1. In this proceeding, witness summonses are not to be issued to:

1. Senior Constable George; 2. Senior Sergeant Caroll;

1. Ms Irene Kazantzisis.
2. The Tribunal directs that no other witness summonses are to be issued in this proceeding without leave of the Tribunal.
3. The principal registrar is directed to list this part heard matter for a further hearing on 25 November 2011 at 1:30 pm at 55 King Street Melbourne before me.

1. In June 2011, Mr John Corry (Corry) applied to VCAT seeking orders that Victoria Police release to him, under the Freedom of Information Act 1982 (the FOI Act), all documents not previously released to him from a file held by the Ethical Standards Department of Victoria Police (the ESD) which relates to two complaints he made to the ESD.
2. In July 2011, VCAT set this matter down for a final hearing on 27 October 2011. Corry foreshadowed calling a substantial number of witnesses. VCAT directed if he sought the issue of witness summonses, the issue whether such summonses are to be issued would be listed for consideration at a directions hearing. Over the next months, the parties negotiated and reduced the number of documents in dispute to 26.
3. At a directions hearing on 23 September 2011, I made procedural orders, including that VCAT intended to address the 'witness issue' in course of the hearing of the application, once evidence of Victoria Police concerning the claimed grounds of exemption had been put.
4. The hearing proceeded on 27 October 2011before me. Corrie represented himself. Mr Young of counsel represented Victoria Police. I was asked to decide whether nine sample documents of the 26 in contention should be released. I heard the evidence of Victoria Police. Corry made submissions as to why he should be permitted to have the principal registrar issue the summonses on his behalf. He reduced the number of witnesses he wished to summons from eight to four. Victoria Police made submissions in reply.
5. I adjourned the proceeding, reserving my decision as to the witness summonses, on the basis that when the hearing resumed Corry would put his evidence, either with or without summonsed witnesses and each party would make submissions as to the overall issues before VCAT.

1. Under s104 of the Victorian Civil and Administrative Act 1998 (VCAT Act), 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, it is VCAT's practice 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 they are likely to be relevant to the issue of whether documents should be released because the public interest requires that release. This question arises from what is known as the public interest override which are set out in section 50 (4) of the FOI Act.
7. 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 Corry'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.

1. Acting Inspector Stephen O'Donnell (O'Donnell) and Inspector Andrew Jay (Jay) gave evidence.
2. O'Donnell works within ESD. He gave evidence about:

1. ESD internal investigative and disciplinary processes; 2. the specific investigation relevant to the current proceeding; and

1. exemptions claimed for each of the nine sample documents.
2. Concerning ESD internal investigative and disciplinary processes, O'Donnell described the different roles of ESD and the Office of Police Integrity (OPI). He described the OPI as an independent statutory office, responsible for oversight in reviewing the complaints undertaken by ESD as well as conducting its own investigations (check this sentence). Concerning ESD, he described in brief the complaint process including the triaging of complaints according to perceived seriousness, which are dealt with at the Melbourne head office, by regional ESD officers or at the local level. Under cross-examination by Mr Corry, he did not agree that the local level investigations were tainted because it was, 'buddies investigating buddies'.
3. Concerning the events which led to Corry's application to VCAT, it is convenient to quote from O'Donnell's affidavit. First, he describes events, as he understands from the relevant ESD file, which led to Corry making two complaints to the ESD,

On 11 November 2007, police were called to a domestic dispute at the home of the [Mr Corry] and his then wife ... Following a dispute ... a full interim order was issued against [Mr Corry] to expire on 12 November 2008. The intervention order preventing [Mr Corry] from assaulting, harassing, threatening or intimidating [his wife]. It also prohibited the [Mr Corry] from being within 50 metres of their house unless in the company of a police officer except for a proviso enabling him to attend his house between 9 am and 5 pm on Wednesdays.

On 10 May 2008, Senior Constables George and Wilde went to [Mr Corry's] home to interview [him] in relation to a number of alleged breaches of the intervention order against [him]. The interview was video taped by [Mr Corry's son].

In late August 2008 [the son] applied for a firearm licence. This application was refused by Superintendent Ashley, the Manager of the Licensing Services Division, Victoria Police, on the basis that [the son] was not a fit and proper person. It was also refused on the basis that [Mr Corry] who was prohibited from applying for a firearm licence because of the intervention order against him, may gain access to any firearms possessed by his son.

In September 2008, 25 charges were filed against [Mr Corry] for alleged breaches of the intervention order. The matter was resolved by a plea bargain in which [Mr Corry] pleaded guilty to four charges and the other 21 charges were withdrawn. [Mr Corry] entered into a diversion program and no conviction was recorded.

The intervention order against [Mr Corry] expired on 12 November 2008. An interim order was issued that would expire on 9 December 2008. On 9 December 2008, [his wife] sought a further intervention order against [Mr Corry]. [Mr Corry] sought an intervention order against [his wife]. The applications were dismissed on the basis of the parties agreeing to written undertakings.

On 26 February 2009, the son, Mr Corry, his wife and Senior Constable George attended a Firearms Appeals Committee hearing for [the son's] appeal against the refusal to issue him with a firearm licence. Senior Constable George gave evidence that the application should not be granted, including incorrect evidence that an intervention order was currently in force against [Mr Corry] and that a conviction had been recorded against [him] in respect of the breaches of the intervention order.

At that hearing, the chairperson, ... , suggested that [Mr Corry] and his son may have committed an offence by videotaping a police interview in May of the previous year, and that this should be investigated. Police officers at Box Hill Police Station accordingly investigated this but found that no offence had been committed.

1. O'Donnell's affidavit then turns to Corry's complaints to the ESD,

The first complaint, dated 6 March 2009, alleged that Senior Constable George wilfully lied or included misleading information in a sworn statement at a Firearms Appeals Committee Hearing on 26 February 2009, in order to prevent [the son] from obtaining a firearms licence. ...

The second complaint, dated 27 May 2009, alleged that Senior Constable George and Senior Constable Wilde, investigated [Mr Corry] and his son for possible illegal conduct (filming the police interview that took place on 10 May 2008) the purpose of harassing them. ...

Both complaints were considered to warrant investigation and were consolidated as one ESD file and were triaged, classified and allocated as a regional investigation.

The investigation into the first complaint was conducted by Senior Sergeant Carroll, the Officer in Charge at the Echuca Police Station. ...

[The Acting Inspector's affidavit details the drafting of the report by Senior Sergeant Carroll, review by Inspector Thomas and Inspector Wedgwood, the OPI and ESD officers, and finalisation by Senior Sergeant Carroll]

On 13 October 2009, the OPI wrote to [Mr Corry] to inform him that the results of the investigation was 'Unable to Determine '. ...

[Mr Corry's] ESD file was returned to Senior Sergeant Carroll for investigation of the second complaint. [The report was sent to Inspector Wedgwood and forwarded to the OPI for review.]

On 24 March 2010, the OPI wrote to Mr Corry to advise him that his allegations were 'Not Substantiated '.

1. O'Donnell's affidavit then describes the nature of the nine sample documents (of the 26 documents in dispute, 19 having been exempted in part and seven exempted in full) as follows,

Category 1: Communications Between Police Members Relating to the ESD Investigation

Document 1 ... is a memo to Inspector Wedgwood from Acting Inspector Caroll dated 18 April 2010. This is a memo that is used to transfer a file from one person in the investigation chain to the next. It summarises what action has been taken, communicates thoughts on the present state of the file, and may also recommend action to be taken. ...

Document 8... is a report from Inspector Thomas to Acting Superintendent De Santo on the results of the first investigation by Senior Sergeant Caroll dated 23 June 2009.

Document 9 ... is the report of the investigation of the second complaint, completed by Senior Sergeant Caroll and sent to Inspector Thomas, dated 22 June 2009.

Category Three: Communications from OPI and ESD Investigation

Document 21 ... is a letter from an OPI officer to Detective Superintendent McMeeken dated 29 July 2009. The letter details the OPI's review of the investigation, and contribute to use as to the appropriate outcome of the investigation.

Category Four: Documents Exempt Only on the Basis that They Contain Personal Information

Document 26 represents documents from the LEAP database, being ... wholly exempt on the basis that it contains only personal information of third parties.

Document 18, which is hearing notes taken by a police officer at the Firearms Appeals Committee Hearing being partly exempt on the basis that the exempt material is personal information

Document 24 represents witness statements from the Firearms Appeals Committee Hearing ...

Document 14 is a letter from the Magistrates' Court about the outcome of [Mr Corry's] diversion program. It exempts the personal information of the police officer who received the letter.

Document 25 is a transcript of the conversation is wholly personal information of a third party.

1. Jay, a freedom of information officer with Victoria Police gave evidence about the 53A notice process under the FOI Act, responses received and concerns that Corry might use personal information unreasonably to engage individuals, seek to re-engage individuals in matters that have been properly concluded, or disseminate personal information. As his evidence is not relevant to the issue now before me, I do not detail it in this decision.

1. By the end of the hearing, Corry sought to summons:

1. Senior Constable George (George), one of the two police officers who went Corry's home to interview him in relation to a number of alleged breaches of the intervention order against [him]; 2. Senior Sergeant Caroll (Caroll), a police officer at Echuca Police Station, who investigated Corry's complaints;

1. Assistant Commissioner Luke Cornelius (Cornelius) of the ESD; and

1. OPI Officer Irene Kazantzidis (Kazantzidis).
2. As I understand it, in the course of the hearing Corry came to accept that the other four people he had previously sought to summons in fact carried out administrative roles and so their evidence would have little, if any, relevance.
3. Corry submitted the four witnesses he sought to summons could be expected to give evidence relevant to the issue of whether release of the documents in question was required by the public interest under section 50(4) of the FOI Act. Corry's 'public interest grounds' filed with VCAT on 22 July 2011, spoke of the public interest being advanced, including:

1. if documents disclose false statements, misinformation or misconduct, particularly by public officials; 2. by the avoidance of significant and avoidable injustice;

1. by the promotion of public debate, transparency and accountability;

1. by the exposure of flaws in corrupt systems; and 2. by the revealing the illegality, impropriety, sharp practice, wrongdoing and/or misconduct.
2. In September 2011, Corry filed and served a substantial written submission. I quote from it in part,

Deliberate efforts were made by ... my ex-wife and SC George to imply that I was mentally unstable and that I had perpetrated acts of a criminal nature ... and that because of my "brittleness" (Psychological state) I represented a danger to the safety of [my ex-wife] in perpetuity. Statements sworn by [my ex-wife], not coincidentally in the presence of SC George ... provided a very convenient leverage point to discredit me in the eyes of the Firearms Appeal. ...

Albeit this Firearm Appeal hearing was little better than a kangaroo court it was an open setting, ... SC George, both in written affidavits and spoken testimony offered views of my actions and character that indicated he was professionally qualified Psychiatrist or Clinical Psychologist. ... As a secondary school teacher of some 30 years experience, with no criminal record and no record of mental illness this body of defamation form part of my complaint to the OPI and ESD. The nature of the ESD investigation concerns me greatly because they have simply ignored a substantial amount of my complaint and the parts of my complaint that they have addressed they have simply sidestepped the truth to exonerate their officer. ...

In order to rectify an injustice [to me] I am seeking full and intact release of all documents related to the complaints made by [me] to ESD and overseen by the OPI about SC George and other police officers stationed at Kyabram.

From a position of total indifference to Victoria Police some four years ago I now view the bureaucracy of Victoria Police as a corrupt system. I have entered the public debate on their many and varied shortcomings by way of writing letters to newspapers, politicians when I see police cover-ups, spin, manipulation of statistics, incompetence and criminality. I provide several examples of some 20 letters I have published in the public forum.

It is my contention that in my particular case it serves the interest of the public better to disclose the information I am requesting than to withhold it (check this sentence). My request embraces the wider public concerns of public debate Justice, openness and accountability. ...

Complete unabridged documentation being given to complainants is very much in the public interest. Accurate and comprehensive information allows the debate to eliminate speculation at a community level. Complaints are a key source of information about the integrity of the police agency. Failure to openly and independently investigate complaints is a key barrier to people making complaints and therefore not in the public interest.

1. At the hearing, Mr Corry made submissions concerning each of the four potential witnesses.
2. He said it would be shown that George had given false evidence to the Firearms Appeals Committee, and before that, had without reasonable grounds accepted allegations made by Corry's then wife against him and had contributed to the destruction of his reputation in Kyabram, where he had been a schoolteacher for many years. George had incorrectly described him as "anti-police". Further, George's allegations that Corry was mentally fragile were without foundation. Release of the documents would show that the facts as asserted by George were incorrect. This would be in the public interest.
3. Mr Young, for Victoria Police, replied that none of the foreshadowed evidence could be relevant to the issue of whether the public interest required the release of documents. Mr Young conceded that George had given factually incorrect evidence at the Firearms Appeals Committee. Apparently, he had been counselled on this issue. Mr Young agreed a witness might give relevant evidence if the evidence could potentially lead to a conclusion that police complaint processes included wrongdoing or sharp practice. However, he submitted nothing in the issues raised by Corry could potentially be relevant in that sense.
4. Concerning Caroll, Mr Corry submitted that Caroll had exonerated George and endorsed false statements by George. Corry sought that Caroll give evidence on this issue. Also, Caroll could give evidence about the decision that Corry's complaint would be handled at a regional level and about the fact that Caroll had not personally interviewed Corry about his complaint. Further, evidence from Caroll may establish that interviewing him concerning the "video complaint" was a form of harassment motivated by police in Kyabram.
5. Mr Young replied that if there was some evidence of sharp practice or wrongdoing on the part of ESD and/or the OPI relevant to this proceeding, perhaps there would be a basis for calling Caroll. However, there was no such evidence. He pointed out this proceeding is not a review of the ESD file handling process, nor could it be a fishing expedition.
6. Concerning Cornelius, Mr Corry submitted he could give relevant evidence as to the complaint handling process is at the ESD. He objects that he was never told what process was undertaken with respect to his complaints
7. Mr Young drew my attention to paragraph 24 of O'Donnell's affidavit where he gave evidence that "both complaints were considered to warrant investigation and were consolidated as one ESD file and were triaged, classified and allocated as a regional investigation". He described Cornelius as having signed an administrative letter in the complaint process. That potential witness could give no relevant evidence in this proceeding.
8. Concerning Kazantzisis, Mr Corry submitted her evidence would demonstrate that the role of the OPI was to rubber stamp the ESD process, when its role is to provide objective review.
9. Mr Young submitted the role of the OPI is relevant to this proceeding which concerns the release of documents held in an ESD file.

1. I direct that witness summonses not be issued as Mr Corry seeks and, for completeness, that no witness summonses are to be issued in this proceeding without leave of the Tribunal.
2. Concerning George, in my view there is no real prospect he will be able to give evidence relevant to the public interest requiring the release of the documents in question. This proceeding is not concerned with the merits of George's actions with respect to Corry, either in Kyabram or before the Firearms Appeals Committee. That was the subject of the ESD enquiry. If the issue is said to be that release of the documents is in the public interest to expose flaws in the ESD investigation process, it is highly unlikely George can give evidence about that. There is no evidence before me other than that he was the subject of the investigation, not a participant in it.
3. Concerning Caroll, who investigated both complaints, there is nothing before me to indicate that evidence which might be given by him would lead to a conclusion that the ESD investigation with respect to Corry would reveal some illegality, impropriety, sharp practice or wrongdoing, which may in turn require release of the documents in the public interest. Corry's suspicions alone are not sufficient. VCAT should not allow him to go on a 'fishing expedition' via witness summonses.
4. Concerning Cornelius, his role was to send a letter to Corry dated 17 July 2009 about the complaint process. I do not see what possible relevant evidence he could give in this proceeding.
5. Finally, concerning Kazantzisis, who wrote to Corry in a letter dated 13 October 2009 and 24 March 2010 regarding the progress of the investigations into his complaint, again I do not see what possible relevant evidence she could give.
6. Further, I have considered whether there is a likelihood that any of the witnesses Corry seeks to summons might give evidence relevant to the exemptions by which Victoria Police declined to release the documents or part thereof. In my view, that is unlikely. Given the roles of these people within Victoria Police and the OPI, I do not see how their evidence would be relevant to the issue of whether release of documents would be contrary to the public interest (section 30(1)(b) & section 35(1)(b)) or amount to unreasonable disclosure of information relating to personal affairs (section 33(1)).