy Monitor Act 2012 (Vic) (‘FSLM Act’). The parties provided consent orders to the Court seeking declarations that the defendants had contravened provisions of the FSLM Act related to price exploitation, false representations and misleading and deceptive conduct. For the purposes of the proposed declarations the parties’ statement of agreed facts established that the defendants had contravened the FSLM Act as alleged. Elliott J concluded the proposed declarations represented the determination of a legal controversy, namely whether the court has found that the FSLM Act was contravened by the defendants in the manner alleged by the Director. Further, his Honour found there was utility in making the declarations to state publicly that the FSLM Act was contravened in the manner alleged, which indicated the Court’s disapproval and condemnation of the contravention.
[21][2016] VSC 42.
A difficulty faced by the Department is that in Ainsworth, as in Goldy, Eurong and Mecon, the contraventions of the law that were the central legal controversy had already occurred, and constituted the precise factual circumstances which anchored the declaratory relief sought.[22] However, in this case the notices have been withdrawn, and the Authority makes no allegation that the Department has breached provisions of the OHS Act, much less that it will be prosecuted for doing so. The controversy set out in the originating motion no longer exists.
[22]Bass (n 13).
The remaining decision relied on by the Department was Andrews v Andrews (No 2),[23] where demands for repayment of loans secured against the plaintiffs’ property were issued by the second defendant, purportedly pursuant to an enduring power of attorney in his favour from the first defendant. In separate proceedings in VCAT, the enduring power of attorney was declared to be invalid, and was therefore void from commencement. The parties sought by consent declarations which had the effect of stating definitively that the demands do not burden the plaintiffs’ property interests. The plaintiff submitted that, in a practical sense, demands were raised and proceedings instituted, which appeared to burden their property assets and would need to be disclosed to potential financiers and counterparties in their property development business. It was in those circumstances that Nichols J concluded there was utility in the declarations, which were not hypothetical and related to the specific actions undertaken by the second defendant as purported attorney for the first defendant. For reasons already explained, there is no utility in the declarations being sought in this proceeding, and the decision in Andrews is distinguishable on that basis.
[23][2021] VSC 251.
For the above reasons I conclude the proceeding has no real prospect of success, ad should be dismissed.
Suppression order
In the ruling delivered on 29 June 2021, I summarised the earlier affidavit and oral evidence of Mr Weimar, and set out my reasons for concluding that a suppression order was necessary at that time.[24]
[24]Suppression Order Ruling (n 2).
Further evidence of Mr Weimar
In a supplementary affidavit affirmed 18 October 2021 Mr Weimar said that in early September, he received advice from the Department’s public health team that due to the ongoing level of community transmission across the State of Victoria, it was unlikely to be able to achieve a reduction in case numbers back to zero community transmission of COVID-19.
Mr Weimar explained that contact tracing remained an essential tool, which was vital to the response to the pandemic. He said approximately 1,000 people were employed by the Department and local public health units in contact tracing. In the week before Mr Weimar made his affidavit, more than 1,200 case interviews were conducted each day, contact tracing had been carried out with over 40 schools in Victoria, and over 55,000 primary close contacts had been identified.
Mr Weimar said that the focus of contact tracing was now tier 1 sites and people who were, due to their vulnerabilities, at a higher risk of dying or becoming seriously ill if they contracted COVID-19. Mr Weimar explained that the risk of death from COVID‑19 infection was reduced by antiviral treatments. This meant that if a person at higher risk of dying from COVID-19 contracted the infection from someone who was not forthcoming with contact tracers, there was a serious risk that someone who could otherwise have been treated would die.
Mr Weimar said the QR code system, which was required for most businesses and organisations in Victoria, provided fast and accurate contact information for contact tracers to enable them to ensure that outbreaks could be contained quickly.
Mr Weimar referred to modelling by the Burnet Institute, which was the primary input into the Victorian Roadmap to Deliver the National Plan, and by the Doherty Institute, which was prepared for the national Cabinet to advise on the National Plan to Transition Australia’s National Covid Response. He said a key assumption of the Burnet modelling was that testing, contact tracing and quarantine would continue despite higher vaccination coverage, and that the Doherty modelling set out that maintaining a rapid and highly effective test, trace, isolate and quarantine response capacity was critical to ongoing epidemic control even as vaccination rates increase.
Mr Weimar explained that contact tracing is an essential component of the toolbox for containing and responding to the outbreak of infectious diseases, and would remain a critical feature of any public health response to future outbreaks.
Mr Weimar said that if the defendants obtain summary judgment, and a suppression order was not made, in his opinion the impact on public trust and confidence in the Department’s response to the COVID-19 pandemic, in particular, COVID-19 testing, contact tracing and outbreak management, was likely to be similar to the impacts had a suppression not been made on an interim basis. Mr Weimar explained:
26.That is, the public would be aware that:
a.the Defendants issued notices requiring the Department to produce to it confidential public health information in connection with an investigation;
b.the Department refused to comply with the notices issued to it on the basis that it had a reasonable excuse;
c.the Department sought declarations that the information sought is subject to public interest immunity and that it had a reasonable excuse not to produce the information;
d.the Defendants indicated that it no longer sought compliance with the notices; and
e.the Court granted summary judgment in the Defendants’ favour and did not determine whether the information provided to the Department was subject to public interest immunity and therefore not required to be produce.
27.Such an outcome would significantly undermine public trust and confidence in the contact tracing system because it is likely that members of the public would form the view that the Department could be required to divulge confidential contact racing information to a regulatory authority and that, therefore, the information that they provide to contact tracers is not secure.
Submissions
The Department
There should be a suppression order prohibiting reporting of the proceeding for a period of five years. The circumstances of the current COVID-19 pandemic have changed since the interim order was made, and will continue to change. However, contact tracing remains essential to combating the current pandemic and any future infectious disease outbreaks. It is therefore critical to maintain public confidence in the contact tracing system.
There was a remarkable inconsistency in the positions being adopted by the Authority. On the one hand, it has launched a serious prosecution in relation to only a handful of transmissions of COVID-19 from the program. On the other hand, in the face of unchallenged evidence from Mr Weimar about the damage likely to be caused to the contact tracing system and the resulting risks to individuals and the community generally, the Authority maintains that there should be no suppression order.
If the proceeding is dismissed, and no suppression order is made, reporting would inform the public that the Authority withdrew the notices without accepting that the Department had a reasonable excuse, on the grounds of public interest immunity, for not providing the contact tracing information. That will leave uncertainty about whether there is a public interest immunity in relation to contact tracing information. This is likely to cause a degree of public alarm about the release and use of confidential information, and will thus undermine confidence in the contact tracing system.
The Authority
The Department seeks to suppress the information that there is potential for it to be required to hand over the contact tracing information to another entity. However, this is simply a legal fact, and will remain so regardless of the outcome of this proceeding.
The Department’s application assumes that, if a suppression order is made, members of the public will assume (contrary to the fact) that there is no risk that their contact tracing information will ever have to be disclosed by the Department. The Court should not assist the public being misled in this way.
Reporting of the proceeding would be to the effect that notices seeking contact tracing information were issued, the Department refused to provide the information and commenced the proceedings, and the notices were withdrawn. If anything, the public confidence that their information will not have to be disclosed will be enhanced by what is reported.
When the interlocutory order was made there was a concern that if even one person failed to disclose information to contact tracers that could result in a seeding event and a new outbreak. With the extremely high numbers of COVID-19 cases now in the Victorian community, and the government pursuing a strategy based on vaccination rather than COVID-zero, the prospect of a small number of people not giving full details to contact tracers (while not ideal) is not nearly as significant as it was several months ago.
The Burnet modelling shows that in various circumstances contact tracing is ineffective, and emphasises the critical driver in achieving the model’s outcomes is vaccines. The issue of the public confidence in the contact tracing system needs to be considered in the context that in many important circumstances the effectiveness of that system is assumed to be very low.
In the interlocutory ruling, it was determined there was a material difference between the existence of the notices and the existence of a serious court dispute about whether or not the contact tracing information should be produced. Since there is no longer a serious dispute in the proceeding, the better situation, in terms of open courts and open justice, is that there should be public reporting of the fact that the notices were withdrawn and the proceedings were resolved.
The Herald and Weekly Times
The fact that government agencies and law enforcement bodies have sought access to contact tracing information and QR code data has already been reported and is well understood by the public.
A fair report of the proceeding would be limited and could not possibly impair public confidence in the contact tracing regime. The fact that the proceeding was brought by the Department to protect the confidentiality of contact tracing information should serve to bolster the public confidence in the system.
Analysis
I adopt the summary of principles and authorities which are set out in the interlocutory ruling.[25]
[25]Suppression Order Ruling (n 2) [39]–[42].
I accept Mr Weimar’s evidence that despite changes in the circumstances of the COVID-19 pandemic in Victoria since the interlocutory orders were made contact tracing is still vital to the State’s response to the pandemic. Further, I accept Mr Weimar’s evidence that, more generally, contact tracing is an essential component of the State’s response to the outbreak of infectious diseases.
For reasons explained in the interlocutory ruling public confidence is essential to the efficacy of contact tracing. Public confidence in the system may be undermined to the extent there is a serious unresolved challenge to the undertaking given by the Department to members of the public about the confidentiality of contact tracing information.
It is necessary to consider the degree to which public confidence in the contact tracing system may be undermined if no suppression order is made. As a result of this judgment, the proceeding will be dismissed. Reporting of the proceeding may include the following information:
(a) The Authority issued the notices to the Department requiring it to produce contact tracing information from the program which was relevant to the seeding of the second wave of COVID-19 infections in Victoria;
(b) The Department refused to provide the contact tracing information on the basis that undertakings of confidentiality were given by it to members of the public and the maintenance of confidence in the contact tracing system meant there was a public interest privilege in the information, and a reasonable excuse for it not being provided;
(c) The Authority did not accept that public interest immunity could be a reasonable excuse for not responding to notices under ss 9 and 100 of the OHS Act, or that the public interest in maintaining confidentiality of the contact tracing information outweighed the public interest in its investigation of possible breaches of the OHS Act by the Department in its role in the program;
(d) The Department commenced this proceeding seeking a declaration that it had a reasonable excuse for not providing contact tracing information in response to the notices issues by the Authority;
(e) The Authority has now withdrawn the notices because it has charged the Department with breaches of the OHS Act in relation to the program;
(f) Since the notices have been withdrawn, there is no dispute to be resolved and the proceedings have been summarily dismissed; and
(g) Whether the Department can refuse to provide confidential contact tracing information to regulatory authorities on the basis of public interest immunity has not been resolved.
Almost all of this information is publicly available, and can be reported, even if a suppression order is made. A suppression order would only have the effect of prohibiting reporting the information in sub-paragraphs 83(d) and (f).
Independent of this proceeding, the prospect of reporting about the Authority’s investigation of the Department, including notices to provide contact tracing information, is increased because the charges have been laid. There is likely to be significant public interest in the prosecution of the Department resulting in significant media reporting.
In the suppression order ruling I referred to the fact that media reporting of other attempts by regulatory authorities to access contact tracing information showed there was public concern that the confidentiality of the information be maintained. Reporting of the publicly available information set out in paragraph 93 above, may add to the level of public concern. However, on balance, the information sought to be suppressed is likely to allay, or at least not add to, those concerns. Reporting of the proceeding will inform the public that the Department took the serious step of issuing the proceedings to protect the confidentiality of the contact tracing information, and that the proceeding was dismissed because the notices requiring production of the contact tracing information were withdrawn.
The interlocutory suppression order was made on the basis that it was likely to be revoked after a hearing on the merits. There is a public interest in the timely reporting of the proceeding. The length of the suppression order now sought by the Department weighs against it being made.
The COVID-19 landscape in Victoria, and the State’s response to the pandemic, has changed materially since the interlocutory suppression order was made. At that time, the majority of eligible Victorians were not fully vaccinated against COVID-19, and the contact tracing system was central to the ability of Mr Weimar’s team to respond to an immediate risk of a devastating COVID-19 outbreak. A high percentage of the eligible population has now been fully vaccinated against COVID-19. The immediacy, magnitude and degree of risk associated with a reduction in the level of confidence in and adherence to the contact tracing system is not as clear as it was in late June 2021. Further, public confidence in the contact tracing system is not static, and is likely to wax and wane over time depending on matters including the circumstances of the pandemic, and societal attitudes and behaviours. Any negative impact on public confidence caused by reporting of this proceeding may not be great, or have a lasting impact.
For the above reasons, I conclude that the suppression order for which the Department applied in the event of the summary judgment application succeeding is not necessary, and should not be made.
After the contested hearing, the Department submitted that a suppression order should continue in force until expiry of the period for appeal from this judgment. The Authority will be given an opportunity to be heard about that matter when this judgment is delivered.
Costs
Submissions
The Department
There should be no order as to costs of the summary judgment application, and the defendants should otherwise pay the plaintiff’s costs of the proceeding.
The Department took every conceivable step from the time the notices were issued to raise public interest immunity as a reasonable excuse for failing to provide contact tracing information and documents. In May 2021, the Authority called on the Department to bring proceedings to agitate the issue. It was made abundantly clear to the Authority that the Department and its staff were under intense and unrelenting pressures during this period managing the COVID-19 outbreak. The Authority nevertheless continued pushing for the Department’s compliance with orders for filing evidence in the proceeding.
By September, a 30-volume brief of evidence was approved for prosecution, and the Department was charged with offences on 29 September 2021. The Authority has not provided any evidence of the process that was undertaken for the approval of charges or the timeframe under which it occurred. It is inconceivable that there was no earlier opportunity for the Authority to seek to hold this proceeding in abeyance while it awaited approval of the charges on the information already in its possession.
Costs should be awarded on an indemnity basis from finalisation by the Authority of the brief of evidence for the charges because the Authority continued its defence in this proceeding in wilful disregard of the fact that prosecution was likely to be approved without requiring that the Department provide the contact tracing information pursuant to the notices. The Authority must have known for some time that it had sufficient information to approve the charges.
The Authority
The withdrawal of the notices by the Authority did not constitute a surrender. Rather, events have superseded the proceeding as charges were laid against the Department on 29 September 2021. At that point, and taking into account the companion principle, the investigative power conferred by the Act could no longer be exercised. At most, this was a concession that the information set out in the notices was not essential to the laying of charges.
In the circumstances where there is no basis to find anything other than that both parties acted reasonably up to the time of the withdrawal of notices, each party should bear its own costs, save for the costs of this application, which should be paid by the plaintiff.
The public interest in the proceeding, and the fact that the determination of whether public interest immunity applies rests with the Court and not with the government, are further reasons that there should be no order as to costs.
The conduct of the Department opposing summary judgment despite the notices having been withdrawn shows that the Authority could not have put the proceeding on hold while it waited for the authorisation of the charges. The Department would have pushed on in the proceeding regardless, as its response to the summary judgment application shows. Further, there was nothing that could properly be revealed about the Authority’s position to the Department until the charges were laid.
Analysis
The power to award costs, and to determine by whom and to what extent they are to be paid, is in the discretion of the Court.[26]
[26]Supreme Court Act 1986 (Vic) s 24.
If a proceeding terminates before there has been a hearing on the merits, the issue of costs should not be resolved by conducting a hypothetical trial.[27] However, an order for costs will still be made in an appropriate case. Relevant considerations include the reasonableness of the conduct of the parties, whether one party was almost certain to have succeeded if the matter had been tried fully, and whether after litigating for some time one party effectively surrenders to the other.[28] The proper exercise of the costs discretion in circumstances where both parties have acted reasonably until the litigation became futile would usually mean there would be no order as to costs. However, there is no invariable rule to that effect.[29]
[27]Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Quin (1997) 186 CLR 622, 624 (‘ex parte Lai Quin’).
[28]ex parte Lai Quin (n 27); ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227.
[29]ex parte Lai Quin (n 27); ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227.
In this proceeding, the Department sought to be relieved of the obligation to comply with the notices issued by the Authority requiring it to provide the contact tracing information. In correspondence exchanged before the proceeding commenced, in the pleadings set out in the originating motion, and in evidence and submissions at the interlocutory hearing for a suppression order, the Department set out in detail the basis on which it alleged that it had a reasonable excuse for failing to comply with the notices. There was no question raised as to the reasonableness of the Department’s conduct in the proceeding.
At the hearing of the application for a suppression order on 24 June 2021, the Department made it plain it was not seeking to restrict the Authority from accessing the information or documents from another source, or to inhibit the Authority’s investigation of its conduct. That concession was hardly necessary. The Authority has broad powers to investigate possible breaches of the OHS Act, which include the power to require a person to give the Authority information and produce documents for the purpose of investigating a suspected contravention, whether or not the person is the subject of the investigation.[30]
[30]OHS Act (n 1) ss 9, 99, 100.
Offences under the OHS Act are risk based, not outcome based. The eventuation of a risk, and the occurrence of harm to any person, is of evidentiary significance only, and is not an element of the offence.[31] Whether the contact tracing information and documents sought by the Authority from the Department go to the eventuation rather than the proof of risk is unclear.
[31]DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55.
It is evident the investigation by the Authority which led to the notices being issued continued despite the Department’s refusal to provide the contact tracing information and documents, and culminated in the Authority charging the Department on 29 September 2021 with 58 breaches of the OHS Act. No indication was given to the Department that charges were imminent, or that the investigation may conclude without it being required to comply with the notices, until the charges were laid. The Authority has not explained how it was able to investigate and lay charges without obtaining the contact tracing information from the Department.
At the same time that the Authority was continuing the investigation in anticipation of laying the charges, the Department was under the strain of coping with the undoubtedly enormous and critically important demands of responding to the COVID-19 pandemic in Victoria, and of complying with orders requiring it to file and serve affidavit evidence and expert reports in the proceeding.
I do not accept that in those circumstances the Authority was unable to invite or offer a pause in the proceeding pending possible completion of its investigation. Doing so would not have involved any concession on its part which might have been used against it on an adjudication of the proceeding on the merits. Further, there is no material upon which I can conclude that by doing so the Authority would have placed itself at a disadvantage in relation to the investigation of the Department or the laying of charges.
The facts of this case are very different to those in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Quin.[32] The prosecutrix in that case commenced the proceedings on 15 January 1996 seeking to review a decision of the Refugee Review Tribunal not to grant a visa to her. It is evident from the judgment of McHugh J that the Tribunal had undertaken a process of careful consideration and fact finding in making the decision to refuse a visa. Four days before the proceeding was issued a recommendation was made that the Minister consider granting the prosecutrix a visa on different grounds relating to her changed circumstances since arriving in Australia. On 16 January 1996, after becoming aware the proceedings had been instituted, the respondent informed the prosecutrix that a recommendation concerning a grant of a visa was being considered. A decision was made granting a visa on 22 January 1996. The reconsideration and granting of the visa did not represent a concession of the case raised by the prosecutrix in the proceeding. McHugh J concluded that while the prosecutrix had an arguable case it is likely her application would have failed had there been an adjudication on the merits.
[32]ex parte Lai Quin (n 27).
There is no evidence that the Authority carefully considered whether the contact tracing information was necessary to its investigation, or that it re-evaluated the need for the information on the basis of circumstances not known to it before the proceeding was commenced. Despite having maintained its insistence on compliance with the notices to the point of requiring that the Department issue and prosecute the proceeding, the Authority has, without notice or forewarning, simply withdrawn the notices. In doing so, the Authority has conceded the Department is not required to comply with the notices by producing the contact tracing information, and will not be prosecuted for any failure to do so.
The costs of this proceeding have been incurred because of the actions of the Authority. The proceedings have come to an end because the Authority has resiled from the position it previously strongly maintained, without any explanation other than that it has now charged the Department with offences under the OHS Act. I conclude there has been a failure by the Authority to act reasonably.
For the above reasons, I conclude that the Authority should pay the Department’s costs of the proceeding to 29 September 2021.
I will not accede to the Department’s submission that costs should be awarded on an indemnity basis from the date of completion of the brief of evidence which led to it being charged on 29 September. There is no evidence about when the brief of evidence was completed, to whom it was delivered, and when it was considered. The evidence before me does not justify a special costs order.
There will be no order for costs in the proceeding from 30 September 2021. This includes the application for summary dismissal. That application was only made after I called the matter on for a directions hearing a short time before the scheduled trial date. The Authority could justifiably have been met with an application for costs thrown away because of late vacation of the trial date. Further, the Department’s opposition to the summary judgment application had merit, and there was a clear public interest in the claim it made in the proceeding. Finally, a hearing would have been necessary in any event to consider what should occur in relation to the suppression order, and to resolve the question of costs.
Conclusion
There will be an order under s 63 of the CPA for summary judgment dismissing the proceeding. I will dismiss the Department’s application for a continuing suppression order, subject to whether there should be a suppression order until the expiration for the period of appeal from this judgment. I will order that the Authority pay the Department’s costs of the proceeding on a standard basis to 29 September 2021, and that there is no order as to costs beyond that date.
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