Tucker v Commissioner of State Revenue
[2022] VSC 265
•26 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00967
| TOBIAS JOHN TUCKER (ALSO KNOWN AS TOBY TUCKER) | Plaintiff |
| v | |
| COMMISSIONER OF STATE REVENUE | Defendant |
---
JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2022 |
DATE OF JUDGMENT: | 26 May 2022 |
CASE MAY BE CITED AS: | Tucker v Commissioner of State Revenue |
MEDIUM NEUTRAL CITATION: | [2022] VSC 265 |
---
FREEDOM OF INFORMATION – Application for leave to appeal from Tribunal decision – Exemptions – Public Interest override – Where Tribunal hearing conducted via Zoom – Fair hearing – Procedural fairness – Tribunal reasons – Relevance of Parliamentary records – Freedom of Information Act 1982 (Vic) ss 13(a), 25, 30(1), 32(1), 33(1), 34(1)(b), 34(4), 50(4); Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 117, 148(2A).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Ms C Harris QC with Ms R Walsh | State Revenue Office |
HIS HONOUR:
Introduction
Toby Tucker (‘applicant’) seeks leave to appeal, and, if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) published on 19 March 2021 in proceedings no Z515/2019 and Z856/2019 (‘VCAT proceedings’).[1] The proceeding in this Court is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
[1]Commissioner of State Revenue v Tucker (Review and Regulation) [2021] VCAT 238 (Judge Jenkins) (‘reasons’).
By requests made under the Freedom of Information Act 1982 (Vic) (‘Act’) dated 13 April 2018 and 25 March 2019 (‘FOI requests’), the applicant sought the release of certain documents by the Commissioner of State Revenue (‘Commissioner’) relating to the State Revenue Office (‘SRO’). On 18 June 2018 and 24 May 2019 respectively, the SRO determined to refuse to release certain documents.
The applicant applied to the Office of the Victorian Information Commissioner (‘OVIC’) for review of the SRO’s decisions. On 13 June 2019 and 3 October 2019, OVIC approved the release of certain documents subject to the redaction of exempt information (‘OVIC decisions’).
On 27 June 2019 and 17 October 2019, the Commissioner filed an application to review the OVIC decisions at the Tribunal. The two proceedings before the Tribunal consisted of:
(a) VCAT proceeding Z515/2019, concerning the first request and seeking access to documents relating to the engagement of and payments made to SRO contractors for the period 1 January 2016 to 13 April 2018; and
(b) VCAT proceeding Z856/2019, concerning the second request and seeking access to invoices concerning expenditure relating to previous litigation between the applicant and the SRO or the State of Victoria.
The Tribunal set aside the OVIC decisions and affirmed the decisions of the Commissioner.
The applicant
The applicant was previously employed as a lawyer at the SRO and has a long history of disputation and litigation with the SRO and the State of Victoria. The litigation history is detailed in the reasons.[2] At the time of the Tribunal hearing, the applicant was suing the State of Victoria and an SRO staff member for defamation in the Federal Court.[3]
[2]Ibid [14]–[15].
[3]Ibid [19].
The hearing
The proceedings were heard by the Tribunal over two days on 19 and 20 November 2020, via Zoom. The Commissioner relied on the witness statements and oral evidence of Grant Dunlop, who was the Chief Financial Officer of the SRO. The applicant did not prepare a witness statement or give oral evidence. Both the applicant and the Commissioner made written and oral submissions.
The reasons
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.
Relevant provisions
Section 13 of the Act confers a right of access to obtain documents, and provides:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to—
(a) a document of an agency, other than an exempt document …
Section 25 of the Act deals with the deletion of exempt or irrelevant material, and provides:
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 … 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 … shall grant access to such a copy of the document.
Section 30(1) of the Act provides an exemption for internal working documents, and reads as follows:
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 processes involved in the functions of an agency or Minister or of the government; and
(b) would be contrary to the public interest.
Section 32 of the Act provides an exemption from the production of documents affecting legal proceedings in these terms:
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
(2)A document of the kind referred to in section 8(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1).
Section 33(1) of the Act provides for the exemption of documents affecting personal privacy:
A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
Section 34(1) of the Act relevantly provides that documents relating to certain business records are exempt documents:
A document is an exempt document if its disclosure under this Act would disclose information acquired by an agency or a Minister from a business, commercial or financial undertaking and the information relates to —
…
(b)other matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.
Section 34(4) of the Act relevantly provides that:
A document is an exempt document if—
(a)it contains—
…
(ii)in the case of an agency engaged in trade or commerce—information of a business, commercial or financial nature—
that would if disclosed under this Act be likely to expose the agency unreasonably to disadvantage …
Section 50(4) of the Act empowers the Tribunal to give access to an exempt document if it is of the opinion that the public interest requires this to be done. It provides that:
On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency … in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
The Court’s role
Parties to proceedings in the Tribunal may seek leave to appeal and, if leave is granted, appeal to this Court on a question of law from an order of the Tribunal.[4] Under s 148(2A) of the VCAT Act, leave to appeal can be granted only if the Court is satisfied that the appeal has a real prospect of success.
[4]VCAT Act s 148.
In his notice of appeal, the applicant relies on seven questions which he must establish are questions of law, and seven grounds. He relies on his affidavit filed 6 April 2021 with its exhibits. The parties also rely on the transcript of the Tribunal hearing and on exhibits and documents produced to the Tribunal.
I will set out and deal with each question and its corresponding ground in turn. Questions 1(d) and 2 deal with the same issue. It is convenient to deal with Questions 1 and 2 together.
Questions 1 and 2
Questions 1 and 2
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; and
(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?
Grounds 1 and 2
1.The Tribunal erred in redacting, under the [Act], the entire contents of the invoices.
2.The Tribunal erred in failing to apply s 50(4) of the [Act] to compel disclosure of the invoices save for any information sought by s 33 of that Act.
Applicant’s submissions
The applicant submitted that:
(a) the object of the Act is to create a general right of access to information in the SRO’s possession, limited only by the exceptions and exemptions necessary to protect public interests, privacy and business affairs;
(b) the Tribunal applied the wrong tests in applying the exemptions contained in ss 25, 30(1), 32(1), 33(1) and 34(1)(b) of the Act;
(c) the correct tests are set out in the OVIC decisions;
(d) invoices and documents released by the Victorian Government Solicitor’s Office (‘VGSO’) in Federal Court proceedings cast doubt on Mr Dunlop’s evidence that the SRO maintained strict confidentiality over its invoices and documents; and
(e) the Tribunal relied on irrelevant considerations in applying s 50(4), including the applicant’s ability to refer complaints of corruption and misconduct to other agencies.
Commissioner’s submissions
The Commissioner submitted that:
(a) the Tribunal correctly applied the exemptions;
(b) the Tribunal correctly applied s 25 of the Act, concluding that the remaining information would not be meaningful or capable of being read in context, rendering the documents misleading or unintelligible;
(c) the applicant does not identify what he asserts to be the correct legal tests or how the Tribunal departed from them;
(d) the Tribunal did not disregard OVIC’s decisions or reasoning;
(e) there was no evidence before the Tribunal about the VGSO documents produced as part of discovery in a Federal Court proceeding;
(f) Mr Dunlop was not cross-examined about the VGSO documents;
(g) the applicant put no evidence of profligate expenditure by the SRO to the Tribunal; and
(h) application of the Model Litigant Guidelines is for the relevant courts and or tribunals to manage.[5]
[5]Department of Justice and Community Safety (Vic), Victorian Model Litigant Guidelines (2011) (‘Model Litigant Guidelines’).
Analysis
The Tribunal reviewed the claims for exemption made under ss 30(1), 32, 33, 34(1)(b) and 34(4)(a)(ii) and made separate findings as to each claim. It also made separate findings concerning ss 25(b) and 50(4). In so doing, the Tribunal carefully considered the elements necessary to establish the exemption or make the finding in each case, making extensive references to decided authority.
Question 1 as posed by the applicant conflates all of the exemption provisions and the extensive reasons that relate to them into one question and one ground. Neither the question nor the ground identify where it is that the Tribunal is said to have applied the wrong test or erred in law. The suggested errors of law are not identified. The applicant does not refer to any specific paragraphs of the reasons as showing error on the Tribunal’s part. The FOI requests, OVIC decisions, and the dispute subsequent to the OVIC decisions are clearly described in the reasons.[6] There is no basis for suggesting that the Tribunal did not have regard to the OVIC decisions which were before it.
[6]Reasons [1]–[7], [27]–[32].
I am not satisfied that the applicant has shown any error of law by the Tribunal or that Question 1 raises any question of law. Much of what appears in Question 1 simply repeats matters which the applicant argued during the Tribunal hearing.
The Tribunal’s decision was based on the evidence of Mr Dunlop, which is summarised in detail in the reasons.[7] The Tribunal found his evidence to be clear, comprehensive, consistent and compelling, and not challenged in any meaningful way.[8] It found that Mr Dunlop gave an accurate description and meaningful explanation of the disputed documents, including the nature of the sensitive information, and that he gave a credible account of the significance and the likely adverse consequences if the documents were released.[9]
[7]Ibid [42]–[87].
[8]Ibid [87(a)].
[9]Ibid [87(b)].
The Tribunal had copies of the disputed documents and noted that the Commissioner accepted that there were parts of the documents to which no exemption applied. However, it found that it would be remarkably difficult to delete the exempt material, as it was intertwined with the remainder. The documents were voluminous, and if exempt material were deleted, nothing meaningful would result. The Tribunal concluded for the purposes of s 25(b) of the Act that it was not practicable, having regard to the relevant factors, for the Commissioner to produce material that was not exempt in a redacted form.[10]
[10]Ibid [190]–[192].
The applicant has not identified any reason or advanced any meaningful argument as to why the Tribunal’s reasoning on the practicability of redaction was wrong in law. I find that there was no error of law by the Tribunal when it decided that redaction of the documents containing exempt material was not practicable.
These reasons are sufficient to dispose of paragraphs (a)–(c) of Question 1. For the sake of completeness, I will also address two further arguments advanced by the applicant.
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.
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.[11]
[11]Ibid [228].
Public interest override
Questions 1(d) and 2 refer to submissions made by the applicant to the Tribunal in seeking the exercise of the public interest override power in s 50(4) of the Act. The Tribunal addressed these and other matters relevant to the public interest in its reasons, concluding that the public interest did not require disclosure of the disputed documents.[12]
[12]Ibid [202]–[209].
For the power in s 50(4) to be exercised, the Tribunal must be of the opinion that the public interest requires that access to the relevant document should be granted under the Act. This is a matter of fact.[13] The applicant sought to have the Tribunal override exemptions to which the Tribunal had found the Commissioner entitled under the Act. Cogent evidence was necessary if the Tribunal were to be persuaded that it should be of the requisite opinion under s 50(4).
[13]Osland v Secretary to the Department of Justice (2010) 241 CLR 320, 328–9.
The applicant did not present any material or call any evidence to establish his claim that the public interest override power in s 50(4) of the Act should be exercised. It is unsurprising that the Tribunal found that he had not demonstrated why it was that the public interest required that access to the documents should be granted.[14] To the contrary, the Tribunal found that the applicant mistakenly equated the public interest with his own deeply held private interest, and assumed the mantle of a representative of the public, scrutinising and enforcing statutory obligations of an agency like the SRO. He did not identify any public interest which would be advanced by the disclosure of the disputed documents.[15]
[14]Reasons [206]–[209].
[15]Ibid [203]–[205].
The applicant did not present any evidence before the Tribunal as to why the Civil Procedure Act 2010 (Vic) and the Model Litigant Guidelines were relevant to the public interest in the context of the disputed documents. No evidence was given that the SRO had committed infractions of its obligations under those provisions. Nor was it apparent why this should lead to the exercise of the public interest override power in the context of the disputed documents. In practice, the operation and application of the Civil Procedure Act 2010 (Vic) and the Model Litigant Guidelines are predominantly a matter for the Court or Tribunal seized with jurisdiction in a particular proceeding.
The Tribunal did not disregard the two Questions on Notice found in the proceedings of the Legislative Council on 12 June 2019. The answers to those questions provided details of expenditure and the engagement of lawyers in proceedings involving current and former staff of the SRO over the period from 1 July 2015 until 12 June 2019. They were raised by the applicant who contended that they assisted his case in relation to the public interest override power in s 50(4) of the Act. I will discuss these documents later under Question 6.
In considering the possible exercise of s 50(4) of the Act, the Tribunal noted that the applicant had conducted numerous proceedings relating to his complaints and concerns around the SRO which had been dismissed or concluded.[16] The Tribunal also observed that there were other bodies with extensive investigative, inquisitorial and coercive powers to which the applicant might have directed his complaint, referring to the observations of President Quigley J to this effect in the earlier decision of Tucker v Commissioner of State Revenue.[17] In my view, these matters were relevant to the Tribunal’s ultimate finding that the public interest did not require the disclosure of documents to the applicant. No error of law arises in relation to these matters.
[16]Ibid [207]–[209].
[17][2019] VCAT 2018, [199].
Conclusion
The applicant has not established any arguable basis of error as alleged in Grounds 1 and 2, and his submissions as to these grounds are without legal merit.
Grounds 1 and 2 fail.
Questions 3 and 4
Questions 3 and 4
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?
Grounds 3 and 4
3.The Tribunal erred in taking into account irrelevant considerations pertaining to the [applicant], including his motives and character, in applying the [Act] to the documents.
4. The Tribunal erred in engaging in speculation as to the [applicant’s] motives for seeking access to information under the [Act].
Applicant’s submissions
The applicant submitted that:
(a) the Tribunal took into account irrelevant considerations, including findings about the applicant made in other litigation and the applicant’s previous employment at the SRO;
(b) the Tribunal omitted favourable findings made about the applicant in other litigation and adverse findings made of the SRO; and
(c) the Tribunal engaged in speculation about the applicant’s motives and personal characteristics.
Commissioner’s submissions
The Commissioner submitted that:
(a) there was nothing in the reasons that indicated that the Tribunal relied on any views as to the applicant’s character;
(b) the observations made by the Tribunal as to the applicant’s qualification as a solicitor, his previous employment with the SRO and conduct during that employment, his litigation history and propensity, and his conduct during litigation and at the hearing were relevant in balancing the respective interests when considering the public interest under s 30(1) and unreasonableness under ss 33(1), 34(1), 34(4) and 50(4) of the Act and when considering the risk of disclosure of information protected by legal professional privilege;
(c) the matters to which the Tribunal referred were rationally probative of the matters in issue;
(d) the Tribunal did not speculate about the applicant’s motives but acted on the evidence before it; and
(e) the applicant did not give evidence or address the matters of which he now complains.
Analysis
In its reasons, the Tribunal set out the applicant’s past employment and his litigation history with the SRO and the State of Victoria. It set out some of the allegations previously made by the applicant about the SRO, and some of the past findings of the Tribunal and the Court as to his behaviour.[18]
[18]Reasons [13]–[20].
The Tribunal had before it evidence and material almost entirely provided by the Commissioner because the applicant did not give or call any evidence. As an experienced litigation solicitor, he cannot be heard to complain that the Tribunal should have made other findings when he made the decision not to call or present evidence.
The Tribunal noted the Commissioner’s submissions that the applicant had acquired extensive knowledge as a result of his previous employment and as a party to litigation, and that he was uniquely placed to knit together his prior knowledge and the information in the disputed documents. The Tribunal held that this matter was relevant to the application of the provisions under which exemptions were claimed.[19] It was particularly relevant when considering exemptions for legal professional privilege and personal privacy.[20]
[19]Ibid [36]–[41], [88]–[90].
[20]Ibid [116], [122], [144]–[145].
The Tribunal criticised the applicant’s conduct during the hearing, referring to some of his allegations and assertions as scandalous, misconceived, without any evidentiary basis, and irrelevant. It described as particularly offensive what it considered were scandalous and baseless attacks on Mr Dunlop, observing that the applicant had been described in many of the proceedings which he brought as undertaking a personal crusade motivated by personal grievances with his former employer and his employer’s staff members and other representatives.[21] These and other matters contributed to the Tribunal’s conclusion that the applicant was not acting in the public interest but was instead pursuing his personal grievances against the SRO and its former staff.
[21]Ibid [233]–[235].
Conclusion
To the extent that Grounds 3 and 4 contain questions of law, they are not made out. The Tribunal was obliged to take into account and consider all matters relevant to the decisions that it was required to make. It was entitled to make strong findings concerning the conduct of the applicant, and its findings were relevant to the issues it had to decide.
Grounds 3 and 4 fail.
Question 5
Question 5
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.
Ground 5
The Tribunal erred in denying the [applicant] a fair hearing by ‘muting’ him and preventing him from raising submissions during the virtual hearing on 19 November 2019.
Applicant’s submissions
The applicant submitted that:
(a) he was denied a fair hearing because he was muted for a period during the Tribunal hearing which was conducted digitally by Zoom; and
(b) evidence was admitted in circumstances where he was unable to raise timely objections to the same.
Commissioner’s submissions
The Commissioner submitted that:
(a) the only time that the applicant’s microphone was muted was during the examination-in-chief of Mr Dunlop;
(b) the applicant was aware of this and did not request that he be unmuted until the time at which he commenced cross-examination;
(c) during Mr Dunlop’s evidence-in-chief, the applicant was able to attract the Tribunal’s attention to raise objections and make submissions; and
(d) the applicant has not identified any objection which he wished to make but was unable to make or when this occurred.
Analysis
A review of the transcript shows that this ground has no substance. It shows that Mr Tucker was fully able to represent himself throughout the hearing as he wished:
(a) At the commencement of the hearing, the Tribunal described the attendance as a ‘full house’, asking the applicant to unmute himself.
(b) The applicant then made a number of oral submissions to the Tribunal.
(c) During Mr Dunlop’s evidence, the applicant was muted but successfully attracted the attention of the Tribunal to object to the relevance of evidence about his other requests under the Act.
(d) The applicant also raised a concern about what he described as the relevance of anything about secrecy law or secrecy legislation.
(e) Later again during Mr Dunlop’s evidence, the applicant objected that the SRO was simply getting Mr Dunlop to read out his witness statement and describe the disputed documents. He said that, in terms of efficiency, this had been going on for about two or three hours, and he was wondering whether ‘we could wrap things up possibly and get to the core issues’. An exchange then followed with the Tribunal.
(f) Later during Mr Dunlop’s evidence, the Tribunal discussed an abridged luncheon adjournment and sought the applicant’s assent.
(g) After the luncheon adjournment, the applicant suggested that it had been a long day and a very long session. Since there were two days set aside for the hearing, it would be convenient if he could ‘have a crack at cross-examination tomorrow’. He described his oral case as ‘literally no more than five minutes’. He thought that he would be able to cross-examine Mr Dunlop in about 30 or 40 minutes maximum.
(h) A further exchange followed with the Tribunal in the course of which the Tribunal authorised the applicant to make his closing address by written submissions after receiving the hearing transcript.
(i) Later in the afternoon, the applicant objected in substance that counsel for the Commissioner was exceeding her one and a half hour time estimate for the completion of Mr Dunlop’s evidence-in-chief. He also wanted a further objection to Mr Dunlop’s evidence regarding signatures noted, and indicated he would file relevant submissions.
(j) At the conclusion of Mr Dunlop’s evidence-in-chief, the exchange between the Tribunal and the applicant set out in Question 5 took place.
(k) The applicant then proceeded to cross-examine Mr Dunlop and respond to objections raised by counsel for the Commissioner. There were objections by counsel and responses by the applicant during the cross-examination.
(l) The applicant filed lengthy written closing submissions dated 18 December 2020. Part of the closing submissions advanced objections to Mr Dunlop’s evidence. The objections covered a wide range of issues.
The applicant is an experienced legal practitioner with a lengthy background in litigation who took advantage of the many opportunities afforded to him by the Tribunal to advance his case as he saw fit.
Conclusion
I am well satisfied that there was no denial of procedural fairness or natural justice to the applicant despite his muting during much of the evidence-in-chief of Mr Dunlop. He was able to raise objections and make submissions over this period and later. He was given a proper opportunity to cross-examine Mr Dunlop, which he exercised. The Tribunal requested that he put his objections to Mr Dunlop’s evidence in his closing submissions. He did so, fully advancing his concerns in substantial closing submissions.
Ground 5 fails.
Question 6
Question 6
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?
Ground 6
The Tribunal erred in denying the [applicant] a fair hearing by declining to accept into evidence, or consider, the publicly available Parliamentary Records tendered by the [applicant].
Applicant’s submissions
The applicant submitted that:
(a) he sought to rely on two pages of Hansard recording the answers to two questions asked of the Special Minister of State (for the Treasurer) in the Legislative Council of the Parliament of Victoria dated 12 June 2019 (‘records’), which were questions directed at the expenditure of the SRO;
(b) the records demonstrated the public interest in the SRO’s expenditure and were directly relevant to s 50(4) of the Act; and
(c) the Tribunal denied the applicant the right to be heard when it refused to accept or consider the records.
Commissioner’s submissions
The Commissioner submitted that:
(a) the Tribunal did not decline to consider the records, but accepted that they could be presented as part of the applicant’s contentions regarding public interest grounds;
(b) the applicant referred to the records in his closing submissions;
(c) the Tribunal ultimately determined that the records were irrelevant to its decision under s 50(4) of the Act; and
(d) there was no error of law in the Tribunal’s decision.
Analysis
During the cross-examination of Mr Dunlop, the applicant produced the records. The records showed that over the period from 1 July 2015 to 12 June 2019, the SRO expended $2,148,079.84 on legal costs and engaged nine barristers or solicitors in legal matters concerning current and former staff. A note advised that some of the barristers were briefed as others had become unavailable during the relevant proceedings.
Counsel for the Commissioner objected to the tender of the records during the cross-examination of Mr Dunlop. After an exchange, the Tribunal asked the applicant to move on.
The following morning, after the conclusion of the cross-examination, the applicant again sought to tender the records. The Tribunal observed that the records were an attachment to the applicant’s statement of public interest grounds, and there was no need to argue about whether the attachment constituted evidence, as the Tribunal was happy for it to be presented as part of the applicant’s contentions of public interest grounds.
In further discussion, the Tribunal referred to the applicant’s contention that there was public interest in the SRO’s expenditure of taxpayer money on expensive consultants. The Tribunal observed in substance that while consultants were expensive, more evidence would be needed to verify the applicant’s contention that the consultants were excessively expensive.
In the reasons, the Tribunal addressed public interest issues at some length.[22] The grounds set out in the applicant’s statement of public interest grounds are quoted in the decision, together with parts of his closing submissions. The Tribunal plainly had the records before it and discussed them with the applicant and with counsel for the Commissioner. It considered them irrelevant to establishing a public interest as to why the exemptions relating to the specific documents before it should be overridden under s 50(4).[23]
[22]Ibid [193]–[209].
[23]Ibid [202].
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.[24]
[24]Ibid [205]–[206].
Conclusion
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).
Ground 6 fails.
Question 7
Question 7
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.
Ground 7
The Tribunal erred in failing to provide adequate reasons explaining:
(a)why it failed to adopt the reasoning of OVIC in its decisions it set aside in circumstances where the [applicant] relied on same; and
(b) how it applied the [Act] to each document in dispute.
Applicant’s submissions
The applicant submitted that:
(a) the Tribunal relied on sweeping statements which was misconceived, incoherent and unorthodox, creating an unintelligible decision;
(b) the Tribunal:
(i) omitted a description of the terms of the FOI requests;
(ii) did not assert the applicant’s general right of access to information;
(iii) did not cite the applicant’s detailed submissions;
(iv) cut and paste slabs of the Commissioner’s written submissions into its reasons;
(v) failed to apply its broad reasoning to the information contained in each document;
(vi) made intemperate and unsavoury remarks about the applicant which were irrelevant to its task; and
(c)in the circumstances, the Tribunal made a jurisdictional error.
Commissioner’s submissions
The Commissioner submitted that:
(a) the applicant failed to identify any sweeping statements or any statements that were misconceived, incoherent or unorthodox;
(b) the Tribunal’s determination considered the authorities and their application to the relevant issues;
(c) the Tribunal cited the applicant’s submissions and examined them in detail;
(d) the Tribunal openly referred to parts of the Commissioner’s submissions, but did not just cut and paste slabs of them into its decision;
(e) the Tribunal explained with precision how each of the exemptions applied to the documents in dispute;
(f) when the Tribunal proceeded by way of examples, the examples used were representative of the other documents and the exemptions applied accordingly to the other documents;
(g) the reasons are not unintelligible in any respect; and
(h) the remarks made by the Tribunal were not intemperate or unsavoury.
Analysis
The Tribunal hearing was a hearing de novo on the merits, to be determined on the basis of the evidence before the Tribunal. The Tribunal acted on the evidence and submissions before it in reaching its decision.
The Tribunal has a statutory duty to give reasons under s 117 of the VCAT Act, including its findings on material questions of fact. A material question of fact is a factual matter that affected the findings or conclusions.[25] The Tribunal is also required to provide an intelligible explanation of the process of reasoning that has led the Tribunal from the evidence to the findings, and from the findings to the ultimate conclusion.[26] The Tribunal’s reasons must disclose the grounds for the relevant finding.[27]
[25]Secretary to the Department of Justice v YEE [2012] VSC 447, [96].
[26]Dimatos v Coombe [2011] VSC 619, [20], citing Hunter v Transport Accident Commission (2005) 43 MVR 130, 136–7.
[27]Patsuris v Gippsland and Southern Rural Water Corporation [2014] VSC 621, [36], citing Ta v Thompson (2013) 46 VR 10, 18–9 and Perkins v County Court of Victoria (2000) 2 VR 246, 273–4.
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.
None of the applicant’s other criticisms are supportable or justified. The FOI requests are described in the reasons, and the documents listed in schedules tendered as exhibits.[28] The exemptions claimed in respect of the documents are discussed in detail with reference to relevant legal authority.[29]
[28]Reasons [1]–[3], [10].
[29]Ibid [91]–[209].
The applicant’s legally enforceable right found in s 13 of the Act to obtain access to documents in accordance with the Act was not in dispute. What was in dispute was whether various exemptions or the public interest override applied. The reasons refer in detail to the evidence and arguments of the parties. The applicant’s closing submissions are extensively discussed, as were the applicant’s statement of public interest grounds and position at the hearing.[30]
[30]Ibid [210]–[237].
The applicant does not identify any statements which constitute sweeping statements or provide any examples of where the Tribunal has cut and pasted slabs of the Commissioner’s written submissions or where the Tribunal has made intemperate or unsavoury remarks about the applicant. While the Tribunal in its reasons does criticize the applicant’s position and conduct, the remarks were temperate, considered and appropriate in the context. They were well within the permissible scope allowed to a decision maker such as the Tribunal.
Conclusion
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.[31] 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.
[31]Ibid [103]–[106], [129]–[132], [148]–[151], [168]–[170], [184]–[186].
Ground 7 fails.
Conclusion
For the reasons which I have given, the grounds of appeal all fail.
I am not satisfied that any of the questions and grounds as set out in the notice of appeal have a real prospect of success as required by s 148(2A) of the VCAT Act if leave to appeal is to be granted. Accordingly leave to appeal is refused.
10
0