Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255; (2003) 20 VAR 280

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009)

Queensland v J L Holdings Pty Ltd [1997] HCA 1

Parthenides v Yarra Ranges SC [2000] VCAT 2341 (30 November 2000)

Radan Constructions v Palladium Developments (Domestic Building) [2006] VCAT 1974 (29 September 2006)

Tomasevic v Department of Education Employment and Training (Anti-Discrimination) [2005] VCAT 739 (22 April 2005)

Ilford Tower Pty Ltd trading as Monash Kebabs v Banchi Lodge Pty Ltd & Anor (Retail Tenancies) [2010] VCAT 1228 (28 July 2010)

Price v Castlemaine District Community Health Centre [2001] VCAT 1974 (17 October 2001)

1. In May 2010, VCAT received an application for review under the Freedom of Information Act 1982 (the FOI Act) from Mr Benson, seeking orders that La Trobe University release documents to him.
2. Mr Benson was the subject of a complaint against him by a work colleague at La Trobe University where he was and is employed. The University engaged external solicitors to conduct an investigation. There were further complaints about Mr Benson's conduct over a two-day period. It appears the conduct was related to the investigation of the first complaint. The University engaged another firm of external solicitors to conduct an investigation about the further complaints.
3. The report concerning the first complaint concluded the complaint was not substantiated. The report concerning the second complaint concluded Mr Benson's conduct over the two-day period amounted to misconduct under University policy. The outcome was the University placed a copy of a letter to Mr Benson about the misconduct finding on his personnel file.
4. Mr Benson asks VCAT to order the University to release both reports to him in full, with information identifying individuals removed.
5. The University submits the reports are, apart from a very few lines, exempt from release under sections 30(1) (internal working documents), 32 (legal professional privilege), 33 (document affecting personal privacy) and 35 (material obtained in confidence) of the FOI Act.
6. It might have been expected that the application would have been decided within say six months. However, some 18 months later the application has not reached final hearing.

1. The University asks that, under sections 75 and/or 78 of the Victorian Civil and Administrative Act 1998 (the VCAT Act), Mr Benson's application be dismissed or struck out. It alleges Mr Benson:

1. has engaged in conduct such that the application has become vexatious; 2. repeatedly failed to comply with VCAT orders by conduct such as without explanation failing to meet deadlines for the lodgement of documents;

1. seeks an investigation of University administrative practices, which is not relevant to a FOI application and harasses individuals with respect to his concern about this issue; 2. has made misleading statements about what has happened in the proceeding at VCAT; and 3. in written submissions cited without prejudice communications between the parties as well as events that happened at VCAT compulsory conferences, in breach of the VCAT Act.
2. In terms of the history of the proceeding, in summary the University submits:

1. at the first directions hearing on 25 June 2010, where a final hearing was scheduled in December 2010, Mr Benson was given two months to file and serve a statement of public interest grounds (later extended by a week) and another two months to file and serve a statement of the evidence of each witness to be called at the hearing as well as a statement of legal contentions; 2. despite the week extension, Mr Benson filed the statement of public interest grounds after 4pm on the last day, the technical definition of the end of that day;

1. over five months after the first directions hearing Mr Benson provided a statement of legal contentions at a directions hearing on 30 November 2010, which was scheduled because of his non-compliance with orders. He did not provide any witness statements. Because of these delays, VCAT cancelled the December final hearing date;

1. at the December directions hearing, Mr Benson sought a compulsory conference, which VCAT scheduled on 11 February 2011. After the conference, negotiations continued for two weeks, with no settlement; 2. in late February 2011, Mr Benson sought more time to prepare his case because he was going overseas for a work conference. He sought a final hearing date after June or July. He foreshadowed calling 26 of 27 witnesses and said he would provide a list of the witnesses by early March 2011. He agreed a directions hearing was required; 3. however, Mr Benson wrote to VCAT seeking a further compulsory conference. Without holding a hearing, VCAT scheduled a compulsory conference for late March. The conference was held and a short time allowed for further negotiations. By early April, there was no settlement. During this time, the University repeatedly asked Mr Benson for the proposed list of witnesses. He did not provide them; 4. VCAT listed a directions hearing on 20 May 2011. VCAT refused the University's application for self-executing orders that Mr Benson's application would be dismissed if he did not comply with deadlines. VCAT ordered him to, by 17 June 2011, file and serve a list of the names of persons he proposed to summons together with a statement setting out the evidence that he believed each of the proposed witnesses would give. Dates were set for the filing and serving of other documents by Mr Benson and the University. VCAT scheduled a hearing in mid-August 2011 to decide whether witnesses would be summonsed; 5. he failed to meet the 17 June deadline, filing and serving on 20 June 2011. He was seeking five, not 26 or 27 witnesses be summonsed; and 6. during the proceeding, Mr Benson repeatedly frustrated the process with conduct such as continuing to contact the University directly, when he was aware he should communicate with FOI Solutions who act for the University in this matter and quoting from without prejudice negotiations and compulsory conferences in submissions to VCAT.
2. In late June, the University advised VCAT it wished to make the application that Mr Benson's application be dismissed. A directions hearing was scheduled on 15 July 2011. By consent, the directions hearing was adjourned to 29 July 2011 because Mr Benson would be overseas. I presided at the most recent directions hearing, my first involvement in this proceeding, and set the timetable for hearing the strikeout application by any VCAT member. As it happened, I heard the application.
3. As the University recognised in submissions,

It is clear that it is a very serious thing to exercise the power to dismiss or strike out ... and the powers should be approached [by VCAT] cautiously ...The University is aware of the nature and significance of this power and does not lightly seek the exercise of the power in all of the circumstances.

1. During the hearing, I asked Mr Batskos, a very experienced solicitor who appeared for the University, why the 'strike out application' was being made, given the high hurdle any applicant seeking such orders faces, particularly with respect to an FOI application. He answered that when the University received Mr Benson's statements of the evidence he anticipated witnesses would give if summonsed, in the context of all that had gone before, it formed the view that Mr Benson was not at all interested in obtaining the documents under FOI. Rather, it appeared Mr Benson was continuing what the University perceives as a crusade against it in terms of how it handled complaints against him.
2. The University submitted while Mr Benson may not have commenced this proceeding in a vexatious manner, it is now being conducted for a collateral purpose described above. It cited Re Vernazza [1960] 1 QB 197 at 208,

If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in law in fact. And equally, the institution of proceedings which will inevitably and manifestly fail or which unnecessarily duplicate proceedings already pending or determined are incapable of serving a legitimate purpose. They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is to say, a burden on than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy. Therefore, in the context of abuse of judicial process, the concept of alien purpose is relevant to questions: whether the party instituting the proceeding has done so an alien purpose and where the proceedings themselves are serving an alien purpose.

1. the reports Mr Benson seeks contain the names of approximately 30 people who were interviewed in the course of the investigations. While Mr Benson now says he does not seek those names, and is content to have them deleted from the report, that was not his position early in the proceeding. At the beginning of the proceeding, under section 53A of the FOI Act, the University was required to write to each person named seeking their views about their name being released in the context of the report. Mr Benson says many of the people named contacted him to ask what this was all about and why they were being written to. He says he found this very disruptive in terms of meeting deadlines set out in VCAT orders. These interruptions were exacerbated by the fact that the University did not comply with the first deadline set for the section 53A process; 2. the University unreasonably complains of him missing deadlines by very short times, when it did not meet the section 53A deadline;

1. as I understand Mr Benson's submission, he found it very difficult to decide whom he should summons as witnesses, when he could not access the report in question. He regarded the requirement that he file and serve statements of what evidence he expected they would give before he could summons them as unfair. Also, the University advised him he should not discuss the case with his work colleagues who were potential witnesses. These factors in part led him to not file and serve the statement of legal contentions until the directions hearing approximately 5 months after he filed his application;

1. the University's conduct during the period of the compulsory conferences was inappropriate. There was also "without prejudice" correspondence between the parties. I have not read his description of the events, as under the VCAT Act, evidence of what happened in the compulsory conference is not admissible in another hearing, including the hearings before me. I have not considered without prejudice material; 2. at the directions hearing on 20 May 2011, he raised his difficulty in meeting timelines to lodge documents due to midyear marking and preparatory work related to the overseas conference. He said he would do the best he could to meet the timelines. Further, while the presiding member at the directions hearing said orders would be posted the following work day, Mr Benson did not receive them until two weeks later; 3. in terms of family pressures, a member of his family was hospitalised from mid-February to mid June 2011. This caused him stress and anxiety and required him to dedicate very significant time to providing childcare; 4. he has not conducted these proceedings vexatiously. He described his point of view about why it is important that he obtain copies of the reports in terms of his well-being, the protection of his reputation and concern he may be the subject of future unfounded complaints from the original complainant. He denies harassing his colleagues, saying the reports are now 18 months or more old, the decision which clears his name is also 18 months old and at no time during the past 18 months has he harassed anyone. He sees many of the people involved on a day-to-day basis around the University. No staff member has expressed any concern to him about his behaviour or lodged any formal complaint; and 5. in part delays were caused by him being a self-represented applicant at VCAT who has made some mistakes due to inexperience.
2. One issue on which the parties agreed is that if this application is not struck out or dismissed, the only step to be taken before the final hearing is for VCAT to decide whether Mr Benson would be permitted to issue witness summonses. That would require a hearing, followed by the final hearing.
3. I reserved my decision.

1. Section 75 of the VCAT Act empowers VCAT to summarily dismiss or strike out all or part of a proceeding, with reference to the lack of merit of the substance of the application or because it is an abuse of process. While a section 75 application may be made at any time during a proceeding, it is more commonly made at or near the commencement of the proceeding. The section in part says,

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. Section 78 of the VCAT Act empowers VCAT to determine a proceeding in favour of a party were another party conducts the proceeding in a way that unnecessarily disadvantages another party. Here, the focus is on how the proceeding is being conducted, not the merits of the proceeding. The section in part says,

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(e) attempting to deceive another party or the Tribunal; or

(g) failing to attend mediation or the hearing of the proceeding.

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

1. Under section 13 of the FOI Act, Mr Benson has the right to obtain documents from La Trobe unless a document is wholly or in part an exempt document as defined by the Act. I have set out the claimed exemptions.
2. Section 50(4) (discussed below) is known as 'the public interest override'. It empowers me to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where I am of opinion that the public interest requires that access to the document should be granted under this Act.

1. I dismiss the University's strike out application.
2. When any FOI case at VCAT is unresolved after 18 months, the natural question to ask is, what is going wrong? If it is the case that the applicant is frustrating the progress of the case, VCAT may strike out or dismiss the application as is sought and, as discussed below, has done so.
3. I understand the University's motives for making the application in this case. From its point of view, the proceeding is taking an eternity, the exemptions on which it made its decision are clear and 'supported' by previous VCAT decisions and Mr Benson has an ulterior motive. It also views the application by Mr Benson to summons witnesses to be an abuse of process and not likely to result in any summonses being issued.
4. The University made its application under both sections 75 and 78 with, in my view, its focus on section 78, which relates to conduct in the proceeding. I address both issues.
5. On the evidence before me, limited as it must be in such an application, I am not persuaded that Mr Benson's application is either doomed to fail (section 75), or that I should, as the last resort, strike out or dismiss Mr Benson's application because of his conduct in the proceeding (section 78).
6. In making this decision, I considered the general principles which are well set out in Pizer's Annotated VCAT Act 3rd Ed, J Pizer, 2007 (p. 229 and 279). I had particular regard to the decisions in State Electricity Commission v Rabel [1998] 1 VR 102 (section 75) and Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255; (2003) 20 VAR 280 (section 78).
7. In considering Ashley J's decision in Bell Corp, made in 2003, I also considered any implications of the High Court of Australia's decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).
8. In Bell Corp, Ashley J heard submissions as to the relevance of the High Court's decision in Queensland v J L Holdings Pty Ltd [1997] HCA 1. His Honour described counsel for Bell Corporation as submitting that a principle which emerges from JL Holdings is that the paramount consideration for a tribunal is the justice of the circumstances of the case, a matter not subservient to principles of case management (para 46). Ashley J went on to list matters which "must be considered" when exercising discretion under section 78 (para 51). These included a matter which appears to relate to JL Holdings,

The requirement imposed upon the Tribunal by s. 97. That section should be considered to import the concept that, ordinarily, the interests of case management should not be employed so as to shut a party out of litigating its case. The ultimate aim of the Tribunal, as much as of a court, must be the attainment of justice in respect of issues joined.

1. However, in Aon, the High Court departed from any such principle set out in JL Holding. Aon concerned an application by a party to very substantially amend an application, late in a proceeding. While the subject matter here is different, the principles about the administration of justice, set down by the High Court apply. Gummow, Hayne, Crennan, Kiefel and Bell JJ said in part (paras 111 to 113),

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. ...

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

1. In my view, the effect of Aon is to require VCAT, when considering an applications under section 78, to consider as a factor the effect of both granting and dismissing the application in terms of the effect of delay on the parties, VCAT and other litigants. Thus, the criterion of Ashley J quoted above should be replaced with the High Court's view in Aon. However, in my view this does not substantially alter the trust of Ashley J's approach in a section 78 application. His other criteria should continue to be applied, with Aon in mind.
2. I also considered Mr Benson's 'defence', which included his explanations of various delays, as summarised above.

1. With respect to section 75 of the VCAT Act I applied the principles set out in Rabel as follows:
   1. I made my decision based on written submissions, affidavits and evidence from the bar table, not having seen copies of the reports in question, as exempt material is not normally provided to VCAT until just before the final hearing; and
   2. VCAT should use great caution in granting the University's application. Also, for the application to succeed under section 75 the proceeding must be bound to fail. After considering submissions and evidence in detail, I am not persuaded the application is bound to fail.

I have not seen the reports. Documents which are the subject of FOI applications are usually provided to VCAT shortly before the final hearing. I understand the University believes the exemptions are well grounded:

1. assuming it can establish they are exempt by way of legal professional privilege, see Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49;
2. in the context of VCAT decisions such as about internal working documents and because information was provided in confidence, see Mees v University of Melbourne (General) [2009] VCAT 782 (6 May 2009); or
3. given the high threshold to establish the public interest requires release, see Osland v Secretary to the Department of Justice [2010] HCA 24.

However, each case turns on its circumstances. The University bears the onus of proving the exemptions are made out.

1. Further, taking a cautious approach, I have not accepted the University's submission that Mr Benson is conducting the proceeding vexatiously.

1. With respect to section 78 of the VCAT Act, I applied the principles set out in Bell Corp and Aon as follows:

1. I believe Mr Benson has conducted the proceeding in a way that has unnecessarily disadvantaged the University. However, giving him the benefit of the doubt, I accept Mr Benson's explanations for his conduct, being a self-represented party. That said, I have some doubt about his conduct in this proceeding. He is passionate in his belief he was wronged. At times, he may have been uncooperative. I do not agree with Mr Benson's criticisms of the University for not meeting the first section 53A deadline. Given the complexity of the task, this was not surprising. I do not accept the two-week delay in him receiving orders after the 20 May 2011 directions hearing justified his delay at that point. He was at the directions hearing and was informed of the deadlines; 2. again, I have not accepted the University's submission that Mr Benson is conducting the proceeding vexatiously;

1. matters have in my view not reached the point where the 'last resort' should be used. The circumstances of the delay in these proceedings are to my mind not of the same severe nature as the circumstances of the delays in the cases I cite below (and others) at VCAT where a strike out application was successful. Further, importantly this case is close to a final hearing, with only the witness issue to be resolved after a presumably short hearing. It appears the proceeding can at this point be finally heard before the end of the year;

1. I have not applied technical rules in coming to my view. I include minor lapses by Mr Benson in meeting deadlines, which in my view add little weight to the strike out application; 2. also, while the next breach is not 'merely' technical, section 85 of the VCAT Act makes evidence of anything said or done in the course of a compulsory conference (with some exceptions) not admissible in any VCAT hearing in the proceeding. It was not helpful that Mr Benson addressed such issues in his written submissions. However, it is common for self-represented litigants to make that mistake. The same applies if he has disclosed without prejudice negotiations; and 3. the requirements of acting fairly and allowing natural justice steer me to my decision.
2. In light of Aon, I considered the effect on the parties of allowing Mr Benson's application to proceed , VCAT and other litigants. I decided the disadvantages did not, at this late stage in this case, outweigh the factors set out above.
3. I also considered previous VCAT decisions made under section 78, which Mr Batskos cited in support of the University's application. They included,
   1. Parthenides v Yarra Ranges SC [2000] VCAT 2341 (30 November 2000), where at a final hearing in VCAT's Planning and Environment List in September 2000, there was insufficient material available to proceed. VCAT gave the applicant a month to lodge further material, saying in the event of substantial delay the application may be dismissed. Mr Parthenides failed to provide the material, referring to the nature of his business and his inability to engage paid advisers. VCAT dismissed the application under section 78, noting that Mr Parthenides could make a fresh application to the local council;
   2. Radan Constructions v Palladium Developments (Domestic Building) [2006] VCAT 1974 (29 September 2006), where VCAT observed,

I consider there are proper grounds for me to have the "belief" referred to in s78(1). In particular I rely upon s78(1)(a) or s78(1)(b). The Applicant has quite evidently failed to participate in these proceedings for some reason, and for some time, and has failed to comply with orders or directions. No offer has been made of a reasonable excuse for doing so. The Applicant appears simply to have absented itself and ignored the Tribunal proceedings. I, therefore, have the belief which is required.

1. Tomasevic v Department of Education Employment and Training (Anti-Discrimination) [2005] VCAT 739 (22 April 2005), with Bell Corp Victoria Pty Ltd v Stephenson very in mind, Dove J. dismissed Mr Tomasevic's application under section 78. He formed the belief that Mr Tomasevic conducted the proceeding vexatiously, the conduct had been persistent and the respondents had been unfairly disadvantaged by the conduct. Dove J. in part observed,

I am satisfied that the complainant's conduct, ... particularly from the fourth sitting day onwards, was such that he was guilty of conducting the proceedings with an improper motive, that motive being to prevent the trial being brought to a conclusion whilst I was presiding. Further, such conduct has had as a necessary effect that of being an annoyance to the respondents, both in terms of costs and in the wasting of resources whilst witnesses are put on hold, and in terms of frustration for the second and third respondents, who, without doubt, are concerned to have the proceedings heard and determined.

The tactics seem to me to have been deliberate. I refer to the time wasting and the recurrent demands that I disqualify myself. It seems to me also, that by his insulting and offensive comments the complainant has been consciously endeavouring to cause me, whether by anger, frustration or otherwise, to make observations which might justify a charge of bias against him on my part.

1. Ilford Tower Pty Ltd trading as Monash Kebabs v Banchi Lodge Pty Ltd & Anor (Retail Tenancies) [2010] VCAT 1228 (28 July 2010), where under section 78 VCAT dismissed the application and in a counterclaim made orders against the applicant. VCAT observed,

The Applicant's Points of Claim show that the Applicant's case rests on an alleged telephone discussion between Mr Strangio and the Second Respondent. The Applicant has the burden of proof. Mr Sciglitano's Affidavit ... contains detailed denials of the Applicant's allegations. Mr Strangio has no credibility whatsoever. Without repeating points I have made above, Mr Strangio's denial of being an undischarged bankrupt, in the face of a Federal Magistrates Court sequestration Order and the evidence of Mr Boden of Starnet Legal that he acted for Mr Strangio in that proceeding, is sufficient to establish this. In considering this application under section 78 I am not purporting to determine the proceeding, but I am taking into account the relative strengths of the parties' positions in the light of the material in the case.

I conclude that the Applicant is merely seeking to delay the proceeding in order to remain in possession of the shop.

1. I also considered the only relevant example I am aware of, of a VCAT decision under section 78 concerning an FOI application. In Price v Castlemaine District Community Health Centre [2001] VCAT 1974 (17 October 2001), VCAT refused the application. However, the brief written decision is of little assistance here.
2. In terms of the future of this case, a directions hearing will be set down in mid-November for 90 minutes to determine the witness summons issue. Barring unforseen events, there will likely be a hearing, probably in early December. I intend to case manage this proceeding up to the final hearing, which will be heard by any VCAT member.