Tucker v Commissioner of State Revenue

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0049

TOBIAS JOHN TUCKER (ALSO KNOWN AS TOBY TUCKER)	Applicant
v
COMMISSIONER OF STATE REVENUE	Respondent

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JUDGES:	NIALL and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2023
DATE OF JUDGMENT:	25 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 125
JUDGMENT APPEALED FROM:	[2022] VSC 265 (Garde J)

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FREEDOM OF INFORMATION – Application for leave to appeal decision of the Trial Division refusing leave to appeal on questions of law of a decision of the Victorian Civil and Administrative Tribunal as to the merits of an application under the Freedom of Information Act 1982 – Exemptions – Public interest override – Whether judge was correct to refuse leave to appeal in circumstances where the proposed appeal had no real prospects of success – Whether judge erred in failing to grant leave to appeal because the Tribunal applied the wrong tests in determining the freedom of information application – Whether judge erred in failing to grant leave to appeal because the Tribunal failed to provide reasons why it rejected the legal principles applied by the Information Commissioner in the course of an intermediate administrative review of the freedom of information application – Judge correct to conclude the applicant had failed before the Tribunal on the facts and that no error of law had been demonstrated – Application for leave to appeal refused.

Freedom of Information Act 1982, ss 13(a), 25, 30(1), 32(1), 33(1), 34(1)(b), 34(4), 50(4); Victorian Civil and Administrative Tribunal Act 1998, ss 117, 148(1), 148(2A).

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Counsel
Applicant:		In person
Respondent:		Ms CM Harris KC and Ms R Walsh
Solicitors
Applicant:	—
Respondent:	State Revenue Office

TABLE OF CONTENTS

Background facts

Proposed ground 1: Section 148(2A) of the VCAT Act

Proposed ground 2: Did the Tribunal err in law?

Conclusion

NIALL JA
OSBORN JA:

Mr Tucker seeks leave to appeal against a decision of Garde J[1] refusing leave to appeal on questions of law against a decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) as to the merits of an application under the Freedom of Information Act 1982 (‘FoI Act’).[2]
[1]Tucker v Commissioner of State Revenue [2022] VSC 265 (Garde J) (‘Reasons’).
[2]Commissioner of State Revenue v Tucker (Review and Regulation) [2021] VCAT 238 (Judge Jenkins, Senior Sessional Member) (‘Tribunal Reasons’).
The proposed grounds of appeal to this Court agitate two matters:
•whether the primary judge was correct to refuse leave to appeal in circumstances where he determined that the proposed appeal had no real prospects of success; and
•whether the primary judge erred in failing to grant leave to appeal because:
(a)the Tribunal applied the wrong tests in determining the freedom of information (‘FoI’) application; and
(b)the Tribunal failed to provide reasons why it rejected the legal principles applied by the Information Commissioner in the course of an intermediate administrative review of the FoI application.
For the reasons which follow, we would refuse leave to appeal.

Background facts

The procedural background to the present proceeding is as follows:
•In April 2018 and March 2019, the applicant sought release of documents by the respondent, the Commissioner of State Revenue (‘Commissioner’) relating to the operations of the State Revenue Office (‘SRO’) where he had previously been employed.
•The Commissioner determined to refuse to release certain documents.
•The applicant applied to the Officer of the Victorian Information Commissioner (‘OVIC’) for administrative review of the Commissioner’s decision.
•In June 2019 and October 2019, OVIC approved the release of certain documents subject to the redaction of exempt passages (‘the OVIC decisions’).
•The Commissioner filed an application to review the OVIC decisions at the Tribunal.
•The Tribunal set aside the OVIC decisions and affirmed the decision of the Commissioner to refuse to release the documents.
As the primary judge recorded:
The Tribunal published very extensive reasons amounting to 239 paragraphs. It upheld exemptions claimed by the Commissioner under ss 30(1), 32, 33, 34(1)(b) and 34(4)(a)(ii) of the Act. While there were parts of the disputed documents to which no exemption applied, the Tribunal held under s 25 of the Act that it was not practicable for the Commissioner to produce the material which was not exempt in a redacted form. The Tribunal also held that there was no proper basis for the Tribunal to exercise the public interest override power contained in s 50(4) of the Act. These findings led the Tribunal to conclude that it should set aside the OVIC decisions, and affirm the Commissioner’s refusal to release the disputed documents.[3]
[3]Reasons [8].
The applicant then sought leave to appeal the Tribunal’s decision to the Trial Division pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) on a series of grounds.
Justice Garde determined that application and gave comprehensive reasons for refusing it.
His Honour’s primary conclusions were:
•Questions 1(a)–(c) raised by the applicant did not identify errors of law but were directed to the merits of the decision on the facts.[4] These questions were:
[4]Ibid [23]–[24].
1. Was the Tribunal correct to decide that ss 30, 32, 33, 34 and/or 25 of the [Act] applied to exempt the entire content of each invoice and fee-slip for legal services (invoices) particularly given the Tribunal:
(a) set aside two decisions of OVIC which determined that the above provisions did not operate to exempt the entire content of each of the invoices;
(b) accepted the [SRO’s] evidence that its expenditure litigating the [applicant], concerning a workplace dispute, as at 15 November 2019, exceeded $2.6 million;
(c) found that the [applicant] could identify the names and details of the lawyers and proceedings contained in the invoices;[5]
•The Tribunal’s decision was based on the evidence of a witness called before it. The Tribunal found the witness gave an accurate description and meaningful explanation of the disputed documents, identified the nature of sensitive information within them and gave a credible account of the significance of the information and the likely adverse consequences if the documents were released.[6]
•The Tribunal found that parts of the documents were not exempt from production but further found that it would be ‘remarkably difficult’ to delete the exempt material, as it was intertwined with the remainder of the material. The documents were voluminous and if the exempt material were deleted, nothing meaningful would result. In the circumstances, it was not practicable having regard to the relevant factors for the Commissioner to produce material that was not exempt in a redacted form.[7]
•The applicant had not identified any basis for concluding that the Tribunal’s reasoning with respect to redaction was wrong in law. The Tribunal had not erred in law in making its decision that redaction of the documents containing exempt material was not practicable.[8]
[5]Ibid [19] (emphasis in original).
[6]Ibid [25].
[7]Ibid [26].
[8]Ibid [27].
Next the primary judge dealt with challenges directed to the decision of VCAT with respect to the public interest override contained s 50(4) of the VCAT Act. Questions 1(d) and 2 were:
1. Was the Tribunal correct to decide that ss 30, 32, 33, 34 and/or 25 of the [Act] applied to exempt the entire content of each invoice and fee-slip for legal services (invoices) particularly given the Tribunal:
…
(d) considered the asserted public interest (public interest) in:
(i) ensuring, that when government agencies use taxpayer money to engage contractors and consultants, those services providers are independent, of the highest quality and represent value for money. When the conduct of services providers is in question, this can only be achieved if their qualifications and work is open to scrutiny;
(ii) ensuring that government agencies comply with the Civil Procedure Act 2010 (Vic) and the Attorney General’s Model Litigant Guidelines by ensuring that legal fees are reasonable and proportionate to:
•the complexity or importance of the issues in dispute; and
•the amount in dispute; and
(iii) the records of the Victorian Legislative Council dated 12 June 2019 that disclose that, for the period 1 July 2015 to 12 June 2019, the SRO:
•expended $2,148,079.84 in legal matters concerning current and former SRO staff; and
• engaged 9 barristers concerning the above matters (Parliamentary Records).
2. Was the Tribunal correct to decide that s 50(4) of the [Act] did not apply to compel disclosure of the invoices, save for any information caught by s 33 of that Act, particularly given the public interest and expenditure asserted above?[9]
[9]Ibid [19] (emphasis in original).
His Honour held:
•The applicant had not provided any material or adduced any evidence justifying the exercise of the public interest override provision. It was unsurprising that the Tribunal held that the applicant had not demonstrated why it was that the public interest required that access to the documents should be granted.[10]
•The Tribunal held that the applicant mistakenly equated the public interest with his own private interest. The applicant did not identify any public interest which would be advanced by the disclosure of the disputed documents.[11]
•There was no error of law in the Tribunal’s decision.[12]
[10]Ibid [33].
[11]Ibid.
[12]Ibid [36].
The primary judge then turned to proposed grounds of appeal directed to the proposition that the Tribunal erred by taking into account irrelevant considerations relating to the applicant’s intentions, motivation and character. Questions 3 and 4 were:
3. Was it open to the Tribunal to consider the motives and character of the [applicant], including by relying on decisions in other proceedings, in applying the [Act] to the documents?
4. Was it open to the Tribunal to speculate as to the [applicant’s] motives for seeking access to the invoices given the [applicant]:
(a)did not give any oral evidence; and
(b)did not rely on any witness statement during the proceedings?[13]
[13]Ibid [38].
His Honour held that to the extent that the questions in issue raised questions of law they were not made out. The Tribunal was entitled to consider the history of the applicant’s conduct in determining the issues of the public interest.[14]
[14]Ibid [45].
Next the primary judge turned to two allegations of breach of the obligations of procedural fairness. The basis of the first proposed ground (Question 5) related to the conduct of the hearing.[15] The primary judge held that it failed on the facts.[16]
[15]Question 5 was:
[16]See Reasons [49]–[52].
The second procedural fairness ground (Question 6) related to a refusal by the Tribunal to accept into evidence two pages of Hansard.[17] The primary judge held that the Tribunal had the records before it and had accepted that they should be received as part of the applicant’s contentions regarding public interest grounds.[18] In its reasons, the Tribunal addressed public interest issues at some length. The primary judge held:
The decision as to whether the Tribunal was of the opinion that the public interest required that access be given to any particular document was a matter quintessentially for the Tribunal to make on the evidence before it. While the records showed that legal costs exceeding $2.1 million had been incurred over four years, and nine lawyers retained over the same period, in relation to matters involving current or former SRO staff, that did not establish that the expenditure was excessive or unnecessary or that it had been inappropriately incurred. There was no evidence from the applicant or anyone else to this effect.
The Tribunal held that the applicant’s submissions did not address why the exemptions relied on by the Commissioner should be overridden. The public interest did not require that access to the disputed documents should be granted. The applicant’s reasoning was devoid of any evidentiary basis. No public interest had been shown as to why the exemptions should be overridden.
No error of law has been shown in the way the Tribunal addressed the records. They did not establish excessive expenditure on legal costs or lawyers, and there was no evidence provided by the applicant to suggest that they did. It was open to the Tribunal, after reviewing the records, to conclude that they were irrelevant and that the exemptions should be upheld and not overridden under s 50(4).[19]
[17]Question 6 was:
‘Did the Tribunal comply with its fair hearing obligation in declining to accept into evidence, or consider, the publicly available Parliamentary Records which the [applicant] relied on?’
[18]Reasons [57].
[19]Ibid [60]–[62].
Lastly, the primary judge addressed a complaint that the Tribunal’s Reasons were inadequate, and in particular, that it had failed to explain why it had not adopted the reasoning of OVIC as to redactions.[20] The primary judge held that the Tribunal hearing was a hearing de novo on the merits and that the Tribunal acted on the evidence before it.[21]
[20]Question 7 was:
‘Did the Tribunal comply with its fair hearing obligation, including its obligation to provide sufficient reasons under s 117 of the VCAT Act, given it failed to give reasons explaining:
(a) why it failed to adopt the reasoning of the [OVIC], contained in the decisions it set aside, when the [applicant] expressly relied on same in his submissions and evidence; and
(b) how it applied each of the claimed exemptions under the [Act] to each document in dispute.’
[21]Reasons [66].
His Honour further stated:
The reasons given by the Tribunal are comprehensive, substantial, detailed and refer to relevant authority. I reject the applicant’s submissions that they make sweeping statements, or are misconceived, incoherent, unorthodox or unintelligible. They provide an intelligible explanation of the process of reasoning which led the Tribunal to make the conclusions which it did and disclose the grounds for each finding.
…
The Tribunal fully and carefully addressed the exemptions in the Act claimed by the Commissioner for the disputed documents. It had the disputed documents before it and made findings in relation to the various claims for exemption. Contrary to Ground 7, the reasons clearly explain why it is that the Tribunal arrived at its decision on the exemptions and how it applied the Act to the documents in dispute.[22]
[22]Ibid[68], [72] (citation omitted).
Accordingly, the challenge raised by Question 7 failed.

Proposed ground 1: Section 148(2A) of the VCAT Act

The first proposed ground of appeal is:
The learned primary judge erred in failing to adopt the Hulls test, as summarised in Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; 18 VR 48,[23] in determining whether the appeal had a ‘real prospect of success’ within the meaning of s 148(2A) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).[24]
[23]55–6 [28]–[29] (Warren CJ, Chernov JA and Bell AJA agreeing), quoting Hulls [1999] 3 VR 331, 337 [16].
[24]Application for leave to appeal, 21 June 2022, [6] (citation in original).
This ground is misconceived. Section 148(1) and (2A) provide as follows:
148 Appeals from the Tribunal
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
…
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
Section 148(2A) adopts the same test as that applicable with respect to leave to appeal in civil proceedings in this Court under s 14C of the Supreme Court Act 1986.
Section 148(2A) was inserted into the VCAT Act in May 2018 by the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3). While s 148(2A) is not exhaustive of the matters relevant to the ultimate exercise of the discretion under s 148(1), a failure to meet the threshold requirement contained in s 148(2A) is dispositive of the application. In John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc,[25] Croft J observed:
This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[26] sometimes referred to as the Hulls test.[27] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[28]
[25][2022] VSC 100, [8] (citations in original).
[26]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335.
[27]See Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7^th ed, 2020), p 893 [VCAT.148.160].
[28]The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT [Act], with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7^th ed, 2020), p 893–7 [VCAT.148.160].
This proposed ground of appeal must fail.

Proposed ground 2: Did the Tribunal err in law?

Proposed ground 2 (omitting particulars) is as follows:
The learned primary judge erred in failing to grant the application for leave to appeal under s 148 of the VCAT Act. Specifically:
(a)Upon reading the disputed documents and the decisions of Information Commissioner [sic] set aside by the Tribunal (‘OVIC decisions’), the primary judge should have identified that VCAT applied the wrong legal tests under the Freedom of Information Act 1982 (‘FOI Act’). The correct legal principles were contained in the OVIC decisions.
…
(b)The Tribunal failed to provide reasons explaining why it rejected the legal principles applied by the Information Commissioner in the OVIC decisions in circumstances where the applicant relied on same.
In his written case, the applicant submits firstly that the OVIC decisions reflect the correct application of the FoI Act to the documents in issue, and secondly, that on its face it cannot be unreasonable to disclose to the applicant some information he already knows or is readily available online.
Both these submissions are conclusionary. The applicant has not identified any misstatement of the relevant statutory tests in the Tribunal’s decision. Nor has the applicant identified any error of principle in the decision of the primary judge. As we understand it, the applicant’s case is that an error or errors of principle can necessarily be inferred from the outcome on the facts.

In oral argument before this Court, the applicant submitted:
•The Tribunal should have taken the same approach to redaction as OVIC.
•The approach taken by OVIC was consistent with the approach taken by another division of VCAT in the matter of Coulson v Department of Premier and Cabinet (Review and Regulation);[29] conversely the approach taken by the Tribunal is ‘unheard of’.
•Two examples of invoices of the type in respect of which the Commissioner claimed confidentiality have been obtained by the applicant in redacted form from the Victorian Government Solicitor’s Office (‘VGSO’) in other Tribunal proceedings; and a further document, comprising a confidentiality agreement and disclosing information of the type in issue in the present proceeding, has been obtained by the applicant by way of discovery in a defamation proceeding in the Federal Court.
•The Tribunal Reasons do not deal with the documents in issue in adequate specific detail.
[29][2018] VCAT 229.
As the respondent submits:
•The primary judge was correct to commence his analysis of the relevance of the OVIC decisions by recognising that the application before the Tribunal was a review de novo on the merits.
•The Tribunal evaluated and rejected the applicant’s case put by reference to the OVIC decisions on the basis of the evidence before it.
•The Tribunal’s decision was evidence-based and one of fact.
•The reasoning of a different Tribunal with respect to different facts did not compel a different conclusion in the present case.
•No error has been demonstrated in the reasoning of the primary judge with respect to this issue.
More particularly, the two copy invoices released by the VGSO were released by a different agency in a different case. They do not demonstrate inconsistency in the position of the SRO before the Tribunal. At best they provided a potential basis for cross-examination of the respondent’s witnesses before the Tribunal. The primary judge was correct to conclude:
I accept the Commissioner’s submission that the release of other documents by the VGSO in a separate application has no significance here. That application was not before the Tribunal and was made in different circumstances to a different agency. The VGSO documents were not tendered before the Tribunal. There was nothing in evidence about the circumstances in which that application was made or the matters that may have borne upon the release of those documents.[30]
[30]Reasons [29].
The confidentiality report obtained by way of discovery in the Federal Court does not demonstrate inconsistency or error in the position of the SRO before VCAT. The primary judge was correct to hold:
Likewise, the production of a deed of confidentiality dated 25 June 2017 executed by a person appointed to conduct an investigation into a contract between a supplier and the State as part of discovery obligations in a proceeding before the Federal Court has no relevance to the VCAT proceedings. The applicant stated during the Tribunal hearing that he did not press his request for a copy of the document because he had already obtained a copy of it through the Federal Court proceeding.[31]
[31]Ibid [30] (citation omitted).
The primary judge was correct to conclude that the applicant had failed before the Tribunal on the facts and that no error of law had been demonstrated in the Tribunal’s decision on the facts.
His Honour was also correct to reject criticism of the specificity of the Tribunal’s Reasons. There was no error in the primary judge’s conclusions in this regard which we have quoted at [16] above.

Conclusion

For the above reasons, leave to appeal to this Court will be refused.

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‘Did the Tribunal comply with its obligation to provide procedural fairness and natural justice, including under ss 97 and 102(1) of the VCAT Act … when it ‘muted’ the [applicant], but not the SRO’s lawyer, during the virtual hearing on 19 November 2019 as revealed in the following exchange:

MR TUCKER: Yes, and I’d appreciate if I could be left on as well. If that would be possible please Your Honour.
JUDGE JENKINS: I beg your pardon? Sorry, what was that?
MR TUCKER: Sorry, I just noticed that I was muted during the examination.
JUDGE JENKINS: Yes.
MR TUCKER: I’m not sure whether it’s VCAT’s new procedure.
JUDGE JENKINS: It’s my procedure. I don’t know who else is, but it’s mine.’

[2023] VSCA 125

25 May 2023