Pursuant to the Freedom of Information Act 1982, I seek access to the documents referred to by the Minister for Roads in her answer_._

1. A number of documents were identified in response to this request. These have all been provided, or issues relating to them otherwise resolved, except for the Business Case.
2. The sole ground on which production of the Business Case is resisted is s 28(1)(b) of the FOI Act, namely, that it was:

a document that has been prepared by...an agency for the purpose of submission for consideration by the Cabinet

1. Clearly the Business Case was prepared by an 'agency', namely VicRoads. The key issue for determination is whether or not the Business Case was prepared for the 'purpose of submission for consideration by the Cabinet'.
2. The key event on which the respondent relies is the putting of the Business Case to the Sub-Committee of Cabinet responsible for reviewing major government expenditures on 17 March 2016.[1] It was an attachment to the 2016/17 Budget Submission by the then Department of Economic Development, Jobs, Transport and Resources (DEDJTR).
3. This decision refers to a number of government Departments and agencies by their acronyms as follows:
   • DEDJTR - (the former) Department of Economic Development, Jobs, Transport and Resources
   • DOT - Department of Transport
   • DTF - Department of Treasury and Finance
   • DPC - Department of Premier and Cabinet
   • MRPV - Major Road Projects Victoria (a division of the MTIA)
   • MTIA - Major Transport Infrastructure Authority (an administrative office of the DOT)
   • PPD - Policy and Programs Division of VicRoads.

1. On 5 April 2019, the request was transferred to MRPV. This is a division of MTIA, which itself is an administrative office in the DOT.
2. On 21 August 2019, two documents were identified in relation to the request. On 2 October 2019 a third document was identified. In relation to this third document, the applicant disagreed with MTIA's decision, and sought a review by the Information Commissioner (referred to as OVIC). On 5 December 2019, OVIC made a decision in the applicant's favour, and on 9 January 2020, MTIA sought a VCAT review of OVIC's decision, out of time. On 15 January 2020, the Tribunal extended time for the commencement of that proceeding (Z16/2020). Subsequently, however, MTIA provided that third document to the applicant. As a result, no dispute remained in relation to any documents the subject of matter Z16/2020.
3. In the meantime however, the MTIA identified another document which properly answered the original FOI request. That is the Business Case the subject of these proceedings.
4. A fresh application to VCAT was made by Mr Davis (being this proceeding, Z461/2020). This reflected the fact that the initial non-identification of the Business Case constituted a deemed refusal under s 53(1) of the FOI Act. Mr Davis invoked his right to go direct to VCAT to seek review of that deemed refusal, rather than to OVIC in the first instance.

1. Section 3 of the FOI Act states that its object is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria. It does this by creating a general right of access to government documents, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business interests of persons in respect of whom information is collected and held by agencies.
2. Further, under s 3(2), the provisions of the FOI Act are to be interpreted so as to further the object set out in s 3(1), and any discretion under the FOI Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Under s 55, the MTIA, as an agency under the FOI Act, has the onus of proving the exemptions claimed.

The exemption in relation to Cabinet documents

1. It is a longstanding principle of our Westminster system of government that the deliberations of Cabinet are secret. That is the fundamental reason for the existence of s 28.
2. Under s 28(7),'Cabinet' includes a committee or sub-committee of Cabinet.
3. The public interest override in s 50(4) does not apply to Cabinet documents.
4. The actual use made of a document may be relevant in ascertaining the purpose for which it was created, but is not decisive of that question.[2]
5. It is not necessary to prove that the document was actually submitted to the Cabinet;[3] nor that Cabinet actually considered the document,[4] although evidence as to the actual use to which the document was put could shed light on the purpose for which it was created.
6. A document will only be exempt if the sole purpose or one of the substantial purposes, or the dominant purpose, or one of a number of significantly contributing purposes, for which it was prepared was for it to be submitted to the Cabinet for consideration.[5]
7. The purpose of the preparation of the document must be for submission for consideration by the Cabinet and not merely preparation for the purpose of physically placing the document before the Cabinet. [6]
8. The Tribunal must be satisfied that the particular document 'fits squarely' into the Cabinet documents exemption. Bearing in mind the object of the FOI Act to extend as far as possible the community's access to information in the possession of government, it is not enough for the document merely to have some connection with Cabinet, or because it has a Cabinet 'aroma' about it.[7]

1. Evidence was received from two witnesses for the MTIA. First, from Jane Gardam, Executive Director of the Cabinet Office of the Department of Premier and Cabinet. And second, from Brendan Pauwels, Program Director, MRPV.
2. Mr Pauwels' evidence dealt with the conception of the Project, and the preparation of the Business Case. This occurred over the period December 2014 - January 2016. Ms Gardam's evidence dealt with the events subsequent to that, namely the relevant Cabinet processes, in March - May 2016.
3. Nevertheless, it is convenient to deal first with Ms Gardam's evidence, as it provides the context for the main area of dispute between the parties, which is what VicRoads' purpose was in preparing the Business Case.
4. The applicant did not lead evidence from any witnesses.
5. I have reviewed the Business Case. It contains an analysis of the merits of different options, and makes recommendations as to the costs and benefits of the Project.
6. The Tribunal received Legal Contentions dated 21 February 2020 from the MTIA, and from Mr Davis dated 13 March 2020. Further Legal Contentions were provided once Mr Tehan was briefed for Mr Davis, dated 30 July 2020. Mr Tehan indicated that the earlier submissions were still relied on, but to the extent there was any inconsistency, he relied on the latter oral and written submissions.

1. Ms Gardam is responsible for the management of Cabinet documents. These comprise, predominantly, submissions and briefings to Cabinet or its committees, and official records of decisions of Cabinet or its committees
2. Ms Gardam has carried out the role of Executive Director of the Cabinet Office (initially in an acting capacity) since January 2019. She commenced in the role well after the Business Case went to Cabinet, early in 2016.
3. Ms Gardam said that in 2016, there were in existence:
   • A sub-committee of Cabinet, which, amongst other things, had responsibility for considering major Government expenditures (the Sub-Committee), and
   • A committee of Cabinet, which, amongst other things, had responsibility for considering the proposed Government budget (the Committee).
4. Ms Gardam said it is a convention of government that committees of Cabinet are not publicly named. It must be said, however, that this convention is often honoured in the breach, at least in relation to the particular sub-committee involved here.[8] Indeed, the s 49 statement produced by MTIA in this case, at [50], contains the statement that the Business Case

was created for the dominant purpose of submission for consideration by the Expenditure Review Sub-Committee to provide them with relevant commercial, economic and technical analysis to enable them to decide on whether to fund the Project.

1. Concerning the 17 March 2016 meeting of that Cabinet Sub-Committee, Ms Gardam said she had reviewed the agenda, relevant Cabinet submissions (including attachments) and minutes.
2. In her amended witness statement, she said that from her review of these documents, she could state that:

...to the best of my knowledge, the Sub-Committee met on that date, and that the 2016/2017 DEDJTR budget submission was considered at that meeting, and that the 'Streamlining Hoddle Street Business Case' was included as an attachment to that budget submission.

1. The use of the phrase 'to the best of my knowledge', reflects the fact that she was not carrying out the role of Executive Director of the Cabinet Office in 2016, and her evidence comes purely from her examination of the Cabinet records.
2. I infer from her evidence, and that of Mr Pauwels, that following this meeting, the Business Case was accepted, and the Project was approved to proceed, as in fact it did. There were no questions or submissions by Mr Davis making any suggestion to the contrary.
3. Ms Gardam's witness statement went on to record that from her review of the relevant Cabinet documents, the relevant minutes of the Sub-Committee meeting on 17 March 2016 were endorsed by the Committee of Cabinet at its meeting on 5 May 2016.
4. Similarly, she said, the Cabinet itself met on 30 May 2016, and endorsed the relevant minutes of the Committee of 5 May 2016.
5. It is noted these latter two meetings occurred after the 2016 State Budget was handed down, on 3 May 2016. Mr Nekvapil, for the MTIA, said it did not contend that the meetings of the Committee on 5 May 2016, and of the Cabinet itself on 30 May 2016 were of any great significance to its case.
6. After some further investigation, Mr Nekvapil produced an extract from the DTF website describing the process for the appropriation of budget monies. He also produced the record indicating that the 2016 Appropriation Bill passed the third reading stage in the Legislative Council on 23 June 2016, and received royal assent on 28 June 2016.
7. These materials confirm that the meetings of 5 and 30 May 2016 were part of the appropriation process, rather than the process of determining which projects would be given funding in the 2016-2017 year. Hence, as noted, the key event from the MTIA's point of view for the purposes of this case is the putting of the Business Case to the Sub-Committee of Cabinet responsible for reviewing major government expenditures on 17 March 2016.

1. Mr Pauwels was the person who had primary responsibility for the preparation of the Business Case. This was in his capacity as Business Area Manager, and as Project Director, of the Metro Project Central team, at VicRoads.
2. Mr Pauwels joined VicRoads in 1997. He has experience particularly with road projects requiring the management of different transport modes, such as buses, trams, cyclists and pedestrians.
3. On 1 July 2018, after the events the subject of this case took place, a restructure came into effect, and staff from the former VicRoads Major Projects Division transferred to MTIA, including Mr Pauwels. He is now the Program Director of MRPV, which, as noted, is a division of MTIA. That explains why MTIA is the respondent, not VicRoads.
4. The Project was a pre-election policy announced by the then Labour opposition in March 2014. Mr Pauwels said the Project was described as follows:

Victorian Labor will pilot the introduction of 'continuous flow intersections' at key junctions along Street.

Based on technology currently operating in the United States, computerised traffic management systems and modified turning lanes along Hoddle Street will be installed to optimise traffic flow through several intersections between the Eastern and Monash freeways.

Engineering analysis suggests that 'continuous flow' technology has big potential to increase traffic throughput, reduce delays and prevent accidents.

1. Following the election of the Andrews government in November 2014, VicRoads began consideration of the Project. Mr Pauwels and his team were allocated to the Project, and began working on it in late 2014.
2. Mr Pauwels said the indicative cost of the project of $60 million, was a substantial investment. Approval would be required from Cabinet or a Cabinet committee to allocate that funding in the relevant budget. He said in cross examination that with a stand alone project in this order of value, the 'expectation is that will always go through a Cabinet process for decision making, and allocating that funding'. Attached to his witness statement was the guidance material provided by DTF for making submissions seeking funding approval for the 2016-17 budget process. This indicated that for projects with a TEI of under $10 million, a short form business case should be provided. For projects with a TEI of over $10 million, or those classified as high risk, a full business case was required.
3. Mr Pauwels referred to this as a 'long form' business case. He said that he had conversations with the Policy and Programs Division of VicRoads to the effect that a long form business case would be required to be prepared, to assess the likely costs and benefits of the Project.
4. He was aware that this would involve an examination of two things. First, of the funding needed to deliver the Project, and second, an examination of continuous flow intersection design. At the time, the continuous flow intersection design had not been used in Victoria, or indeed, Australia, before.[10] He said the proposed use of this concept in Hoddle Street was considered to be ground-breaking and therefore the feasibility and costs of delivering the Project would need to be assessed by Government ahead of any funding approvals being given.
5. Mr Pauwels assigned a project manager to carry out work preparatory to the preparation of a 'long form' business case. He said his team first made an estimate of the cost of preparing a long form business case. The figure arrived at was $1.8 million.
6. In the May 2015 budget, $1.8 million was allocated for the preparation of the long form business case for the Project. Once this was allocated, his team commenced work on preparing the Business Case, including by competitive tendering for consultants for various components. The funding was used for the collection of traffic data, concept design work and economic analysis as part of the long form Business Case.
7. Mr Pauwels said that at the commencement of the work he was informed by the Policy and Programs Division in VicRoads (PPD) of the timeframe and milestones for completion of the Business Case, to enable it to be submitted for consideration by Cabinet as part of the next budget cycle. He said that was reiterated throughout the process. In particular, he was informed that:
   • There would be a 'Stage 1 filtering process' by a Cabinet committee in October or November 2015 to consider which proposals would be brought forward for consideration in the 2016-17 budget.
   • As such, the substantive work on the Business Case needed to be done by November 2015, for submission by PPD, who would then review the draft with the key stakeholders, being the (then) DEDJTR and DTF.
   • In December 2015, the Treasurer would confirm which projects had been endorsed for Stage 2 consideration.
   • Any feedback from DEDJTR and DTF needed to be received by mid January 2016.
   • The DTF '2016-2017 budget submission process' indicated that a long or short form business case would be required as part of the budget submission, which would need to be submitted to DPC and the Cabinet Office by 5pm 29 January 2016.
   • To meet that deadline, any feedback from the PPD, DEDJTR and DTF would be given to the Project team by mid to late January 2016.
   • The final version of the Business Case (including its annexures) needed to be complete for inclusion as part of DEDJTR's budget submission by 5.00 pm on 29 January 2016.
8. Mr Pauwels said that these steps did in fact occur: the Project was approved at Stage 1 and progressed to Stage 2, feedback was received on the Business Case, it was included in the submission by DEDJTR on 29 January 2016, approved as part of the 2016 budget, and subsequently completed.
9. In his witness statement, Mr Pauwels said it was very clear to him that 'we were working towards hard deadlines based around when the business case needed to be submitted for budget consideration by Cabinet'.
10. He said that as leader of the team, it was his understanding at all times that the purpose of the Business Case was to provide Cabinet with the necessary information to consider whether to grant funding approval of the Project.
11. He said that he was aware the Project was of significant interest to the Minister for Roads and Road Safety. He attended a number of briefings with a senior advisor to the Minister to provide updates on, and to discuss, the Project and its Business Case.
12. He further said the Project was going to be 'highly unique' having regard to the proposed use of continuous flow intersection concept. 'As such, it was a high priority Project and I was aware that Cabinet consideration of the Project and feasibility of it and options for it were of interest to a number of Ministers.' Asked about this in oral evidence, he said the member for Richmond (also the Planning Minister, whose electorate is affected by the Project) was interested, as was the Treasurer.
13. Finally, Mr Pauwels said that the Business Case had been marked 'Cabinet in Confidence' 'all the way through its drafting'.

1. MTIA contends that the submission to Cabinet (or more precisely, the Expenditure Review Sub-Committee of Cabinet (ERC)) for consideration was a substantial, if not the sole reason, for the preparation of the Business Case.
2. MTIA says that that the evidence shows that as a result of the creation and submission of the Business Case, the ERC ultimately determined to move ahead with funding for the Project, and approved an allocation of funding of $60 million for the delivery of the Project in the May 2016-17 State budget.
3. Accordingly, it says the Business Case was prepared for the purpose of submission for consideration by the Cabinet, and so is exempt under s 28(1)(b).

1. The primary argument put by the applicant was that MTIA bore the onus (under s 55 of the FOI Act) of showing that but for the purpose of being submitted to Cabinet, the Business Case would not have been prepared, and it had failed to demonstrate that. Mr Tehan submitted that the effect of the evidence was that the Business Case would have been prepared in any event.
2. This argument relies on a from a passage in the judgement of Buchanan JA (with whom Ashley JJA and Smith AJA agreed) in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 at [13].
3. That case concerned a FOI application for a document entitled 'Mitcham-Frankston Freeway Project- Final Public Sector Comparator Report' (PSC Report). This was a comparison of the cost of delivering that project through a public-private partnership, versus the cost of the government building the road itself.
4. VCAT found that the document was not exempt under s 28(1)(b), nor under s 28(1)(ba) or (d).
5. The Court of Appeal overturned that decision, including on the basis that it was not open to make those findings on the evidence which had been given. It remitted it back to VCAT, constituted by the same member (Judge Davis) for re-determination.
6. The following passage from the decision was relied on by Mr Tehan, for Mr Davis (including the footnotes to Buchanan JA's decision, and with the words particularly relied upon by the applicant underlined):

Relying upon a number of its prior decisions, the Tribunal proceeded upon the basis that each of the purposes referred to in paragraphs (b) and (ba) in s.28(1) of the Act need not be the sole purpose for the preparation of the document. The purpose could be one of a number of purposes provided it was a substantial purpose. Although this Court has not had the benefit of full argument on the point,[11] I am inclined to think that the Tribunal's approach was correct. The purpose identified in the relevant paragraph of s.28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s.3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view, as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, "the power would not have been exercised",[12] it need not have been the sole purpose for the preparation of the document in question.[13] I do not think that the Act requires release of a document disclosing material considered and dealt with by Cabinet merely because the document, which was principally prepared for submission to Cabinet or to brief a Minister in relation to Cabinet issues, also served another purpose or other purposes.

1. Although there are many subsequent decisions which refer to (or footnote) the above paragraph, neither party referred me to any decision which has specifically considered or applied the underlined passage above.
2. For example, in State Owned Enterprise for Irrigation Modernisation in Northern Victoria v Manners [2010] VSC 516, at [12], Hargrave J said, referring to Ryan at [34] and Dalla-Riva at [13]:

A document will only be exempt under section 28(1)(b) if the sole purpose, or one of the substantial purposes, for which the document was prepared was for submission to Cabinet for consideration. In Secretary to the Department of Treasury and Finance v Dalla-Riva, Buchanan JA, without finally deciding the point, accepted that this was the correct approach and, on that basis, stated that it was sufficient if the purpose was 'the dominant purpose or one of a number of significantly contributing purposes.' [emphasis in original]

1. As noted the Dalla-Riva case was remitted back to the Tribunal for re-determination. In the second hearing, additional evidence was received. The PSC Report was found to be exempt under s 28(1)(b). The Tribunal found that one substantial purpose for its preparation was 'that it was to be submitted to the ERC for its consideration and approval.' There was another substantial purpose for its creation, namely its use, once approved by Cabinet, as a benchmark for the evaluation of competing tender bids for the Mitcham-Frankston Freeway Project. The above passage from the Court of Appeal's decision, and in particular, the reference to the 'but for' test, was not mentioned in the decision. [14]
2. Here, in reliance on the 'but for' test, Mr Tehan contended that to discharge its onus, MTIA was required to show that in a scenario where the Business Case was not going to go to Cabinet, it would not have been prepared.
3. Mr Tehan submitted that the evidence of Mr Pauwels showed that:
   • He had already taken steps to begin the preparation of the Business Case, even before he was told by Policy and Programs Division of VicRoads that it would be going to Cabinet.
   • Once the $1.8 million was allocated in the May 2015 budget for the preparation of the long form Business Case, 'the game plan was laid out for us as to how the Business Case would need to be prepared'.
4. On this basis, he submitted that the Business Case would have been prepared anyway, even if it was not going to go to Cabinet - thus failing the 'but for' test.
5. Mr Tehan said the key point he relied on is the 'timing' issue. That is, the evidence Mr Pauwels gave that he had commenced on the process of preparing the Business Case before he was told definitively that there would be a long form business case prepared, which would be going to a Cabinet committee for approval.
6. Mr Tehan said the MTIA could have led evidence from PPD to indicate exactly when it was that Mr Pauwels was told the Project would be going through a Cabinet process, but it did not.

1. Mr Nekvapil submitted that Buchanan JA could not be regarded as having intended that the 'but for' test would apply where the evidence identifies only a purpose of submission for consideration by Cabinet, as here.
2. He said the 'but for' formulation in paragraph [13] of Dalla-Riva does not mean that one asks whether in some 'alternative universe' - where the purpose of submission to Cabinet has been excluded - would a business case have been prepared or not? He said in this 'alternative universe ' any document prepared concerning the Project would not have been written in the same way, for the same purpose or within the same timeframe. In fact, it would be a different document.
3. Mr Nekvapil pointed to the words of s 28(1)(b) which refers to 'a document that has been prepared'. These words require that one consider this actual document, as opposed to some other document which might have been prepared in different circumstances.
4. He submitted that where the test would be useful would be where the evidence indicated that but for the Cabinet purpose, this particular document would have been created in any event. That might show that the agency's purpose was not for submission for consideration by Cabinet.
5. He said the reference to the decision of Sir Owen Dixon of 1938 in Mills[15] cannot be taken as 'substitutive' of the words of s 28(1)(b), such that one asks whether a document like this one would have been prepared if the Cabinet purpose had not been there.

1. In my view, MTIA's analysis is to be preferred to that put on behalf of Mr Davis.
2. The effect of Mr Pauwels' written and oral evidence was as follows. He was aware from soon after the election of the new government that this would be a major project (with an indicative cost of $60 million). As such, it would require approval by Cabinet to proceed, and this would require the preparation of a long form business case. He and his team did the preliminary work to secure funding to enable consultants to be retained to conduct the detailed traffic, design and economic analysis necessary for such a business case. Once that $1.8 million was secured, in May 2015, the 'game plan' was laid out. That is, a timetable of steps was set down for all involved to work towards, for the preparation of the Business Case to be submitted in January 2016 to the Cabinet Sub-Committee for approval of the Project as part of the 2016 State Budget.
3. It was not stated in precise terms when the actual Business Case commenced to be drafted. From the evidence as a whole, the most likely point seems to be from May 2015. That is when the $1.8 million was allocated, and, as stated, when the timetable of steps was set down for all involved to work towards, for the submission of the Project to ERC for funding to be allocated in the 2016-17 Budget. In my view, the better interpretation of the evidence as a whole is that the work done prior to that should be considered to be preparatory, and that work on the actual drafting of the Business Case, including its attachments, commenced after the May 2015 $1.8 million budget allocation.
4. But even if preparation of the Business Case was regarded as having been commenced earlier, I am satisfied from Mr Pauwels' evidence that such work was being done for the purpose of submission for consideration by the Cabinet.
5. In my view therefore, the evidence was not to the effect suggested by Mr Tehan. It did not indicate that there was some uncertainty during the period December 2014 to May 2015 as to whether the work on the Business Case was being done for the purpose of being submitted to Cabinet or not. Rather, Mr Pauwels was clear that was the expectation all the way through. The laying out of the 'game plan' following the allocation of the $1.8 million in May 2015 did not alter, and indeed confirmed, that expectation.
6. Mr Tehan also submitted that at the outset, in late 2014, VicRoads and Mr Pauwels were dealing with a new government, so no 'generalised practice' could yet be said to have developed for working projects up for government approval. He said there was no basis on which Mr Pauwels or VicRoads could properly form the view that they were preparing the Business Case for the purpose of submission for consideration by the Cabinet.
7. This submission is unrealistic. The fact that there was a new government did not alter the basic processes of State government decision-making, according to the Westminster system, which apply in Victoria.
8. The conclusion that the Business Case was at all times being prepared to go to Cabinet was supported by Mr Pauwels' response to the question asked in cross-examination, as to whether every business case he had been involved with had gone to Cabinet. He answered yes, his work had generally involved major projects, and the scale of these warranted that. And his evidence otherwise was to the effect that this was clearly a major project, as well as a ground-breaking one (in that it incorporated novel continuous flow and P-turn intersections).
9. Mr Tehan sought to demonstrate that sometimes, VicRoads did business cases which did not go to Cabinet. He asked Mr Pauwels whether this sometimes occurs. Mr Pauwels said he could not answer that. So there was no evidence that, absent the purpose of being prepared for Cabinet, the Business Case would have been prepared in any event.
10. Mr Pauwels also gave evidence that the Business Case was marked 'Cabinet in Confidence' 'all the way through its drafting'. This answers the submission made in the Legal Contentions filed by the applicant on 13 March 2020, that 'its 'Cabinet in Confidence' status only occurred very late in the process.
11. Mr Tehan said he expressly did not take any issue about the truth of Mr Pauwels' evidence. I too accept his evidence. I find there is no issue with Mr Pauwels' credibility or truthfulness.
12. In my view, a 'but for' analysis cannot apply here in the way contended for by Mr Tehan. In reality one cannot logically postulate an alternative hypothetical scenario (as Mr Tehan did) in which a document identical to the Business Case was prepared, but with the intention that it would not be going to Cabinet. Asked about situations where business cases were prepared without the intention of taking them to Cabinet, Mr Pauwels' responses (referred to above) reflected the reality that for this Project, that would be a purely hypothetical scenario which would not in fact arise, given the magnitude and novelty of this Project.
13. A number of suggestions were variously made amongst the submissions put by and on behalf of Mr Davis as to what the true purpose for the creation of the Business Case might have been: to implement its March 2014 pre-election policy, to examine the funding and design of the proposal, and, simply, to build these intersections.
14. However, none of these suggested alternative 'purposes' can in reality be divorced from the purpose of submission for consideration by the Cabinet. In this instance, the Project clearly required the approval of Cabinet to proceed. So that approval was necessarily required to achieve those suggested alternative 'purposes'. Here, there was no evidence of any distinct additional purpose akin to the post-Cabinet 'benchmarking' purpose in Dalla Riva. And, of course, the existence of such additional post-Cabinet purpose did not in that case exclude the application of the s 28(1)(b) exemption.
15. The tests set out for the application of s 28(1)(b) in the cases, including Ryan and Dalla-Riva, have been satisfied here. On the evidence, the purpose of submission for consideration by Cabinet was clearly a 'substantial' purpose for the preparation of the Business Case. It was clearly a 'dominant' purpose. Indeed, it may well have been the sole purpose (although this is not necessary to satisfy the tests set out in the cases) given the evidence to the effect it was always, from its conception, destined for Cabinet. That is, there was never any alternative approval process envisaged for this Project, aside from the Cabinet process. In these circumstances, an alternative non-Cabinet consideration process cannot realistically be postulated, and so, in that sense, the 'but for' test is also satisfied.
16. Accordingly, I find that to the extent the 'but for' test can be applied to the Business Case dated 29 January 2016, it has been satisfied. The Business Case was created for the substantial, if not the sole purpose, of submission to Cabinet.

1. In his submissions, Mr Tehan also referred to the requirement that the document must have been prepared for the purpose of submission for consideration by the Cabinet. As stated in Ryan,[16] it is not enough if the document in question was merely prepared for the purpose of being physically placed before Cabinet.
2. There was no developed submission by Mr Tehan in relation to this, however. In any event, these remarks concerned the meetings of the Committee of Cabinet, and of the Cabinet itself, both after the State Budget on 3 May 2016. As stated above, the issue for determination in this case does not concern those two later meetings. It is whether the Business Case was prepared for the purpose of submission for consideration by the sub-committee of Cabinet on 17 March 2016.
3. In the Legal Contentions filed by Mr Davis on 13 March 2020, the suggestion was made that the decision to carry out the 'Streamlining Hoddle Street' Project had in fact been made at the time when the Labour Party, in opposition, had announced it as a pre-election policy, in March 2014.[17] This contention was not repeated in the written submission prepared by Mr Tehan on 30 July 2020, nor was it referred to in his oral argument. To the extent it is persisted with, the evidence clearly shows that the decision to allocate funding, and to actually proceed with the Project, was made in 2016. It also shows that it was made through a Cabinet process, not by an individual minister (as the earlier submissions also suggested could have been the case).[18]
4. Finally, Mr Davis contested the MTIA's position that the circumstances and evidence here are analogous to those applicable in Donnellan v Linking Melbourne Authority [2014] VCAT 1027, where the business case for the East West Link Project was found to be exempt under s 28(1)(b). The applicant contended that the Streamlining Hoddle Street Project could not be equated with the East West Link Project, which was 'many orders of magnitude' different.[19] Also, it was noted in oral submissions that the evidence led in support of the application of the exemption in Donnellan was much more extensive than here. (In that case, the Tribunal concluded that the evidence of 'three senior public servants intimately involved in the process of guiding the business plan from its inception to its submission to the Cabinet committees far outweigh[ed] the evidence adduced on behalf of the applicant.)[20]
5. Both these statements are correct, however the Streamlining Hoddle Street Project is nevertheless a very substantial undertaking, well above the $10 million threshold requiring a long form business case. Although the evidence here is not as extensive as it was for the 'mega' East West Link Project, I am satisfied it demonstrates that the Business Case was prepared for the purpose of submission for consideration by the sub-committee of Cabinet responsible for approving matters to be included in the 2016 State Budget.

1. I find that the Business Case is exempt under s 28(1)(b). The respondent's deemed refusal to release that document is affirmed.

[1] References to Cabinet or Cabinet documents in this decision include references to events or documents concerning Cabinet committees or sub-committees. This is in accordance with the inclusion of those bodies within the definition of 'Cabinet' in s 28(7) of the FOI Act.

[2] Ryan v Department of Infrastructure [2004] VCAT 2346 at [34], Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 at [15] per Buchanan JA (with whom Ashley JJA and Smith AJA agreed).

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

1. [4] Re Pullen and Alpine Resorts Commission; (unreported, AAT of Vic, Macnamara DP, 23 August 1996); Wilson v Department of Premier & Cabinet [2001] VCAT 663, Asher v Department of Infrastructure [2006] VCAT 1375.

[5] Ryan v Department of Infrastructure [2004] VCAT 2346 at [34]; Secretary to the Department of Treasury and Finance v Richard Dalla-Riva [2007] VSCA 11 at [13]; Re Mildenhall and Department of Premier and Cabinet (No 1) (1995) 8 VAR 284; Herald & Weekly Times and Victorian Curriculum & Assessment Authority [2004] VCAT 924 .

[6] Ryan v Department of Infrastructure [2004] VCAT 2346 at [34] - [36].

[7] Birnbauer v Department of Industry Technology and Resources (1986) 1 VAR 279 at 286.

[8] In this regard, see the comments by Harbison J in Asher v Department of Premier and Cabinet [2008] VCAT 450 at [14] - [17].

[9] I understand this to refer to 'Total Estimated Investment'.

[10] In cross-examination, Mr Pauwels said that the continuous flow intersection was unique in Victoria, indeed in Australia. There was, however, a 'P-turn' intersection at the Cranbourne/ Packenham Roads intersection.

[11] VCAT footnote: In the Court of Appeal hearing, there was no appearance on behalf of Mr Dalla-Riva. At [12], Buchanan JA said, 'Unfortunately, shortly before the appeal was heard, the respondent withdrew his instructions from his solicitor and did not participate in the hearing of the appeal'.

[12] Footnote in judgement of Buchanan JA: Mills v. Mills [1938] HCA 4; (1938) 60 C.L.R. 150 at 186 per Dixon, J

[13] Footnote in judgement of Buchanan JA: In order to avoid the conclusion that a document prepared both for the purpose referred to in paragraph (b) and the purpose referred to in paragraph (ba) is not exempt, it would be necessary to construe the section as requiring that a document be prepared only for the purposes prescribed by the section, rather than that each paragraph requires the document to be prepared for the sole purpose set out in the paragraph.

[14] . Dalla-Riva v Department of Treasury and Finance [2007] VCAT 1988.

1. [15] This decision relevantly concerned action taken by directors of a company to issue bonus shares. The question was whether this was done for the illegitimate purpose of maintaining the voting strength of those directors (following the resignation of another director of the company). The passage from the decision of Dixon J relied on is, '... if, except for some ulterior and illegitimate object, the power would not have been exercised, that which has been attempted as an ostensible exercise of the power will be void, notwithstanding that the directors may incidentally bring about a result which is within the purpose of the power and which they consider desirable.' (Mills v. Mills [1938] HCA 4; (1938) 60 C.L.R. 150 at 186.)

[16] Ryan v Department of Infrastructure [2004] VCAT 2346 at [35] and following.

[17] Applicant's Legal Contentions, 13 March 2020 at [22].

[18] Applicant's Legal Contentions, 13 March 2020 at [14].

[19] Applicant's Legal Contentions, 13 March 2020 at [23].

[20] Donnellan v Linking Melbourne Authority [2014] VCAT 1027 at [62].