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[2003] VCAT 777
mixed. The Tribunal inspected documents lodged under s.49(3) and found the overwhelming majority irrelevant to the decisions under review; in three limited instances the judge reserved leave to hear further...
After an earlier VCAT ruling ordered the TAC to lodge potentially relevant documents under s.49(3), the Tribunal adopted an in-camera, FOI-style procedure to inspect those documents and decide whether they were actually relevant to the decisions under review. Judge Bowman inspected the lodged materials in four cases and found most to be administrative or otherwise irrelevant, reserved limited argument on a few entries, and made no order as to costs, directing costs to lie where they fall.
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1,670 words · generated 18/08/2026
This is a further decision by Judge Bowman in consolidated VCAT matters in which applicants (Filonis and others) sought further documents and reasons from the Transport Accident Commission (TAC) under s.49(3) of the Victorian Civil and Administrative Tribunal Act 1998. An earlier VCAT decision of 16 April 2003 had ordered that certain documents (principally file notes and statements of reasons) be lodged with the Tribunal as potentially relevant to the review of TAC decisions [1]. The present proceedings, heard 10 June 2003 with decision dated 4 July 2003, returned four of those matters for the Tribunal to resolve procedural questions arising from those s.49(3) orders and to decide costs [1–2, 3, 13–16].
No linked legislation citations have been extracted yet.
The parties effectively agreed a procedure by which the respondent would provide the documents ordered to the Tribunal for inspection, modelled on the administrative procedure used under the Freedom of Information Act 1982. The applicants conceded that certain categories of material should not be released (legal advice, uncommunicated offers, without prejudice negotiations, common law estimates), and the Tribunal inspected the lodged documents to determine whether each item was in fact relevant to the decision under review and whether it should be released or form part of a Tribunal book [3–6]. The Tribunal inspected materials in four matters (Bernstein, Munyard, Sikic, Tzaros), summarised what the documents contained, and concluded that most items were administrative and irrelevant to the decision under review. The Tribunal reserved limited argument in a small number of instances where relevance was less clear [7–12]. Finally, after balancing the consolidated results, the Tribunal exercised its costs discretion under s.79(2) of the Transport Accident Act 1986 and ordered no costs: costs were to lie where they fell [21–23].
Two connected issues drove the decision.
The procedural lacuna in s.49(3): s.49(3) of the VCAT Act requires written notice to a decision-maker to lodge copies of documents "which may be relevant" with the Tribunal, but the statute is silent on post-lodgement procedure, whether and how the applicants may inspect lodged material, and how the Tribunal should handle confidential information. The Tribunal treated this silence as authorising the Tribunal to adopt a practical procedure to resolve those questions. The parties consented to a FOI-style process in which the respondent provides the documents to the Tribunal for in-camera inspection and the Tribunal then determines relevance and release [3–6]. Judge Bowman explicitly frames the problem: the Tribunal is "unaware of their contents" once documents are lodged and must determine what happens next [4].
The relevance test and confidentiality limits: the Tribunal applied a relevance test tied specifically to the decision under review (and any additional statement of reasons), concluding that documents which do not relate to the decision or its reasons are not relevant to the review [7–12]. The Tribunal also accepted that certain categories (legal advice, untransmitted offers, without prejudice negotiations, common law estimates) should not be released under its adopted procedure [5]. Those confidentiality statements were treated as operating limitations on what s.49(3) disclosure could achieve in practice.
For costs, the Tribunal applied the statutory discretion under s.79(2) of the Transport Accident Act, observing that costs decisions should be just and not a mechanical score card. The judge treated the six consolidated hearings as a single case and weighed the parties’ overall success. Although the applicants secured some orders (further reasons and lodgement of documents), they succeeded on a relatively small proportion of what they originally sought, and most lodged documents proved irrelevant. Taking that overall picture, Judge Bowman concluded it was just to make no order as to costs [14–23].
Before this decision: s.49(3) plainly authorised the Tribunal to require lodging of documents held by decision-makers that "may be relevant" to the review. What was not settled, at least in the statutory text, was the post-lodgement procedure: how the Tribunal should manage potentially confidential material and whether applicants are entitled to automatic inspection once documents are lodged.
What this decision clarifies (within the context of VCAT practice): the Tribunal may adopt an in-camera inspection and procedural modelled on FOI practice to determine whether lodged documents are indeed relevant and whether they should be released or included in Tribunal books. The judgment also sets practical limits on disclosure by treating categories of confidential material as outside the scope of disclosure under the procedure adopted here (examples provided: legal advice, uncommunicated offers, without prejudice negotiations, common law estimates) [5]. The decision thus supplies a pragmatic, tribunal-level approach to resolving an ambiguity in s.49(3), balancing document production with confidentiality concerns.
Note the decision is a VCAT hearing decision by Judge Bowman. It operates as guidance for tribunal practice in similar contexts rather than as binding judicial precedent in the way appellate judgments are. The judgment also demonstrates how costs discretion will be exercised in consolidated matters where results are mixed.
I list several key passages from the judgment with a short plain-English translation and paragraph citation.
"The orders require the lodging of documents which may be relevant. The existence and possible relevance of the documents has been established, but the Tribunal has not seen them. It is unaware of their contents." [4]
"They also very sensibly concede that there should be no release of or access to documents which contain matters in the nature of legal advice ... details of offers which have not been conveyed ... common law estimates ... 'without prejudice' negotiations." [5]
"In any event the documents with which I have been provided in Bernstein are relevant neither to the decision under review, nor to the additional statement of reasons." [7]
"I am of the opinion that a just result is that there should be no order as to costs, and that costs should lie where they fall." [23]
This decision is triggered when:
In those circumstances, this decision indicates two practical steps:
This judgment itself does not record later appellate treatment or cite subsequent decisions applying or distinguishing it. The decision operates as tribunal guidance regarding procedural handling of s.49(3) lodgement and confidentiality. To determine later treatment, a practitioner should search VCAT published decisions and appellate rulings citing Filonis v TAC [2003] VCAT 777 and review whether superior courts have endorsed or altered the approach. The judgment provides a clear factual and procedural template that later tribunals may follow, but this decision alone does not establish binding precedent in superior courts.
The judgment supplies a workable procedure but leaves some questions for future clarification:
Given these open points, practitioners who face s.49(3) disputes should be prepared to argue delicately on relevance, privilege and procedure and anticipate that different factual matrices may produce different outcomes.
Note: This analysis is based solely on the text of Filonis v TAC [2003] VCAT 777 (Judge Bowman, 4 July 2003). It extracts the Tribunal's reasoning, its procedural approach to lodged documents under s.49(3), and the disposal on costs. This is legal information, not legal advice. I can be mistaken. Before relying on or acting on any draft or the interpretations above, get a qualified Australian lawyer to check this work.
Nos. G1010/02, G279/02, G1325/02, G1326/02, G1289/02 G1258/02
VCAT ACT - s.49 - order further documents be lodged - procedure then to be adopted - costs considerations generally
1. Documents ordered to be lodged by TAC basically irrelevant (subject to further argument in three instances).
Mr Nash QC and Mr Pulling instructed by Maurice Blackburn Cashman
1. On 16 April 2003 I delivered a lengthy decision in relation to these six matters. That decision concerned whether or not the respondent Commission should, in each case, provide further documents and reasons pursuant to s.49 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Four of these matters are now back before me for argument concerning the effects of the decisions pursuant to s.49(3), compliance with them, and in relation to costs.
DOCUMENTS TO BE PROVIDED PURSUANT TO S.49(3)
3. Before moving on to the individual cases, it is appropriate to say something concerning the procedure for dealing with them. Essentially by consent, a procedure has been adopted.
4. A difficulty which has arisen is this. In each of the four cases, I made orders pursuant to s.49(3) concerning the lodging of further documents (namely, file notes) which may be relevant. The orders which I made follow the wording of the section - namely, that written notice be given to the decision-maker requiring the decision-maker to lodge the number of copies of those documents required by the rules with the Tribunal. There has been no argument but that orders following the wording of the section were and are appropriate. However, the provision is silent as to what happens next. The orders require the lodging of documents which may be relevant. The existence and possible relevance of the documents has been established, but the Tribunal has not seen them. It is unaware of their contents. What happens if they are, in fact, not relevant? What happens if they contain material which would normally be confidential or "without prejudice"? They may contain details of possible offers which have not been transmitted, or of possible negotiations. They may contain remarks of a personal nature. Once they are lodged with the Tribunal, are the applicants and their advisers entitled to inspect them? If they are not entitled to inspect them, how can they advance arguments as to whether or not the documents are, as opposed to may be, relevant? Should documents, having been lodged, then form part of a Tribunal book?
5. In these instances, the parties have basically asked me to adopt the type of procedure followed in relation to applications pursuant to the Freedom of Information Act 1982. In other words, Mr Masel, on behalf of the respondent, has provided to me the documents which, on his instructions, are those to which my orders apply. Mr Nash QC and Mr Pulling, on behalf of the applicants, accept that they are the missing documents. They also very sensibly concede that there should be no release of or access to documents which contain matters in the nature of legal advice (bearing in mind that I have previously indicated that such matters are not documents that fall within the operation of s.49(3)); to documents which contain details of offers which have not been conveyed; to documents which contain common law estimates; or to documents which contain details of "without prejudice" negotiations.
6. Against this background, I am then asked to examine the documents supplied in each instance, and rule as to whether or not such documents should be released to the applicants and/or contained in a Tribunal book. Against that background, I shall now turn to the documents which have been provided in each of the four cases. It is to be remembered that I am considering whether such documents are relevant to the review of the decision in question.
7. The decision under review in this matter relates to an issue of causation (the possible linking of a shoulder injury suffered in a fall to an earlier leg injury sustained in a motor vehicle accident) and to assessment pursuant to the AMA Guides. Copies of some handwritten file notes have already been provided. I have been handed some nine e-file items. Six relate to internal administrative matters relating to letters concerning payment of medical accounts and the like. Three appear to be of more substance but involve matters not related to the decision under review. They relate to the driver of the other vehicle involved in the subject collision and one refers, very briefly, to legal advice. In my opinion, none are relevant to the decision under review.
8. In addition, I have been provided with two sheets of handwritten file notes, the bulk of which have been exchanged, but which contain two entries deleted from the copies provided to the applicant's solicitors. These seem to me to relate directly to the three e-file items referred to above (the other driver and legal advice). As with that material, they are not relevant to the decision under review. I might add that, in arriving at these findings, I have also considered any additional statement of reasons lodged pursuant to my order of 16 April 2003 and any reference to relevance embraces both the decision and the reasons. In any event the documents with which I have been provided in Bernstein are relevant neither to the decision under review, nor to the additional statement of reasons.
9. The decision under review in this case concerns levels of impairment and which particular areas of bodily impairment are related to the subject accident. The material which I have been handed includes some 12 items of e-file nature which relate to administrative matters such as employment declarations, chemists' receipts, correspondence and the like. There is also a letter of 21 October 2002 which is addressed to Maurice Blackburn Cashman and which deals with the cost of a medical report. None of these items appear to me to be relevant to the decision under review.
10. I have also been provided with copies of handwritten file notes, some of which have been highlighted because they have not been released, and it is disputed whether they should be in any Tribunal book. These entries basically deal with the state of employment of the applicant at the time of occurrence of the subject accident; the circumstances of that accident; loss of earnings and the like. There is one entry which refers to the file going to an impairment officer. However, I could find nothing which I would regard as being relevant to the decision under review.
11. The decision in this matter concerns whether or not the level of impairment of the applicant would reach the threshold of 10% whole person impairment in accordance with the AMA Guides. It is another matter where I ruled that there were file notes in existence that may be relevant and I have been provided with a bundle of e-file type items and also with handwritten file notes. There are some 25 pages of these documents. They deal with a variety of matters, such as hours worked, tax file numbers, chemists and the like. With two possible exceptions, they all seem to be irrelevant to the decision to be reviewed. Indeed, the two possible exceptions to which I refer may also be totally irrelevant. One of these is a handwritten file note in what appears to be March 1999, which refers to a medical report from Mr Hugh Weaver. There is also an e-file item dated 9 September 2002 which refers to a brief report from a Dr O'Brien. I make no order in respect of these entries, but will hear argument if the reference to these reports comes as a surprise to the applicant. Otherwise the material is irrelevant to the decision under review.
12. The decision under review in this matter relates to a decision to cease payment of loss of earnings benefits. The orders that are made relate both to the lodging of file notes and to a report obtained from a psychologist. As I understand it, this latter document has been lodged and provided to the applicant. Accordingly, it is again only disputed file notes which remain to be considered, and there are a large number of these. By my reckoning, there are some 38 pages of such material. Again, a large number are e-file type items. A large number of the e-file items deal with physiotherapy expenses and other matters in relation to treatment. There are references to a report from Mr R Marshall, surgeon, but there is nothing apparently relevant to loss of earnings. There is one handwritten file note, and it does appear to relate to earnings, although not to cessation of benefits. The date of this file note has faded with photocopying but appears to be either February this year or last year. The note itself appear to be a calculation of benefits based upon average weekly earnings, with references to allowances, resumption of work dates and the like. I would be extremely doubtful as to whether it is relevant to the decision under review, but would be prepared to entertain argument as to whether a note of this kind is relevant. I appreciate the difficulties faced by the applicant in that the content of the note has not been seen, but, in fairness, all that I can indicate is that it appears to be concerned more with the calculation of times and amounts, and that there appears to be no reference to the cessation of benefits. Unless the report of Mr Marshall comes as a surprise to the applicant, the rest of the material appears to me to be irrelevant to the decision under review.
13. I am asked to rule in relation to the question of costs generally in relation to the conduct of these applications which resulted in the orders of 16 April 2003, and also in regard to the costs that might have been incurred in relation to the further application concerning the possible relevance of documents lodged.
14. In the original application, the six cases were dealt with at the one hearing which lasted for some two sitting days. Both the individual cases and some matters of general principle were dealt with in the one decision. I agree with the approach proposed by counsel that, whilst individual results should be considered, the matter should be treated, for the purposes of any cost argument, as being one case.
15. It is also my opinion that this hearing concerning the process to be adopted in relation to the lodged documents is an integral part of the initial hearing, and I am also treating it as part of the one case.
16. At the time of my handing down the initial decision, I advised those present that my inclination was to allow costs to lie where they fall, and make no order in respect of them. I also indicated that I would entertain argument as to this, and that my mind was not closed, but that the task confronting a party wanting costs was to persuade me that the parties should not bear their own costs.
17. Mr Nash QC and Mr Pulling, on behalf of the applicants, have now endeavoured to persuade me that the applicants should receive their costs. The respondent's position is that it does not seek costs but argues that each party should bear their own costs.
18. Argument advanced on behalf of the applicants could be briefly summarised as follows. The applicants were successful in obtaining either a further statement of reasons or the lodging of further documents in each of the six cases. Accordingly the case had been brought successfully on their behalf and costs should follow the event. It was further pointed out that, prior to the hearing, there had been no offer of settlement or anything in the nature of a Calderbank letter. It was also suggested that, viewing the case as a whole, perhaps an order that the respondent pay two-thirds of the costs of the applicants might be appropriate, and might reflect the result.
19. The argument on behalf of the respondent is essentially that the applications should be viewed in their totality bearing in mind what was originally sought and comparing this with the outcome. It was again emphasised that, for example, in Munyard some 34 categories of documents were originally sought by the applicant. This number was reduced to three at the hearing, of which only two were ultimately pursued with any vigour. As I understand the argument advanced, it was that the applicants, as a group, had lost far more points or arguments than they had won. Nevertheless, the respondent was not seeking costs, but rather urging that there be no order as to costs.
20. Of course, these arguments were advanced before I had examined the various sets of file notes referred to above.
21. The discretion as to costs contained in the Transport Accident Act 1986 is a broad one - see s.79(2) of that Act. As with all such discretions, it must be exercised judicially. I must make such order as to costs as I think just.
22. I appreciate that, in making such an order, it is not simply a matter of adding up points won as against points lost as if completing a score card. However, viewing the case as a whole, the following matters seem to me to be relevant:-
(a) Viewed in totality, the applicants did in fact lose more of the contested points than did the respondent.
(b) Viewed in totality, and bearing in mind the relief originally sought as opposed to those matters which were ultimately contested, the applicants only succeeded in relation to a relatively small proportion of that which was sought.
(c) Arguments concerning reasons and file notes constituted the bulk of the matters in which the applicants were successful. However, it is to be remembered that the applicants originally were also seeking as a general finding the identity of the decision-maker in each case. Early in the proceedings, counsel for the applicants indicated that such particular request would not be pursued. In addition, the applicants were originally seeking access to legal advice given by TAC Law Pty Ltd to the respondent. Basically, I ruled that such advice was irrelevant to the decision under review, and it became an issue that diminished in significance as the case unfolded. Thus, in relation to what could be described as general findings, whilst such findings in relation to file notes and reasons favoured the applicants, findings in relation to identity and legal advice favoured the respondent.
(d) If my mathematics are correct, there were seven sets of documents which I ordered the respondent to lodge (in another instance, I accepted the assurance of Mr Masel on behalf of the respondent, that certain details of medical and like expenses would be provided, thus removing the necessity for an order). Of those, five related to file notes. Of course, at that stage the issue was whether the missing file notes may be relevant. As discussed above, the overwhelming majority, if not all of them, turned out to be irrelevant. I appreciate that the applicants had not seen those documents, and were entitled to argue for their lodgement. On the other hand, the respondent might argue that it has been proven correct in asserting that these documents (or the overwhelming majority of them) were not relevant to the decisions under review.
23. Bearing all of the above in mind, I am of the opinion that a just result is that there should be no order as to costs, and that costs should lie where they fall.
Filonis
TAC [2003] VCAT 777
The Tribunal inspected documents lodged under s.49(3) and found the overwhelming majority irrelevant to the decisions under review; in three limited instances the judge reserved leave to hear further argument if necessary. The Tribunal made no order as to costs and directed costs to lie where they fall (paras 6-12, 22-23).