1. In this proceeding, VCAT does not permit the Applicant to seek witness summonses addressed to Ms Serena O'Meley, Ms Muyesser Durer, Ms Stephanie Chard or Dr Katy Richmond.
2. The final hearing in this proceeding remains listed at 10 am on 8 March 2012 at 55 King Street Melbourne, as ordered on 8 December 2011.

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 the University on 8 March 2010, 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 application is set down for final hearing on 8 March 2012.
6. Mr Benson seeks to summons:

1. Dr Katy Richmond.
2. He does not seek to summons Mr Gary Nolan (as he had planned) as the University intends to call Mr Nolan as a witness. Mr Nolan has filed a witness statement and will be available for cross-examination.
3. On 8 December 2011, I heard submissions about this at a directions hearing and reserved this decision.

1. Under s104 of the Victorian Civil and Administrative Act 1998, the principal registrar may, at the request of a party and must if directed by VCAT, issue a summons requiring a person to attend VCAT to give evidence or to produce documents or both. This provision must be seen in the context of other provisions applying generally to VCAT under the VCAT Act.
2. These include that VCAT has a duty to act fairly and according to the substantial merits; that VCAT may regulate its own procedure; that VCAT is to determine matters with as little technicality and formality and as much speed as the legislative requirements and the circumstances of the case permit. VCAT is to afford to a party a reasonable opportunity to call evidence and examine witnesses among other things.
3. As has happened in this proceeding, in some cases, rather than first permitting a summons to be issued and then dealing with an application to set it aside, VCAT's practice is to deal with the matter as an application for leave to issue a summons. In determining these applications, VCAT requires the party requesting the issue of the summons to provide information as to the topics on which the witness to whom the summons is to relate will give evidence or is expected to give evidence, either by way of a list of questions or an outline of the evidence expected.
4. This is in line with VCAT's practice in many Lists to require witness statements to be filed and served before the hearing. Among other things, this practice gives notice to the other party of the proposed evidence. It also enables questions of admissibility and relevance to be dealt with at the outset.
5. In dealing with applications to set aside or give leave to issue a summons, VCAT follows similar principles to those which apply in courts. It looks at such questions as whether the evidence that is to be given would be relevant; whether the summons has been issued for an improper purpose; whether the summons is oppressive and so on.
6. In this proceeding, the primary issue concerning any witness summonses is whether evidence given is likely to be relevant to the exemptions claimed. The University claims exemptions under sections 30(1) (internal working documents), 32 (legal professional privilege), 33(1) (personal privacy), 35(1)(b) (material obtained in confidence) and 50(4) (public interest override).

1. The directions hearing on 8 December 2011 largely involved the parties' submissions. In making this decision, I have considered the evidentiary material in the proceeding file, oral evidence given by Mr Benson in the course of hearings in this proceeding before me and the parties' submissions, both written and oral.
2. I deal with each potential witness in turn.

1. Mr Benson describes Ms O'Meley as the University Union Branch Organiser with detailed knowledge of both the enterprise bargaining arrangement at the University and of material facts in this case. He says her evidence will:

1. demonstrate the inadequacies of the procedures in place at the time of the events in question and poor adherence to those procedures for University staff; 2. demonstrate the University's failure to follow published procedure in relation to dispute resolution; and

1. challenge much of the material contained in Mr Nolan's witness statement.
2. He submits this will be relevant to the,

1. "adequacy of the deliberative process and those at the University who carried out the process before the final introduction of an outside expert lawyer ... who found ... all allegations against me were not sustained."; and 2. demonstrating that the University failed to provide a safe working place for Mr Benson;

1. his challenge to legal professional privilege exemption; and

1. the public interest override. At the 8 December directions hearing, Mr Benson spoke of the allegations against him as being "almost criminal in nature" and of a defamatory nature, 30 people being interviewed, rumours permeating University staff and no attempt by the University to deal with the impact on his reputation. He says the media has contacted him five times resulting in published articles. The media sees this as a public interest issue.
2. The University submits Mr Benson seeks to have VCAT conduct a full investigation into the processes and procedures under which allegations against Mr Benson's conduct were dealt with. It notes (as I said during the hearings) this is a case about whether documents are exempt from release under the FOI Act and is not an enquiry into the University's conduct.
3. In broad terms, the University further submits concerning each of the people who Mr Benson seeks to summons that the hoped-for evidence:

1. will not be relevant to section 30(1)(a) and will be of very limited relevance to section 30(1)(b); 2. will not be relevant to section 32;

1. will not be relevant to section 35(1).
2. On the issue of the public interest override, the University submits given the high threshold required to establish the override, Mr Benson has not shown how potential witnesses' evidence will be relevant beyond the type of issues he himself can raise and evidence he may seek from Mr Nolan in cross-examination. Further, previous Court and Tribunal decisions show that simply calling for greater transparency of process or the fact journalists are interested in the case does not establish that the public interest requires release.
3. Concerning the calling of Ms O'Meley, the University submits Mr Benson seeks to have her demonstrate the alleged inadequacies of procedures and the University's alleged failure to provide him with a safe working place. On the issue of Ms O'Meley's evidence challenging Mr Nolan's evidence, the University submits the proper way to challenge his evidence is through cross-examination. On the issue of legal professional privilege, Mr Benson does not explain how Ms O'Meley's evidence would be relevant.
4. I have decided not to permit the issuing of a witness summons to Ms O'Meley. I am not persuaded she is likely to give relevant evidence. Concerning the internal working document exemption (30(1)), it is unlikely evidence as to the "adequacy of deliberations", as described by Mr Benson, will be relevant. It is likely the documents in question will provide sufficient evidence as to the nature and their potential exemption.
5. Concerning the legal professional privilege exemption (32), that is likely to turn on whether on their face, and in the context of Mr Nolan's evidence, they fall within the exemption.
6. As Pizer states in Victorian Administrative Reports, Volume 2 (at para 2345), after referring to the High Court case of Esso Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 and Daniels Corp v ACCC [2002] HCA 49; (2002) 213 CLR 543 says,

... a document will be privileged (and thus exempt under s 32(1) of the Act) if :

1. it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation;
2. it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or

1. it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.

1. Mr Benson does not submit Ms O'Meley's evidence is relevant to the personal affairs exemption (33(1)) or the information in confidence exemption (35(1)).
2. I understand Mr Benson submits each witness is likely to give evidence relevant to whether documents should be released under the public interest override (50(4)).
3. On the issue of the public interest override, the High Court of Australia has said decision-makers must be satisfied to a high threshold that the public interest requires release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. The Court said the high threshold existed (at para 48) where,

The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland 's petition be denied.

1. Turning to the circumstances surrounding this application and Mr Benson's views, the following excerpt from Victorian Administrative Law, J Pizer at FOI.50.440 is relevant.

One of the strongest public interests that may be relied upon to invoke the public interest override is the interest in the purity of public administration: University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at 182. Put another way, there will be a strong public interest in disclosure if the documents in question reveal some illegality, impropriety, sharp practice or wrongdoing; Gill v Department of Industry, Technology and Resources (1985) 1 VAR 97 ... Mildenhall v Department of Treasury (1994) 7 VAR 342 at 372.

In Hulls v Department of Treasury and Finance (No 2) (1998) 14 VAR 295 the VCAT observed that the case for release of documents would be "overpowering" if there were evidence of impropriety, but that the absence of impropriety "is not a basis for non-release"; an appeal to the Court of Appeal was successful: Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; (1999) 15 VAR 360. This, it is submitted, is correct but the absence of impropriety will often be a ground for non-release because there may be no public interest in disclosure without such impropriety.

Compare Osland v Secretary, Department of Justice (2008) 234 CLR 275 where the High Court appeared to agree with the Court of Appeal's doubts that the need to "clear the air" would be sufficient in itself to require disclosure pursuant to s50(4).

1. In my view, Ms O'Meley's evidence is unlikely to contribute to a decision about whether the public interest requires release of exempt documents. Of course, the issue of whether section 50(4) applies as an exemption will not be decided until Mr Benson's application is heard.

1. Mr Benson describes Ms Durer as the head of personnel at the University. In his written statement about the evidence he said he believes she could give evidence that is highly critical of her handling of the complaint against him. He described her, as he sees it, "breathtaking extreme lack of procedural fairness and knowledge on the part of university management and delivery process". He says there is a public interest how senior levels of a university function and deal with staff and health issues.
2. Mr Benson's statement about evidence that Ms Durer may be giving is, in the context of an FOI application, an inappropriate complaint about Ms Durer and the issues Mr Benson seeks to ventilate. It provides no indication that Ms Durer is likely to give evidence relevant to any of the exemptions the University claims, nor the public interest override.
3. Therefore, I have decided not to permit issuing of a witness summons to Ms Durer.

1. Mr Benson describes Ms Chard as the Manager, Equality and Diversity Centre at the University. He believes her evidence may include matters related to the lack of male staff in the centre and a range of issues relating to the handling of his complaint and his dealings with the centre. In terms of relevance of that evidence to this proceeding, he cites issues of confidentiality, public interest in deliberative process and issues relating to the predicted evidence of Dr Katy Richmond (see below).
2. Again, Mr Benson focuses on his complaints about the process, failing to articulate how this could be relevant to the exemptions claimed in this proceeding and the public interest override.
3. Therefore, I have decided not to permit issuing of a witness summons to Ms Chard.

1. Mr Benson describes Dr Richmond as an honorary associate, Latrobe University. He writes and has given oral evidence about his suspicion that Dr Richmond was in some way associated with the person who originally made allegations against him, in an attempt to entrap him. He says a meeting at a film showing gave rise to his suspicion, but acknowledges the meeting may have been innocent and his suspicion may be unfounded. He knows Dr Richmond vaguely and by her academic reputation.
2. Mr Benson's evidence as to the potential relevance of evidence from this potential witness is carefully given and concedes that he is speculating about Dr Richmond's role, if any, in entrapment as he sees it.
3. The degree of speculation leads me to conclude Mr Benson is engaged in a 'fishing exercise' and so a summons should not be issued. In any case, even if the fishing exercise was successful, it is difficult to see how evidence of such issues could be relevant to the claimed exemptions or the public interest override.
4. Therefore, I have decided not to permit issuing of a witness summons to Dr Richmond.