Appellant v Respondent

2 The Enterprise was established by an Order in Council made under s 14 of the State Owned Enterprises Act 1992 (Vic) ('the Establishment Order'). Clause 7(1)(b) of the Establishment Order provides that the Enterprise must develop a plan for the Program and submit that plan to the Minister responsible for the Water Act 1989 (Vic) ('the Minister') and the Treasurer for approval prior to implementation of the plan ('a program plan').

3 On 18 August 2008, the Enterprise finalised an initial program plan for the first stage of the Project. This initial program plan comprised two lever arch folders ('the Document'). The first 22 pages of the Document comprised an executive summary of the detailed information contained in the remainder of the Document ('the Executive Summary').

4 The respondent is a research officer employed by the Victorian National Party. On behalf of the leader of that party, he sought access under the Freedom of Information Act 1982 (Vic) ('the Act') to a number of documents relating to the Project ('the FOI request'). Ultimately, the only document in dispute was the Document.

5 The FOI request was directed to Mr Harry De Jong in his capacity as the FOI Delegate of the Enterprise. Mr De Jong refused the FOI request in respect of the Document, on the basis that it was prepared for submission to a Cabinet Committee for consideration, and was thus an exempt document under s 28(1)(b) of the Act. The relevant committee was the 'Water Cabinet Committee' ('the Cabinet Committee').

6 The respondent sought an internal review of the refusal to provide access to the Document. The internal review was conducted by the Chief Executive Officer of the Enterprise, who determined to uphold Mr De Jong's refusal.

7 The respondent then applied to the Victorian Civil and Administrative Tribunal ('the Tribunal') for a review of the decision to refuse access to the Document. The Tribunal granted the application, set aside the decision to refuse access to the whole of the Document and, in lieu, directed the Enterprise to grant access to the whole of the Document except the Executive Summary. The Enterprise appeals from the orders of the Tribunal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). An appeal under that section may be made on a question of law only. The notice of appeal raises seven questions of law. The first four questions relate to the Enterprise's claim that the Document is an exempt document under s 28(1)(b) of the Act. The remaining questions relate to another ground of exemption relied upon by the Entity at the Tribunal hearing, that the Document is an exempt document under s 34(4)(a)(ii) of the Act.

8 Following a direction from the Cabinet Committee, the Document was withdrawn. A revised program plan was later submitted to the Cabinet Committee, and ultimately approved by the Minister and the Treasurer for implementation. Nevertheless, this appeal concerns access to the Document in its original form.

Was the Document an exempt document under s 28(1)(b) of the Act?

9 The object of the Act is to extend, as far as possible, the right of the community to access to information in the possession of the Victorian Government and Government bodies, subject to the exceptions and exemptions specified in the Act.[1] The Act is to be interpreted so as to further that object.[2]

10 Section 28 of the Act contains exemptions for Cabinet documents. By s 28(7)(a), 'Cabinet' includes a committee or sub-committee of Cabinet.

11 Section 28(1)(b) provides that a document is an exempt document if, relevantly, it was prepared 'by an agency for the purpose of submission for consideration by the Cabinet'. It is accepted that the Enterprise is an agency for this purpose.

12 A document will only be exempt under section 28(1)(b) if the sole purpose, or one of the substantial purposes, for which the document was prepared was for submission to Cabinet for consideration.[3] In Secretary to the Department of Treasury and Finance v Dalla-Riva,[4] Buchanan JA, without finally deciding the point, accepted that this was the correct approach and, on that basis, stated that it was sufficient if the purpose was 'the dominant purpose or one of a number of significantly contributing purposes.'[5]

13 In determining whether the required purpose has been established, it is permissible, and often helpful, for the court or tribunal to consider what use was in fact made of the document in question, but the use is not decisive of the issue.[6]

14 The parties and the Tribunal accepted that these were the relevant principles to be applied.

15 The Tribunal found that a substantial purpose of the preparation of the Executive Summary was to submit it to the Cabinet Committee for consideration, and accordingly held that the Executive Summary was exempt. However, the Tribunal found that the sole purpose of preparing the remainder of the Document was to comply with the Enterprise's obligation to prepare a program plan under clause 7(1)(b) of the Establishment Order, and held that the remainder was accordingly not exempt under s 28(1)(b).

16 The Enterprise contends on appeal that the factual finding as to the purpose of preparation of the remainder of the Document was not open on the evidence, and thus constituted an error of law. The parties accepted that an error of law will arise if a tribunal makes a finding which was not open on the evidence, and the finding was critical to the tribunal's ultimate determination.[7] In order to determine this ground of appeal, it is necessary to consider the evidence filed by the Enterprise to support its contention that the whole of the Document was prepared for the substantial purpose of submission to the Cabinet Committee for consideration.

17 The Enterprise relied upon two witness statements in support of its claim for an exemption under s 28(1)(b) of the Act, by Mr De Jong and Barbara Anne Poland. Mr De Jong was cross-examined. Ms Poland was not. Both statements were verified on oath at the hearing.

18 Ms Poland's statement was short. She is the Director of the Cabinet Secretariat of the Department of Premier and Cabinet. She has held that position since December 2001. Her responsibilities include management of the receipt, registration, maintenance and preservation of Cabinet and Cabinet Committee documents. She said that those documents typically comprise submissions and briefing papers to Cabinet and Cabinet committees. She said that the whole of the Document is held by the Cabinet Secretariat, and, on that basis, said that the Document formed part of a submission that was presented to the Cabinet Committee on 29 August 2008. Ms Poland was not present at the Cabinet Committee meeting on that date, and her evidence is based upon the fact that the Document is held by the Cabinet Secretariat with reference to that meeting.

19 Mr De Jong gave evidence from a position of significant and continuous involvement in the Project, the Enterprise and the preparation of the Document. His involvement commenced before the establishment of the Enterprise, as an external advisor to the Department of Sustainability and Environment ('the Department') to assist with the Project and the creation of an entity for that purpose. He was involved in various aspects of the creation of the Document, including engaging external experts, assisting in drafting the Document, and facilitating finalisation of the Document. Since February 2009, he has been the Enterprise's Executive Manager, Governance and Corporate Planning. He gave the following evidence in his witness statement as to the purpose for which the Document was prepared:

(1) He acknowledged that the Document was prepared for the dominant purpose of securing approval of the program plan contained in it from the Minister and the Treasurer, to enable the Project to be implemented.

(2) For the purpose of securing that approval, he always understood that the Document would be submitted to and considered by the Cabinet Committee for consideration and endorsement, prior to formal approval by the Minister and the Treasurer. In his witness statement, Mr De Jong gave the following evidence in that regard:

It was my clear understanding from advice given to me by the Department that [the Document] was to be submitted to and considered by a Committee of Cabinet, and that approval of [the Document] was contingent upon the endorsement of that Committee. Both the Treasurer and the Minister for Water form part of that Cabinet Committee.

In the circumstances, I always knew and understood that [the Document] had to be submitted to the Cabinet Committee for its consideration. Put another way, I always knew and understood that part of the process of securing Government approval for the [program plan contained in the Document] involved submitting that document to the Cabinet Committee for its consideration and endorsement.

(3) In August 2008, the Document was submitted to the Cabinet Committee and was considered by that committee at its meeting on 29 August 2008. He referred to a letter dated 12 December 2008 from the Minister which relevantly states that the program plan contained in the Document was considered by the Cabinet Committee on 29 August 2008. That letter also required the Document to be revised and re-submitted for endorsement by June 2009.

20 In cross-examination, Mr De Jong confirmed the evidence in his witness statement and expanded upon it. It was not put to him that any of this evidence was false, and no submission was made to the Tribunal to that effect. Relevantly, Mr De Jong gave the following evidence in cross-examination:

(1) Representatives of the Department, whose names he cannot recall, instructed him and others 'very early on in the process that the [Document] would be, in the first instance, submitted to [the Cabinet Committee] for their endorsement ...'.

(2) For the purpose of enabling the Document to be submitted to the Cabinet Committee, it was to be delivered to the Department in the first instance.

(3) The Document was not approved by the Minister and the Treasurer because the Cabinet Committee did not endorse it, but required it to be re-submitted.

21 Taking Mr De Jong's evidence as a whole, he was instructed by the Department to prepare the Document for submission to and consideration by the Cabinet Committee, which included the Minister and the Treasurer, in the first instance; and it was only following endorsement by that Committee that a program plan would be approved by the Minister and the Treasurer under clause 7(1)(b) of the Establishment Order. Towards this end, the Document was submitted to the Cabinet Committee.

22 The respondent submitted that the Tribunal rejected Mr De Jong's evidence on the grounds that it was vague and bereft of detail, and thus failed to discharge the onus on the Enterprise to prove the substantial purpose for which it contended. I do not accept that submission. Although the Tribunal criticised the weight of the evidence in Mr De Jong's witness statement as being mere understanding and insufficiently direct,[8] the Tribunal did not make any finding rejecting his evidence. Nor did the Tribunal give any consideration to Mr De Jong's oral evidence.

23 It was not open to the Tribunal to reject Mr De Jong's evidence. There was nothing implausible or unreasonable about that evidence. To the contrary, it accords with common sense and experience that a project involving the expenditure of $600 million of Government funds would be considered by Cabinet or a Cabinet Committee before formal approval was given to proceed. In these circumstances, it was not open to the Tribunal to make the factual finding that the sole purpose of preparing the Document (other than the Executive Summary) was to submit it to the Minister and the Treasurer for approval under clause 7(1)(b) of the Establishment Order.

24 The principal reason given by the Tribunal for this finding was the terms of clause 7(1)(b) of the Establishment Order. The Tribunal member stated that the terms of that clause dictated the purpose for which the Document was prepared, and allowed for no other purpose. The Tribunal member stated his conclusion in this way:

The exemption under s 28(1)(b) does not attach to schemes and proposals but to documents. It seems to me clear that the purpose of the creation of the Document was to fulfil the requirements set out in the [Establishment Order]. There was no reason at all why the Minister and the Treasurer could not have taken the proposal to the Committee as indeed they did. But that does not mean that the Document itself was prepared for the sole or substantial purpose of being taken to the Committee for the purpose of deliberation by the Committee.

The intention of the persons preparing the Document must be presumed to have been to carry out the [Enterprise's] duty under the [Establishment Order] that required it to be produced. They cannot be presumed to have had any other intention.[9]

25 That finding was not open on the evidence. Although I accept that the dominant purpose of preparing the Document was to comply with the Enterprise's obligation under clause 7(1)(b) of the Establishment Order, that dominant purpose did not exclude other substantial contributing purposes. Although the ultimate approval could only be given by the Minister and the Treasurer under clause 7(1)(b), there is nothing in the Establishment Order preventing the establishment of a Cabinet Committee to first review and endorse the program plan prepared for the purpose of ultimate approval. The evidence in this case established that Mr De Jong and others involved in the preparation of the Document knew that such a procedure had been established and intended that the Document would, when completed, be submitted to the Cabinet Committee in the first instance. That was a substantial purpose of the preparation of the Document.

26 The finding was critical to the decision and was an error of law. The appeal should be allowed on that basis alone.

27 The Tribunal also sought to support the finding on the basis that it was not satisfied on the evidence that the whole of the Document was in fact submitted to the Cabinet Committee. The Tribunal made a positive finding that only the Executive Summary was submitted to the Cabinet Committee.[10] This finding was based only on an inference drawn by the Tribunal from a statement in the Minister's submission to the Cabinet Committee, that the Executive Summary was attached to that submission. On that basis, the Tribunal inferred that the whole of the Document was not submitted to Cabinet. Taking the evidence as a whole, that finding was not open. It was inconsistent with the evidence of Mr De Jong and Ms Poland that the whole Document was submitted to the Cabinet Committee.

28 Further, where a document is prepared for a substantial purpose of submission to Cabinet for consideration, the preparation and submission of an executive summary of the document, and not the full document, does not alter the purpose for which the document was prepared; and submission of the executive summary only will usually be taken as submission of the whole document.[11]

29 Although it is not entirely clear, the Tribunal's reasons as a whole disclose substantial reliance on this finding in reaching the decision to deny exemption under s 28(1)(b) of the Act. In these circumstances, this finding also amounted to an error of law.

30 It is accordingly unnecessary to consider the other grounds of appeal. This is especially so in circumstances where the respondent has asked the Court for a prompt decision, in light of the forthcoming State Election.

31 For the above reasons, the appeal will be allowed. The parties agreed that, if the appeal was allowed on the ground that it was not open to the Tribunal to find that the purposes for which the Document was prepared did not include the substantial purpose of submission to the Cabinet Committee, the Court should set aside the Tribunal's order and the decision of the Enterprise to refuse access to the Document should be affirmed. I will so order. I will hear the parties as to costs.

[3] Re Ryan and Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226, [34], per Morris J.

[4] [2007] VSCA 11.

[6] Re Ryan and Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226, [34]; Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, [15].

[7] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-93; He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158, [25].

[9] Ibid, [36]-[37]. Emphasis added.

[10] Ibid, [35], [39], [40] and [42].

[11] Olexander v Department of Premier and Cabinet [2002] VCAT 497, [28]-[29]; Re Ryan and Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226, [40]; Dalla-Riva v Department of Treasury and Finance [2005] VCAT 2083, [30]; Mitchell v Victorian Competition and Efficiency Commission [2009] VCAT 2218, [36].