Kelly v Department of Treasury & Finance [2002] VCAT 1019

Victorian Civil and Administrative Tribunal|2002-09-10|Before: Kellam J

1. The time for the applicant to bring the application to review in proceeding No. 2000/31077 is extended nunc pro tunc to and including 20 April 2000.

2. Declare that the requests the subject of application to review filed on 20 April 2000 in proceeding No. 2000/31077 comply with s.17(2) of the Freedom of Information Act.

3. Remit the requests referred to in paragraph 2 of these orders for determination in accordance with law.

4. The applicant be released from any implied undertaking relating to -

(a) the witness statement of Ms Macdonald marked as Exhibit "3" and produced in these proceedings;

(b) the witness statement of Mr Farlow marked as Exhibit "4" and produced in these proceedings;

(d) the transcript of the hearing of 4, 5 and 6 December 2000 of these proceedings;

(e) the gas file index produced in these proceedings as Exhibit "D";

but only for the sole purpose of production by the applicant in his capacity as solicitor to the respondent to the Supreme Court of Victoria in proceeding Nos. 597501 of 2001 in that Court and only for the purposes of challenging the adequacy of discovery made by the State of Victoria in those proceedings.

___________________ __________________

For the Applicant: Mr J E Middleton QC with Mr P J Booth

For the Respondent:(15 May 2001) Mr R R S Tracey QC with Mr M Moshinsky and

1. The applicant seeks an order releasing him from his implied undertaking as to the use to which documents produced and filed in proceeding No 2000/48629 may be utilized so that they may be used for a collateral purpose and an objective unrelated to the proceeding. The applicant also seeks an extension of time within which application No 2000/31077 is made, an order that a deemed refusal, the subject of that application be set aside, a determination that relevant requests comply with s.17(2) of the Freedom of Information Act 1982 ("the FOI Act"), an order that the relevant requests be remitted to the respondent for determination in accordance with law and with the orders made by the Tribunal on 14 March 2001 in application No 2000/48629 and finally an order that the respondent pay the applicant's costs.

2. In application 2000/48629, on 14 March 2001, the Tribunal ordered that the matter be remitted to the respondent to comply with the provisions of s.25A(6)(a)(b) and (c) of the FOI Act and for reconsideration of whether any one or more of the requests be exempt by reason of the provisions of s.25A(1) of the FOI Act. That order was set aside upon appeal to the Court of Appeal and instead the matter was remitted to the respondent to be dealt with according to law by order of the Court of appeal dated 21 December 2001.[1]

BACKGROUND TO THE APPLICATIONS BEFORE THE TRIBUNAL

3. In December 1999, the applicant made 321 requests for access to documents under the FOI Act. Some of those requests were made to the respondent and others subsequently were transferred to the respondent. On 31 May 2000, the legal representatives of the respondent advised the applicant that the respondent had decided to refuse to grant access "to those documents which would fall within the terms of the request ... on the basis that to do so would substantially and unreasonably divert the resources of (their) client from its other operations".

4. On 25 January 2000, the respondent wrote to the applicant in relation to a number of the requests expressing the view that they were not of a sufficiently precise description to enable identification of the documents requested, seeking further particularization and offering assistance in the re-expression of the requests. On 31 January 2000, the applicant replied maintaining the view that the requests were sufficiently precise. On 4 February 2000, the respondent again wrote to the applicant in relation to such requests and others stating that they were not sufficiently precise to enable identification and again offering assistance in re-expressing the requests. The applicant then sought a meeting with the respondent to discuss the perceived difficulties. As a result of the meeting which followed, the applicant set out in a letter dated 24 February 2000 his understanding of what the respondent had stated at the meeting to be the areas of difficulty in regard to the requests. The areas of difficulty were stated to be :

(c) the `two-tiered' level of inquiry required by some requests;

(e) the phrase `reviews, assessments and recommendations';

(g) the lack of a temporal limitation within the requests concerning Troughton & Swier;

(h) the meaning of the word `measures' appearing within the definition of Gas System Security Measures;

(i) the meaning of the word `supply' appearing within the definition of Gas System Security Measures;

(j) the meaning of the word `secure' appearing within the definition of Gas System Security Measures".

5. The letter went on to provide the applicant's written explanation of those various matters and in conclusion requested an early response to the matters raised. In a letter dated 28 February, 2000 the solicitors for the respondent confirmed the object of the meeting as having been to assist the applicant "to frame (his) requests in a manner which complies with section 17(2) of the Freedom of Information Act 1982". The letter went on to say

"An aspect of this was explaining to you why your purported requests are not of a sufficiently precise description to enable our client to identify the documents to which you have sought access.

Our client wishes us to place on the record that it does not accept there is any basis for the unhelpful general assertion contained in your letter that our client is not complying with its obligation in relation to your request".

"Unfortunately our client finds your most recent letter unhelpful in the circumstances. The point of the recent meeting was an attempt to have clarified the documents that are sought by you and to assist you in reframing your requests for that purpose. In a number of instances in your letter you appear equivocal on whether or not you are in fact reframing your requests and, if so, in precisely what manner. For example, you have used phrases like `I would consider amending the relevant requests' and `I am (would be) prepared to amend the requests'.

Also, in a number of instances, you have proposed different words as better explaining the meaning to be attributed to aspects of your requests. We feel it would be simpler and clearer if you could incorporate those different words into any amended request(s)".

"In conclusion, we are instructed to request you to provide us with any amended request or requests so that there can be no misunderstanding about the subject matter thereof. Upon receipt of any such requests, our client will further attempt to attend to the matter with all due expedition. Please be aware, however, that it is our client's preliminary view that unless your requests are severely narrowed, your client risks the invocation of section 25A of the Act".

6. On 1 March 2000, the applicant wrote to the respondent's legal advisers stating inter alia :

"The nature of my proposals is very clear and is the same as was said to Ms Macdonald during our meeting. I require you to respond to the proposals I have made by 5.00 pm on Thursday 2 March 2000. However, because you have insisted, I will prepare amended requests consistent with the proposals to assist in the clarification process. The amended requests will be available shortly.

The `overview' document was never intended to be treated as an amended FOI Request, rather, as I made clear to you in our meeting, it is a convenient summary document only. I made it very clear to you at our meeting that the purpose of this document was to enable you to understand the essential nature of the requests.

Finally, I disagree with the last sentence of your letter. In my view, by discussing these matters with me and corresponding with me as to your understanding of these requests, you have waived any ability to rely on section 25A of the Act. This is a matter which should have been raised initially so it could be acted upon without delay".

7. On 17 March 2000, the applicant wrote to the respondent's legal advisers. The letter included the following assertions :

"I have asked Ms Macdonald on no less than four occasions to assist me by determining whether the amendments I have proposed to the Requests will sufficiently clarify those Requests for her purposes. Ms Macdonald has refused to assist me, contrary to her statutory obligations. Ms Macdonald is also acting in disregard of the Attorney-General's guidelines to assist the administration of the FOI Act. Those guidelines impose obligations on Ms Macdonald to facilitate a general right of access to documents held by a Department and to assist an applicant in determining the most appropriate way of getting the information.

You have had my letter dated 24 February 2000 for more than three weeks. I insist that you provide me with a meaningful response to it by 4:00 pm on Monday 20 March 2000. ...

You will recall that, in my letter dated 24 February 2000, I confirmed a variety of amendments that I would consider making to the various requests for access to documents. In my letter dated 1 March 2000 I informed you that, at your insistence, I would prepare amended requests consistent with those proposals. This was to be done solely to facilitate an understanding on Ms Macdonald's behalf of the types of documents I have requested.

I have now prepared amended requests, which are enclosed. The amended requests are :

(a) amended consistently with the proposals contained in my letter dated 24 February 2000; and

(b) marked up to show deletions and, correspondingly, additions to the documents.

These amendments follow upon our discussions and of course are not new requests pursuant to the Act.

(a) reviewing the primary requests since the date of their receipt, namely since December 1999;

(b) a meeting with myself on 22 February 2000 to discuss your clients' purported uncertainties or inability to identify the documents described in the requests;

(c) my letter dated 24 February 2000 in which I proposed amendments to the requests which I had been led to believe would be acceptable to your clients;

Your clients now have marked up amended requests for access to documents consistent with the proposals articulated on 22 February 2000 and confirmed by letter dated 24 February 2000".

8. On 21 March 2000, the respondent's legal representatives acknowledged the letter of 17 March 2000 and receipt of "marked-up revisions" of the requests. The letter went on to state that the requests had been forwarded to Ms Macdonald who would consider the issue as to whether they complied with s.17(2) of the FOI Act. Whilst asserting that Ms Macdonald remained willing to assist and advising that they would contact the applicant when she had had an opportunity to consider the amended requests, they asked the following question :

"Finally, could you clarify for us whether the requests that you are now expecting our client to process are the requests received by us on 17 March 2000 and which you have described as your amended requests?"

9. On 20 April 2000, the respondent's solicitors wrote to the applicant stating inter alia :

"Despite the additional information which you provided in your amended requests dated 17 March 2000 our client remains of the view that, on the whole, your requests do not specify documents with sufficient particularity to enable them to be readily identified.

However, as a result of the consultations which you have had with Ms Karen Macdonald, and the amendments which you have made, our client does now have a better understanding, albeit incomplete, of the type of documents to which, in general terms, you seek access.

In circumstances where you refuse to accept that your original requests do not comply with section 17(2) ...it does not seem to our client to be productive to continue to assist you to make your requests in a manner which conforms with section 17(2) .... Now that our client has a better understanding of your purported requests, and your unwillingness to significantly modify them, our client has determined that the work which would be involved in processing your requests (even if your requests could be said to have complied with section 17(2) of the Act) would substantially and unreasonably divert its resources from its other operations.

Accordingly, you should regard this letter as written notice pursuant to section 25A(6)(a)(i) of the Act that our client intends to refuse access to those documents which you have requested".

10. A further meeting took place on 12 May 2000 with a view to removing the ground for refusal under s.25A of the FOI Act. On 31 May 2000, the respondent's solicitors wrote to the applicant stating inter alia :

"In light of your unwillingness to modify your request in any way and your letter to us of 29 May 2000, we are instructed to inform you that our client has decided to refuse to grant access to those documents which would fall within the terms of the request that you have made on the basis that to do so would substantially and unreasonably divert the resources of our client from its other operations".

11. On 2 June 2000, pursuant to s.51 of the FOI Act, the applicant requested a review of the decision. In a letter dated 16 June 2000, the respondent advised the applicant that as a result of the review, it had decided to refuse access, "on the basis that the work involved in processing the requests would substantially and unreasonably divert the resources of the department from its other operations".

12. On 20 April 2000, the applicant lodged an application for review of a deemed refusal to grant access to the relevant documents (2000/31077) said to have occurred on the various dates set out in a schedule of requests attached to the notice of application for review. On 20 June 2000, the applicant lodged an application for review of a decision to refuse access to the same documents (2000/48629) such decision having been stated therein to have been made on 16 June 2000.

13. We deal first with the application for extension of time in regard to the application for review of the deemed refusal.

14. Where the time for notifying an applicant of a decision in regard to his request for access has elapsed, for purposes of an application to this Tribunal, a respondent is deemed to have made a decision refusing to grant access on the last day of the relevant period (s.53(1) FOI Act). In this case, a decision was required to have been notified to the applicant not later than 45 days after the receipt of the request (s.21 FOI Act). By operation of s.18(3) of the FOI Act, where a request is transferred, it is deemed to be made and received at the time the transfer was made or 14 days after the date of the original request whichever is the shorter period.

15. In this case, attached to the notice of application for review is a schedule of the requests in which in regard to those transferred to the respondent, the relevant dates of transfer and extension by 14 days are set out. These dates were not contested by the respondent.

16. Save in the case of those requests made direct to the respondent, when a transfer was required, the original requests were made in part on 10 December 1999 and in part on 17 December 1999. A number of original requests were transferred to the respondent on 19 January 2000, others on 20 January 2000 and yet others on 21 January 2000. In each case, the shorter period of the periods of 14 days from the original requests, and the time which had elapsed between transfer, was 14 days. Accordingly, the respective dates from which time is assessed for purposes of estimating the period of 45 days within which a request must be processed are 24 December 1999 and 31 December 1999.

17. In the case of the requests made directly to the respondent, the period of 45 days ran from the date of the request, viz 10 December 1999 in the case of some, 17 December 1999 in the case of others and 24 December in the case of the rest. The application to this Tribunal for review of the deemed refusal was made on 20 April 2000. The period of 45 days expired in the case of some requests on 24 January 2000, others on 1 February 2000, others on 7 February 2000 and the residue on 14 February 2000.

18. In the case of requests received directly by the respondent on 10 December 1999, the 60 day period prescribed by s.52 of the FOI Act ran from 24 January 2000 and expired on 25 March 2000. The application was therefore some 26 days out of time in regard to those requests. In the case of the requests received directly by the respondent on 17 December 1999, the 60 day period ran from 1 February 2000 and expired on 1 April 2000. The application was therefore 19 days out of time in regard to those requests. In the case of all other requests which, in every case, were transferred requests, the earliest date of receipt by the respondent was 24 December 1999. 45 days thereafter expired on 7 February 2000 and 60 days after that expired on 8 April 2000. The application for review was therefore 12 days out of time in regard to those requests. Other such requests were received upon transfer on 31 December 1999. 45 days thereafter expired on 14 February 2000 and 60 days after that expired on 15 April 2000. The application for review was therefore 5 days out of time in regard to those requests.

19. Whilst it is clear enough that the parties were engaged in ongoing discussions with a view to refining, clarifying, modifying or confirming various requests, the Tribunal is of the view that at the time the application for review was lodged on 20 April 2000, the original requests had not been withdrawn or so modified as to constitute new or different requests.

20. The Tribunal has power and discretion to extend time for the commencement of a proceeding but may not do so if it would cause prejudice or detriment to a party or potential party and such prejudice or detriment cannot be remedied by an appropriate order for costs or damages (s.126 Victorian Civil and Administrative Tribunal Act 1998).

21. In determining whether it should exercise its discretion to extend time, we have regard to the following criteria set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 as follows :

(a) whether the applicant for extension can show an acceptable explanation for the delay;

(b) whether it is fair and equitable in the circumstances to extend time;

(c) the applicant's actions and in particular whether the applicant has continued to make the decision-maker aware that he or she contests the finality of the decision as distinct from allowing the decision-maker to believe that the matter was finally concluded;

(d) whether the respondent has been prejudiced by the delay;

(e) whether the delay may result, if the applicant for extension is successful, in the unsettling of other people or of established practices;

(g) considerations of fairness as between the applicant and other persons otherwise in a like position.

22. It is our view that there is a good reason for the delay in circumstances of ongoing negotiations in pursuit of elaboration or refinement of the various requests which were not unreasonably likely to have been productive of a determination by the respondent of the applicant's requests. Whilst those negotiations appeared to have been extensive and somewhat detailed, they were nevertheless ultimately unsuccessful. In our view, in circumstances where there was such frequency of communication with a view to furthering the request, it would not be unfair or unreasonable to extend time especially for the relatively brief periods which are involved in this case. The correspondence between the parties constitutes significant evidence of the applicant's endeavours to further his requests. Since it is primarily the respondent who has pressed for clarification of the requests, it cannot be said that the respondent has in any way been prejudiced by the delay. The delay in some part was an aspect of the applicant's responding to the respondent's concerns. However, it is difficult in a freedom of information matter to be confident as to the merits of a substantial application at an early stage, in the absence of appropriate legal submissions and without the opportunity to consider the documents in dispute. In the particular circumstances of this case it is fair and reasonable that time be extended to the applicant to make this application. Accordingly, time is extended to the applicant up to and including 20 April 2000.

23. Senior Counsel for the respondent, Mr Tracey QC, submits that the Tribunal might form the view that in submitting an amended request, the applicant waives his right to rely upon a deemed refusal. In support of his submission, he relies upon the words of Brennan J in Commonwealth v Verwayen (1990) 170 CLR 394 (at 421-2). In that case, his Honour was concerned with the issue of election which he succinctly stated to consist "in a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights ...". However, in this case, there was no adoption of a second set of requests in lieu of the original requests. There was nothing more than a clarification of the original requests which were otherwise maintained by the applicant.

24. It is also submitted by the respondent that the express refusal has been the subject of review by the Tribunal which, in the circumstances, should not therefore proceed to review the deemed refusal. All that the Tribunal has reviewed in regard to the express refusal is the s.25A aspect. Further it does not appear to us that the order which the Tribunal may make in regard to the deemed refusal application would necessarily be in conflict with those made by the Court of Appeal in regard to the express refusal application. Indeed, the contrary position is reasonably to be anticipated.

25. Two months after the application based upon a deemed refusal was lodged, the respondent made an express decision to refuse access and, on that day, the applicant lodged an application for this Tribunal to review that decision. Section 53(5) of the FOI Act is as follows :

"Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally heard the application, a decision, other than a decision to grant, without deferment, access to the document in accordance with the request, is given, the Tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with this Part".

26. The applicant has not however, requested that course and it is not apparent from the legislation that one application is necessarily subsumed into the other. It appears to us therefore that both applications are on foot notwithstanding that they are concerned with the same subject matter, and that for obvious reasons of practicality and convenience they ought to be dealt with together.

27. In the circumstances, we decline to set aside the deemed refusal at this stage.

28. We now turn to a consideration of the application for a determination that the relevant requests comply with s.17(2) of the FOI Act.

29. The combined effect of sections 3, 13 and 16 of the FOI Act is to confer upon members of the public a broad and ready right of access to information. That interpretation has been confirmed in a number of decisions (Ryder v Booth [1995] VR 869 at 877; Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at 61; Department of Premier and Cabinet v Birrell [1990] VicRp 5; [1990] VR 51; Victoria Public Service Board v Wright [1986] HCA 16; (1996) 64 ALR 206 at 212) and in the publication and expression of ministerial opinion (Hansard, Legislative Assembly Vol 367 per J Cain; Press Release accompanying publication of Guidelines to Assist the Administration of the FOI Act 24 February 2000).

"(2) A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.

(3) It is the duty of an agency or Minister, as the case may be, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate agency or Minister, to make a request in a manner that complies with this section or to direct a request to the appropriate agency or Minister.

(4) Where a request in writing is made to an agency or Minister for access to a document, the agency or Minister, as the case may be, shall not refuse to comply with the request on the ground that the request does not comply with sub-section (2), without first giving the applicant a reasonable opportunity of consultation with the agency with a view to the making of a request in a form that does comply with that sub-section".

31. In letters to the applicant dated 25 January 2000 and 4 February 2000, the FOI officer of the respondent expressed the view that she was not satisfied that the requests were of a sufficiently precise description to enable her to identify the documents sought and, in the circumstances, she stated that she was not then able to process the requests. She specifically referred to and clearly relied upon s.17(2) of the FOI Act. Correspondence from the applicant sought to clarify more particularly what the FOI officer perceived to be the inadequacies in the requests which failed to make them sufficiently specific. The FOI officer agreed to provide "a full critique" of each of the requests by way of clarification of the inadequacies. On 22 February, a meeting took place between the parties at which the FOI officer outlined the perceived inadequacies. These were subsequently (on 24 February 2000) set out in a letter to her from the applicant. On 17 March 2000, requests were restated and submitted for the apparent purpose of clarifying the original requests. In our view, they do not constitute new requests but are merely restatements of the original requests.

32. Apart from a broad assertion that "on the whole, your requests do not specify documents with sufficient particularity to enable them to be readily identified" (in a letter of 20 April 2000), no further expression of specific concerns emanated from the respondent. In the absence of any such expression of concern, and in the light of the detailed written response from the applicant addressing the specific concerns which were communicated by the FOI officer at a meeting, it does not appear to us that there is any proper ground for further reliance upon s.17(2) by the respondent. In any event, on a perusal of the various requests, it appears to the Tribunal that they were expressed with sufficient specificity to warrant responses without further clarification. In the result, we are of the view that the requests comply with s.17(2) of the FOI Act.

33. Accordingly, the requests are remitted to the respondent for determination in accordance with law and in accordance with the orders made by the Court of Appeal on 21 December 2001.

34. As stated above and in the course of the hearing before us on 15 May 2001 the applicant sought an order releasing him from his implied undertaking as to the use to which documents produced and filed in proceeding No 2000/48629 ("the s.25A proceeding") may be utilised for a collateral purpose and for an objective unrelated to the proceeding.

35. It is appropriate to observe that subsequent to the hearing of this application and on 3 July 2001 the respondent filed an application in the Tribunal to reopen the hearing for the purposes of placing before the Tribunal evidence of changed circumstances relevant to the application of the applicant to be released from the implied undertaking. That application was supported by an affidavit sworn by one Damian Grave on 3 July 2001. In addition supplementary submissions of the respondent were filed with the Tribunal on the same date.

36. By reason of the further application on 3 July 2001 a date was fixed for 23 August 2001 for the purposes of the Tribunal hearing the submissions from the parties in respect to the application. On 16 August 2001 that hearing date was adjourned by consent of the parties. The Tribunal refixed the date for the hearing of the further application to be made by the respondent on 12 September 2001.

37. On 11 September 2001 the solicitors for the applicant faxed to the Tribunal a letter which, omitting formal parts, stated as follows:

"I refer to the application by the DTF to reopen the hearing of the application in relation to the implied undertaking which was made on 3 July 2001.

The purpose of the DTF application is to `[place] before the Victorian Civil and Administrative Tribunal evidence as to the change of circumstances in the form of the affidavit of Damian Bernard Grave sworn on 3 July 2001'.

The affidavit of Mr Grave relevantly states as follows:

1. On 12 April 2001, Justice Merkel transferred Federal Court proceeding numbers VG519 and 524 of 1998 to the Supreme Court of Victoria ("the transferred proceeding") (paragraph 2);

2. On 26 April 2001, the Applicants in the transferred proceeding commenced a fresh proceeding in the Supreme Court of Victoria against Esso ("the Supreme Court proceeding") (paragraph 3);

3. On 7 June 2001, Esso filed a statement of claim by way of third party notice against a number of parties including the State of Victoria (paragraph 4) in the new Supreme Court proceeding;

4. On 8 June 2001, Justice Gillard stayed the transferred proceeding including all cross-claims and ordered that service of Esso's third party notice in the Supreme Court proceeding be stayed (paragraphs 5 and 6).

5. On account of the matters set out above, the precise purpose described by the Applicant to justify release from the implied undertaking does not presently exist (paragraph 7).

Since 3 July 2001 (the filing of DTF's application), the following further events have occurred:

6. On 3 August 2001, Justice Gillard vacated his Order made on 8 June 2001 staying service of the third party notice in the new Supreme Court proceeding;

7. On 10 August 2001, the third party notice was served by Esso on the Third Parties including the State of Victoria;

8. Justice Gillard has indicated that he will make Orders for discovery by the Third Parties to the new Supreme Court proceeding in a form which will replicate Orders for discovery which were made in the Federal Court in the transferred proceedings. The parties are currently finalising the precise form of those Orders and those Orders will be made by the Court after 17 September 2001.

In the light of the changed circumstances set out in paragraphs 1-8 above, both parties join in requesting that the Tribunal take into account the above matters in determining the implied undertaking application. If necessary, it is requested by both parties that the Tribunal formally reopen the hearing of the application to receive the affidavit of Mr Grave and this letter. However, it is not envisaged by the parties that any further oral hearing is necessary as the said affidavit and this letter are self-explanatory. DTF has seen and consented to a letter in this form being sent to the Tribunal.

Further, in the light of the changed circumstances, the purpose for which I now seek to use the materials the subject of the implied undertaking application is primarily for discovery in the new Supreme Court proceeding rather than the transferred proceeding, although if the stay is lifted in relation to the transferred proceeding, the materials would be used in that proceeding as well.

Accordingly my application should be dealt with on the basis of this varied purpose, with both parties relying on their earlier submissions for and against the application (as the case may be).

Finally, for the sake of completeness I note that the Court of Appeal heard argument on DTF's application for leave to appeal on the Section 25A issue on 15, 16 & 20 August 2001 and have reserved their decision."

38. In the circumstances referred to above, the proceeding was taken out of the list of cases for hearing on 12 September 2001.

39. As advised by the solicitors for the applicant the hearing of the application for leave to appeal against the decision of the Tribunal of 14 March 2001 in relation to the s.25 issue took place in August 2001. In the circumstances we considered it appropriate to await the decision of the Court of Appeal before handing down this decision. We considered this to be appropriate as one document which we had previously ordered to be released to the applicant "the index" was clearly relevant to the appeal and in addition is one of the documents which is the subject of the application for release from the implied undertaking of the applicant.

40. The Court of Appeal handed down its judgment on 21 December 2001. Following upon the handing down of this judgment the solicitor for the applicant wrote to the Tribunal in the following terms:

"On 16 May 2001, the Tribunal constituted by Justice Kellam, President and Deputy President Galvin, heard my application to be released from an implied undertaking as to the use of a certain document. The document was a file index which was ordered to be released by the Tribunal in the course of hearing proceeding 2000/048629. The Tribunal has reserved its decision in relation to my application.

Since that time, the Court of Appeal has heard and determined the Department of Treasury and Finance's appeal from the Tribunal's decision in proceeding number 2000/048629. The Tribunal's power to release the file index was one aspect of that appeal.

A copy of the reasons of the Court of Appeal dated 21 December 2001 is enclosed.

In particular the Court decided that the Tribunal had two grounds on which to order release of the file index. First, to facilitate cross-examination (at paragraph 57) and secondly, pursuant to section 26A(6)(c) of the Freedom of Information Act 1982 (Vic) (paragraph 57), in that the Tribunal was standing in the shoes of the agency.

In view, now, of the finding of the Court of Appeal relating to the release of the file index (namely that the Tribunal was standing in the shoes of the agency), it is submitted that, as an alternative to the argument that I be released from the implied undertaking, it is contended that the implied undertaking does not apply. Accordingly, in my submission, the Tribunal can decide the application having regard to the decision of the Court of Appeal. Therefore the Tribunal can determine that it had power to release the file index (and that it did so act) pursuant to section 26A(6)(c) of the Freedom of Information Act 1982 (Vic), and that no order for release of an undertaking is required. I would ask that this submission be treated as an alternative submission to that relating to the release from the undertaking and that if this submission is accepted by the Tribunal then a specific declaration to that effect be made.

I have sent a copy of this letter to the solicitors for the Respondent and request that it be treated as if submissions were made to the Tribunal during the course of a hearing of my application."

41. On 22 January 2002 the respondent's solicitors responded to the letter from the applicant of 15 January 2002 in the following terms:

"We refer to the letter from Mr Kelly to you dated 15 January 2002.

There are a number of matters raised by Mr Kelly in his letter upon which our client would like to make submissions to the Tribunal. Our client requests that the proceeding be relisted before the Tribunal to provide an opportunity for our client to make adequate oral submissions on these matters and also the issue as to whether Mr Kelly should be permitted to agitate them.

Further, it is important for the Tribunal to be aware that on 17 January 2002 Mr Kelly made application for special leave to appeal to the High Court of Australia from part of the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given on 21 December 2001. Enclosed is a copy of this application.

This application has not yet been heard by the High Court of Australia.

If Mr Kelly continues to pursue his application and is granted special leave by the High Court of Australia, then pursuant to Order 70, Rule 6(1) of the High Court Rules, our client will be entitled to proceed with a cross appeal from paragraph 5 of the Orders of the Court of Appeal namely the order that:

* Leave to appeal against the Tribunal's decision to release the gas file index to the Respondent, be refused.

In the circumstances, and for the reasons advanced by Senior Counsel for the Department at the hearing before the Tribunal on 16 May 2001, Mr Kelly ought not be released from his implied undertaking in relation to certain documents, including the Energy Projects Division gas file index. The Tribunal's decision on this issue ought await the determination of the application for special leave to appeal, the appeal if leave be granted, and any cross appeal relating to the power to release the gas file index. To do otherwise would deny our client its right to proceed with a cross appeal from the order set out above."

42. In the circumstances we acceded to the submissions of the parties and the matter came on for further hearing on 14 March 2002. It is appropriate to deal with a submission made by the respondent at the hearing that we should not hand down any decision in relation to these matters until after the hearing of the applicant's application for special leave to appeal to the High Court the decision of the Court of Appeal dated 21 December 2001. Whatever merits there may be in this submission they are outweighed by the practical circumstance that the terms of appointment of both members of the Tribunal will expire in the relatively near future, and for this reason alone the decision should be made and published. Although it may be that in due course the High Court will reach a conclusion which may relate to the issues now before us, it appears to us that no real prejudice is suffered by the decision being handed down now and a short stay being granted.

43. As requested by the parties we have taken the contents of the affidavit of Damian Grave sworn 3 July 2001 and of the letter from the solicitors for the applicant dated 11 September 2001 into account. Accordingly, we propose to consider the submissions made by each party in relation to the application for the release of the implied undertaking, on the basis that the purpose for which the applicant seeks to be released relates to the issue of discovery in Supreme Court proceeding No 5538 of 2001.

44. Accordingly, the applicant seeks an order releasing him from his implied undertaking as to the use to which documents produced and filed in the s.25A proceeding in the Tribunal may be utilised. The purpose for which the applicant seeks to use the documents is limited to the purpose of challenging the adequacy of discovery by the State of Victoria and its entities in proceeding No 5538 of 2001 in the Supreme Court of Victoria. The documents in respect of which the applicant seeks to be released from his implied undertaking are the witness statement of Ms MacDonald, the witness statement of Mr Farlow and the witness statement of Ms Gardner together with the transcript of the s.25A proceeding and the file index ("the index") comprising 115 pages which was admitted into the s.25A proceeding as exhibit "D". It should be noted that the fact that the Tribunal released the file index and marked it as exhibit "D" in the s.25A proceedings was (inter alia) the subject of the appeal to the Court of Appeal. The respondent contends that we should not deal with the present application until the Court of Appeal determined the challenge made to the power of this Tribunal to order or direct the handing over of the said file index and the decision in relation to the s.25A issue generally. As stated above, it now contends that we should continue not to make any determinations until an application for leave to appeal is made to the High Court in relation to the decision of the Court of Appeal.

45. The applicant contends, and the respondent does not contend otherwise, that the concept of implied undertaking relating to the use of documents produced or filed for the purposes of proceedings is applicable to VCAT. Pursuant to s.137(1)(f) of the VCAT Act a person is guilty of contempt of the Tribunal if such person does any ".. act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court". We accept that VCAT (by its judicial members) can punish all forms of contempt that are punishable by superior courts of record, including contempt in the face of the Tribunal and other types of contempt such as breach of the implied undertaking to use the document only for the purposes of a proceeding. We accept the submission that the Tribunal has power to release a party from the implied undertaking and to authorise acts which may otherwise be considered to be a breach of the implied undertaking.

46. Whilst the respondent does not concede that VCAT has such power, no argument has been advanced by it in support of its position in this regard. Whilst it is true that the Tribunal is a creature of statute and that its powers are set out in its statute which provide no power for release of undertakings it has no inherent powers, it appears to us that the power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking and thus to the power to release from such undertaking. As Bowen CJ, Northrop and Toohey JJ observed in Parsons v Martin [1984] FCA 408; (1984) 5 FCR, 235 at p.241:

"... a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of the opinion also that it has in addition other powers as are incidental and necessary to the exercise of the jurisdiction so conferred."

47. In Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612 at 623-624 Deane J, with whom Mason CJ agreed, approved the observation of Bowen J who had said in the course of the hearing of the same case before the Full Court of the Federal Court that:

"... a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdictions or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power."

48. The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. In the case before us the documents which are sought to be released are two affidavits, the transcript of the hearing and the index which was ordered by the Tribunal to be produced by the respondent. Each of these documents was produced in the course of the proceeding or in the hearing of the proceeding. In our view, the power to release from an implied undertaking as to confidentiality is so closely associated with such an undertaking that it is incidental to the power to require filing of affidavits and the power to order that documents relevant to the proceeding be produced. We are satisfied that the Tribunal has power to release a party from an implied undertaking as to confidentiality.

49. For reasons which arise in consequence of the decision of the Court of Appeal on 21 December 2001, and to which we will turn later, there is an argument that the index should be considered separately from the other documents the subject of the application by the applicant for release from the implied undertaking. We intend to deal with the index separately at paragraphs 62 to 65 below.

50. The applicant concedes that in order to be released from his implied undertaking the applicant must show special circumstances or cogent and persuasive reasons. (Crest Homes P/L v Mark [1987] AC 829 at 860.)

51. The applicant however submits that in the circumstances of this case such special circumstances do exist.

52. It is common knowledge that on 25 September 1998 an accident occurred at the oil and gas processing facility owned by Esso (for whom the applicant acts as solicitors) at Longford in Victoria. Shortly thereafter Johnson Tiles Pty Ltd commenced proceedings in the Federal Court. As stated above (see para 36) those proceedings have now been transferred to the Supreme Court of Victoria ("the court proceedings"). Esso has issued third party proceedings against the State of Victoria. The applicant contends that the State of Victoria has made inadequate discovery in the Court proceedings. For the purpose of challenging the adequacy of discovery by the State of Victoria in the Court proceedings Esso seeks to utilise the documents in relation to which it now seeks release from its implied undertaking as to confidentiality. The applicant contends that special circumstances exist for the following reasons.

(a) There is significant commonality between the parties to the Court proceedings and the parties to the proceedings in this Tribunal.

(b) the solicitors acting for each party are the same in each case.

(c) the subject of the requests for access to documents in the proceedings before this Tribunal is substantially co-existent with the subject of discovery in the court proceedings.

(d) The documents are not of their nature confidential.

(e) There can be no prejudice to the respondent in the release of the undertaking.

(f) It is not in the interests of justice to allow the State of Victoria to discover only a total of 225 documents in the Court proceedings when it is apparent from the proceedings before the Tribunal that many more documents exist and which appear on their face to have some relevance to the Court proceedings.

(g) The State of Victoria has consented to an order in the Federal Court enabling the use of a broad range of documents arising from the proceedings in that Court to be used in these proceedings before this Tribunal.

53. The respondent opposes the application of the applicant to be released from his implied undertaking. First it is submitted that the applicant has not articulated whether he or Esso seeks to establish that the State has not complied with existing discovery orders or alternatively seeks to obtain new or broader discovery orders. It is submitted that this "lack of transparency and ... uncertainty" provides an appropriate reason for discussing the application. It is further submitted that there is no material or argument before the Tribunal which demonstrates that the State has not complied with existing discovery orders. The respondent submits that what the applicant is seeking to do is "to obtain a private benefit by way of material in a purported endeavour to undermine the basis of a Federal Court order". Furthermore it is argued that the applicant in the proceedings before VCAT is not a party to the Court proceedings and has no personal or legitimate interest in obtaining the release.

THE LEGAL PRINCIPLES IN RELATION TO RELEASE OF IMPLIED UNDERTAKINGS

54. A court has power to release a party from an implied undertaking and to authorise acts which without such release would be a breach of the undertaking. Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at 37. As stated above we consider that this Tribunal has the same power as a court.

55. The applicant for release from the undertaking is required to show special circumstances or cogent and persuasive reasons and that the release will not occasion injustice to the person who has produced the documents. Crest Homes P/L v Marks (at p.860).

56. In regard to "special circumstances" Lockhart J in Sweetman v Australian Thoroughbred Principal Finance Pty Ltd (unreported, Federal Court of Australia, 25 July 1999) considered that commonality between certain of the parties and between certain of the issues and the commonality of legal representation in the proceedings in which it was proposed to use documents which had been discovered in other proceedings amounted to "special circumstances".

57. There is of course similar commonality in the proceeding now before us, but that is hardly surprising as it is clear that the very purpose of the bringing of the Freedom of Information proceedings before this Tribunal is to enable the applicant access to documents which have not been discovered in the Court proceedings.

58. This issue received the attention of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited [1992] FCA 472; (1992) 38 FCR 217 at p.225. His Honour stated:

"For `special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information of the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps the most important of all, the likely contribution of the document to achieving justice in the second proceeding."

59. In our view the discretion to grant a release from the implied undertaking given by the applicant should be granted in this case. The release granted should be limited to the purpose of use only in the Supreme Court proceedings in relation to applications to be made to the Court in relation to discovery, and/or for the purposes of cross-examination as to the existence of any document.

60. We are satisfied that there are "special circumstances" which exist in favour of the discretion being granted. First, there is significant commonality between the parties to the Court proceedings and the proceedings in this Tribunal and their solicitors. It might of course be argued that any such commonality is artificial as the proceedings before the Tribunal came into existence by reason of the fact of the Court proceedings. That is so, but it does not remove the fact that the release of the undertaking is to a person who has commonality with the Court proceedings and not some third party. The documents sought are not highly confidential. They do not contain community sensitive material or personal data.

61. Indeed, it is difficult to imagine anything less confidential than a transcript which took place in an open hearing which was not the subject of any order of suppression of publication. We consider the submission by the respondent that the witness statements of Ms Macdonald and others "disclose the material workings of the process of the State" as being somewhat specious. They disclose the workings of the State in relation to freedom of information processing. We do not consider that the steps taken by the State to comply with its obligations under the Freedom of Information Act can be regarded seriously as confidential information. It is difficult to see how the respondent in any way suffers any prejudice by the release of the documents for such limited purpose. Indeed, it might be argued that the witness statements of Ms Macdonald, Mr Farlow and Ms Gardner support contentions already made by the respondent in the court proceedings to the effect that compliance with a general order for discovery is an onerous and difficult task.

62. In our view the only prejudice which might occur to the respondent is if the documents are used by the applicant in a manner beyond the limited purpose which is contemplated. Furthermore, in our view, the interests of justice may be served by the limited release from the undertaking. In our view the Supreme Court is entitled to be acquainted with such circumstances as are known about the documentation which may be relevant to proceedings before it, particularly in circumstances where the respondent has asserted that it is oppressive for it to make full discovery. It may well be that it is oppressive to do so and that it may continue to be so, but we are unable to see how it is not in the interests of justice for the Supreme Court to be in full possession of the facts of what documents are known to exist in order to consider that matter. We do not consider that there is any lack of transparency in the application made by the applicant. The basis of the application is that he seeks to challenge the adequacy of discovery by the respondent in the Court proceedings. It is transparently obvious that this is the purpose of the application made before us.

63. It follows from the above that we propose to order that the applicant be released from his implied undertaking in respect to the documents sought by him and which came into existence in the course of, or were produced in the course of proceeding 2000/48629 in this Tribunal. That release should be limited to the purpose of use by the applicant in his capacity as the solicitor to Esso in the Court proceedings and only then for the purposes of production before the Supreme Court in relation to the issue of adequacy of discovery.

64. However, it is in addition appropriate to deal with the issue of the "file index" which was produced before us (Exhibit "D") in relation to the hearing of the "s.25A application". By reason of the decision of the Court of Appeal in Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 2216 the applicant contends, in the alternative, that it is not bound by any implied undertaking in relation to the "file index". The respondent submits that the applicant should not be permitted to resile from his concession that his implied undertaking applied to the file index. In the course of the hearing of the application before us on 14 March 2002, Mr Middleton QC on behalf of the applicant expressly withdrew any such concession. Mr J Beach QC then submitted that the applicant should not be permitted to re-open the application for release from the implied undertaking. In our view, this submission is a submission of form over substance. In our view, in circumstances where the applicant made the application well before the hearing of the appeal to the Court of Appeal and in circumstances whereby the submission of the respondent at that time was that we should not hear the application because of the fact of that appeal, it ill behoves the respondent to be now submitting, in effect that we should ignore what was said in the judgment of the Court of Appeal in relation to the file index.

65. The issue of the release of the gas file index was dealt with in the judgment of Chernov JA at pages 28-31 of the judgment of the Court:

"The Tribunal's release of the gas file index

53 I now turn to the second question which relates to the proposed ground of appeal under cover of which it is claimed that the Tribunal did not have the power to order the Department to release the gas file index pursuant to s.25A(6) of the Act (or any other statutory provisions). For the purpose of determining whether leave to appeal should be given in respect of this proposed ground, it is necessary to look first at the circumstances in which the copy document was produced to the respondent and at the Tribunal's reasons for making the order for its production. During the course of the hearing before the Tribunal, the respondent's counsel sought an order that the Department produce to the respondent the gas file index. Although the application was opposed by the Department, the Tribunal ordered it to produce a copy of the index to the respondent's counsel. The President explained its decision in the following terms:

54 "... I can't see that [giving the gas file index to the respondent] prejudices [the Department]. I think it's information that ought to be available to them and I think it's information that ought to be available to them in an opportunity [sic] to ask Ms Macdonald further questions, particularly as to the nature of the sampling."

55 As a result, a copy of the gas file index was made available to the respondent's counsel and Ms Macdonald was recalled and further cross-examined by him in relation to it. The copy document has been retained by the respondent. It seems clear enough from the Tribunal's above explanation for its order that the copy index was produced to the respondent for the purpose of facilitating the cross-examination of Ms Macdonald. The Tribunal had the power, under s.80(3) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), to make such an order although the respondent was subject to the implied undertakings identified in Home Office v. Harman in relation to the copy document.

56 In its published reasons, however, the Tribunal appears to have broadened, or added to, the explanation it had earlier given for ordering that the document be made available to the respondent. So far as is relevant, it said that, having examined the document, it was of the view that, although the file titles may reasonably be said to be expressed in general terms, in many cases, they at least indicate the possibility, if not the likelihood, that the file and its contents have no bearing on the information sought in the various requests. The Tribunal considered that, had the index been available to the respondent early in the proceedings, it may well have assisted him in either narrowing or refining his requests. It said that there was no doubt that it was reasonably practicable for the Department to have provided the index to the respondent and that it ought not to have denied his requests without first giving him the opportunity to consider the contents of the file. It concluded: "Accordingly, we ordered the index to be released to the applicant. The [Department ] has failed in that regard to comply with s. 25A(6)(c) of the Act and ought not on that basis alone, to have refused to grant access to the information requested. "

57 This explanation for the making of the order in question is different from that given at the time when the order was first made. But the two explanations are not necessarily inconsistent with one another. The reasons can be read as saying that the Tribunal had a second reason for making the order although it was not articulated at the time. On that basis, there were two grounds on which the Tribunal made the order in question. One was to facilitate the respondent's cross-examination of Ms Macdonald. The other was that the copy gas file index should be released to the respondent because it was "information" (for the purposes of s.26A(6)(c)) that would assist him in making his request in a form contemplated by s.25A(6)(a)(ii). It is implicit in the second reason that the Tribunal considered itself as standing in the "shoes" of the Department in the context of a consultative process with the respondent that is contemplated by s.25A(6)(a)(ii), and that, in that capacity, it had reached the decision that the document should be made available to the respondent.

58 Given that the Tribunal gave two different reasons for making the order at different times, it seems that a doubt has arisen as to whether the respondent continued to be bound by the Home Office v. Harman implied undertakings in respect of his use of the copy gas file index. Probably in order to remove such doubt, the respondent applied to the Tribunal, after the publication of its reasons, for an order or a declaration that he be released from any implied undertakings in respect of the copy gas file index. The matter was heard by the Tribunal and, at the date of the hearing of this appeal, its decision was still reserved.

59 Be that as it may, the real question that is before us is whether leave to appeal should be given to enable the Department to argue, in effect, that the Tribunal had no power to order the release of the gas file index pursuant to s.25A(6)(c). It must be borne in mind that, Phillips, JA (with whom Brooking and Batt, JJ.A. agreed) considered in Victorian Casino and Gaming Authority v. Hulls that, once the Tribunal assumed the jurisdiction to review the decision of the Department, it was at large and was, therefore, able to stand in its shoes and make orders accordingly. Thus, it is arguable that the Tribunal had the power under s.25A(6)(c) to order the Department to produce to the respondent a copy of the gas file index. On the other hand, Mr. Nettle contended that since the Tribunal had not engaged in any consultative process with the respondent, it had no power to order under this provision that the gas file index be released to the respondent. Counsel also submitted that, given the basis on which the copy document was produced to the respondent, he was obliged to return it to the Department at the conclusion of the cross-examination. Mr. Nettle further argued that the gas file index was confidential to the Department and that it was entitled to have it back and that the retention of it by the respondent will result in substantial prejudice to it.

60 Whilst there may be some force in Mr. Nettle's submissions, in considering whether leave should be given to appeal in relation to the Tribunal's order in question, at least three matters should be borne in mind. First, the order itself has been spent in the relevant sense in that the document had been seen by the respondent and he has had the opportunity to make such use of it as he considered appropriate for the purpose of cross-examining Ms Macdonald and deciding whether the requests should be re-formulated in light of the information contained in it. These things cannot now be undone by any order of this Court. Secondly, the Department has not demonstrated that the document contains any confidential information. Thirdly, and critically, since the Department has advised the respondent that it intends to refuse his requests under s.25A, before it can take that step, it must consult with him under sub-s.(6) and in the course of it produce to him the gas file index. In the circumstances, it is difficult to see how the respondent will suffer substantial injustice if the order were to remain on foot. Consequently, I would refuse leave to appeal against the making of this order."

66. We repeat that in our view the respondent clearly should have produced the gas file index to the applicant to enable the applicant to consider either narrowing or refusing his requests. Section 25A(6) of the FOI Act requires the respondent to have given the applicant a reasonable opportunity to consult in relation to the requests. It is difficult to see how a "reasonable opportunity to consult" would be possible without the provision of the file index to the applicant. On any view it is difficult to see how the provision of the index could have been other than helpful in relation to the requests. It should be noted that in the course of the evidence, submissions and discussion about the production of the index file between counsel for the respondent and the Tribunal (see pp.39 to 44, 91-93 and 106-118 of the transcript of 4 and 5 December 2001) the only submission made in relation to the gas file index was that it should not be produced because it was "irrelevant" to the requests. In our view it was highly relevant and should have been produced by the respondent. No ground of exemption was advanced before us and it is difficult to see what ground could apply to a mere index. In our view, and assuming in such circumstances that the Tribunal had the power to release the index standing in the shoes of the decision-maker, any implied undertaking would not apply to such document. However, whether or not we are correct about this matter we consider for the reasons set out above that in any event the applicant should be released from any implied undertaking which may apply.

The Tribunal has a discretion in the matter of costs. The primary position is that each party should bear its own costs (s.109(1) VCAT Act 1998). We are of the view that the issues raised by these proceedings are novel and difficult and there is no reason to depart from the primary position.