Applicant v Applicant

1 This proceeding was commenced by two applicants, Giang Tran and Tony Chang. At the hearing, by consent, Mr Tran was granted leave to withdraw. Mr Chang thereafter pursued the application alone.

2 On 30 June 2015, Mr Chang was imprisoned at the Metropolitan Remand Centre when a riot broke out and continued into the next day ('the riot').

3 Section 58E of the Corrections Act 1986 (Vic) ('Corrections Act') allows people sentenced to imprisonment to apply for reductions in their sentence on account of good behaviour while suffering disruption or deprivation during an emergency in prison. Such sentence reductions are known as 'emergency management days' ('EMDs'). Applications for EMDs may be determined by a delegate of the Secretary to the Department of Justice and Community Safety ('DJCS').

4 In May 2017, Mr Chang applied for EMDs in respect of the period of the riot. More than 1,800 such applications seem to have arisen from the riot; which is a much higher number of applications than is normally received.

5 On 31 July 2017, Mr Chang (and Mr Tran) issued proceedings for judicial review. Each was represented by Access Law. Mr Chang sought a decision in respect of his application for EMDs. That occurred the next day, when it was refused by a delegate, Deputy Commissioner Wise.

6 On 15 September 2017, an application for EMDs made by a different client of Access Law, Ali Kheir, was refused by a different delegate, the then Corrections Commissioner, Jan Shuard. Among other things, Commissioner Shuard stated -

As a general principle, I consider it inappropriate to grant any prisoner [EMDs] when prisoners have created the emergency.[1]

7 Mr Kheir commenced proceedings seeking judicial review.

8 On 29 November 2017, by consent, orders were made quashing the decisions in respect of the applications of Mr Chang and Mr Tran and remitting them for re‑determination.

9 On 11 May 2018, T Forrest J determined Mr Kheir's first application for judicial review. His Honour quashed the determination of Commissioner Shuard and ordered that the application should be remitted 'to a delegate ... who, if possible, has had no previous involvement with that application'.[2]

10 On 13 July 2018, Mr Chang made submissions in respect of his remitted application.

11 Various correspondence ensued, including a letter from the then new Corrections Commissioner, Commissioner Cassar, to Access Law dated 24 September 2018 in which, among other things, she apologised for the delay, noted that no submissions had been provided by Mr Chang in respect of a particular topic and concluded as follows -

The Secretary [of the DJCS] is expected to shortly determine who should receive his delegated powers to consider the application for Emergency Management Days under section 58E of the Corrections Act 1986.[3]

12 The submissions in respect of Mr Chang's application were finalised by mid‑October 2018.

13 Shortly prior to that, on 10 October 2018, Mr Kheir commenced a second judicial review proceeding; this time directed to the failure of the Secretary to appoint a delegate to consider and determine his remitted application.

14 On 23 October 2018, Neil Robertson was appointed as a delegate of the Secretary of the DJCS to determine applications for EMDs. It seems that Mr Robertson was to be the delegate who would consider and determine the remitted applications of Mr Kheir, Mr Chang and Mr Tran - although that never seems to have been communicated to Access Law in respect of the applications of Mr Chang and Mr Tran. In any event, at some point Mr Kheir's second judicial review proceeding resolved into a dispute over costs.

15 In that context, it seems that Mr Kheir took objection - on the ground of apprehended bias - to Mr Robertson considering and determining his remitted application.

16 On 20 December 2018, Mr Robertson considered and rejected Mr Kheir's remitted application (including the preliminary objection based in claims of apprehended bias). That led to Mr Kheir commencing a third judicial review proceeding.

17 On 11 February 2019, Commissioner Cassar wrote to Access Law concerning the remitted applications of Mr Chang and Mr Tran. Among other things, she apologised for the 'significant delay in responding' and stated -

Corrections Victoria will prepare submissions for the decision maker in both cases as was the case in Mr Kheir's application, and you in turn will receive copies of these submissions as part of that process. I understand that the decision maker will write to you shortly requesting that you also make submissions in support of the applications made by Messrs Tran and Chang.[4]

18 The following day, the costs issues arising in respect of Mr Kheir's second judicial review proceeding were argued before Richards J and, on 19 February 2019, her Honour determined those issues and was critical of the delay of the Secretary of the DJCS in appointing a fresh delegate.[5]

19 On 27 February 2019, Mr Kheir filed an amended originating motion in his third judicial review proceeding. Among other things, Mr Kheir sought an order requiring the appointment of a delegate different to Mr Robertson. In that connection, it was said, or came to be said, that Mr Robertson's decision had been tainted by apprehended bias and/or partiality and that Corrections Victoria and the Secretary of the DJCS had unlawfully delayed the consideration and determination of Mr Kheir's application.

20 On 8 March 2019, Access Law emailed Commissioner Cassar among others, seeking the identity of the 'decision maker' in respect of the remitted applications of Mr Chang and Mr Tran.[6] No response was received.

21 On 26 June 2019, McDonald J dismissed Mr Kheir's third judicial review proceeding.[7]

22 Mr Kheir subsequently applied for leave to appeal; which was heard by the Court of Appeal on 16 September 2019 and refused on 16 October 2019.[8]

23 The previous day, the Justice Legislation Amendment (Serious Offenders and Other Matters) Bill 2019 (Vic) ('the Bill') had been introduced to Parliament.

24 Relevantly, the Bill, which was omnibus legislation and therefore not limited to the proposed amendments to the Corrections Act, contained -

(a) a proposed amendment to s 58E of the Corrections Act by which, in substance, the section would not apply to any prisoner in relation to any event at the Metropolitan Remand Centre on 30 June and 1 July 2015; and

(b) a proposed transitional provision that would apply the amended s 58E to any relevant application for EMDs made but not yet determined.

25 On 31 October 2019, Deputy Commissioner Wise wrote to Access Law in respect of the remitted applications of Mr Chang and Mr Tran and said -

At the time that your clients made applications in 2018, Corrections Victoria was awaiting Mr Neil Robertson's (and later the Court of Appeal's) decision in the Kheir case before making a decision on your clients' applications. On 16 October 2019, the Court of Appeal dismissed Mr Kheir's application for leave to appeal.

Since Mr Robertson's decision, as you may be aware, the [Bill] has been introduced into Parliament. Clause 30 of the Bill proposes to amend the [Corrections Act] to exclude the application of EMDs in relation to the prison riot at the [MRC] in 2015, and clause 43(4) is a transitional provision that is also relevant to Mr Chang's and Mr Tran's applications.

If the Bill is passed by Parliament, it is expected that the amendments relating to EMDs will commence later this year, and will preclude your clients from eligibility for EMDs in this instance. If it is not passed, we will of course reconsider the two applications.

Please find enclosed a copy of the relevant parts of the Bill for your reference.[9]

26 The following day, Access Law wrote to the Secretary of the DJCS requesting that the applications of Mr Chang and Mr Tran be considered 'with utmost priority'.[10]

27 The Bill was passed on 14 November 2019 and the Justice Legislation Amendment (Serious Offenders and Other Matters) Act 2019 (Vic) received Royal Assent on 19 November 2019.

28 On 5 December 2019, Commissioner Cassar wrote to Access Law noting that the Bill had been passed and, consequently, that it was unlawful for the Secretary of the DJCS or a delegate to grant the applications of Mr Chang and Mr Tran.[11]

29 On 27 February 2020, pursuant to the Freedom of Information Act 1982 (Vic) ('FOI Act'), Mr Chang requested that the DJCS provide access to -

... all documents in relation to the planning, development and drafting of s 30 of [the Bill] or any other provisions in relation to [EMD], including but not limited to [several categories thereafter stated].

30 Similarly, on 20 April 2020, Mr Chang requested that the Office of Chief Parliamentary Counsel ('OCPC') provide access to '[a]ll documents existing from July 2017 onwards in relation to the planning and drafting of s 30 of [the Bill]' falling within categories thereafter stated.

31 It may be noted that the requests did not seek access to documents personally relating to Mr Chang (or Mr Tran). As was later observed -

In broad terms, the requests concerned how the legislative amendment was communicated between certain government departments, how the amending legislation came to be drafted and then approved by Cabinet.[12]

32 The DJCS and OCPC each later refused the requests, relying upon s 25A(5) of the FOI Act. In broad terms, s 25A(5) permits an agency to refuse access on the basis of 'the nature of the documents described in the request', without having identified any or all of those documents and, in respect of each such document, the exemption or exemptions claimed. That said, the DJCS and OCPC each seem to have relied upon the exemption in s 32 of the FOI Act (legal professional privilege).

33 Mr Tran and Mr Chang applied to the Office of the Victorian Information Commissioner for review, and, on 19 August 2020, the Information Commissioner reached the same conclusions.

34 Mr Tran and Mr Chang brought proceedings in the Victorian Civil and Administrative Tribunal ('the Tribunal'). The proceeding was heard on 3 December 2021. The major issue was whether, broadly speaking, the claims of legal professional privilege in respect of the documents described should fail as a consequence of the documents being in furtherance of a 'deliberate abuse of a power'.[13]

35 On 19 January 2022, the Tribunal determined that 'the entire content of the documents described in the applicants' requests would be subject to the exemptions contained in sections 28 [Cabinet documents] and/or 32 [legal professional privilege]'.[14] Consequently, the Tribunal ordered that the decisions of the Information Commissioner be affirmed.

36 On 15 February 2022, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), Mr Tran and Mr Chang sought leave to appeal to the Trial Division of this Court 'on a question of law'.

37 The Tribunal's orders were accompanied by lengthy and detailed reasons.

38 It is not productive for me to rehearse all aspects of the Tribunal's reasons. Much of the reasoning was directed to the details of various events to which I have generally referred, the evidence given at trial and some arguments advanced by Mr Chang and Mr Tran that were collateral to their central position.

39 The Tribunal summarised the central position of Mr Chang and Mr Tran as follows -

1. The applicants contended that the Commissioner of Corrections (Commissioner) and/or the Secretary and/or the Commissioner's delegates and/or her agents 'deliberately or recklessly delayed and refused to make a decision on the Applicants' applications so as to render them inutile' upon the relevant amending provision in the Corrections Act coming into effect. The applicants say that amounted to a grave abuse of power which is sufficient to establish an exception to legal professional privilege and/or a public interest in the access request being processed under the FOI Act.
2. The applicants produced no direct evidence of the alleged breach of statutory duty and abuse of power. Instead, the applicants relied on the timeline of the life of their EMD applications and correspondence from the Commissioner (Ms Emma Cassar) and the Deputy Commissioner of Corrections (Mr Rod Wise) which they say show the decision‑making on the EMD applications were postponed 'while steps were put in train to remove the applicants' eligibility for EMD'.
3. They contended that the documents sought must contain communications between the respondents and others to evidence the initiation or furtherance of the abuse. They also contended that, as the Secretary or the DJCS failed to exercise its statutory powers on EMD, communications with parliamentary drafters and others in relation to the preparation of legislation to 'validate (or at least ratify) the abuse of power' are not subject to any privilege, adding that there 'is no privilege in iniquity'.[15]

40 For their part, the DJSC and OCPC, among other things, denied any impropriety.

(a) to a significant extent the relevant principles were not in dispute;

(b) the Tribunal was provided with a detailed joint chronology together with supporting documents;

(c) Mr Chang and Mr Tran called no witnesses;

(d) the DJCS and OCPC, respectively, called and relied upon the evidence of -

(i) Marina Farnan, Chief Parliamentary Counsel;

(ii) Carly Edwards, Associate Deputy Secretary, Policy, Strategy and Offender Outcomes, Corrections and Justice Services Group within the DJCS; and

(iii) Deputy Commissioner Melissa Westin of Custodial Operations in Corrections Victoria within the DJCS;[16]

(e) that evidence was relevant to the application of ss 25A(5), 28 and 32 of the FOI Act as well as the central contention that legal professional privilege had been lost;

(f) cross‑examination was limited;

(g) the evidence of those witnesses was accepted;[17] and

(h) based on the evidence, the Tribunal made various findings, not all of which are presently relevant.

(a) Ms Farnan gave evidence, among other things, that -

(i) she had carefully reviewed the whole of the file in respect of the Bill;[18]

(ii) there was no letter from the Premier to the Chief Parliamentary Counsel with respect to the relevant clause of the Bill;[19]

(iii) she did not recall anything to suggest that there were communications between the DJCS and OCPC relating to any deliberate delay in the consideration of EMD applications;[20]

(iv) there were no documents responsive to the requested categories of correspondence, notes and other documents exchanged between Members of Parliament and the Department of Premier and Cabinet/OCPC or between the Victorian Government Solicitor's Office and DPC/OCPC;[21] and

(v) all of the documents responsive to the requests were created for the dominant purpose of the OCPC providing legal advice to the DJCS in relation to the Bill and privilege in them had not been waived;[22]

(b) Ms Edwards gave evidence, among other things, that -

(i) she had been involved in the latter stages of the Bill;[23]

(ii) the Legal Policy Corrections Victoria Team ('LPCV Team') had been involved with the planning, development and drafting of the Bill;[24]

(iii) those who decided EMD applications were separate from the LPCV Team;[25] and

(iv) all of the documents responsive to the requests would be either the subject of deliberations by Cabinet or confidential communications with respect to legal advice where privilege had not been waived;[26]

(c) Deputy Commissioner Westin gave evidence, among other things, that -

(i) over 1,800 applications for EMDs were received as a result of the riot - which is significantly more than usual and, usually, such applications would be addressed within a few weeks;[27]

(ii) she had not been involved with the applications made by Mr Chang and Mr Tran and the executive staff who worked on them are no longer at Corrections Victoria;[28]

(iii) it had taken time to find a delegate with no previous involvement with EMD applications relating to the riot and who Access Law was 'happy with';[29]

(iv) in that connection, Access Law had rejected the suggestion that the then newly appointed Commissioner, Commissioner Cassar, be the delegate;[30] and

(v) she had not been involved in the process relating to the policy reflected in the Bill, and had not been aware of delays in dealing with the applications of Mr Chang and Mr Tran.[31]

(a) the applications of Mr Chang and Mr Tran and associated engagement (by Access Law) with the Secretary of the DJCS and Corrections Victoria concerning them was 'closely linked to that of Mr Kheir';[32]

(b) the delay in the appointment of Mr Robertson was not improper;[33]

(c) a decision had been made to consider Mr Kheir's application 'first';[34]

(d) in that regard, once Mr Robertson had made his decision on Mr Kheir's remitted application and Mr Kheir's third judicial review proceeding had been commenced, Mr Chang and Mr Tran's applications were 'put on hold', which was 'the most probable' reason why they had not been determined by October 2019;[35] and

(e) that was not a sufficient basis to 'set aside legal professional privilege in relation to the documents in dispute'.[36]

(a) the process relating to the Bill commenced in around April 2019 at the earliest and around July 2019 at the latest;[37]

(b) there was no evidence that Commissioner Cassar had been involved in the preparation of the Bill and, on the evidence, it was not clear how it could be said that she or the Secretary of the DJCS were involved 'in the behaviour described';[38]

(c) even if the analogy with a court adjourning a matter when legislation was soon to be passed were appropriate, the cases relied upon did not support a conclusion that the decision of an administrative decision maker to delay undertaking a task would, of itself, be a breach of statutory duty or abuse such that legal professional privilege would be lost;[39]

(d) there was 'no prima facie basis to find [that] decisions the Commissioner, the Secretary or anyone else within the DJCS or Corrections made about the specific EMD applications [by Mr Chang and Mr Tran] were known to those at the OCPC and within the DJCS who were working on the Bill';[40]

(e) there was no evidence of an overlap between those who were involved with making the Bill (the LPCV Team) and those involved in decision making relating to EMD applications;[41] and

(f) the evidence did not support the proposition that there would be documents within the terms of the access requests that would contain communications from the Secretary [of the DJCS] to OCPC 'urging it to hasten its work so the eligibility of prisoners who had applied for EMD could be stultified'.[42]

45 Thereafter, the Tribunal stated the following conclusions -

1. I again emphasise that the applicants did not seek documents about the decision‑making on their individual EMD applications and so I have not made findings of fact about the detail of those decision‑making processes. The access requests were for documents relating to the amendment of section 58E of the Corrections Act.
2. As is apparent, the applicants have not proven or produced evidence on which to base a prima facie finding there is a sufficient probability that the documents sought show a deliberate abuse of statutory power or duty. In particular, they have not proven that:
   • When it came to the appointment of a delegate to decide the applicants' EMD applications there had been a 'reckless disregard, if not defiance' of Richards J's criticisms in the Kheir Costs Decision or that such alleged conduct was 'egregious';
   • The Secretary and/or their delegates 'flouted' their statutory duty;
   • The Secretary and/or their delegates were dishonest in their communications or deliberately misled the applicants about the status of the applicants' EMD applications;
   • The decision to put the applicants' EMD applications on hold was designed to ensure the applications were defeated by the passing of the Bill;
   • There was any collusion between the people who were involved in making the Bill and those whose duty it was to consider EMD applications. The latter people included Commissioner Cassar and Deputy Commissioner Wise; or
   • There is a sufficient basis to conclude there was a probability that the delay in dealing with those applications was deliberate or otherwise improper such that it amounted to an abuse of a statutory duty.[43]

46 Consequently, the Tribunal accepted that the 'public interest override' in s 50(4) of the FOI Act did not apply and stated the following summary conclusion -

The applicants have not demonstrated that any legal professional privilege in the documents the subject of the access requests would be lost due to impropriety, fraud or an abuse of a statutory duty.[44]

47 For completeness, as I have earlier indicated, the Tribunal accepted that s 25A(5) of the FOI Act applied[45] and stated -

... all of the documents described in the ... access requests the subject of these proceedings would be exempt under sections 28 [Cabinet documents] and/or 32 [legal professional privilege] of the FOI Act.[46]

48 As earlier indicated, Mr Chang and Mr Tran sought leave to appeal pursuant to s 148(1) of the VCAT Act.

49 The notice of appeal passed through several rounds of amendment. The final version in the sequence - the second amended notice of appeal filed 8 February 2023 - states the following purported questions of law and grounds of appeal -

Questions of Law

Q.1 In the performance of his or her statutory functions pursuant to s.58E of the Corrections Act 1986, did the Secretary to the Department of Justice and Community Safety ..., the Commissioner for Corrections ..., and/or the Deputy Commissioner for Corrections ... have:

(a) actual, imputed or constructive knowledge of matters known to his or her subordinates;

(b) actual, imputed or constructive knowledge of the actions of his or her subordinates;

(c) responsibility for the actions of his or her subordinates?

Q.2 In what circumstances, if any, does delay in the carrying out of a statutory duty amount to:

(a) abuse of process,

(b) misfeasance in office,

(c) an actionable breach of statutory duty?

Q.3 Where there was evidence before the Victorian Civil and Administrative Tribunal ... that, inter alia:

3.1 on 3 May 2017 and 1 August 2017, the Deputy Commissioner determined that the first appellant and the second appellant respectively were not eligible for EMDs, ... (Note: the Deputy Commissioner's decisions were subsequently quashed by the Supreme Court of Victoria)

3.2 on 15 September 2017, the Commissioner said "as a general principle, I consider it inappropriate to grant any prisoner [EMDs] when prisoners have created the emergency", ... and -

3.3 on 19 October 2018, the Deputy Commissioner had a 10 minutes conversation with Mr. Neil Robertson [the person who was subsequently appointed as the Secretary's delegate to exercise the s.58E power], the full details of which have not been disclosed, ...

3.4 on 31 October 2019 the Deputy Commissioner relied on:

3.4.1 "awaiting Mr. Neil Robertson's (and later the Court of Appeal's) decision in the Kheir case before making a decision on [the appellant's] applications", and -

3.4.2 the passage of an impending legislative change ["which would preclude [the appellant's] from eligibility for EMDs in this instance"],

as reasons to delay performing the s.58E function. ...

and -

3.5 by letter dated 6 December 2021, the respondents' lawyers conceded: "the Tribunal can and should infer Mr Robertson held off determining Mr. Chang and Mr. Tran's EMD applications until Mr. Kheir's judicial review application." ...

did the Tribunal properly exercise its review function when it dismissed the Appellants' application, made under the provisions of the Freedom of Information Act 1982, for access to relevant documents, without:

(a) having regard to the documents the subject of the request, or alternatively,

(b) requiring that a list of the documents the subject of the request be furnished to the appellants?[47]

Grounds of Appeal

1. The Tribunal erred in law in failing to hold that each of the Secretary, the Commissioner and the Deputy Commissioner:

(a) had actual, imputed or constructive knowledge of matters occurring within the Department of Corrections,

(b) had actual, imputed or constructive knowledge of matters known to his or her subordinates in their official capacity, and -

(c) was responsible for the actions of his or her subordinates.

1. The Tribunal erred in law in failing to hold that the Secretary, the Commissioner, and the Deputy Commissioner had actual, imputed or constructive or knowledge of:

(a) the proposed amendment to s. 58E of the Corrections Act 1986, and -

(b) the progress of that amendment.

1. The Tribunal erred in law in failing to find that the Secretary was statutorily obliged to ensure that the appellants' applications were dealt with promptly and that they were not postponed until the amending legislation, which would negate their statutory rights, was imminent or had been passed.
2. The Tribunal erred in law in failing to find that, in the circumstances applicable to the appellants, the delay in considering and determining the applicants' applications constituted such a deliberate or reckless disregard of the Secretary's duties under s. 58E of the Corrections Act 1986 as to preclude the claim to privilege to any document evidencing the reasons for, or purpose (if any) of, the delay.
3. Having regard to the history of the proceeding, and in light of the actual, imputed or constructive knowledge of the Secretary, the Commissioner and the Deputy Commissioner, the Tribunal failed to properly exercise its review function, and thereby erred in law, when it dismissed the appellants' application without having regard to the documents the subject of the request and without requiring that a list of the relevant documents be furnished to the appellants.

50 In written submissions, among other things, Mr Chang and Mr Tran -

(a) sought to rely upon certain statutory provisions in support of contentions directed to 'actual, imputed or constructive knowledge'; and

(b) also submitted that the Secretary of the DJCS was a 'corporation sole'.

51 For their part, the DJCS and OCPC submitted, among other things, that -

(a) no such arguments had been raised in the Tribunal; and

(b) no evidence had been led in the Tribunal in respect of the asserted 'corporate structure' of the DJCS.

52 At the hearing, senior counsel for Mr Chang indicated that the five stated grounds of appeal 'boil down' to what he described as 'two simple propositions', namely -

the Department of Corrections [sic: DJCS], the Secretary [of the DJCS], or the Commissioner [Cassar] knew of the pending amendments, knew of the application [by Mr Chang], and owed a duty to deal with the applications prior to the amendment.[48]

53 Senior counsel thereafter directed attention to the letters sent by Commissioner Cassar to Access Law on 24 September 2018 and 11 February 2019 and contended that -

Now, cutting though all the wordage that I've managed to put into the documents, it cannot be contended, as a matter of logic, that the Commissioner for Corrections did not know of the proposed amendments to the Corrections Act. There is no evidence that Commissioner Cassar knew, but how could amendments to the Corrections Act be brought into existence without the person administering the Corrections Act, whose subordinates were dealing with the drafting authorities, not know that the amendment was in the wings?[49]

(a) the essence of the 'boiled down' argument came to be that Commissioner Cassar had 'actual knowledge' of Mr Chang's application and the 'pending amendments';[50] and

(b) the argument that 'the Department is a structured organisation constituting a corporation' was unnecessary.[51]

(a) attention was directed to various authorities[52] with a view, it seems, to displacing what was described as the finding of the Tribunal that the delay in processing Mr Chang's application was 'not unreasonable';[53] and

(b) when asked whether he still had 'a problem' with the (separate) reliance by the Tribunal upon s 28 of the FOI Act, senior counsel responded 'I may'.[54]

56 In response, among other things, counsel for the DJCS and OCPC submitted that the 'boiled down' argument amounted to a challenge to various factual findings made by the Tribunal, but without engaging with -

(a) any of the questions of law or grounds of appeal stated in the second amended notice of appeal;[55] nor

(b) any of the Tribunal's analysis and findings based in the evidence at trial.[56]

57 Section 148(1) of the VCAT Act provides, relevantly -

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) ...

(b) ... to the Trial Division of the Supreme Court with leave of the Trial Division.

58 Section 148(1) does not confer a general right of appeal.[57] Appeal is by leave, from an order, and only on a question of law. The jurisdiction of the Court is confined and conditional. Appeal under s 148(1) is not a right.

59 The identification of a 'question of law' is the subject matter of such an appeal. Without such a question, there can be no appeal. In that regard, 'it is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal'.[58]

60 In Patsuris v Gippsland and Southern Rural Water Corporation, the Court of Appeal referred with approval to the earlier decision of the Full Court of the Supreme Court in Transport Accident Commission v Hoffman,[59] in which Young CJ and McGarvie J stated, in respect of the predecessor provision to s 148 -

It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision.[60]

61 It follows that the jurisdiction of the Court is strictly limited. No appeal under s 148 can be entertained in respect of a jurisdiction that the Court does not possess. Further, leave to appeal cannot be granted unless justice demands it.

62 Separately, it did not seem to be in issue that the documents described would prima facie attract legal professional privilege. Nor did it seem to be in issue that the Tribunal had correctly considered the issue to arise via a consideration of s 25A(5) of the FOI Act.

63 In that context, the central issue was whether the documents described would contain disentitling conduct in the nature of abuse of statutory power to protect a crime or a fraud, evidence of which must be in 'clear and definite terms'.[61] In that connection, s 125 of the Evidence Act 2008 (Vic) provides as follows -

(1) This Division does not prevent the adducing of evidence of -

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that -

(a) the fraud, offence or act, or the abuse of power, was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power -

the court may find that the communication was so made or the document so prepared.

(3) In this section, power means a power conferred by or under an Australian law.

64 In light of s 148(1) of the VCAT Act and the authorities to which I have referred, there is force in the submission of the DJCS and OCPC that Mr Chang's 'boiled down' argument does not engage with any stated question of law or, for that matter, any identified point of law before the Tribunal.

65 In a sense, that could be considered to be the end of the matter. Nonetheless, mindful of the economy and care with which senior counsel developed the 'boiled down' argument, it is appropriate to address the substantive points made.

66 It will be evident that the 'boiled down' argument was ultimately directed to the alleged 'actual' knowledge of Commissioner Cassar, from which, it was said, Mr Chang had been 'owed a duty' requiring his application to be dealt with prior to the introduction of the amendments to s 58E of the Corrections Act.

67 The basis for the asserted 'duty' was not wholly clear, albeit that I did not understand it to be any form of duty owed at common law. Nor was it precisely clear who or what entity was said to owe the alleged duty. In that regard, I note that the evidence at trial was not that Commissioner Cassar or the Secretary of the DJCS would have dealt with Mr Chang's application, but that it would be dealt with by the Secretary's delegate, Mr Robertson.

68 Notwithstanding the above, the substance of the contention seemed to be that in light of the asserted knowledge of Commissioner Cassar, either the DJCS or, more likely, the Secretary of the DJCS, had engaged in the 'deliberate abuse' of a power, or similar, such that any legal professional privilege in the documents described should be taken to be lost.

69 In that connection, in my view, nothing of substance turns upon the various authorities directed to whether delay could be said to constitute a denial of procedural fairness or whether it could be appropriate for a court to adjourn a proceeding in the face of proposed legislative amendment (or similar).[62] In that regard, even if the latter analogy might presently be thought to be apposite, the subject authorities are largely if not exclusively directed to circumstances in which it is known both that a proceeding is on foot and that it will or might be affected by legislative amendment (or similar).

70 In the present context, however, there were issues of fact at trial concerning whether any and if so which persons, including Commissioner Cassar -

(a) knew that Mr Chang and Mr Tran had made applications for EMDs;

(b) knew that those or all such applications would be 'stultified' by legislative amendment with retrospective effect; and

(c) consequently, had put the processing of the applications 'on hold'.

71 In that context, the Tribunal accepted evidence that, to say the least, significantly complicated any contention that there had been a 'deliberate abuse' of the kind alleged. In particular -

(a) Commissioner Cassar's letters of 24 September 2018 and 11 February 2019 concern the applications of Mr Chang and Mr Tran, but say nothing about legislative amendment;

(b) in light of the Tribunal's finding that the process of legislative drafting 'commenced in around April 2019 at [the] earliest and in around July 2019 at the latest',[63] it is unlikely that Commissioner Cassar could have known of any process of legislative drafting at the time at which she sent those letters;[64]

(c) in that connection, the Tribunal observed that there was no evidence that Commissioner Cassar 'had any involvement in planning or drafting the Bill' - consequently, it was unclear how it could be said that she, or the Secretary of the DJCS, had been 'involved in the behaviour described';[65]

(d) the Tribunal also referred to the evidence of Ms Farnan that, having read the OCPC file, she could not recall any suggestion that applications for EMDs were to be delayed until the Bill was ready to present to Parliament, as well as the evidence of Ms Edwards that 'different' or 'separate' areas of the DJCS had been involved in 'the two tasks';[66]

(e) as to the applications of Mr Chang and Mr Tran, the Tribunal found that they were 'closely linked' with that of Mr Kheir;[67]

(f) the Tribunal accepted that it must have been decided that Mr Kheir's application would be determined 'first';[68]

(g) Mr Kheir's application was considered and determined by Mr Robertson in December 2018 and, by February 2019, judicial review proceedings had been commenced in which it was alleged, among other things, that Mr Robertson was partial or that a reasonable apprehension of bias arose in connection with his consideration and determination of Mr Kheir's application;

(h) although Access Law had not been advised of it, Mr Robertson was to be the delegate who would consider and determine the applications of Mr Chang and Mr Tran and, on the evidence, there had been difficulty in finding another delegate who had no previous involvement with EMD applications relating to the riot (and who Access Law was 'happy with');

(i) the Tribunal accepted that a decision must have been made to put the applications of Mr Chang and Mr Tran 'on hold';[69] and

(j) that was the reason why the applications of Mr Chang and Mr Tran had not been determined as at October 2019.[70]

(a) the evidence did not support the general contention that there had been a 'deliberate abuse of a power' so as to 'stultify' the applications of Mr Chang and Mr Tran;

(b) in particular -

(i) the evidence did not expose any 'overlap' between the personnel who considered such applications and those involved in the preparation of the Bill - indeed, the Tribunal accepted that the personnel were 'separate';[71]

(ii) there was also no evidence that Commissioner Cassar 'had any involvement in planning or drafting the Bill';[72] and

(iii) the recollection of Ms Farnan, who had reviewed the OCPC documents, was that there had been no suggestion that 'EMD applications were to be delayed until the Bill was ready to present to Parliament';[73]

(c) to the contrary of any contention of 'deliberate abuse of a power', the evidence suggested that the decision to place the applications of Mr Chang and Mr Tran 'on hold', in what seems to have been unusual or special circumstances, was rational or, at least, defensible, in that -

(i) there were over 1,800 such applications, which was a much greater number than usual;

(ii) it had taken time to find a delegate - Mr Robertson - who had no previous involvement with EMD applications relating to the riot and who Access Law was 'happy with' (initially, at least);[74]

(iii) accordingly, the applications of Mr Chang and Mr Tran were to be considered by Mr Robertson;

(iv) however, Mr Kheir, via Access Law, came to allege that Mr Robertson was improperly partial and ought be removed by reason of apprehended bias; and

(v) it was therefore appropriate to delay the consideration and determination of the applications of Mr Chang and Mr Tran by Mr Robertson until after those allegations had been determined.

73 In addition, in respect of the brief period between the refusal of Mr Kheir's application for leave to appeal and the enactment of the amendments, it remained the position, on the evidence, that there were or had been over 1,800 such applications to be determined, the 'two teams' within the DJCS were 'separate', there was no evidence of any involvement of Commissioner Cassar in the Bill[75] and, in any event, Ms Farnan had no recollection of any documents referring to delay of applications for EMDs until after the enactment of the proposed amendments.

74 It follows from the above that Mr Chang's 'boiled down' argument would seek to displace both the bulk of the evidence before the Tribunal as well as the Tribunal's analysis and acceptance of that evidence. In particular, it would seek to displace the Tribunal's conclusions, on the evidence, that -

(a) those who decided EMD applications were separate from those involved in the planning, development and drafting of the Bill;

(b) there was no evidence that Commissioner Cassar had any involvement in the planning or drafting of the Bill; and

(c) it was not clear that Commissioner Cassar or the Secretary of the DJCS were involved in 'the behaviour described'.[76]

75 It follows that the argument stands as a challenge to several factual determinations made by the Tribunal on the evidence received and assessed at trial.

(a) the argument carries within it the acknowledgement that there was 'no evidence that Commissioner Cassar knew';[77] and

(b) consequently, it would ultimately seek to displace the evidence received at trial and findings made by the Tribunal with not much more than a rhetorical question.[78]

77 In the circumstances, while it might be said that a question of law could arise if the Tribunal had been 'constrained' to find that Commissioner Cassar knew of both the applications of Mr Chang and Mr Tran and that the Bill was poised to extinguish them and accordingly, somehow, achieved a delay in the processing of those applications by Mr Robertson, it will be evident that the evidence accepted by the Tribunal went nowhere near being able to support such a conclusion, let alone requiring it to now be accepted that the Tribunal erred in law in failing to reach it.[79]

78 Further, and importantly, even if it were somehow appropriate to conclude that the alleged 'knowledge' of Commissioner Cassar led to a deliberate and improper delay in the processing of Mr Chang's application such that legal professional privilege might be displaced, it would still be necessary to conclude, in substance, that the contents of the documents concerned were 'in furtherance' of that 'deliberate abuse of a power'. It will be apparent that the evidence before the Tribunal did not support that conclusion.

(a) the Tribunal ultimately accepted that 'all of the documents ... would be exempt under sections 28 and/or 32';[80] and

(b) Mr Chang's 'boiled down' argument is relevant only to the second of those two exemptions.

80 In that regard, while it is not wholly clear that the Tribunal's reliance upon the exemption provided by s 28 of the FOI Act was or would have been considered by it to be sufficiently broad to cover the whole of the documents described, it is plain enough that, at the very least, it would be sufficient to cover a great proportion of any such documents.[81]

81 It follows that there is a further and independent reason to conclude that the Tribunal's order may well have been wholly or almost entirely correct, whatever might be said about the 'boiled down' argument.

82 In short, there are a range of reasons why the 'boiled down' argument cannot be accepted to disclose a question of law by reference to which it should be concluded that the Tribunal erred in ordering that the determinations of the Information Commissioner should be affirmed.

83 Finally, and for completeness, senior counsel ultimately submitted that the 'nub' of Mr Chang's complaint was that the Tribunal had erred -

... when it dismissed the appellant's application without having regard to the documents and without requiring that a list of the relevant documents be furnished to the appellants ...[82]

84 I take 'the documents' to refer to the documents described in the requests to the DJCS and OCPC which, of course, by reason of s 25A(5) of the FOI Act, were considered by the Tribunal only by reference to their description. I do not consider that to have been in error and, in any event, as I have noted, the Tribunal accepted the evidence of Ms Farnan that she had read the OCPC file and had no memory that anyone had suggested that applications for EMDs were to be delayed until the Bill was ready to present to Parliament.[83]

85 Otherwise, the submission in respect of 'a list of the relevant documents' seems to be a fleeting reference to a contention that had been included within one of the grounds of appeal in the second amended notice of appeal, namely that the Tribunal had not required 'that a list of the relevant documents be furnished'.[84]

86 The Tribunal addressed that argument in its reasons,[85] and I can see no error in that reasoning in circumstances in which the issue arising in respect of s 25A(5) of the FOI Act concerns the documents described rather than the documents themselves and, in any event, the underlying exemptions relied upon relate to Cabinet documents and legal professional privilege.

87 It follows that Mr Chang's various arguments must be rejected.

88 In the circumstances, leave to appeal must be refused.

89 I will hear counsel in respect of final orders and any other issue that might arise.

[1] See, Kheir v Secretary to the Department of Justice and Regulation & Anor [2018] VSC 222, [16]. It seems that Ms Shuard was also quoted on the ABC News website on 6 September 2015 to the effect that she had considered 'quite a large number' of applications for EMDs and none had so far been granted, and that '[n]o prisoner involved in the riot will be granted emergency management days': at [19].

[2] Kheir v Secretary to the Department of Justice and Regulation & Anor [2018] VSC 222, [42].

[3] Application Book ('AB') 255-257.

[5] Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76, [25]-[29].

[7] Kheir v Robertson & Ors [2019] VSC 422.

[8] Kheir v Robertson & Ors [2019] VSCA 229.

[10] AB275-277. The Application Book contains only the letter relating to Mr Tran, although it seems from the later response that a similar letter must have been sent at about the same time in respect of Mr Chang's application.

[11] AB281. The letter states that Access Law's email to the Secretary of the DJCS dated 1 November 2019 had been referred to Commissioner Cassar for response.

[12] Tran v Office of the Chief Parliamentary Counsel (Review and Regulation) [2022] VCAT 61, [2] ('Tribunal reasons').

[13] Cf., Evidence Act 2008 (Vic) s 125. In argument, the relevant language relied upon by the parties seems to have varied; perhaps because reference seems to have been made to authorities preceding and postdating the enactment of s 125.

[14] Tribunal reasons (n 12) [232]. See also, [230].

[15] (Footnotes omitted). See also, Tribunal reasons (n 12) [177]-[183].

[16] Ms Westin was also the General Manager of the Melbourne Remand Centre at the time of the riot.

[17] Tribunal reasons (n 12) [169]-[171].

[22] Ibid. Ms Farnan also gave evidence which indicated that the nature of the documents described would include Cabinet documents.

[35] Tribunal reasons (n 12) [195]-[196].

[41] Tribunal reasons (n 12) [214]-[215].

[47] (Definitions and cross-references omitted).

[49] T6. I should note that counsel for the defendant took issue with the contention that the Corrections Commissioner, as opposed to the Secretary of the DJCS, had functions and powers in respect of the operation of the Corrections Act 1986 (Vic): T28.

[50] T7-8 and T28. In the course of argument, senior counsel contended that such knowledge was 'almost' a matter of res ipsa loquitur.

[52] Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230, 253, A v Hayden (No 2) [1984] HCA 67; (1984) 156 CLR 532, 580-581, Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 ('Meggitt'), Geelong Football Club Ltd v Clifford [2002] VSCA 212 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, [6]-[7] ('NAIS'). In the course of argument, senior counsel also referred to Kheir v Secretary for Justice and Regulation [2019] VSC 76 (Richards J) and Kheir v Robertson & Ors [2019] VSC 422 (McDonald J).

[57] Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109; (2016) 218 LGERA 167, [44].

[59] [1989] VicRp 18; [1989] VR 197.

[61] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 516.

[62] See, in particular, NAIS (n 52) [6]-[7] and Meggitt (n 52).

[63] Tribunal's reasons (n 12) [217].

[64] Indeed, in the course of argument it was acknowledged that there was 'no evidence that Commissioner Cassar knew': T6.

[65] Tribunal's reasons (n 12) [200].

[66] Ibid [220]. See also, [153] and [214]-[215].

[68] Tribunal's reasons (n 12) [194].

[71] Tribunal's reasons (n 12) [153]. See also, [214]-[215].

[75] In that connection, I note that the letter to Access Law dated 31 October 2019 (AB269) was sent by Deputy Commissioner Wise, not Commissioner Cassar, and that the subsequent letter from Commissioner Cassar to Access Law dated 5 December 2019 (AB281) was sent after the email of Access Law to the Secretary of the DJCS dated 1 November 2019 had been referred to Commissioner Cassar's office 'for response'.

[76] Tribunal's reasons (n 12) [200].

[78] T6: '... how could amendments to the Corrections Act be brought into existence without ... [the Corrections Commissioner knowing] ... that the amendment was in the wings?'

[79] Ericsson (Australia) Pty Ltd v Popovski [2000] VSCA 52; (2000) 1 VR 260, [14].

[81] Cf., Tribunal reasons (n 12) [38]-[39], [144], [157], [170]-[171], [227]-[230] and [232].

[84] T29. Cf., Second amended notice of appeal filed 8 February 2023, ground of appeal 5.