The Secretary of the Department of Primary Industries v Environment Victoria Inc
[2013] VSC 300
•11 June 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
SCI 2013 of 00679
| THE SECRETARY OF THE DEPARTMENT OF PRIMARY INDUSTRIES | Plaintiff |
| v | |
| ENVIRONMENT VICTORIA INC. | Defendant |
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JUDGE: | Lansdowne AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2013 | |
DATE OF JUDGMENT: | 11 June 2013 | |
CASE MAY BE CITED AS: | The Secretary of the Department of Primary Industries v Environment Victoria Inc. | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 300 | |
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PRACTICE & PROCEDURE – Application for leave to appeal from VCAT – questions of law and grounds poorly formulated – leave granted on the basis of oral submissions and anticipated satisfactory reformulation of questions of law and grounds –significance of the question of law being of general public importance in the grant of leave – plaintiff required to give undertaking to pay the defendant’s costs of the application for leave to appeal and appeal irrespective of outcome – s 148 Victorian Civil and Administrative Tribunal Act 1998.
ADMINISTRATIVE LAW – ss 25, 28 and 30 Freedom of Information Act 1982
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr J D Wilson SC and R Cameron | Elda Poletti, Legal and Risk Branch, Department of Primary Industries |
| For the Defendant | J Pizer and T. Acreman | Environment Defenders Office (Victoria) Ltd |
HER HONOUR:
Introduction
These proceedings commenced by originating motion filed 12 February 2013. The originating motion seeks leave to appeal an order made by the Victorian Civil and Administrative Tribunal (“VCAT”) made on 15 January 2013. By that order Senior Member Jonathan Smithers granted the defendant access to one document and to part of another, being two documents of a number originally sought by the defendant from the plaintiff pursuant to the Freedom of Information Act 1982 (“FOI Act”). VCAT otherwise affirmed the decision by the plaintiff to refuse access to the documents sought which remained in dispute at the time of the hearing in VCAT.
I heard the application for leave to appeal on the first return date of the summons filed with the originating motion, being 20 March 2013. Prior to that date I caused the parties to be notified that I would hear them as to whether the question of leave should be referred to the Court that would hear the appeal if leave was granted, rather than being argued before me. I made this suggestion because experience suggests that consideration of the question of leave to appeal, where the argument below has been lengthy and complicated as here, often requires detailed consideration (albeit only to a level of satisfaction of sufficient doubt) of the very matters that the Court on full hearing of the appeal, if leave is granted, will also be required to consider. Separate consideration of the question of leave can also add time to the determination of the appeal where, as here, it is not possible, given the complexity of the matter and the pressure of other work, to give an ex tempore decision.
The plaintiff (also described herein as “DPI”) sought that the question of leave be referred but the defendant (also described herein as “EV”) opposed it on the basis that leave should be refused because the draft notice of appeal could not enliven the Court’s jurisdiction. In the alternative, if leave was granted, the defendant submitted that the grant of leave should be conditional on the plaintiff undertaking to pay the defendant’s costs of both the leave application and the appeal irrespective of the outcome of the appeal. The defendant filed written submissions in support of these contentions on 19 March 2013, the day before the hearing.
The plaintiff did not agree with the defendant’s alternative submission that the plaintiff pay the defendant’s costs of the leave application and appeal irrespective of the outcome nor, even in response to a suggestion from me, that the plaintiff pay the defendant’s costs of the leave application if the question was referred to the Court hearing the appeal. Having regard to the stance of the parties, I heard the leave application. As these reasons show, the application has, as anticipated, required consideration of the same issues that will be before the Court on the hearing of the appeal with, in the event, some attendant duplication.
Following receipt of the defendant’s written submissions, and prior to the hearing, the plaintiff amended its draft notice of appeal. The original draft notice of appeal[1] contained two questions of law and six grounds. The amended draft notice of appeal reworded existing paragraphs (a),(b) and (c) of Question of Law 1; inserted a fourth paragraph to that Question (apparently in response to a submission in the defendant’s written submissions); restated existing Question of Law 2(a) as Question of Law 2; reworked the content of existing Question of Law 2(b) into new Question of Law 3 and added a new Question of Law 4. The amended draft notice of appeal also amended two of the six grounds. The defendant had a brief opportunity to consider this amended draft notice of appeal prior to oral submissions and indicated that the amendments did not sufficiently address the defendant’s concerns, as expressed in its written submissions.
[1]Exhibit LCW-11 to the affidavit of Luke Wilson sworn 12 February 2013
In the course of argument the plaintiff further amended this amended draft notice of appeal, by withdrawing Question of Law 2. I will refer to the resulting document as the Amended Draft Notice of Appeal (as further amended), and will assume in what follows that the numbering of the Questions of Law has been amended to reflect the deletion of Question of Law 2 in the amended draft notice of appeal.
I set out this history to show the difficulty the plaintiff has had in articulating in writing the issues it seeks to agitate on appeal. The plaintiff’s oral submissions were considerably more helpful in identifying these issues than the document itself. In fairness to the plaintiff, and for the reasons I set out in more detail later in these reasons, I will consider the Amended Draft Notice of Appeal (as further amended) in the light of those oral submissions. I will do so on the benevolent assumption that the plaintiff, if leave is to be granted on the basis of those submissions, will now be able to formulate questions of law and grounds that properly articulate the issues to be agitated on appeal, and comply with the necessary requirements of precision and framing, as identified by the defendant.
The application before VCAT
Background facts are set out in the introduction to the reasons of Senior Member Smithers (“the Reasons”) and are not in dispute. In paragraph 1 of the Reasons, Senior Member Smithers describes the then applicant, current defendant EV, in these terms:
The applicant is a peak environmental non-Governmental organisation in Victoria. It is the successor to the Conservation Council of Victoria. It has conducted many campaigns in relation to environmental issues.
EV submitted a request under the FOI Act to DPI on 15 December 2011 which Senior Member Smithers described as:
broadly seeking documents relating to three topics:
·The possible allocation of new licences to mine brown coal in the Latrobe Valley
·Reductions to the premium solar feed–in tariff paid to consumers who contribute electricity to the power grid from solar panels (The PFiT Scheme)
·Changes to the planning controls over wind farms.
Thus, the applicant seeks documents which relate to significant issues of policy which are the subject of current debate in the community, and, in relation to the first topic, current consideration by the Government.[2]
[2]Reasons [1].
DPI did not respond to the request within the statutory 45 day period. EV made an application to VCAT for review of this deemed refusal to grant access on 3 February 2012. There was subsequent correspondence between DPI and EV in relation to the request and EV withdrew some aspects of it in February and March 2012. DPI then issued two notices of decision, the first on 1 June 2012 in respect of some of the remaining categories of documents to which access was sought, and the second on 21 June 2012 in respect of the balance of the remaining categories. In respect of each of these notices of decision, DPI granted access to some of the documents sought but denied access to the majority.
After DPI issued these notices of decision, EV requested that VCAT treat its application as an application for review of the notices of decisions. Interlocutory steps in the Tribunal narrowed down the number of documents in dispute to nine, and that number was further narrowed in the course of the hearing after inspection of the documents in question by counsel for EV, subject to a confidentiality undertaking.
Four documents remained in dispute after those steps and are the subject of the orders and reasons for decision of Senior Member Smithers. He notes in the Reasons that the request that was originally made included documents such as Cabinet submissions and Cabinet decisions, but those requests were not pursued. He describes the documents the subject of the Reasons, the remaining four documents, as being “created at an earlier stage of the process of consideration of the coal allocation and PFiT issues by the new Government – before they reached Cabinet”.[3]
[3]Reasons [16].
EV’s application for review of DPI’s refusal of access was heard over three days in VCAT in October and November 2012 and included lengthy written evidence in chief and oral cross examination of witnesses for each party. The bulk of the evidence in chief for DPI was kept confidential by the Tribunal at the request of DPI and a small portion of the hearing was in camera. I ordered by consent on 20 March 2013 that the transcript of that in camera portion of the hearing remain confidential, and sealed pending further order.
Three of the four documents remaining in dispute concerned the possible allocation of new licences to mine brown coal in the Latrobe Valley (being documents 4, 7 and 7.1). The fourth document (document 19) concerned the PFiT scheme.
Documents 4, 7 and 7.1 all concern briefings to the new Minister for Energy and Resources, who has the statutory responsibility to determine the allocation of Latrobe Valley brown coal licences, following the election of a new Victorian government in November 2010. They relate to the development to that date of a policy for such allocation by the former government. Witnesses for DPI called this policy in development a Coal Development and Allocation Strategy, which the Tribunal then referred to as “the Strategy”. Document 4 is a eight page PowerPoint presentation given to the Minister by officers of DPI on 2 February 2011 in relation to the Strategy. Document 7 is a three page briefing note to the Minister prepared by officers of DPI about the Strategy, for the purpose of the meeting to be held on 2 February 2011. Document 7.1 is a four page document entitled “Legislative and Regulatory Environment for Victorian Brown Coal” which was the first attachment to document 7.
Document 19 is a four page briefing note by DPI to the Minister dated 4 January 2011. It relates to the PFiT scheme. That scheme had been introduced by the previous government in November 2009. It offered eligible households, businesses and community organisations payment of at least 60 cents per kilowatt hour for electricity generated by solar panels and fed back into the grid. The enabling legislation provided for the cessation of the scheme by declaration by the Minister that it was at capacity having regard to certain statutory criteria. Document 19 was one of a number of documents created in anticipation of the scheme arriving at capacity during 2011 to assist the Minister in managing the potential closure of the scheme. The document advised the Minister of the figures obtained from distributors (who were required to report on a number of matters including the number and capacity of solar installations) as at November 2010 and so the state’s progression towards the legislative criteria for capacity.
The document was never approved by the Minister, and it was returned six months later marked (apparently by a Ministerial advisor) “overtaken by events”. Subsequently, in January 2012, the government reduced feed-in tariffs to 25 cents per kilowatt hour and published updated figures as to the take up of solar panels in Victoria.
Tribunal Order and Reasons for Decision
By order made 15 January 2013 Senior Member Smithers ordered that EV have access to a small portion of document 7.1, but affirmed the decision of DPI to refuse access to documents 4 and 7 and the balance of 7.1. Senior Member Smithers also ordered that EV have access to the whole of document 19.
Documents 4,7 and 7.1
DPI opposed access to documents 4, 7 and 7.1 on two bases. The first basis was that they were exempt documents under s 28 of the FOI Act (which relates to Cabinet documents). The relevant portions of s 28 are as follows:
28 Cabinet documents
(1) A document is an exempt document if it is –
(a) the official record of any deliberation or decision of the Cabinet;
(b) a document that has been prepared by a Minister on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;
(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;
(c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
…
(3) Subsection (1) does not apply to a document referred to in a paragraph of that subsection to the extent that a document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.
DPI asserted that these documents fell within s 28(1)(ba). It can be observed that if a document falls within that category, then, subject only to the exception in ss (3), the document is exempt – there is no further requirement of public interest to be considered.
The Tribunal held that the documents fell within the first requirement of s 28(1)(ba) i.e. they were documents “prepared for the purpose of briefing a Minister” but that they did not fall within the subsequent phrase “in relation to issues to be considered by the Cabinet”, and accordingly were not exempt under s 28(1)(ba). A number of aspects of the Tribunal’s reasoning process in reaching this conclusion are challenged by DPI in this application.
In determining whether the documents fell within this phrase, the Tribunal identified the “key question” as being “whether the Strategy was an issue ‘to be considered by the Cabinet’”[4]. In this application, DPI seeks to challenge the Tribunal’s focus on a particular policy document (the Strategy) as opposed to the issue of brown coal allocation in general.
[4]Reasons [33].
The Tribunal next queried whether, given the period of time that elapsed between the preparation of these documents and the eventual consideration of the Strategy by Cabinet in December 2011, and the fact that the documents that formed part of the Cabinet submission of 12 December 2011 were “much more developed and extensive”[5] than the documents in question, it could be said that the issues remained the same as when the documents were prepared.
[5]Reasons [35].
The Tribunal also agreed with the submission put by EV that as at the date of these documents DPI did not have the requisite intention and expectation that the Strategy would be considered by Cabinet because the incoming Coalition government had not announced a policy on coal allocation prior to the election, and it was not known by DPI what the Minister’s position was prior to the 2 February 2011 meeting.
The Tribunal accepted the submission put on behalf of DPI that the bare effluxion of time between creation of a document and its consideration by Cabinet does not necessarily prevent s 28(1)(ba) from applying, and nor does the fact that no decision had been formally made that the matter would be taken to Cabinet. The Tribunal concluded:
However, I find that in the uncertain circumstances of the initial meeting with the Minister in February 2011 described above, it cannot objectively be concluded that these documents were prepared for the purpose of briefing the Minister in relation to issues ‘to be considered’ by Cabinet, in the sense required by s28(1)(ba). These documents were simply too early in the process, and the circumstances were too uncertain for them to fall within the expanded concept of Cabinet documents in s28(1)(ba).
Nor do I accept that the documents in this particular case form part of a continuum of material in relation to issues ‘to be considered by the Cabinet’, which commenced with the intention of the former Minister to take the Strategy to Cabinet in 2009, and continued on until the consideration by the Cabinet of the new government in December 2011( and, indeed, would continue up until the time when the matter is finally definitively dealt with by Cabinet). Whilst Mr Hider (the witness for DPI) might be confident in view of his knowledge of the history and practical implications of the Strategy that it would be taken up by the new government, it is stretching the meaning of s28(1)(ba) too far to say it applies in circumstances where the new government had in fact given no indication of what its policy was. Mr Hider said that in the briefing he was in effect suggesting in a ‘polite’ way that this is a matter which should go to Cabinet. This approach reflects the fact that he was waiting for a decision by the Minister as to what course the government wanted to take in relation to the Strategy-which, as a public servant, he would then implement. [6]
[6]Reasons [40]-[41], emphasis in the original, footnotes in the original omitted.
The Tribunal next considered if access to the documents should be refused under s 30 of the FOI Act, which relates to internal working documents. That section relevantly provides:
30 Internal working documents
(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act –
(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative process involved in the functions of an agency or Minister or of the government; and
(b) would be contrary to the public interest.
It can be observed that, unlike documents that fall within s 28, documents are only exempt under s 30 if they both fall within the necessary description, and access to the document would be contrary to the public interest. There is a similar exclusion as in s 28 for “purely factual material” in a document. EV conceded that documents 4, 7 and 7.1 fell within the description in s 30(1)(a). Thus the issue for determination was whether disclosure would be contrary to the public interest. DPI bore the onus of proof on this issue.
The Tribunal set out in detail the competing submissions of the parties on this issue, and the competing public interests on which they relied. The Tribunal concluded that DPI had discharged its onus of showing that it would be contrary to the public interest to release the documents, with the exception of the first one and a third pages of document 7.1. The Tribunal noted that the documents contained a “reasonable amount of factual information”, factual information not being exempt under s 30, but concluded:
With the exception of the first one and a third pages of document 7.1, however, I have concluded it is not possible to separate out the factual material from the non-factual material in a way which produces a redacted document in coherent form.[7]
[7]Reasons [63].
In other words, the Tribunal granted access to that portion of document 7.1 on the basis that it contained solely factual material. There is no application by EV to appeal the refusal of access to the balance of document 7.1 or to documents 4 and 7.
Document 19
DPI did not claim that this document was exempt under s 28(1)(ba). It opposed access under s 30 of the FOI Act. EV conceded that the document fell within the class of documents to which that section relates, and so the only question for determination by the Tribunal was whether DPI had shown that disclosure would be contrary to the public interest. The Tribunal held it had not. In reaching this conclusion the Tribunal had regard to a number of matters. First and second, the Tribunal held that:
A key consideration is that the policy on PFiT was announced in January 2012, and so, in contrast to the coal allocation briefing, the decision-making process to which it (document 19) refers has been completed. Further, much of the document comprises factual material which is not exempt under s 30(3). Where it comprises opinion, this consists of conclusions which are obvious from the factual material. [8]
[8]Reasons [78].
Next, the Tribunal rejected the submission of DPI that release of document 19 would be contrary to the public interest because it would potentially mislead the public. The Tribunal noted that the document bore the date of its creation, 12 months before the final decision on the PFiT scheme, and so readers would not be confused by comparison with the eventual decision. Further, to the extent there was any difference between the figures there given as to take up of solar panels and those subsequently published by DPI the Tribunal found that “the differences are not significant and would not mislead”. The Tribunal also found that the notation “overtaken by events” would not mislead the public, as DPI contended.[9]
[9]Reasons [79]-[80].
Test for leave to appeal and the amended draft notice of appeal
There is no dispute that the test for leave to appeal a decision of VCAT is as set out in Myers v Medical Practitioners’ Board of Victoria[10] (“Myers”), which adopted the test as previously determined by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls (“Hulls”) [11]. I set out below the well known passage of the judgment of Phillips JA in Hulls, also cited in Myers:
When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[12]
[10][2007] VSCA 163
[11][1999] 3 VR 331
[12]Ibid, at 337
The Amended Draft Notice of Appeal (as further amended) specifies the following Questions of Law:
(1) Is s 28(1)(ba) of the Freedom of Information Act to be construed in such a manner that –
(a) the “issues’ to which the section is directed –
(i) are the matters that are to be considered by the Cabinet; or
(ii) are the documents that are to be considered by the Cabinet.
(b) the section only has application if, in relation to a specific document if –
(i) a “level of certainty” must exist with respect to an issue or concerning “the Minister’s position” about the “issues” contained in that document;
(ii) the Department entertains a reasonable intention and expectation that a particular document or the issues contained in it would be considered by the Cabinet;
(iii) a temporal connection exists (and if so what that connection is) between the date of preparation of the document and the date on which the document is considered by the Cabinet?
(c) The Section applies to a document where the government has not concluded a policy with respect to a particular subject matter referred to in such document for the purposes of submission to cabinet.
(d) Having found that aspects of document 7.1 were included in the Cabinet submission, was it open to the Tribunal to find that document 7.1 did not concern issues to be considered by the Cabinet?
(2) Whether for the purposes of the “public interest” in s 30(1)(b) of the Freedom of Information Act, the Tribunal is required to have regard to the grant of access of the whole of the document and not merely part of it?
(3) Is section 30 of the Freedom of Information Act to be construed in such a manner that the “public interest” can have no application if the decision making process in question has been completed?
It specifies the following Grounds:
Document 4 – S 28(1)(ba) of the Freedom of Information Act.
1. Having accepted the evidence of Mr Hider that components of document 4
would be considered bydid make their way in the document submitted to the Cabinet the Tribunal erred in finding that s 28(10 (sic) (ba) did not apply to document 4.
Document 7 – S 28(1)(ba) of the Freedom of Information Act.
2. Having accepted the evidence of Mr Hider that components of document 7
would be considered bydid make their way into the document submitted to the Cabinet the Tribunal erred in finding that s 28(1)(ba) did not apply to document 7.
Document 7.1 – S 28(1)(ba) of the Freedom of Information Act
3. Having found that document 7.1 was prepared for the substantial if not the sole purpose of briefing the Minister in relation to a Coal Development and Allocation Policy, the Tribunal erred in finding that the Department did not have the requisite intention and expectation that document 7.1 would be used to brief the Minister in relation to an issue to be considered by the Cabinet.
4. Having found that aspects of document 7.1 were included in a submission dated 12 December 2011, the Tribunal erred in finding that document 7.1 did not concern issues to be considered by the Cabinet.
Document 7.1 and Document 19 – s 30 of the Freedom of Information Act
5. Having found that the public interest was outweighed by the Minister being able to receive briefing material confidentially, the Tribunal erred in finding in respect of the first page plus three dot points on page two of document 7.1 –
(i) that aspects of document 7.1 comprised factual material not exempt under s 30;
(ii) document 7.1 should be released;
6. Having found that the decision making process with respect to “PFiT” had been completed with the announcement of such policy, the Tribunal erred in not finding that the release of document 19 would be contrary to public interest.
Deficiencies in the Question of Law and Grounds
EV’s primary submission in relation to all the proposed Questions of Law and the Grounds is that the Questions are not sufficiently precise or exact; the Grounds do not frame or support the Questions as required[13] or provide the required link between the questions of law, the circumstances of the particular case and the orders sought on the appeal[14]; and further, the Grounds invite reconsideration of the factual findings of the Tribunal, which is impermissible in an appeal on a question of law. These claimed defects are addressed in detail in EV’s written submissions. EV submits that the Amended Draft Notice of Appeal (as further amended) cannot enliven the Court’s jurisdiction, given these defects.
[13]Per Davies J in Commissioner of State Revenue v STIC Australia Pty Ltd and anor [2010] VSC 608 “(STIC”) at [10]
[14]Per Branson and Stone JJ in Birdseye v Australian Securities and Investment Commission [2003] FCA 232 at [18].
The necessity for precision in the articulation of the question of law on which an appeal pursuant to s 148 is brought to properly enliven the Court’s jurisdiction has been emphasised by the highest authority. The High Court in Osland v Secretary to the Department of Justice[15] held that:
The questions of law are not to be distilled from the grounds of appeal. What Gummow J said of s 44 of the Commonwealth AAT Act in TNT Skypark International (Aust) Pty Ltd v FCT is true also of s 148:
…The existence of a question of law is…not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.[16]
[15](2010) 267 ALR 231
[16]Ibid, at [21] footnotes omitted.
This statement has been cited with approval and applied in decisions in this Court. [17] In Commissioner of State Revenue v STIC Australia Pty Ltd and anor (“STIC”) Davies J put it forcefully thus:
The requirement that the leave of the Court be obtained in order for a party to appeal a decision of the Tribunal also evidences the legislature’s intention that the question of law as framed must be one that is supported by the proposed grounds of appeal. In other words, the proposed notice of appeal must disclose that the Court’s jurisdiction to hear the appeal from VCAT is enlivened by the notice of appeal. The leave requirement is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal. The question of law is framed by the grounds. Where the grounds do no more than indicate that the subject matter of the proposed appeal invites reconsideration of the merits of the decision, the jurisdiction of the Court is not enlivened, even though the question of law identified may be expressed in judicial review terms. The proposed notice of appeal must identify that the issues sought to be agitated on the appeal raise a question of law. If the question of law, properly analysed, is not a question of law, the form of its expression does not turn it into a question of law.[18]
[17]For example, Hoe v Manningham City Council [2011] VSC 37 at [3] and [4]; Commissioner of State Revenue v STIC Australia Pty Ltd and anor [2010] VSC 608 “(STIC”) at [9]-[10].
[18]Davies J in STIC, op cit, at [10].
I agree in the broad with the criticisms made by EV of the Amended Draft Notice of Appeal (as further amended). The document is not sufficiently clear on its face. In answer to my enquiry as to how the Grounds related to the Questions of Law, counsel for the plaintiff frankly conceded that the Grounds and the Questions of Law are not sufficiently linked. He said that Grounds 1-4 related to Question of Law 1 but could not or did not further specify which Grounds relate to which portions of Question of Law 1, and stated that Grounds 5 and 6 relate to both of Questions of Law 2 and 3. This level of generality is quite unsatisfactory.
Counsel for the plaintiff submits, in essence, that deficiencies of articulation are not a barrier to the grant of leave. He places importance on the general importance of the questions raised, which are, he asserts, self evidently questions of construction and so law; asserts that the threshold for leave is a low one; and submits that the substance of the matter is sufficiently before the Court and the Court should not engage in “wilful blindness” or examine the Questions of Law or Grounds with “microscopic precision”.
In my view, counsel for the plaintiff is not correct in his submission that close scrutiny of the notice of appeal is not to be undertaken at the leave stage. STIC makes it clear that close examination of the questions of law and grounds is not merely for the hearing of the appeal itself, but is a pre-condition to such hearing i.e. a matter for consideration as to the grant of leave to appeal.
I have considered whether to refuse leave to appeal given the deficiencies in the Amended Draft Notice to Appeal (as further amended). In the result I have decided not to do so, for three reasons. First, if the document is considered in the light of the oral submissions I consider there is some doubt as to the correctness of the Tribunal’s approach in relation to some of the issues sought to be agitated. I discuss this in detail shortly in relation to each Question. Next, the plaintiff is a public authority that seeks to agitate issues of, so it asserts (and this is not denied), general public importance. While on one view the Court might be entitled in this circumstance to expect a greater degree of precision than in the case of a private litigant, there is a chain of authority (which I discuss later in detail) that where the issues are of public importance leave may be granted when it might otherwise not be. Third, a litigant is ordinarily given every reasonable opportunity for amendment before final hearing. Not to do so before the hearing of the appeal, if the leave hearing identifies some arguable errors of law, may be to work an injustice.
Accordingly, on balance and in fairness to the plaintiff, I have considered the Amended Draft Notice of Appeal (as further amended) in the light of the plaintiff’s oral submissions. As earlier noted, I do so on the benevolent assumption that the notice of appeal can be sufficiently corrected if leave to appeal is granted.
Question of Law 1: Claimed errors in relation to construction of s28(1)(ba)
DPI claims that the Tribunal erred in law in the following respects in relation to the construction and application of s 28(1)(ba) to documents 4, 7 and 7.1. First, in identifying in paragraph 33 of the Reasons the question to considered as whether a particular document, the Strategy, was an issue to be considered by the Cabinet, as opposed to the subject matter of brown coal allocation in general. Counsel for the plaintiff identifies that this is sought to be agitated by Question of Law 1(a).
Second, DPI asserts that the Tribunal erred in importing into s 28(1)(ba) a requirement of a “level of certainty” as to whether or not an issue was to be considered by Cabinet, in paragraph 36 of the Reasons. Counsel states this is sought to be agitated by Question of Law 1(b)(i) and (ii).
Third, in oral submissions DPI asserts error by the Tribunal in making reference to, and apparently giving weight to, the change in government. Reference is made to the change in government and the significance of an incoming government in, for example, paragraphs 38 and 41 of the Reasons. I cannot locate express assertion of this claimed error in the Questions of Law or Grounds in the Amended Draft Notice of Appeal (as further amended) and nor did counsel for the plaintiff identify any Question of Ground directed to it. While in fairness to the plaintiff I will take the oral submissions into account in illuminating the Amended Draft Notice of Appeal (as further amended), it is not appropriate to allow the plaintiff to raise an entirely new alleged error without amendment of that document. No amendment was sought or proposed in relation to this alleged error and so I disregard it, except to the extent (if any) it arises under Question of Law 1(c).
Fourth, DPI asserts that the Tribunal erred in construing the section so as to require a intended consideration by Cabinet of a policy, as opposed to an issue or issues. The Tribunal held in paragraph 41 that s28(1)(ab) did not here apply given that “the new government had in fact given no indication of what its policy was”. Counsel states this is sought to be agitated by Question of Law 1(c).
Fifth, DPI asserts that the Tribunal erred in importing into the section the requirement of a temporal connection, for example in paragraph 40 of the Reasons. Counsel states that this is raised in Question of Law 1(b), presumably by sub paragraph (iii).
The Amended Draft Notice of Appeal (as further amended) contains a paragraph (d) to Question of Law 1. Counsel for the plaintiff did not direct any oral submissions to that paragraph, and so I will consider it on its face.
In the light of the plaintiff’s oral submissions, I consider that the first, second, fourth and fifth claimed errors in the Tribunal’s reasoning in relation to s 28(1)(ba), sought to be raised by paragraphs (a)-(c) of Question of Law 1 may be arguable errors of law. The third error claimed in the oral submissions is an arguable error of law raised by the Amended Draft Notice of Appeal (as further amended) only to the extent it arises under Question 1(c). The section speaks of “issues” “to be considered by the Cabinet” rather than specific documents, and does not in terms contain any necessary temporal connection between the date of preparation of the document in question and the anticipated consideration by Cabinet, nor any requirement of an already stated policy. Conversely, it also seems to be me arguable that in using the words that it did, now the subject of attack, the Tribunal was merely seeking to identify, in the particular circumstances of this case, how the agreed principles of law in relation to s 28(1) here applied. That is, it is possible that there is here no real question of construction, and that, as the defendant contends, DPI really seeks to canvass the merits of the decision below.
Paragraph (d) of Question of Law 1 may have been inserted in response to the defendant’s observation in its written submissions that there was no question of law relating to Ground 4. Whatever its origin, in my view it does raise an arguable error of law.
I consider that many of the defendant’s criticisms of the Grounds are well founded. If there is sufficient doubt in respect of the matters raised by Question of Law 1, however, as illuminated by the oral submissions, I will grant leave to appeal on the basis that the Grounds will be amended to sufficiently frame the Questions, themselves amended as required.
Hulls requires that the Court also consider in relation to the grant of leave to appeal whether there is any substantial injustice to the plaintiff in leaving the asserted errors, here in the construction of s 28(1)(ba), uncorrected, if indeed they are errors of law. As EV points out, the Tribunal found that documents 4 and 7, and most of document 7.1 were exempt in any event, under s 30. Accordingly, even if the Tribunal erred in its construction of s 28 (1)(ba) that error was not vitiating. EV notes that the relief sought in the Amended Draft Notice of Appeal is also unusual, in that instead of seeking that the matter be remitted to the Tribunal, if the appeal is allowed, DPI seeks a declaration that documents 4,7 and 7.1 are exempt under s 28(1)(ba). In the absence of outweighing factors tending towards the grant of leave, the fact that the appeal would have limited practical impact would ordinarily lead to the refusal of leave because there would be no substantial injustice to the plaintiff in leaving any error uncorrected.
A different result may obtain, however, where the applicant for leave seeks to agitate issues of general public importance, as here. That this is the purpose of this intended appeal is made clear by the statement of reasons for seeking leave to appeal published by DPI in accordance with s 65AB of the FOI Act. That statement is exhibited to the affidavit of Felicity Millner sworn 14 March 2013. The statement sets out that DPI believes VCAT has made errors of law regarding “the proper application” of sections 28(1)(ba) and 30(1), in the latter case in particular in relation to when release of documents would be contrary to the public interest, and concludes:
The determination of the above questions of law raised in this appeal would clarify the proper application of sections 28(1)(ba) and 30(1) of the FOI Act.
There is authority for the proposition that leave may be granted where it might otherwise not be, because of the general public importance of the question of law identified. Accordingly, whether leave should be granted, having regard to my low level of doubt as to the correctness of the Tribunal’s approach and the limited injustice to the plaintiff in this case if errors are left uncorrected, depends on the weight to be given to the plaintiff’s contention that the issues sought to be agitated are of general public importance. I will return to this issue later.
Question of Law 2
This Question (Question 3 in the amended draft notice of appeal) asks if the Tribunal is required to have regard to the grant of access of the whole of a document and not merely part of it. Counsel for the plaintiff did not identify which of Grounds 5 and 6 relate to it, but in my view it is plain that Ground 5 is intended to be the related Ground. The Question does not appear in the original draft notice of appeal, although Ground 5 does. The Question may have been inserted into the amended draft notice of appeal in response to the defendant’s submission that there was no question of law related to Ground 5.[19] Ground 5 asserts error on the part of the Tribunal in two respects – (i) in its finding that aspects of document 7.1 comprised factual material; and (ii) in its resulting order, which is here stated as that “document 7.1 should be released”.
[19]Defendant’s Outline of Submissions at [27].
I accept the submission of EV that the first stated error in Ground 5, if error it be, is one of fact. Leave to appeal accordingly cannot be granted in respect of that claimed error.
It is also immediately evident the second stated error in Ground 5 misstates the order the Tribunal made in relation to the release of document 7.1. The Tribunal did not order release of the whole document, but only those aspects of it that the Tribunal found comprised factual material, which could be redacted from the whole document. I will consider Question of Law 2 on the basis that this aspect of the Ground can be corrected.
EV submits that there is no sufficient doubt in respect of the Question of Law, and, in fact, that it is bound to fail. Section 30(3) of the FOI Act provides that the exemption for internal working documents does not apply “to a document by reason only of purely factual material contained in the document” (emphasis added). The emphasised words differ from the form used for the similar exemption in s 28(3) where the exemption in s 28(1) is stated not to apply to a document “to the extent” that the document contains certain types of factual material. The parties did not address me on the significance, if any, of this difference in terminology and, in particular, whether it supports the argument of the plaintiff that exemption under s 30(1)(b) must require consideration of the whole of the document.
EV directs the Court to s 25 of the FOI Act which provides as follows:
25Deletion of exempt matter or irrelevant material
Where—
(a)a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;
(b)it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and
(c)it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy—
the agency or Minister shall grant access to such a copy of the document.
I accept EV’s submission that this section imposes a positive obligation on the agency, and so the Tribunal when reviewing a decision of an agency, to seek to redact what would otherwise be an exempt document to a non-exempt document if that is “practicable”.
I do not consider there is any real doubt that that is precisely the outcome that is achieved by order 1(a) made by the Tribunal, which order grants access to a portion of document 7.1 only. I consider there is some doubt, however, as to whether the Tribunal achieved that outcome by the correct route. I think it arguable that the Tribunal here either conflated the two separate exercises it was required to conduct, first under s 30(1) and then under a combination of s 25 and s 30(3), or did not undertake the s 25 exercise at all, and arrived at the outcome of release of a redacted document only by consideration of public interest under s 30(1). If the plaintiff’s contention that in considering public interest the Tribunal must consider the whole document is correct, then arguably this outcome was achieved by an impermissible route. I elaborate my reasons for this conclusion as follows.
First, there is no reference in the Reasons to s 25. Counsel for EV took me to a portion of the transcript[20] where then counsel for DPI made submissions in relation to redaction, but those submissions were in relation to redaction for the purpose of s28(1)(ba). Section 25 does not distinguish between bases for exemption, but I am not persuaded that reference to the s 25 exercise in submissions for one purpose means the Tribunal in fact undertook, without expressing that it did so, the exercise for another purpose.
[20]Exhibit LCW-8 to the affidavit of Luke Wilson, at p195 line 29 to p196 line 11.
The parties did not address before me the proper construction of s 25. Accordingly the views I express on that construction, which are necessary to determine whether there is sufficient doubt to grant leave to appeal on Question of Law 2, are also necessarily tentative. In my view, s 25 requires first, by paragraph (a), a consideration as to whether or not the document in question is exempt. Where the basis for exemption is s 30, this requires consideration of whether or not the agency has discharged its onus of showing that disclosure is not in the public interest. Section 25 then requires, by paragraph (b), consideration as to whether redaction is practicable, so as to make the redacted copy non-exempt. On this construction it is at this stage, rather than the first stage, that consideration of the s 30(3) exclusion for “purely factual material” would apply.
Assuming the question posed by Question of Law 2 to be answered in the positive i.e. in favour of the plaintiff, the Tribunal was required to consider at the first stage (i.e. in relation to public interest) the whole of document 7.1, and not the factual portions that could sensibly survive redaction only. There is support for the plaintiff’s contention that the Tribunal did not do so in the opening words of paragraph 59 of the Reasons:
With the exception of the first one and a third pages of document 7.1, I find that the respondent has discharged its onus of showing that it is contrary to the public interest for documents 4, 7 and 7.1 to be released. (emphasis added)
The findings in paragraph 62 of the Reasons that the documents contained “a reasonable amount of factual information”, which could not be sensibly separated out from the non factual material “with the exception of the first one and a third pages of document 7.1” which appear squarely in the middle of the discussion of public interest in the preceding and subsequent paragraphs arguably shows a conflation of the s 30(1) and s 25 exercises. If my tentative construction of s 25 is correct, that was not the correct approach.
It is not suggested by the plaintiff that the fact that a document includes factual material is irrelevant to the consideration of public interest, and it could probably not be sensibly so suggested. The error, if there is one, lies in the failure to separately consider redaction under s 25 after considering the whole of the document for the purpose of public interest.
As with Question of Law 1, there is some doubt as to the correctness of the Tribunal’s approach raised by this Question, but not, in my view, to any high level. I will return later to whether in all the circumstances leave to appeal should be granted.
Question of Law 3
This is the only Question that relates to order 1(b) made by the Tribunal, which relates to document 19. It asks if s 30 is to be construed so that the “public interest” can have no application once the decision making process has been completed. Counsel for the plaintiff did not identify which of Grounds 5 or 6 relate to this Question, but in my view it is plain that the related Ground is Ground 6. That Ground asserts that the Tribunal erred in not finding that the release of document 19 would be contrary to the public interest once it found that the decision making process in relation to the subject matter of the document, the PFiT scheme, had been completed. In other words, the Ground says the Tribunal erred in concluding, as it did, that the completion of the decision making process favoured release in the public interest, rather than in telling against it, and doing so conclusively.
Two things can be immediately observed. First, the Ground and the Question posit quite different scenarios as to the treatment by the Tribunal of the relationship between public interest and completion of the decision making process. In other words, far from framing the Question of Law, the Ground opposes it. The Question suggests that the Tribunal concluded that the public interest requirement can have no application once the decision making process was complete. The Tribunal did no such thing. It is clear from paragraph 78 of the Reasons that the Tribunal regarded the completion of the decision making process in relation to the PFiT scheme as a “key consideration” in determining whether or not release would be in the public interest, but just that – a consideration in that exercise, not a factor excluding the exercise in its entirety. The Ground, on the other hand, correctly accepts that the Tribunal considered the completion of the decision making process in undertaking the examination of public interest, but says it erred in not reaching a particular conclusion arising from that consideration.
Secondly, in asserting error in this way the Ground invites reconsideration of the merits of the Tribunal’s finding. I accept the submission of EV that that is not permissible, because it traverses factual findings and an exercise of discretion. As EV correctly submits, the only way it could be permissibly asserted that the Tribunal erred in taking into account in the determination of public interest that the decision making process was complete is if it was asserted that this was a prohibited consideration. In Osland v Secretary to the Department of Justice (No 2) (“Osland”)[21] the High Court held that the FOI Act “neither defines nor expressly limits the range of matters relevant to the “public interest” which may require that access should be granted”.[22] The Court adopted with approval the following quote from O’Sullivan v Farrer[23]:
the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.[24]
[21][2010] HCA 24
[22]Ibid, at [13].
[23](1989) 168 CLR 210 at 216
[24]Ibid
The Court was in Osland considering the public interest under s 50 of the FOI Act, but it is plain from the general discussion of public interest in O’Sullivan v Farrer that the same approach would apply to public interest under s 30(1).
The plaintiff does not suggest that consideration of whether or not the decision making process in relation to the issue addressed in the document is completed is a prohibited consideration in determining the public interest in releasing the document under that section. It would seem untenable to do so as in particular circumstances it may plainly be relevant.
For these reasons, I do not consider that either Question of Law 3 or Ground 6 raise any asserted error of law by the Tribunal and refuse leave in respect of them.
Conclusion
In conclusion, I will refuse leave to appeal in respect of Question of Law 3. There is no other attack on the release of document 19.
I consider there is some doubt in relation to Question of Law 1 (in relation to s 28(1)(ba)), as illuminated by the oral submissions, and some doubt in relation to the Tribunal’s approach to the redaction of document 7.1 in the context of consideration of the document under s 30(1) (as sought to be agitated by Question of Law 2). Both these Questions relate to documents 4, 7 and 7.1. The real issue is whether that doubt is sufficient in all the circumstances to justify the grant of leave.
The first matter I consider in that regard is the limited impact of successful appeal. As documents 4, 7 and most of 7.1 were held exempt under s 30(1) in any event, the only practical consequence of agitation of the issues sought to be raised in relation to s 28(1)(ba) by Question of Law 1, even if the plaintiff is successful, can be in relation to the released portion of document 7.1. The Reasons do not specify the nature of the “factual material” released in document 7.1, and so it is not possible to determine from the Reasons whether that material would also satisfy the possibly more limited exception for “purely statistical, technical or scientific material” in s28(3). Depending on the nature of the factual material in that released portion, and whether this was argued below (on which issue neither party made any submissions to me) it may be that that released portion would not be exempt under s 28 in any event because of the exception in s 28(3).
Success on appeal in relation to Question of Law 2 may also have limited practical effect. Even if the Tribunal arrived at redaction of document 7.1 for the purpose of s 30 by the incorrect route, it may be that the same conclusion could have been arrived at by the correct route.
The limited practical impact of the questions sought to be agitated, even if successful, militates against the grant of leave because it shows that there would be little or no injustice (let alone substantial injustice) to the plaintiff in respect of the instant case if any error in respect of these questions was left uncorrected.
This consideration needs to be viewed, however, in the light of the chain of authorities to the effect that leave to appeal may be granted where it might or would otherwise not be, because of the general public importance of the issues sought to be agitated.
In Victoria Police v Marke[25] (“Marke”) the Court of Appeal granted leave to appeal a decision of a trial judge on an appeal from VCAT in relation to access under the FOI Act because the questions of law in issue were of general public importance, notwithstanding that the usual course would be to await the determination by VCAT of the issue on remitter from the trial judge. The Court accepted that, in usual circumstances, leave to appeal would be refused pending that redetermination rather than fragment the proceedings. The applicant for leave was frank that appeal was sought because of the potential impact of the construction given the section in question by the trial judge on other cases. Dodds-Streeton JA accepted the submission of counsel for the respondent that:
any substantial injustice attending the refusal of leave was not suffered by the applicant in the circumstances of this case, but rather arose from the burden it would impose on the applicant in relation to future FOI requests and on all agencies subject to such requests generally. As such, the applicant really sought to settle a point of law as a test case in order to serve the interests of relevant agencies and ‘government generally’.[26]
[25]Unreported decision of the Court of Appeal granting leave to appeal 14 March 2008
[26]Ibid, at [37].
It was on this basis that Dodds-Streeton JA, with whom Nettle JA agreed, granted leave to appeal subject to an undertaking by the applicant not to disturb the costs outcome below and pay the respondent’s costs of the appeal, whatever the outcome.
The requirements for the grant of leave for the purpose of a test case were also considered by the Court of Appeal in Secretary to theDepartment of Justice v XQH[27] (“XQH”), a proposed appeal which was intended to raise issues relating to assessment notices given to persons seeking to work with children. In that case the applicant sought an extension of time to appeal following failure to file her notice of appeal in sufficient time after a grant of leave to appeal. The Court in granting leave had expressed reservations as to the strength of the applicant’s case but granted leave in view of the public importance of the issue. The Court on the subsequent application for extension of time granted that indulgence, but conditional on the applicant paying the respondent’s costs of the appeal in any event.
[27][2012] VSCA 72
It had been intended that XQH would be heard with similar appeals subsequently heard and determined as Secretary to the Department of Justice v LMB (“LMB”)and Secretary to the Department of Justice v PMY (“PMY”).[28] Leave to appeal had been granted in LMB but not in PMY. In the combined judgment in both matters, after dismissing the appeal in LMB, the Court of Appeal considered whether leave to appeal should be granted in PMY. The Court held:
We would not be satisfied that a sufficiently arguable error of law could be made out for the reasons we have stated. However, on the basis of the test in Department of Premier and Cabinet v Hulls it might have been sufficient for the Secretary to identify a question of law and its general public importance to satisfy a grant of leave.[29]
[28][2012] VSCA 143
[29]Ibid, at [92].
The Court applied the same approach to costs as in XQH and declined to grant leave because the Secretary, although seeking to argue a test case, declined to proffer an undertaking to pay the respondent’s costs.
Thus where the question of law under consideration is one of general public importance leave to appeal may be granted even if, having regard to other factors that militate against the grant of leave, it would not otherwise be.
On balance, I consider that leave to appeal should be granted in respect of Questions of Law 1 and 2. The factor that has persuaded me to grant leave to appeal, notwithstanding the limited practical import of the appeal in the instant case and my doubts as to the strength of the plaintiff’s arguments for error, is the general public importance of the construction of the sections in question. I accept the submission of EV that resolution of these issues for other requests under the FOI Act, rather than the one in this case, is in fact the real purpose of this appeal. Accordingly, I will take the same approach as the Court took in Marke, XQH and PMY and order that leave be conditional on the plaintiff undertaking to pay EV’s costs of the leave application and appeal irrespective of the outcome of the appeal.
Orders
The parties are required to prepare orders and directions (agreed to the extent possible) in accordance with these reasons. Those orders should address the grant of leave to appeal, the undertaking, the filing and serving of a notice of appeal that gives effect to these reasons, and directions for the preparation and hearing of the appeal in accordance with the Judicial Review and Appeals List Practice Note. The question as to the basis[30] upon which EV’s costs should be taxed, if not agreed, has not been agitated before me. In the event there is any application for costs on a higher than usual basis in respect of the application for leave to appeal, and this is not agreed, the parties may seek to be heard on that question on the making of those orders.
[30]The parties should note that the bases of taxation of costs were changed by changes to Rule 63 effective 1 April 2013. Those changes are not retrospective.
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