Willner v Department of Economic Development, Jobs, Transport and Resources
[2015] VSC 504
•18 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03028
| AARON RONCH WILLNER | Applicant |
| v | |
| DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES | Respondent |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2015 |
DATE OF JUDGMENT: | 18 September 2015 |
CASE MAY BE CITED AS: | Willner v Department of Economic Development, Jobs, Transport and Resources |
MEDIUM NEUTRAL CITATION: | [2015] VSC 504 |
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PRACTICE AND PROCEDURE – Application for leave to appeal a decision of VCAT - Questions of law – Were the findings of the Tribunal reasonable – Relevant considerations - Freedom of Information Act 1982 – Section 148 of the Victorian Civil and Administrative Tribunal Act 1998
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Hassan | Sort It Out Conflict Management |
| For the Defendant | Ms C M Harris | Department of Economic Development, Jobs, Transport and Resources |
HER HONOUR:
Introduction
The applicant is a photographer and artist whose artwork explores the boundaries of public space.[1] He made a request to the respondent for 24 hours of CCTV footage recorded by a camera in the carriage of a train that had departed Sandringham Station at 5.05am on 30 May 2014. The applicant intended to use the footage to hold an artistic exhibition.[2] Following a deemed refusal by the respondent to provide the footage, the applicant made an application to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) pursuant to the Freedom of Information Act 1982 (‘the FOI Act’).
[1]Affidavit of Aaron Ronch Willner affirmed on 15 April 2015, [3] and [1].
[2]Ibid [21]-[25].
The Tribunal affirmed the respondent’s decision to refuse to release the CCTV footage on the basis of ss 25(b) and 33 of the FOI Act. Section 33(1) of the FOI Act provides that a document is exempt if its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of any person. Section 25 of the FOI Act provides for a copy of the document requested, with appropriate deletions, to be provided where practicable. An issue in the proceeding was whether it was practicable for the respondent to provide the applicant with a pixelated copy of the CCTV footage.
The applicant seeks leave to appeal from the orders of the Tribunal made on 29 April 2015. The Tribunal’s reasons for its decision are dated 15 May 2015.
Grounds of Appeal
The applicant’s draft Notice of Appeal contains nine proposed grounds.[3] The applicant states that the grounds of appeal raise four questions of law.
[3]The proposed Notice of Appeal is Exhibit AG–11 to the affidavit of Ariella Gild sworn on 19 June 2015.
(i) Did the Tribunal fail to adopt the correct legal approach to determining whether the footage is an exempt document pursuant to section 33(1) of the FOI Act? During the hearing, the Court invited the applicant’s counsel to put this question precisely and she did so in the following terms.
Did the Tribunal fail to adopt the correct legal approach to determining whether the footage is an exempt document by:
(a) reversing the onus of establishing that the exemption in section 33 of the FOI Act is made out; and
(b) holding that the possibility of the existence of circumstances is sufficient to found a high degree of confidence that the disclosure of a document would be unreasonable.
(ii) Did the Tribunal make the following findings of fact that were not open on the evidence:
(a) that release of the footage is ‘very likely to be embarrassing’ for the persons depicted in it?
(b) that passengers would have ‘no expectation whatsoever’ that CCTV footage taken on a train would be made public?
(c) that the cost of editing the footage would be ‘a large amount of money’ and ‘far in excess of… $19,000’?
(d) that editing of the footage by a private contractor ‘would not guarantee the confidentiality that is required’?
(iii) Did the Tribunal make the following findings that were unreasonable:
(a) that passengers would have ‘no expectation whatsoever’ that CCTV footage taken on a train would be made public?
(b) that the footage is an exempt document pursuant to s 33(1) of the FOI Act?
(c) that it is not practicable to edit the footage pursuant to s 25(1) of the FOI Act?
(iv) Did the Tribunal fail to take into account the relevant consideration of the likely extent of dissemination of the footage by the applicant?
Submissions
The applicant filed written submissions dated 8 September 2015 in support of his application for leave to appeal. The respondent objected to the application for leave to appeal and made written submissions dated 8 September 2015. Oral submissions were made by counsel for both parties at the hearing of this application. The submissions for both parties have been considered. Given the nature of this application, it is unnecessary to reiterate all the submissions in this judgment.
Applicable Principles
The parties were substantially in agreement as to the applicable principles.
Section 148 of the Victorian Civil & Administrative Tribunal Act 1998 (‘the VCAT Act’) permits an appeal from the Tribunal’s decision on errors of law. Errors of fact are not reviewable. Leave is required from this Court to appeal.
The relevant principles for leave to appeal are well-established and include the following.
· The question of law must ‘bear upon the granting of that relief’.[4]
[4]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335 [9] (‘Hulls’).
· ‘The question of law must be such that, if there is shown to be error in respect of the question, the appellant’s claim to relief will thereby be advanced’.[5]
[5]Ibid.
· ‘On the other hand, on an application for leave to appeal it cannot be expected that error below be established. That is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. In other contexts, this has sometimes been called a ‘prima facie case’, or ‘an arguable case’, but these are no more than attempts to describe the degree to which an applicant must satisfy the court from which leave is sought that there is a real or significant argument, in favour of the applicant, on the question of law which is identified.’[6]
[6]Ibid 335 [10].
· ‘What is peripheral may be thought less persuasive, in relation to leave to appeal, than an issue which is central’.[7]
[7]Ibid.
· There are cases in which it might be sufficient for the applicant ‘to identify the question of law and its general public importance.’[8]
[8]Ibid 336 [11].
· ‘Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant’.[9]
[9]Ibid 337 [16].
· ‘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’.[10]
[10]Ibid.
· ‘The question is not whether a finding of fact is unreasonable, but rather whether the finding of fact was open’.[11]
· A question of whether there was any evidence to support a finding of fact is a question of law.[12]
· In order to constitute an appellable error, the finding of fact must not just be unsubstantiated (that is, not open on the evidence), it must also have been critical in some way to the ultimate determination.[13]
[11]Janusauskas v Director of Housing [2014] VSC 650, [36].
[12]Moorabool Shire Council v Taitapanui (2006) 14 VR 55, 70 [57].
[13]S vCrimes Compensation Tribunal [1998] 1 VR 83, 90.
Application
Whether findings open on the facts
An issue considered by the Tribunal was whether it was practicable to pixelate the CCTV footage so that the persons in the train carriage could not be identified.
There is a real or significant argument that the Tribunal erred in finding that the cost of editing the footage would be ‘a large amount of money’ and ‘far in excess of… $19,000’.[14] Although there was evidence of the time it would take to edit, there was no primary evidence of the cost of editing. The Tribunal relied on a 2004 decision of the Tribunal in which there was a quotation of $19,800 for pixelating a copy of two videos.
[14]Question of law (2)(c) in the applicant’s proposed Notice of Appeal.
The respondent submitted that the Tribunal could take this evidence from a previous case into account. It submitted that the Tribunal had done so previously.[15] Further, that s 98 of the VCAT Act provides that the Tribunal is bound by the rules of justice, not the rules of evidence and, pursuant to s 98(1)(c), that it may inform itself on any matter as it sees fit. In addition, under s 98(1)(d), it must conduct each proceeding with as little formality and technicality, and determine each matter with as much speed as permitted by the requirements of the VCAT Act, the enabling enactment, and a proper consideration of the matters before it.[16]
[15]See Jason Pizer QC and Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 5th ed, 2015) 502, including the decision of Psychology Board of Australia v Milosovich [2013] VCAT 12.
[16]Transcript page 44 lines 16–27.
The applicant opposed this submission and contended that the rules of evidence are an important guide and should not be discarded lightly. [17] The applicant submitted that the Tribunal should not depart from the rules of evidence without good reason.
[17]The applicant’s counsel referred to Pizer and Nekvapil, above n 15, 498.
The Court considers that the applicant has shown that there is a real or significant argument there is a real question to be considered as to whether it was not open to the Tribunal to rely on the costing in a 2004 case that was unrelated to the proceeding before it.
The next question is whether this finding in relation to the cost of editing was a critical finding in the proceeding. The Court considers there is a real argument that it is. The Tribunal relied on the cost being in excess of $19,000 to find that it was impracticable to pixelate the footage. Whilst it referred to the burden of having Mr Williams [an employee of the respondent] assist and look at the video, and particularly that the taxpayer should not have to bear that burden, this was put as a further reason. The Tribunal held:
In this particular case, while I have not been given a quotation relating to contractual pixilation, one can imagine that 80 to 90 hours work would be far in excess of the $19,000 that was referred to in Vaughan’s case. Further, I do not believe that the taxpayer should have the burden of having Mr Williams [of the respondent] assist and have to look at this video for all that time. In my view that is impracticable within the meaning of the section, that is, it is not practicable.[18]
[18]Willner v Department of Economic Development, Jobs, Transport and Resources (VCAT Reference No. Z737/2014) (Senior Member Davis) (‘Tribunal’s reasons’) [39].
There is a real argument that the finding that it was not practicable to pixelate the footage was a critical finding in relation to s 25(b) of the FOI Act. Section 25 of the FOI Act is 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.
In addition, there is a real or significant argument that the Tribunal erred in making the following finding of fact: that editing of the footage by a private contractor ‘would not guarantee the confidentiality that is required’,[19] as there was no evidence about whether or not a contractor could maintain confidentiality before the Tribunal.
[19]Question of law (2)(d) in the applicant’s proposed Notice of Appeal.
The next question is whether this finding in relation to confidentiality was a critical finding in the proceeding. The Court considers there is a real argument that it is. The Tribunal held:
It should be noted that the applicant submitted that the editing and the looking of the relevant CCTV footage should be put out to public tender, however I find this would be quite impractical. First, it would not guarantee the confidentiality that is required in such an office. Secondly, while I am unable to give an estimate of the price involved, having someone with Mr Williams capability to examine the CCTV footage, the cost would be a considerable amount of money. In my view it is likely to be a large amount of money. Further, Mr Williams stated that he had a number of functions for which he was responsible and he had to attend those functions. He said that if he was to spend the 80 to 90 hours examining this footage it would certainly interfere with his work. He believed it would take 80-90 hours to edit the footage.[20]
[20]Tribunal’s reasons [11].
Accordingly, there is a real argument that this finding was critical to the finding pursuant to s 25(b) that it was not practicable to provide the pixelated footage to the applicant.
The Court does not consider that the remaining grounds in the proposed Notice of Appeal raise questions of law in relation to which there is a real or significant argument that an error exists.
In relation to the submission that the release of footage is very likely ‘to be embarrassing’ for the persons depicted in it, the applicant acknowledged that this was an ‘intermediate finding’.[21] The Court does not consider that this was a critical finding of the Tribunal.[22]
[21]Applicant’s written submissions dated 8 September 2015, 3.
[22]Tribunal’s reasons [28].
The applicant submitted there was no evidence of the actual contents of the footage. However, the finding in relation to whether to release of the information pursuant to s 33 of the FOI Act was made on the basis that it was not possible to notify each or possibly any of the persons whose image may be disclosed in the footage, and therefore that their views could not be obtained. Further, people were entitled to believe that they were being filmed for a particular purpose, namely their safety.
The Court does not consider that there is a real or significant argument to be put that the Tribunal made an error of law in finding that passengers would have ‘no expectation whatsoever’ that CCTV footage taken on a train would be made public. There was evidence before the Tribunal that there were words written on the train carriage that indicated that ‘…for your safety during your journey your behaviour may be monitored on CCTV’.[23] It is not for this Court to consider whether or not the Tribunal gave appropriate weight to this evidence. To disclose an error of law on the basis that a finding was not open on the facts, as discussed above, there must be no evidence. In this case there was evidence capable of supporting the Tribunal’s finding.
[23]Ibid [7].
The applicant conceded that the question of law, in relation to whether the Tribunal had taken a correct legal approach in determining whether the footage was exempt pursuant to s 33 of the FOI Act,[24] was put as an alternative argument to whether the findings were open on the facts. As the submissions that there is a real argument that the Tribunal erred in respect to whether some findings of facts were open on the evidence (referred to above) have been accepted, this question of law is not further considered.
[24]Question of law (1) in the applicant’s proposed Notice of Appeal.
Unreasonableness
The Court does not consider the questions of law identified in the proposed Notice of Appeal in relation to the Tribunal’s findings being unreasonable establish a real or significant argument that error exists.[25] The three grounds raised in the proposed Notice of Appeal are now addressed in turn.
[25]Question of law 3 in the applicant’s proposed Notice of Appeal.
First, that the passengers would have ‘no expectation whatsoever’ that CCTV footage taken on the train would be made public. In relation to that ground, the Tribunal had evidence of the safety notice before it, as discussed above.
Second, that the footage was an exempt document pursuant to s 33 of the FOI Act. The Court accepts the submissions of the respondent. The Tribunal’s reasons do not disclose a real or significant argument that the decision was so unreasonable that no decision-maker would have made it.[26]
[26]The test for unreasonableness is when a decision-maker comes to a conclusion so unreasonable that no reasonable authority could ever have come to it. See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 234 (Lord Greene MR).
Third, that it was not practicable to edit the footage pursuant to s 25(b). This ground has been dealt with in relation to a previous ground, namely that finding of fact was not open in the evidence. It appears to be an argument put in the alternative. Accordingly, it is not considered again in relation to unreasonableness.
Relevant consideration
The fourth question of law in the Applicant’s proposed notice of appeal is that the Tribunal failed to take into account a relevant consideration; that is, that it failed to consider the likely extent of dissemination of the footage. The Court does not consider that a real or significant argument exists in relation to this question. The Court accepts the respondent’s submission that the Tribunal was not specifically bound by the FOI Act to take this into account. This ground only applies to considerations that the Tribunal is bound to take into account.[27] Further, it was an issue that the Tribunal expressly considered.[28]
[27]Sinclair v Tripodis [2013] VSC 722, [18]
[28]Tribunal’s reasons [27].
Conclusion
There is a real or significant argument, to be considered on appeal, that an error exists in relation to a question of law namely, whether certain factual findings, discussed above, were open to the Tribunal to make on the evidence.
Ultimately, leave to appeal is decided by what is just. There are real or significant arguments that there are errors of law in the Tribunal’s decision, as discussed above. As a result, in the circumstances, it is just for leave to be granted.
The parties are requested to confer and prepare procedural orders in accordance with the Judicial Review and Appeals Practice note.
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