1 The decision under review is varied such that access is granted under section 25 of the Freedom of Information Act 1982 to the disputed documents subject to the deletion of any text inserted by DOI in the commentary of the covering summary or in Parts 2 and 3 of each Risk Data Collection Template.

2 This order is stayed for 28 days from 17 July 2006.

1 Ms Asher seeks access under the Freedom of Information Act 1982 ("the Act") to six Quarterly Asset Performance Reports ("QAPRs") submitted by the Department of Infrastructure ("DOI") to the Department of Treasury and Finance ("DTF") for the successive quarters from March 2004 to June 2005.

2 Access to the documents was refused by the DOI on 14 September 2005, and the refusal was affirmed on internal review on 6 October 2005.

3 At the commencement of the hearing before me, counsel for the applicant made application to inspect the disputed documents. The respondent objected to any inspection of the documents. I ordered that, subject to the giving of undertakings as to confidentiality, which were duly given, counsel for the applicant be permitted to inspect disputed document 1.

4 Mr Giuseppe Monforte, Director, Budget and Financial Management Division of DTF, and Ms Gail Moody, Executive Director, Capital Planning and Review Division, DOI, gave evidence for the respondent concerning the disputed documents. Their evidence may be briefly summarised as follows:

5 In August 2003, the Expenditure Review Committee ("ERC"), a sub-committee of Cabinet, endorsed changes to the reporting requirements for asset investment projects. The changes were aimed at focusing reporting on major and high-risk projects, improving monitoring of asset investment delivery, and, through earlier identification of project risks and mitigation of risk strategies, at facilitating earlier corrective action to ensure projects remain on budget and on schedule[1]. Whereas earlier reporting had been retrospective, the changes introduced prospective analysis of risk and risk-mitigation strategies.

6 In September 2003, a memorandum entitled "Quarterly Performance Reporting Requirements for 2003-04" ("the Budget Memorandum") was issued by DTF to all departments of the Victorian government notifying them of asset investment performance reporting requirements for ERC for the 2003-2004 financial year. The budget memorandum set out quarterly performance reporting requirements which reflected the changes endorsed by ERC in August. The same requirements remained in place for the 2004-2005 financial year[2].

7 In essence, the performance of each project in respect of which reporting was required was recorded by completion of a standard format "Risk Data Collection Template" ("the template"). The disputed documents comprise all the completed templates for DOI projects which met the reporting criteria. Each of the templates is preceded by a graph and footnotes summarising the data contained in the template ["the covering summary"].

8 The QAPRs were reformatted and combined by DTF into one whole of government (budget sector) asset investment performance submission by the Minister for Finance which was presented to, and considered by, ERC each quarter. Like all Cabinet submissions, the quarterly whole of government submission to ERC regarding asset investment performance is prepared in a standard format. There is a cover sheet which consists of an executive summary of several pages in length, to which is attached the body of the submission containing all of the information from which the executive summary was made.

9 Mr Monforte examined the asset investment performance submissions to ERC for the relevant quarters as well as the disputed documents. He said that in relation to the asset investment performance submission to ERC for the June 2005 quarter, DTF summarised rather than transposed the key information in the QAPRs prepared by DOPI, but that otherwise, almost all of the contents of the disputed QAPRs was included verbatim in the body of submissions to ERC prepared by DTF on behalf of the Minister for Finance. He said the only material from the disputed documents not included in the ERC submissions for the first five of the relevant quarters comprised:

• Graphical representation of text;

• Summaries of information and opinion;

• (in the case of some QAPRs) Detail of milestones achieved since the last ERC meeting;

• graphical and verbal summaries of information and opinion in the text;

• 4 QAPRs relating to projects which had reached the date of practical completion by the date of the ERC submission.

10 Mr Monforte also perused the minutes of the relevant quarterly ERC meetings. He had attended all of the relevant ERC meetings. From his perusal of the minutes, and from his recollection, he said that at the relevant quarterly meetings, where the whole of government submissions containing the information in the disputed QAPRS were on the agenda, the ERC discussed the submissions containing the information from the disputed QAPRS and the additional analysis prepared by DTF.

11 Ms Moody was responsible for preparing disputed documents 4, 5 and 6. She said they were prepared in accordance with the Budget Memorandum, for the purpose of submission to ERC for consideration, and were sent to DTF for inclusion in a whole of government submission to ERC each quarter. At the time disputed documents 1, 2 and 3 were prepared, she was in a different position at the DOI, but had responsibilities including completion of templates in respect of infrastructure projects.

12 Each quarter, DOI sent the relevant folder of disputed documents to DTF for inclusion in DTF's whole of government submission to ERC. DTF sent DOI copies of those parts of ERC submissions being made which related to DOI. Ms Moody had examined the quarterly asset investment performance submissions to ERC for the relevant periods and confirmed that almost all of the content of the QAPRs comprising documents 1 to 5 were incorporated in the body of submissions to ERC. The QAPRs comprising document 6 were not incorporated verbatim in the ERC submission, but information from those QAPRs was used in the submission, and DTF summarized what it considered to be the critical information in the QAPRs comprising document 6.

13 According to Ms Moody and Mr Monforte, the QAPRs comprising documents 1 to 6 contain opinion and advice as to risks in relation to each relevant project, including commercial assessments, and the release of the documents could affect the ability of DOI to successfully manage its contracts, and its relationships with suppliers. It could also disadvantage the State in its commercial negotiations of contracts for delivery of particular assets.

14 According to Ms Moody and Mr Monforte the information contained in the disputed documents was sought by DTF for the purpose of submission for consideration by ERC, and would, if released to the Applicant, involve the disclosure of matters upon which ERC deliberated. According to Mr Monforte, the information contained in the disputed documents was considered by the ERC.

15 DOI relies primarily on exemption under section 28(1)(b) of the Act. It says that all six documents were prepared by it for the purpose of submission for consideration by the ERC and are exempt from disclosure under this section.

16 Secondly, DOI says, insofar as the submissions to ERC which incorporated the QAPRs comprising the documents were prepared by DTF on behalf of the Minister of Finance, all six documents are properly characterised as a draft by DOI of the part of the submission to ERC which dealt with projects managed by DOI and are exempt under section 28(1)(c) of the Act. Thirdly, DOI says that disclosure of the documents would involve the disclosure of deliberations of Cabinet and therefore the documents are exempt under section 28(1)(d) of the Act. Finally, DOI says that the documents are exempt under section 30(1) of the Act because they contain matter in the nature of an opinion prepared by an officer or Minister for the purpose of the deliberative processes involved in the functions of an agency and disclosure would be contrary to the public interest.

17 The applicant concedes that both Mr Monforte and Ms Moody believed that the Budget Memorandum required the production of the disputed documents, but says there is no evidence that the Treasurer nominated any of the projects for reporting, or that ERC required the department to provide the reports. Therefore, any belief held by them that the documents were required for submission to ERC was a wrongly held belief, and one which would not attract the exemption under section 28(1)(b) of the Act. The applicant says that given the bulk of the reports, it was impossible for ERC to deliberate on each of them each quarter, and it was more likely that the ERC was guided by the DTF report, rather than by the disputed documents themselves.

18 Secondly, the applicant denies that the disputed documents constitute drafts of an exempt document and says the exemption sought under section 28(1)(c) cannot be made out. Thirdly, it says examination of the disputed documents could not disclose what the members of the ERC had on their minds because the accompanying Cabinet submission from DTF would not be not disclosed. Fourthly, the applicant says that the disputed documents contain bare data and not "opinion, advice or recommendation", and therefore do not attract the exemption under section 30(1) of the Act.

19 Finally, the applicant says the effect of the respondent's contentions is to "subvert the operation of the Act in relation to these documents" and that the evidence on behalf of the respondent is "tainted with artificiality" and lacking the frankness which the Tribunal is entitled to expect.

20 Section 28 of the Act must be interpreted by reference to the Act as a whole as well as to the purpose of the Cabinet exemption[3]. In particular, section 3(2) of the Act indicates that it is Parliament's intention that the provisions of the Act be interpreted so as to promote as far as possible the right of the community to access information in the possession of the Government of Victoria, limited only by exemptions necessary to protect essential public interests and private and business affairs[4].

21 In order to attract exemption under section 28(1)(b) of the Act, a document must have been prepared by or on behalf of a Minister or by an agency for the purpose of submission for consideration by the Cabinet (including a committee of Cabinet, such as the ERC)[5].

22 On the authorities, it is unnecessary to prove that the document was actually submitted to[6], or considered by[7], Cabinet. Furthermore, the document will be exempt if one of the substantial purposes for which it was prepared was for the purpose of submission for consideration by Cabinet[8]. Preparation of the document simply for the purpose of physically placing it before Cabinet will not suffice[9]. Where Cabinet requests the preparation of a document, it follows that the document prepared in response to the request is exempt on the basis that it was prepared for the purpose of submission for consideration by Cabinet[10].

23 Generally, while the actual use made of the document may be relevant to ascertaining the purpose for which the document was prepared, such use is not determinative of this question[11]. Finally, if a document was prepared for submission for consideration by Cabinet, it does not cease to be exempt if it was drawn upon for the purpose of preparing a submission to Cabinet but not attached to that submission[12]; or if material was derived from it for the purpose of a Cabinet submission[13].

24 In order to make out an exemption under section 28(1)(c) of the Act, the respondent must establish that the disputed documents are a copy or draft of, or contain extracts from, a document referred to in paragraph 28(1)(b) of the Act[14].

25 For a document to be exempt under section 28(1)(d)of the Act, its disclosure must involve the disclosure of any deliberation or decision of the Cabinet (including a committee of Cabinet)[15].

26 In the present case, it was not suggested that any particular decision was made by ERC at any of the relevant quarterly ERC meetings. Accordingly, the exemption is sought on the basis that disclosure of the disputed documents involves disclosure of any deliberation of the ERC.

27 In order to determine whether the disputed documents did in fact disclose any deliberation of the ERC, it is necessary to examine all of the evidence, including the documents[16]. While in some cases, deliberation has been held to mean no more than Cabinet's "thinking processes"[17], or the discussions which take place between Cabinet members in the course of its session[18], or what Cabinet ministers "had on their minds"[19], in other cases, the term has been more narrowly defined as connoting "careful consideration with a view to the making of a decision"[20]. Thus the mere receipt of information in the Cabinet room which may or may not provide the basis for further action or decision-making has been held not to amount to deliberation if there is no discussion or consideration concerning its worth or merit[21]. On the other hand, a document will clearly be exempt under this section where there is evidence that Cabinet discussed various options originating from a consultant's report and chose between the options contained therein[22].

28 Section 30(1) of the Act provides that a document is exempt if its disclosure would disclose a 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 in the course of, or for the purpose of, the deliberative process involved in the functions of an agency or Minister or of the Government; and would be contrary to the public interest. However, section 30(3) of the Act provides that section 30(1) does not apply to a document by reason only of purely factual material contained in the document.

29 A document reporting what an agency has already done, is doing or proposes doing does not constitute opinion or advice[23]. On the other hand, documents created by an internal audit department in the performance of an internal audit investigation were held to form part of a step in the deliberative processes of the department's internal control mechanism[24].

30 Graphs and tables representing recordings of fact have been held to fall outside section 30 of the Act, except where numbers and values therein are described as "potential" or "recommended"[25]. However, section 30(3) is not available if the factual material is inextricably intertwined with policy making processes and therefore not properly severable[26].

31 The term "deliberative processes" has been held to be wide enough to include the thinking processes of an agency concerning the wisdom and experience of a proposal, a particular decision or a course of action[27]. The term has also been held to comprise the process of thinking and discussion which leads to a decision[28] and as including the formation or refinement of policy[29].

32 In determining whether disclosure would be contrary to the public interest, the Tribunal must weigh the competing interests, on the one hand the interest to which the Act gives rise in the public having access to documents, and on the other the public interest in the efficient and economical conduct of a government agency, and the respondent must prove that, after such a balancing, disclosure would harm the Victorian public[30].

33 The balancing process involves weighing a number of factors[31]. These include: the nature of the information and of the document; the impact of disclosure on the frankness and candour of officers and on the integrity of the decision-making process; and any mischief or benefit which could result from disclosure.

34 The respondent did not provide me with the relevant quarterly whole of government submissions made by DTF to the ERC, including the executive summaries, nor the relevant ERC agendas or minutes[32].

35 However, it is clear on the evidence before me that the disputed documents themselves were not submitted by DTF to the relevant quarterly ERC meetings, but that on each occasion DTF supplied a new and different document, in the words of Mr Monforte (at paragraph 14), one whole of government (budget sector) asset investment performance submission by the Minister for Finance to the ERC meeting.

36 Given the evidence of Ms Moody and Mr Monforte that at all times it was known and expected that the disputed documents were to be provided to DTF and that DTF would thereafter produce a whole of government submission to the ERC, I am not satisfied that at the time of preparation a substantial purpose of the preparation of the disputed documents was that the disputed documents, and not the whole of government submission, would be submitted for consideration by ERC. The fact that much of the data from the disputed documents found its way into the whole of government submissions does not alter my conclusion in this regard. I consider that the evidence before me establishes no more than that the disputed documents were commissioned by the DTF, in a format prescribed by the DTF's budget memorandum, for use by the DTF in preparing a quarterly whole of government submission to the ERC.

37 Following the same reasoning as in Re Ryan v Department of Infrastructure[33], the disputed documents may be viewed as primary documents prepared by DOI substantially for the purpose of submission to DTF so that DTF could use the data therein and prepare the secondary documents, the whole of government submissions to the ERC, which were prepared by DTF substantially for the purpose of submission for consideration by the ERC. In Re Ryan[34], there was evidence from which it could be concluded that when the certificates were prepared, the department intended that the documents be submitted to Cabinet. However, Morris J was not satisfied that at the time of preparation a substantial intention was that Cabinet would consider the certificates themselves[35]. I am not satisfied that at the time of preparation a substantial intention was that the disputed documents would be submitted to ERC. Even if I accept that this was a substantial intention of DOI, I am not satisfied in the circumstances of this case that such submission was submission for consideration by the ERC. Rather, I consider that the disputed documents were prepared substantially for the purpose of enabling DTF to prepare another document, the whole of government submission, which was to be considered by ERC[36].

38 The conclusion which follows, as it did in Re Ryan[37], is that the disputed (or primary) documents are not exempt. The status of the whole of government submission (or secondary document) is not before me in this proceeding.[38]

39 The exemption claimed under section 28(1)(b) of the Act is therefore not made out.

40 In the alternative, the respondent argued that the disputed documents are drafts of the whole of government (budget sector) asset performance submission by the Minister for Finance which was presented to, and considered by, ERC each quarter.

41 The cases relied upon in support of this proposition were Re Ryan[39], Re Olexander[40] and Re Mildenhall[41]. However, these cases are of little assistance. Re Olexander[42] concerned an exemption claimed under section 28(1)(b) of the Act, and the findings therein concerned an analysis of a report which was held to be akin to an executive summary. In the case before me, there is no question that the executive summary is of the whole of government submission, not of the disputed documents, which were never submitted to or considered by the ERC.

42 In Re Mildenhall[43], it was held that a disk which contained data comprising questions and answers which formed the basis of two documents exempted under section 28(1)(c) of the Act was exempt under section 28(1)(b) of the Act on the basis that it constituted extracts from the two documents or was constituted by drafts of parts of the two documents. As the disputed documents were each created prior to the relevant quarterly DTF submission to ERC, I cannot accept that the disputed documents contain extracts from the DTF submission to ERC[44]. I also do not accept that merely because the disputed documents were created before the relevant quarterly DTF submissions to ERC and because there is information common to both sets of documents, that the former constitute drafts of the latter.

43 I am not satisfied that the disputed documents are drafts of the relevant quarterly DTF submission to ERC, for a number of reasons. The documents were of different kinds, prepared by different agencies. The disputed documents were not characterised by Ms Moody as drafts of the DTF submission to ERC. They were not marked as such. On the contrary, the cover sheet of each of the folders of disputed documents refers to "FINAL ERC Quarterly Reporting Requirement". Unlike the draft report referred to in Re Ryan[45], there was no evidence that DOI and DTF jointly considered the disputed documents nor that DOI then produced a final document to DTF. It was DTF which created a completely new document using some information or data from DOI's disputed documents.

44 The exemption claimed under section 28(1)(c) of the Act is therefore not made out.

45 It was common ground that the exclusion in this section does not apply and that the exemption is not withdrawn by section 28(3) of the Act. The evidence in this case from Mr Monforte is that the DTF's quarterly whole of government submission was on the ERC agenda at each of the relevant quarterly ERC meetings and that ERC discussed the submissions, which contained the information from the disputed QAPRs (and from QAPRs prepared by other departments) and the additional analysis prepared by DTF.

46 I am not satisfied on the basis of this rather general evidence that the disclosure of the disputed documents would involve disclosure of what the ERC members discussed at the relevant quarterly ERC meetings. I consider that all that would be disclosed is the departmental data from DOI concerning projects which fell within the reporting criteria set down by DTF. Disclosure of the disputed documents would not reveal what the ERC had before it at the relevant meetings, as I have already found that on each occasion the ERC had before it a completely new document, prepared by the DTF using information supplied to it, inter alia, by DOI. Disclosure would therefore not involve disclosure of the whole of government submission, nor the executive summary accompanying it, nor the agenda for the relevant quarterly ERC meetings.

47 The exemption claimed under section 28(1)(d) of the Act is therefore not made out.

48 Having examined the disputed documents, I consider that they consist largely of data rather than material in the nature of opinion. However, the covering summary of each project report contains a section beneath the graphical summary which is entitled "Commentary for Department of Treasury and Finance" ("the commentary"). In many of the reports, this section has been left blank. Where this section contains text, the text summarises or refers to material contained in Parts 2 and 3 of the template.

49 In addition, Part 2 of each template contains information relating to medium and high risk projects which identifies the most significant future risks involved in the project, along with details of the potential impact on timing, cost or scope of the project and details of proposed action to be taken to reduce the likelihood of the risk occurring or to mitigate its impact. Part 3 of each template contains a section to be completed in respect of a high risk project, in which is set out the cause of any delays or cost overruns, along with details of proposed action to be taken to address these issues. In most of the templates relating to low risk projects, Parts 2 and 3 have been left blank. However, in some templates concerning low risk projects, material has been inserted in Parts 2 and 3 concerning risk assessment and mitigation.

50 Mr Monforte and Ms Moody gave evidence that disclosure of the disputed documents would be contrary to the public interest because the opinion and advice as to risks in relation to each project includes commercial assessments which could adversely affect DOI's ability to manage its contracts and relationships with suppliers in each project. Mr Hamill's evidence was of a very general nature and did not take matters further.

51 I am satisfied that disclosure of the information in the commentary, and in Parts 2 and 3 of each completed template would disclose matters in the nature of opinion. However, I note that a large number of the disputes documents concern low risk projects in which Parts 2 and 3 of the template are blank. I also consider that the commentary section of each project report (where it contains any information) along with Parts 2 and 3 of the risk data collection templates are easily severable from the balance of the disputed documents.

52 In order for the exemption to be made out, however, the respondent must establish that the disputed documents were prepared in the course of or for the purpose of the deliberative functions of an agency. At paragraph 6 of his statement, Mr Monforte said that ERC reviews... the asset delivery and asset investment performance of departments and related agencies.

53 In Doyle and Department of Human Services[46], the Tribunal heard specific evidence as to the precise ways in which the report in question would be used to inform Ministers and to provide a basis for revision of the current and future budget, or when attention must be given to a particular problem[47]. Although the evidence before me was not quite so specific, I am satisfied from my examination of the disputed documents, and from the uncontradicted evidence of Ms Moody and Mr Monforte, that Parts 2 and 3 of the disputed documents were prepared in order to inform or advise the government about risks or problems attending the various projects in order to enable the government to consider those matters and take action as it saw fit. I am therefore satisfied that the disputed documents were prepared for the purpose of the deliberative functions of an agency.

54 The exemption under this section will be made out if I am satisfied in all the circumstances that disclosure of the disputed documents would be contrary to the public interest. In the circumstances of this case, the balancing process involves weighing the public interest in knowing how the government's asset investment projects are performing against the possible harm flowing to its contractual arrangements with contractors and suppliers.

55 Having closely examined each template where Parts 2 and 3 have been completed (and there are a few low risk projects where this has been done, even though it is not required), I agree with Ms Moody and Mr Monforte that those sections of the disputed documents include opinion, evaluation commercial assessments and comments about ongoing negotiations which, if disclosed, may adversely affect the ability of DOI to successfully manage its contracts and relationships with suppliers and stakeholders. Accordingly, I am satisfied that disclosure of Parts 2 and 3 of the disputed documents (except where those sections have been left blank) would be contrary to the public interest. I note that where the commentary section of the covering summary contains text, that text refers to or summarises some or all of the text contained in answers given to Part 2 or Part 3 of the template. For the reason already outlined, I consider that disclosure of the commentary (except where the commentary section has been left blank) in the disputed documents would be contrary to the public interest.

56 It follows that the exemption under section 30(1) is made out in respect of any text inserted by DOI in the commentary section of the covering summary and in respect of any text inserted by DOI in Parts 2 and 3 of the templates.

57 The decision under review must therefore be varied in that access is to be granted to the disputed documents as outlined in the preceding paragraph. I will also stay the operation of the decision for 28 days.

[1] See Budget Memorandum, p. 2 paragraph 3 (e).

[2] According to Attachment B to the memorandum, formal quarterly reporting was only required for projects whose total estimated investment was greater than $10m, or less than $10m but considered as high risk, or nominated for reporting by ERC or the Treasurer.

[3] See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Re Ryan v Department of Infrastructure [2004] VCAT 2346 at 8.

[4] Re Ryan v Department of Infrastructure [2004] VCAT 2346; Smith v Department of Sustainability and Environment [2006] VCAT 1228 at 4.

[5] See s28(7)(a) of the Act.

[6] Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [34].

[7] Asher v Department of Premier and Cabinet [2002] VCAT 499 at [9]; Wilson v Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455 at 459.

[8] Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [34].

[9] Ibid at [36].

[10] Smith v Department of Sustainability and Environment [2006] VCAT 1228 at 4.

[11] Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [34].

[12] Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002) at [28]-[29]; Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [40].

[13] Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002) at [28]-[29].

[14] See Re Ryan v Department of Infrastructure [2004] VCAT 2346; Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002); Re Mildenhall No 2 (1995) 8 VAR 478 at 488.

[15] See 28(7) of the Act; See also Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [44]- [49].

[16] Re Toomer [2003] AATA 1301 at [96].

[17] Ibid at [87]-[88].

[18] Re Mildenhall No 2 (1995) 8 VAR 478 at 488.

[19] See also Re Wilson v Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455; Re Asher v Department of Premier and Cabinet [2002] VCAT 499 at 222. See the recent observation of Justice Morris to the effect that such formulations are not particularly helpful in delineating the boundaries of deliberation: Smith v Department of Sustainability and Environment [2006] VCAT 1228 at [23].

[20] Birrell and Department of Premier and Cabinet (No 3)(1987) 2 VAR 32 at 34.

[21] Re Birrell and Department of Premier and Cabinet (No 1) (1986) 1 VAR 230 at 239; Re Birrell v Department of Premier and Cabinet (No 2) [1990] VAR 51; Asher MP v Department of Infrastructure [2005] VCAT 410.

[22] See Smith v Department of Sustainability and Environment [2006] VCAT 1228 at [23].

[23] Re Pullen and Alpine Resorts Commission, (unreported, AAT of Vic, Macnamara DP, 23 August 1996)

[24] Re Rabel and Gas and Fuel Corp (Vic) (1989) 3 VAR 334.

[25] Re Pullen and Alpine Resorts Commission, (unreported, AAT of Vic, Macnamara DP, 23 August 1996); Re Doyle and Department of Human Services [2002] VCAT 176.

[26] Re Evans and Ministry for the Arts (1986) 1 VAR 315 at 321; Re Kosky and Department of Human Services (1998) 13 VAR 420.

[27] See Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at 606, which was approved in Re Brog v Department of Premier and Cabinet (1989) 3 VAR 201 at 208 and Re Pullen and Alpine Resorts Commission, (unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[28] Re Anderton and Medical Practitioners Board (unreported, AAT of Vic, Macnamara DP, 13 June 1996).

[29] Re Pullen and Alpine Resorts Commission, (unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[30] Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 884.

[31] A useful list of such factors is to be found in Re Hulls and Victorian Casino and Gaming Authority (1988) 12 VAR 483; and Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169 at 177-178

[32] Confidential material of this kind has been provided to the Tribunal in another case: See Smith v Department of Sustainability and Environment [2006] VCAT 1228.

[33] Re Ryan v Department of Infrastructure [2004] VCAT 2346.

[34] Ibid.

[35] Ibid at [39].

[36] A similar conclusion was reached by Morris J in Re Ryan v Department of Infrastructure [2004] VCAT 2346 at [37].

[37] Re Ryan v Department of Infrastructure [2004] VCAT 2346.

[38] In Re Ryan v Department of Infrastructure [2004] VCAT 2346, the primary documents were the certificates of title, and the secondary documents were the maps which summarised the information contained in the certificates of title.

[39] Re Ryan v Department of Infrastructure [2004] VCAT 2346.

[40] Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002).

[41] Re Mildenhall No 2 (1995) 8 VAR 478; See also Re Ryan v Department of Infrastructure [2004] VCAT 2346; Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002).

[42] Re Olexander and Department of Premier and Cabinet, unreported, VCAT, Judge Strong VP, (23 May 2002).

[43] Re Mildenhall No 2 (1995) 8 VAR 478.

[44] This was also the conclusion of Morris J in Smith v Department of Sustainability and Environment [2006] VCAT 1228 at 8.

[45] Re Ryan v Department of Infrastructure [2004] VCAT 2346.

[46] [2002] VCAT 176.

[47] See Re Doyle and Department of Human Services [2002] VCAT 176 at [28].