1. In February 2024, VCAT received an application from the Department of Energy Water Land and Planning ('DEWLP') naming Mr Danny Milsom as respondent.
2. Under section 50(3D) of the Freedom of Information Act 1982 (Vic) ('FOI Act'), DWELP sought review of a decision of Acting Victorian Information Commissioner ('the Commissioner') to release documents to Mr Milsom.
3. In September 2020 Mr Milsom requested under the FOI Act documents regarding a caveat his legal representative lodged on his behalf on 12 November 2019 with DEWLP. The caveat was later removed on application of another party. Mr Milsom seeks clarification about the process of the removal of the caveat.
4. Since the VCAT application, DEWLP was amalgamated into the Department of Transport and Planning ('DTP'), which is now the applicant in this proceeding.
5. Mr Milsom's FOI request was for:
   1. All emails and correspondence between Land Victoria and the lodging party specifically relating to the application for a removal of caveat AT125715X - particularly those emails relating to the lodgment of a second updated solicitors' certificate which is estimated to have been received by Land Victoria between 01/04/2020 to 30/06/2020.
   2. All Land Victoria internal emails relating to the application for a removal of caveat AT125715X from 01/04/2020 onwards.[1]
6. He later clarified his request:

My FOI request now only requires emails and correspondence for a specific matter and for a limited period.

Please note I presently agree to the redaction of personal information (such as names, titles and contact details) from the information however - it required - I reserve my right to seek full copies at a later date.[2]

1. DELWP identified 35 documents that fell within the scope of the request and by decision letter dated 9 November 2020 refused to provide access to seven documents under section 30(1) FOI Act.[3]
2. DWELP decided that:
   1. Documents 1, 5, 10 and 16 were released in full;
   2. Documents 2-4, 6-9, 11, 13-15, 17-20, 23, 24, 26-29, 31, 35 were released in part with the redaction of the information in accordance with section 25 of the FOI Act. The information redacted from these documents accords with Mr Milsom's exclusions; and
   3. Documents 12, 21, 22, 25, 30, 32, 33 and 34 were exempt from release under sections 30(1) and 25.[4]
3. The exempted documents were emails and draft letters sent between officers of DELWP that contained opinion, advice, recommendations, draft opinions, letters and the seeking of advice between officers, rather than final positions of the officers or DEWLP. The eight documents that DELWP exempted in full are identified by the numbers given to them when the decision was made.
4. Mr Milsom sought a review of the DEWLP's decision by the Office of the Victorian Information Commissioner ('OVIC').

1. OVIC identified further documents that fell within the scope of the request that were links or attachments to pages referred to in documents 21, 22, 24 and 25. DELWP took the position that these further documents were exempt under section 30(1) of the FOI Act.[5]
2. On 24 June 2021 OVIC decided to release the eight documents, exempted by DEWLP under section 30(1) of the FOI Act, with redactions under section 25 of the FOI Act. These are documents 34, 33, 32, 30, 22, 21 and 12.[6]
3. OVIC found that the documents were internal working document for the purposes of section 30(1) of the FOI Act. They contained opinion and advice prepared by DEWLP Officers and in consultation with DEWLP Officers. However OVIC continued:

On balance, I have determined it would not contrary be to the public interest to release the opinions, advice and consultation, for the following reasons:

(a) The Agency submits certain documents were prepared as drafts in the course of training an Agency officer and the documents are sensitive in nature. The Agency submits their release would undermine communications between Agency officers in training and the Assistant/Deputy Registrar and would undermine the methods used to train new legal officers within the Agency. Although I acknowledge the Agency has carefully considered the documents in order to release information that reflects a final position or view of the Agency,

I do not consider the information exempted by the Agency is particularly sensitive such that its release would undermine communications between Agency officers or diminish the Agency's deliberative processes. I am of the view it is common practice for public sector employees to receive training in which draft documents are created for that purpose which may not reflect a final position taken by the Agency. If necessary, I consider it would be open to the Agency to explain why any information in the draft documents differs from a final version.

(b) I note the Agency's view disclosure of the documents could misrepresent the Agency's final position. In my view, the public is capable of understanding such advice or opinions are provided at a particular point in time and may be one of a number of sources of advice contributing to the Agency's overall assessment of or position on an issue. I consider it would be open to the Agency to provide an explanation as to the Agency's current position regarding the matter, in addition to the information already provided to the Applicant's legal representative.

(c) While I accept there is a public interest in preserving the ability of Agency officers to express their views and provide information to an Agency in an open and fulsome way, I consider greater transparency and accountability can improve the provision of such advice.

(d) I consider there is a strong public interest in ensuring the role performed by a public sector agency is transparent. In any case, it is arguable Agency officers are responsible for ensuring advice provided is accurate, complete and properly considered on matters central to an Agency's statutory functions. It is the role of government, supported and informed by analysis and advice undertaken by departments and agency officers to make decisions and act in the best interests of the public - a role that is necessarily the subject of public scrutiny. I consider release would provide transparency in the way in which Agency officers support the Registrar in the performance of the Registrar's statutory functions.

(e) The registration of dealings on certificates of title is a governmental function of the Agency authorised under law. This is a public function carried out by the Agency, rather than being a private right exercised by an individual. I consider granting access to the documents would promote the public interest in ensuring there is transparency and accountability in the Registrar performing their functions, including giving notice to a caveator under section 89A of the Transfer of Land Act 1958 (Vic).

Accordingly, I am not satisfied it would be contrary to the public interest to release certain information in the documents.[7]

1. DEWLP, then applied to VCAT for review of OVIC's decision, under section 50(3D) of the FOI Act.
2. It later raised the legal professional privilege exemption under section 32 of the FOI Act, as it may do.[8]
3. On 21 November 2024, DTP's application came before VCAT for hearing. I heard evidence and submissions and reserved my decision.

1. Under section 13 of the FOI Act, Mr Milsom has the right to obtain documents, unless a document is wholly or in part an exempt document.
2. Section 3 says the Act's object is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for public purposes and that any discretions conferred by the FOI Act shall be exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Section 16 requires agencies to administer the FOI Act with a view to making the maximum amount of information promptly and inexpensively available to the public.
4. The above is subject to exemptions from release, including the exemptions relevant here.
5. DTP bears the onus of satisfying VCAT that the documents in dispute are exempt from disclosure.

1. The grounds of exemption, sections 30(1) and 32 relevantly say:

30 Internal Working Documents

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(b) would be contrary to the public interest.

...

(3) This section does not apply to a document by reason only of purely factual material contained in the document.

...

32 Documents affecting Legal Proceedings

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

1. The public interest override set out in section 50(4) says:

On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power 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), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. This is an email chain with an attachment. Emails between a Warrants Officer, who deals with land titles and compliance, and Land Victoria Legal.
2. External emails with Mr Milsom's solicitor - these were discussed during the hearing as being outside of the scope of the request as Mr Milsom would have received a copy of these documents.

1. This is a repeat of the emails contained within document 30 including the external emails exchanged with Mr Milsom's Solicitor. It also includes an email with a response between a Branch Manager at DEWLP and a solicitor from Land Victoria Legal.

1. This is a repeat of all that came before in documents 30 and 32 and a continuation of a chain of emails between a Warrants Officer from DEWLP and Land Victoria Legal.

1. A continuation of the email chain in the previous three documents, 30, 32 and 33. It also includes an email from Solicitor in Land Use Victoria Legal and a Warrants Officer from DEWLP seeking advice regarding next steps.

1. This is a continuation of the email chain contained within 30, 32, 33 and 34 and the noting of an administration task being completed by a DEWLP employee sent to solicitors at Land Use Victoria Legal.

1. This includes a task record of the work being done on the matter and an email attaching a draft letter from a junior solicitor to the principal solicitor at Land Use Victoria Legal.

1. This is a further email chain with draft letter attachment. Including a task record of the work continuing to be done on the matter.

1. This is an email chain between solicitors at Land Use Victoria Legal with attachment of the final draft of a the letter to Mr Milsom's Solicitor.

1. Mr Gen Itoh, Principal Solicitor of the legal team of Land Use Victoria ('LUV Legal') provided a witness statement dated 17 August 2024.
2. His evidence was that the exempt documents involve the decision making process of DEWLP regarding the removal of the caveat and that a junior solicitor who was being trained and supervised by Mr Itoh was providing advice and opinion during this process.[9]
3. He further stated, in relation to section 30(1) of the FOI Act that the release of the material could disrupt training of junior members of staff who are encouraged to form an opinion and provide that opinion to a supervisor and that if the process were to be publicly accessible it has the potential to hinder the development of junior staff.[10]
4. Mr Itoh further stated that a draft or preliminary opinion may cause confusion if released when the final position is quite different to the draft.[11]
5. He also asserted privilege over the exempted documents, provided an understanding of the document storage system known as Enterprise Content Management (ECM) and confirmed that the limited access to the disputed documents within the LUV ensures that privilege was not waived in any of the exempted documents.[12]
6. Mr Itoh, under questioning, maintained that the disputed documents were internal working documents and that it would not be in the public's interest to release the documents as it would hamper discussion between department officers and the training of junior officers if those discussions and drafts were able to be accessed by the public under the FOI Act.
7. He asserted privilege over the email communications between DEWLP's Warrants Officers and the internal legal team (LUV Legal) as communications that satisfied the dominant purpose of legal professional privilege.
8. However, Mr Itoh was unable to clearly state that the draft letters attached to documents numbered 21, 22 and 25 would satisfy legal professional privilege's dominant purpose test.

1. DTP submitted that the documents were exempt under section 30(1) of the FOI Act as the disclosure of the fully exempt documents would disclose:
   1. ... an officer's opinion, advice or recommendation, or consultation or deliberation between officers, in the course of the deliberative processes involved in the Department's functions.
   2. [That] deliberative processes ha[ve] a wide meaning and encompasses discussions of the nature involved in this matter.
   3. A document need only relate to the relevant deliberative processes and need not comprise those processes.[13]
   4. Applying the usual principles, disclosure of the documents for which s 30(1) of the FOI Act is claimed would be contrary to the public interest.[14]
2. DTP submitted that the documents sought contain sensitive communications between DEWLP staff, the material within the documents are sensitive and contentious and that it would be contrary to the public interest to disclose the documents because it would have an adverse effect on the decision making process within the department.[15]
3. In addition, that, 'public interest concerns the interest of the public as distinct from the interest of individuals, however deeply they may feel about the issue.'[16]
4. DTP also submitted that the disputed documents are exempt from release under section 32 because they contain confidential communication between DEWLP and DEWLP's legal advisors and that the documents were created for the dominant purpose of providing legal advice.[17]
5. It maintained that the disputed documents would satisfy sections 117 and 118 of the Evidence Act 2008 (Vic) ('Evidence Act').[18]
6. Neither DEWLP nor DTP has waived privilege.[19]
7. That section 25 of the FOI Act cannot be applied to the exempt documents as the redactions required to release those documents would make the documents meaningless.[20]
8. Finally DTP submitted there was no basis for VCAT to invoke the rarely used public interest override provided for in section 50(4) of the FOI Act which requires that the respondent provide the basis for the public interest and that there is no evidence that supports the application of section 50(4) of the FOI Act to the exempted documents.[21]
9. In closing, the applicant's Counsel, submitted that all information withheld under s 25 of the FOI Act was outside of the request, as Mr Milsom said in his original request that he had no interest in personally identifying material.
10. That privilege was not pressed in relation to the draft letters attached to documents 21, 22 and 25.
11. However, that privilege was maintained over all of the disputed documents apart from the draft letters attached to documents 21, 22 and 25 as these communications were between warrant officers from the department and the internal legal team.
12. That sections 118 and 119 of the Evidence Act would apply to the documents that privilege is claimed under s 32 of the FOI Act.[22]
13. That section 30 of the FOI Act applied to all of the disputed documents in that the documents were internal working documents for the purposes of the FOI Act and that it was not in the public interest that the documents be released for the following reasons:
    1. It would 'blunt the willingness' of the staff of the department to discuss and seek input knowing that those discussions could be released to the public and as such would be detrimental to the departments efficient functioning;
    2. That the department had apologised in open correspondence to the respondent and that as a result there is no public interest in the release of the documents preceding the final letter; and
    3. That the burden of proof of the public interest override applying under s 50(4) FOI Act fell to the respondent and that his submissions did not reach the threshold for consideration of this section of the s 50(4) FOI Act.

1. Mr Milsom submitted:
   1. That he was at a disadvantage during the hearing as he had not sighted the documents;
   2. That the decision by OVIC was robust and should be affirmed by the Tribunal;
   3. That there is public interest in the release of the documents as they reveal the inner workings of DEWLP;
   4. That privilege was not claimed prior to the decision of the OVIC and that the claim of privilege should be carefully scrutinised by the Tribunal; and
   5. Although a letter was received in relation to this matter from the department he was of the opinion that the department was not upfront about what had occurred and as such the release of the disputed documents was in the public interest.
2. In addition, he submitted that the dominant purpose test of the privilege claims could not apply to all of the documents that the applicant claims privilege over and that each claim should be carefully considered.[23]

1. DTP made broad submissions applying each section of the legislation across all of the disputed documents. Given the disputed documents are parts of an email trail, I will deal with the application of the FOI Act to all of the disputed documents as a group.

1. In initial communications with the FOI Officer at DEWLP, Mr Milsom noted that they did not seek personal or identifying information in relation to the documents sought. He has argued that as a result, the redactions of identifying material from the disputed documents are outside the scope of the Mr Milsom's request.[24]
2. OVIC in its decision has found that they were 'satisfied information the Agency deleted as irrelevant falls outside the terms of [Mr Milsom]'s request.'[25]
3. In addition, OVIC made its own finding regarding further redactions to enable access to documents where they were 'satisfied it is practicable to delete irrelevant or exempt information in a document in accordance with section 25, I have determined to grant access to that document in part.'[26]
4. The findings by OVIC support the redaction of the personal identifying material by the agency within the disputed documents.[27]
5. I further find that, based on Mr Milsom's initial request and that he did not seek identifying material, and my reading of the documents, that the redactions under section 25 of the FOI Act are irrelevant material that falls outside of the scope of the request.

1. A document would be an exempt document under Section of the 30 FOI Act if the document is not purely factual and it would not be in the public interest to disclose the document.
2. In Tucker v Commissioner of State Revenue,[28] Quigley J discusses the purpose of the exemption:

The purpose of the exemption is to protect the deliberative processes of government and to ensure that measure of confidentiality which will enable policy and like decisions to be taken after as frank as possible exchange of views and ideas between officers of the public service. The SRO submitted that documents in respect of which the exemption was claimed would if disclosed have a chilling effect on the giving of independent, frank and fearless advice by officers in relation to the decisions they have to make. Further, the quality of the advice to be provided would be compromised in that preliminary discussion and debate would be inhibited and there would be a reluctance to create a written record of such a discussion and debate if drafts of other preliminary internal working documents were subject to disclosure.

To fall within the exemption the document should either record the opinion, advice or recommendation or disclose it. A document that discloses material in the nature of consultation or deliberation also falls within s 30(1)(a). The term 'deliberative processes' is wide enough to include any of the processes of deliberation or consultation involved in the functions of an agency, what might be described as the agency's 'thinking processes'.[29]

1. I am satisfied that all of the disputed documents are internal working documents in that they contain the deliberations, considerations, advice and opinion between officers of a department.
2. When considering whether the release of disputed documents would not be in the public interest the considerations to be undertaken are provided by Justice Quigley in Tucker v Commissioner of State Revenue:
   1. regard must be had to both the nature of the information and nature of the document;
   2. the more sensitive or contentious issues involved in the communication, the more likely it is that communication should not be disclosed;
   3. draft internal working documents or preliminary advices and opinions are more generally than not inappropriate for release. This is particularly so when the final version of the document has been made public;
   4. it is contrary to the public interest to disclose documents reflecting possibilities considered but not eventually adopted, as such disclosure would be likely to lead to confusion and ill-informed debate;
   5. decision-makers should be judged on their final decisions and their reasons for them, not on what might have been considered or recommended by others in preliminary or draft internal working documents;
   6. it is contrary to the public interest to disclose documents that would have an adverse effect on the integrity or effectiveness of decision-making investigative or other processes; and
   7. public interest concerns the interest of the public as distinct from the interest of individuals.[30]
3. The documents contain discussions between warrant officers and LUV Legal that is neither sensitive nor contentious.
4. The documents do contain draft letters and opinions of department officers however the draft letters do not contain material that could be considered to be confusing or lead to ill informed debate.
5. DTP raised the concern that the release of the documents would make departmental deliberations and the training of junior officers who are encouraged to draft documents taking a position rather than being directed to the required position as potentially obstructing the training of officers and the general ability of officers to consider a range of opinions and considerations prior to making a final decision.[31]
6. DTF's submissions reflect Vice President Hampel's position in Friends of Mallacoota Inc v Department of Planning and Community Development wherein Judge Hampel stated that 'disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision maker and may prejudice the integrity of the decision-making process'.[32]
7. Although DTP submitted that the release of the draft letter could hamper the training of junior solicitors and blunt internal discussion or opinions shared between officers.
   1. I have considered the following:
   2. The length of time that has passed since the creation of the documents; and
   3. That the information contained within the email chains and the draft letters is not contentious and that the documents do not contain material that would undermine or distort the decision making processes of the department.
8. When considered in light of the aims of the Act as articulated in section 3 FOI Act and the consideration of the OVIC decision that there is:

public interest in the community being better informed about the way in which the Agency carries out its functions, including its deliberative, consultative and decision making processes and whether the underlying issues require greater public scrutiny.

public interest in preserving the ability of Agency officers to express their views and provide information to an Agency in an open and fulsome way, [they] consider greater transparency and accountability can improve the provision of such advice.[33]

1. I have reached the conclusion that all of the disputed documents are not exempt under section 30(1).
2. However, the Tribunal must next consider the claim by the applicant that privilege under section 32 of the FOI Act applies to the disputed documents.

1. Under section 32 FOI Act a document is exempt if it is subject to privilege as per the requirements of the Evidence Act.[34]

Legal professional privilege [is] summarised in Martin v Melbourne Health as an important common law right held by the recipient of legal advice. It arises from a person's right to seek legal advice knowing that what is disclosed in the course of receiving advice will remain confidential as between the client and legal adviser. The privilege arises in respect of legal advice where there are pending or current legal proceedings and in respect of communications for the purpose of providing legal advice (referred to as advice privilege) ...

Advice privilege attaches to confidential communications between a client and his or her lawyer for the dominant purpose of obtaining or giving legal advice. The mere fact a client speaks with their lawyer does not make the communication privileged - the dominant purpose of the communication must be for legal advice. Similarly, the mere fact a document says it is privileged will not make it so - the requisite dominant purpose must be proven.

The test to be applied is an objective one and it looks to the primary or substantial reason for the communication. Where there are mixed purposes, the task is to identify the paramount purpose.

Advice privilege will apply to in-house lawyers provided the other requirements are met.

...

Advice privilege applies to draft letters and other documents where they were produced for the dominant purpose of providing legal advice. Otherwise, if they were released, the content of the final legal advice is likely to be revealed thereby undoing the value of the privilege applying to the final document.[35]

1. Mr Itoh in his evidence was asked to consider whether the dominant purpose test applied to each of the disputed documents. The dominant purpose test as articulated by CJ Barwick in Grant v Downs is described as:

a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

In the application of this principle, the fact that the person who produced, or the person or authority who or which directed the production of the document, had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose.[36]

This position of Barwick's was later affirmed in Esso.[37]

1. Mr Itoh was clear in his oral evidence that privilege applied to documents 30, 32, 33, 34, 12, 21, 22 and 25, except the attachments of documents 21, 22 and 25, as they were communications between warrant officers from DEWLP and LUV Legal for the dominant purpose of seeking legal advice.
2. However, Mr Itoh stated that he was unable to say whether the dominant purpose of the attachments to documents 21, 22 and 25 being the draft letters and final draft letter were produced for the dominant purpose of legal advice.
3. In closings, Counsel for DTP stated that privilege was not pressed over the attachments of documents 21, 22 and 25 being two draft letters and a final draft letter.
4. It is clear from the content of the disputed documents, not including the attachments of 21, 22 and 25 that they are subject to legal professional privilege and exempt from release under section 32. They are communications between warrant officers and Land Use Victoria Legal for the provision of legal advice. The dominant purpose of the documents was to seek legal advice and as such they are exempt from disclosure.
5. That exemption does not apply to the attachments of documents 21, 22 and 25.

Section 50(4)

1. Section 50(4) of the FOI Act known as the public interest override was raised by Mr Milsom based on public interest in the inner workings of DEWLP/DTP.[38]
2. DTP maintained in their submissions that the onus of proof for the application of the public interest override lay with Mr Milsom.[39]
3. Mr Milsom made written submissions and stated during the hearing that the internal workings of the department were of interest to the public and that public interest would be diminished by the non-release of the documents. With the result that DEWLP would be 'able to avoid the scrutiny and accountability for its failed processes and conduct, which every member of the Victorian Community is entitled to demand by virtue of the statutory mandates of the PAA and the significant and important public role the Office of Titles discharges in this State.'[40]
4. Section 50(4) FOI Act is only able to be asserted if the public interest is such that the disclosure of the information is 'required'.
5. The High Court in Osland v Secretary to the Department of Justice stated:

It must be accepted that the word "requires" which appears in S 50(4) [FOI Act] 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.[41]

1. It is open to the Tribunal to find that the public interest override applies to documents that are exempted under section 30(1) and section 32 of the FOI Act.
2. Documents exempted under section 32 FOI Act, the legal professional privilege exemption, as previously stated would only reach the public interest override threshold if the Tribunal found that they were required by the public interest to be released.[42]
3. There is a clear public interest in the maintaining of legal professional privilege. The overriding of legal professional privilege is a high threshold as '[legal professional] privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.'[43]
4. To override an exempt document that has been found to be privileged would require that there is greater public interest in the release of the document than the public interest in the ability of lawyers and their clients to maintain confidentiality.
5. This is a dispute that has arisen from Mr Milsom's private concern. Although private concerns can result in a public interest this concern does not raise a public interest argument to the level required by section 50(4) of the FOI Act which is beyond the level of 'exceptional circumstances' to require the release of the exempted document/s.[44]
6. There is no basis to here invoke the public interest override.

[1] The applicant's request Tribunal Book ('TB') pg 28.

[4] Applicant's Legal Contentions dated 17 August 2022 TB pg 8.

[5] OVIC Decision letter dated 24 June 2021 TB pg 143.

[7] OVIC Decision Letter dated 24 June 2021 TB pg 146-147.

[8] See Tucker v Commissioner of State Revenue (Review and Regulation) [2019] VCAT 2018 [51]-[52].

[9] Witness Statement Gen Itoh TB pg 17-18.

[13]. Applicants Legal Contentions dated 17 August 2022 TB pg 8.

[14] Ibid TB pg 8 citing Scott v Office of the Assistant Treasurer (Vic) [2013] VCAT 2015; and Friends of Mallacoota In v Department of Planning and Community Development [2011] VCAT 1889.

[20] Ibid pg 10 TB citing Honeywood v Department of Human Services [2006] VCAT 2048; and Proctor v Mornington Peninsula Shire (Review and Regulation) [2018] VCAT 638.

[21] Ibid TB pg 11 citing Re State Bank of NSW v Department of Treasury (1991) 5 VAR 78.

[22] Evidence Act sections 118 and 119.

[23] Ibid Mr Milsom's Legal Contentions TB pg 172.

[25] OVIC Decision Letter, dated 24 June 2021 TB pg 142.

[28] Tucker v Commissioner of State Revenue [2019] VCAT 2018 [79].

[32] Friends of Mallacoota Inc v Department of Planning and Community Development (General) [2011] VCAT 1889.

[34] Evidence Act sections 118 and 119.

[35] Martin v Melbourne Health (Review and Regulation) (Corrected) [2019] VCAT 1190.

[36] Grant v Downs [1976] HCA 135 CLR 674.

[37] Esso Australia Resources v Federal Commissioner of Taxation [1999] HCA 67.

[38] Mr Milsom's Legal Contentions TB pg 186.

[41] Osland v Secretary to the Department of Justice [2010] HCA 24 at [14].

[43] Esso Australia Resources v Federal Commissioner of Taxation [1999] HCA 67 at [35].

[44] Osland v Secretary Department of Justice [2010] HCA 24 at [14]; and Graze v Commissioner of State Revenue [2013] VCAT 869 at [72].