1 In January 2000, the applicant, Mr Rodger Hoskin began working as a teacher at Glen Waverley Secondary College. In July that year, the then principal Darrell Fraser spoke with the vice principal of the Glen Eira College where Mr Hoskin had previously worked, Mr Bob King, and made notes of that conversation in which Mr King was critical of Mr Hoskin. In July 2002, following a psychiatric report, Mr Hoskin was placed on paid sick leave. He returned to work in July 2004. He is the applicant in a Federal Court action against the Department of Education which employed him concerning these events.

2 Mr Hoskin has made previous applications to this Tribunal seeking review of the Department's decisions to withhold some documents created concerning his employment at Glen Waverley Secondary College. In 2003 the Tribunal reviewed the Department's decisions in relation to a number of documents in Re Hoskin and Department of Education and Training [2003] VCAT 946 ("Hoskin No 1") . A further application Re Hoskin and Department of Education and Training G125/2003 ("Hoskin No 2") was withdrawn.

3 In the two present applications, Mr Hoskin asks the Tribunal to review the Department's decisions to withhold only six documents which are called in this proceeding documents Nos 1, 2, 3, 4, 8 and 9 and are described in the schedule attached to the respondent's section 49 statement.

4 The Department claimed Mr Hoskin's application for review is an abuse of process. It applied under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for an order dismissing or striking out all or some of the proceedings. Alternatively, the Department claimed the Tribunal had already reviewed the Department's decisions about some of the documents and could strike the application or some of it out on those grounds, using section 50(6) of the Freedom of Information Act 1982.

5 Four reasons were given by the Department for its claim that the proceedings were an abuse of process -that in requesting the documents the applicant had breached an implied undertaking to the Federal Court; that the applicant was attempting to re-litigate issues already decided by this Tribunal; that the applicant had chosen not to pursue one of the documents in a previous proceeding and that the applicant had withdrawn another proceeding about some of the documents.

6 It is simple to state the issues which I am to decide -whether the proceedings are an abuse of process for any of those four reasons and whether this is an appropriate case for the exercise of the Tribunal's discretion under section 50(6).

7 Section 75 provides:

75. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

8 Mr Hoskin and the Department are also the parties in a Federal Court proceeding in which Mr Hoskin obtained some documents by discovery. The Department contended before me that Mr Hoskin's applications were an abuse of process as contemplated by section 75 because it said the FOI requests on which the applications are based breached an implied undertaking he had given to the Federal Court to use the documents obtained by discovery only for that Federal Court proceeding. The Department contended that Mr Hoskin had used them to frame his FOI request when he requested all of the documents which are the subject of this proceeding by reference to the identification codes which appeared on the discovered versions he has. This use, the Department said, was a breach of the implied undertaking.

9 Mr Sowden, counsel for Mr Hoskin, referred me to Humane Society International Incorporated v Royal Botanic Gardens [2002] VCAT 1051 where he said it appeared that the presiding member had accepted that the proper place to address a breach of an undertaking to a court was in that court. My reading of that decision indicated that the member had in fact decided the point on other grounds so that the reference did not assist me.

10 Mr Pizer for the Department referred me to the case of Home Office v Harman [1983] AC 280 as the source of the relevant principles about the implied undertaking which is said to be given when documents are obtained by the process of discovery during litigation. I considered these principles and Mr Pizer's submissions, but I was not persuaded that framing an FOI request for the documents using the identification codes which appeared on the discovered documents breached the implied undertaking. In any case, whatever I decide about that, the Federal Court might or might not decide differently. The answer was not so obvious that I could be sure the Federal Court would decide one way or the other if the issue arose there. Given it is open to the Federal Court to conclude that the implied undertaking was not breached when the applicant referred to the documents in his FOI request by their identification codes, I ought not decide that it was breached. The Department's application for the proceeding to be struck out as an abuse of process on the ground of a breach of an implied undertaking does not succeed.

11 The Department contended that Mr Hoskin's applications in respect of documents 1, 3, 8 and 9 attempt to re-litigate matters already determined in Hoskin No 1. Mr Pizer referred me to a decision of Deputy President Macnamara of this Tribunal in Re Knight v CORE [2003] VCAT 501. In that case, the Tribunal struck out an application by Mr Knight as an abuse of process on the ground that it raised issues already determined by the Tribunal in a previous application by him. In the first application, the Tribunal had determined that release of the names of people who corresponded in writing with Mr Knight (a high security prisoner) would be an unreasonable disclosure of their personal affairs. The application before Deputy President Macnamara concerned a document containing the names of people who visited Mr Knight. The learned Deputy President said:

"[19] Once that issue has been determined by the Tribunal once, namely that revelation of names or other identifying material of individuals associating and communicating with Mr Knight under the Freedom of Information Act would be an unreasonable disclosure of information relating to their personal affairs, it cannot be reopened between the same parties (or perhaps even different parties) in further proceedings. That is the consequence of the principle applied by the New South Wales Court of Appeal in Russo's case."

12 In considering the principle on which such a reopening of issues amounted to an abuse of process, the learned Deputy President referred to the doctrines of res judicata and issue estoppel which treat issues already decided as final between those parties. He said:

"[16] The concept of abuse of process is generally cognate with these doctrines but wider still."

13 Mr Sowden for the applicant argued that the doctrine of issue estoppel is a judicial one which cannot be invoked in this Tribunal in an administrative review. He referred me to Commonwealth of Australia v Sciacca [1988] 78 ALR 279. Certainly the question of whether the AAT is bound by the principle of issue estoppel was discussed in that case, but ultimately their Honours said (at page 284):

"The question is not a straightforward one...it is unnecessary to decide the point and, accordingly we express no view on it." (top of last page)

14 The applicant also referred me to Cook v Faithland Inc (1993) 79 LGERA 308 in which the Supreme Court of Victoria found that issue estoppel and res judicata were not binding principles in relation to decisions of a council to grant town planning permits. The Court held that the principles did not apply to discretionary town planning permits, largely because they are discretionary and do not determine any question of fact or legal right apart from whether or not a permit would be granted. Why is it allowable to apply twice or more to a Council for a permit and not to apply twice or more for the same information under freedom of information provisions? The answer is simply that the issue of a permit is discretionary - the application may change, the circumstances may change, the Council's policies may change. The FOI Act on the other hand has not changed and neither have the parties and if the documents contain the same information then it appears the issues have already been dealt with.

15 Whether or not this Tribunal is bound by the doctrines of res judicata or issue estoppel is not the issue before me. The issue is whether the present proceeding is an abuse of process. Re Knight v CORE was decided on the basis of abuse of process, not issue estoppel or res judicata. I agree with the Department's submission that it would an abuse of process to reagitate issues already decided in a previous freedom of information application.

16 The question for me is whether the issues in this case were already decided in Hoskin No 1. In order to consider this question I turn first of all to the documents:

17 Document 1 is Darrell Fraser's handwritten notes of the telephone conversation which took place in July 2000 between Darrell Fraser (then principal of Glen Waverley Secondary College where the applicant was a teacher) and Bob King (then vice principal of Glen Eira College where the applicant had previously taught). Document 3 is a report prepared by Darrell Fraser - it has largely been released to the applicant and the non released passages are the ones which record what Mr King told Mr Fraser in the phone conversation on 28 July 2000; documents 8 and 9 are typed versions of document 1 which were created in May 2003 in the course of preparing for another application by Mr Hoskin about the documents. I refer to that application as Hoskin No.2.

18 In arguing that the application attempts to re-litigate matters already decided in Hoskin No.1, the respondent made two points. First the respondent said that document 12 in Hoskin No.1 (an undated "report of events" prepared by Daryl Fraser) was virtually identical to document 3 in this proceeding. In Hoskin No.1, the Department had released most of Document 12, claiming exemption for the assessment of Mr Hoskin made by Mr King which was recorded in that document. The department's decision was upheld by Judge Higgins in that proceeding. In the reasons given for his decision, his Honour described "Document 12" as something else, but I am satisfied on the basis of the detailed affidavit of the solicitor who acted in that matter (which evidence was not disputed) that his Honour misdescribed the document at this point due to what he himself described as "a degree of confusion with regard to" the schedule of documents. Document 12 in Hoskin No.1 was identical to document 3, from my observation, but for a stamp "copy" and a bar code which appear on document 3 and for an extra page with headings and no content which was attached to document 12 in Hoskin No.1. The applicant's counsel only noted there was "some ambiguity" about document 12. I am satisfied there is none and that document 12 in the previous proceeding Hoskin No.1 is effectively the same as document 3 in this proceeding.

19 The second point made by the respondent was that documents 1, 8 and 9 in this proceeding (handwritten and typed notes of the conversation between Darrell Fraser and Bob King) contained the same information which was held in Hoskin No.1 to be exempt in documents 2, 3 and 12 in that proceeding. I have already deal with document 12. Document 2 and 3 were letters, held to be exempt in Hoskin No. 1.

20 Document 2 in Hoskin No. 1 was dated 2 August 2000 from Darrell Fraser to Bob Neil acting Regional Director and it reports the conversation Mr Fraser had with Mr Bob King. I am satisfied on the basis of the solicitor's affidavit that the copy presented to me attached to that affidavit is the same as document 2 in Hoskin No.1. I am also satisfied that document 1 in these proceedings also prepared by Darrell Fraser as notes of the conversation with Bob King contains the same information as that already dealt with in Hoskin No.1 and found to be exempt.

21 Document 3 in Hoskin No.1 was a letter from Bob King to Darrell Fraser dated 3 August 2000 describing Mr King's experiences with Mr Hoskin. This letter does not say that it is a record of what was said by Mr King in his phone conversation with Mr Fraser on the 28 of July 2000. It does from my observation use some of the same words as the notes in document 1 in expressing concerns. It relates particular incidents which do not appear in document 1 in this proceeding. I am not satisfied that it is the same information exactly as appears in the notes of the conversation which are document 1 in the present proceedings.

22 However, given that I am satisfied that documents 2 and 12 in Hoskin No.1 contain the same information as document 1 in these proceedings and that document 12 in Hoskin No.1 is almost exactly the same as document 3 in these proceedings it follows that to apply again for access to these documents, called 1 and 3 in this proceedings, is an attempt to re-litigate issues already decided.

23 Documents 8 and 9 in this proceeding contain the same information as Document 1. I am satisfied of that by my reading of the documents - they are typed versions of the handwritten notes.

24 The applicant contended it was relevant that documents 8 and 9 were created after Hoskin No.1, so that nothing in that decision applied to them. I do not agree - transcribing a document does not change the information. If this was a case of comparing two versions of a document for a particular purpose, different considerations might apply, but here no such issue has been raised.

25 The applicant argued that although the information in the documents sought might be substantially the same as the documents already dealt with in Hoskin No.1, Documents 8 and 9 in particular (because they are typed rather than handwritten) were different documents and could be the subject of a fresh application without abuse of process. The applicant cited the case in the Commonwealth AAT of Re F.E. Peters and Public Service Board No 83/53 (1984). In that case, the AAT held that documents which were copies of documents the subject of a conclusive certificate under the Federal legislation were also covered by the certificate. Separate documents which contained the same information but were not copies were not treated in the same way, but the Tribunal said that if the certificate had already been upheld then doctrines of issue estoppel or abuse of process might apply. The Tribunal found it unnecessary to decide the questions in that case. Nothing in that case dissuades me from the view that an application about documents which contain the same information as documents already dealt with in a previous application involving the same parties is an attempt to re-litigate matters already decided. The applications are struck out in regard to documents 1, 3, 8 and 9.

26 The respondent also sought a strike out of the applications as an abuse of process on the basis that documents 1, 2, 8 and 9 were the subject of an earlier withdrawn proceeding between the same parties, Hoskin No.2. The respondent said the present applications were an abuse of process unless the Tribunal granted leave pursuant to section 74(2) which provides:

"74(2) If an applicant withdraws an application....

(d) the applicant can not make a further application...in relation to the same facts or circumstances without the leave of the Tribunal."

27 Mr Hoskin sought the Tribunal's leave, rather late in the piece, saying he wished to use the documents to complain to the Ombudsman about events they dealt with and that he now knew he was not free to use them that way in their "discovered" version. The respondent suggested the Tribunal ought not grant the leave sought as the documents were not necessary for the making of a complaint because the Ombudsman has power to obtain any documents required for an investigation.

28 I am satisfied on the basis of an affidavit from the respondent's solicitor that documents 1, 2, 8 and 9 were the subject of the withdrawn proceedings in Hoskin No.2. That evidence was not contested by the applicant.

29 The applications regarding documents 1, 8 and 9 are struck out for the reasons I have given, so granting leave under s.74(2)(d) would be pointless. However document 2 is not excluded by any of the conclusions I have reached.

30 Since in Hoskin No 2 the applicant withdrew an application for document 2, the present application for that document relates to "the same facts and circumstances" and requires leave. No particular principles for the exercise of the Tribunal's discretion in s.74(2)(d) were suggested to me, except the respondent's submission that the Applicant's reason for seeking leave was not a good one and not particularly credible.

31 Rule 25.06 of the Supreme Court Rules provides essentially that a withdrawal is not a bar to a subsequent proceeding unless the order granting leave to withdraw provided otherwise. Rule 25.07 provides that if a withdrawing party was ordered to pay costs a further proceeding (for substantially the same cause of action) may be stayed until those costs are paid. From these provisions (analogous to section 74) I infer that one purpose of requiring a party to obtain leave under section 74(2)(d) for a further proceeding is to allow other parties an opportunity to head off any attempt to avoid the effect of orders made at the time of the withdrawal, particularly costs orders. No such issue has been raised here.

32 It is also possible to infer from Rule 25.06 an assumption that the party who formerly withdrew has not lost by that withdrawal any right to have the matter considered on its merits. Accordingly, unless the reason for seeking leave under section 74(2)(d) is clearly frivolous or vexatious the Tribunal's discretion should be exercised in favour of allowing the application to proceed. In the absence of any other reason to strike out the application regarding document 2, leave is granted pursuant to section 74(2)(d) and leave is refused for documents 1, 8 and 9.

33 The applicant's reason for applying again for document 2 is that he wants the information for which exemption is claimed to use in a complaint to the Ombudsman. The applicant's interest in the information is a matter which is likely to be considered by the Tribunal in deciding whether the information is exempted from release by section 33(1) of the FOI Act.

NON PURSUIT OF DOCUMENTS IN PREVIOUS APPLICATIONS

34 The respondent argued that it is an abuse of process for the applicant to seek access to the withheld material in document 4. The only material in dispute in that document is the name of a teacher. The respondent argued that since the applicant chose in an earlier proceeding (Hoskin No.1) not to pursue that name he should not now be able to do so. The material in dispute is the name of the teacher against whom the applicant made allegations in 2002 when they were both employed at Glen Waverley Secondary College. In Hoskin No.1, that name appeared in a different document. It had been deleted from the version of the document released to the applicant. In addressing issues arising about that document, his Honour Judge Higgins said at paragraph 36:

"The Applicant does not seek to have this information released and nor should he because he named the teacher concerned when making his allegations to the school."

35 As the applicant's counsel put it, it appears that the applicant withdrew his application for the name at some point leading up to Hoskin No.1, in circumstances which did not attract section 74. If that is so, the applicant need not now seek leave pursuant to that section, to apply for the information.

36 The respondent contended that the applicant had made a conscious choice not to pursue the name in the earlier proceeding and that Judge Higgins had found that the applicant should not seek access to it. In my view a choice not to pursue the document at an earlier stage does not itself preclude the applicant from seeking it now. Secondly I was not persuaded that Judge Higgins found that the Applicant should not seek access to the document. Rather, his Honour expressed a view about an issue upon which he was not making any finding or ruling. The applicant might take his Honour's view as a piece of free advice but he is not bound to heed it.

37 I am not persuaded that the application for the information in dispute in document 4 is an abuse of process, or that it should be struck out.

38 The Respondent referred me to section 50(6) of the FOI Act which provides:

"(6) The Tribunal may refuse to review a decision of an agency or Minister to refuse the request of a person for access to a document if the Tribunal is satisfied that it has previously reviewed a decision of the agency or Minister to refuse access to the same document or the same information."

39 The respondent contended that documents 1, 3, 8 and 9 in this application contain in substance the same information as documents 2, 3 and 12 in Hoskin No.1. I have already decided that the applications be struck out as regards Documents 1, 3, 8 and 9 on the ground that they re-litigate matters already decided. In case I am wrong about that I will also consider the submissions about section 50(6).

40 I have already indicated my finding that document 1 in this application contains the same information which was in dispute in documents 2 and 12 in Hoskin No.1 and that document 3 in this application is almost identical to document 12 in Hoskin No.1. I have also found that documents 8 and 9 in these proceedings contain the same information as document 1 in these proceedings.

41 Mr Sowden for the applicant argued that section 50(6) was not applicable in the present circumstances. He suggested that it should be "read down" in accordance with an interpretation of it by his Honour Judge Strong in Olexander v Department of Premier and Cabinet [2002] VCAT 497. Mr Sowden quoted his Honour's words:

"[19] Section 50(6) is a discretionary provision. In my opinion, its probable purpose is to prevent an abuse of the processes of the Tribunal of the kind which would occur if, the Tribunal having refused Applicant A access to a particular document, Applicant A procured Applicant B to make an identical application."

42 As I read it, there was nothing in his Honour's decision to confine section 50(6) to that interpretation. The sentence following the above quotation illuminates his meaning. His Honour added I would be loathe to apply section 50(6) to an application by an entirely unrelated and unassociated party for access to a different (albeit similar) document. He also remarked that the case before him dealt with different documents and had a different applicant than in the case suggested to him as enlivening the discretion in section 50(6).

43 In the present case the same applicant, Mr Hoskin, seeks the same information in either the same document or documents which repeat the information almost verbatim. I cannot accept that his Honour Judge Strong intended to interpret section 50(6) as not applying to such a situation. It seems to me to apply in exactly this case. Mr Pizer referred me to one example in which the Tribunal has interpreted it thus - an unreported decision of Senior Member Megay Downing v Victorian Workcover Authority (unreported, VCAT 19 September 2002).

44 Therefore in my view the Tribunal has a discretion under section 50(6) to refuse to review the respondent's decision, if it is satisfied that the Tribunal has previously reviewed the Respondent's decision to refuse access to the same document or information. That means I must be satisfied though that the documents sought in this case are the same or contain the same information as those in Hoskin No.1. I repeat I am of the view that documents 1, 3, 8 and 9 contain the same information as documents 2 and 12 in Hoskin No.1 and perhaps also in document 3 in that case. I am satisfied that the Tribunal has previously reviewed the respondent's decision in relation to these documents. This strikes me as an appropriate case for the exercise of the discretion provided by section 50(6) and I refuse to review the Department's decision in relation to documents 1, 3, 8 and 9 in these applications.

45 In the light of my findings I make the following order:

46 Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal strikes out the applications regarding documents 1, 3,8 and 9 as identified in the schedule of documents attached to the respondent's section 49 statement.