Knight v CORE [2003] VCAT 501

1. Mr Julian Knight is a high security prisoner serving lengthy sentences of imprisonment at H.M. Prison Barwon. He has over the years been involved in a number of freedom of information proceedings in this Tribunal and its predecessor, the Administrative Appeals Tribunal of Victoria. In the present proceeding Mr Knight sought a review of the determination made by the respondent, the public correctional enterprise, an agency of the Department of Justice, to refuse him access under the Freedom of Information Act 1982 to some 99 documents or parts of documents. As matters have developed the only document which now remains in dispute is the document numbered 9 in the respondent's schedule of exempt documents. This document is shown to be dated the 3rd of June 2002 and is described as "visitors for a specified prisoner", viz. Mr Knight, it consists of five pages. The exemption claimed by the respondent agency is under Section 33(1) of the Freedom of Information Act 1982.

2. The respondent applied to Deputy President Coghlan for an order dismissing or striking out the proceeding pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. Mrs Coghlan ordered on 14 February 2003 that that application be determined "on the papers". She made directions for the respondent to file and serve its submissions in support of the summary dismissal or strike out. On 7 March Mr Knight was directed to file his submissions by 21 March and the respondent was given an entitlement to file submissions in reply on 28 March. Those submissions have now been filed and served and the matter has been referred to me for determination.

3. The respondent drew attention to the Tribunal's determination in Proceeding G352/2002. In a decision published on 20 December 2002 Ms Steele, Senior Member, ordered inter alia, that Mr Knight have access to a document designated in that proceeding as Document 4, subject to the deletion of the names of the individuals involved. At paragraph 32 the learned Senior Member stated:

"Document 4 is an extract of the daily mail register relating to the applicant for the periods set out in his request. This has been released but for the names of individuals who either sent mail to the applicant or received mail from him and the dates these letters arrived and left, as the respondent claims an exemption for this as `personal affairs' information under Section 33. I find it would be unreasonable to disclose to the world at large that any particular individual is the sender of mail to the applicant or the recipient of mail from him, given the discussion of Section 33 set out above particularly at paragraph 16."

4. Mr Batskos who acts for the respondent, submits:

"That the Tribunal's conclusion in the previous proceeding about not disclosing to the world at large the personal affairs information to the effect that the applicant sent correspondence to or received it from a particular individual would be unreasonable is equally applicable to personal affairs information about individuals who visited the applicant. It is submitted that the similarity (and in many cases the identicalness) in the personal affairs information in Document 4 in the proceeding and Document 9 in the preset proceeding is so great as to justify a summary dismissal or striking out of the applicant for review under Section 75 of the VCAT Act in relation to Document 9."

5. Mr Batskos referred to the decision of the Court of Appeal in State Electricity Commission v Rabel [1998] 1 VR 102; to Norman v The Australian Red Cross Society (1998) 14 VAR 243 and Kyrou and Pizer Victorian Administrative Law v-246-248.

6. Mr Batskos said that there was no real substance left in the matter and a finding of exemption under Section 33 of the Freedom of Information Act could not be overturned by any resort to a claim of public interest under Section 50(4) of that Act. He said that whilst the power summarily to dismiss a matter should be exercised with great care, there remains no complicated questions of fact, law or public interest which would be ventilated by a final hearing to permit this proceeding to continue would in his submission "effectively re-litigate a matter that had already been disposed of by the Tribunal between the same parties. Many of the individuals concerned in the present proceeding were referred to in the exempt information in the previous proceeding."

7. Mr Knight opposed the application for summary dismissal. He said that Document 9 in this proceeding differed from Document 4 in the previous proceeding in the following respects:

(b) The source of the information recorded in the two documents.

(c) The nature of the information recorded in the two documents.

(d) The method by which the information was recorded.

(e) The extent to which the recorded information is accessible by the applicant and by others.

(f) The relationship between the applicant and those individuals whose personal information was recorded in the two documents."

8. He submitted therefore that the considerations relative to the two documents significantly differed and that the reasons given by Ms Steele for her determination as to Document 4 are "in many instances, not applicable to Document 9". Mr Knight said that the allegedly "almost identical information" "constitutes only a small portion of the information in question". He said that different individuals were involved and therefore different consideration arose with respect to the two documents.

9. Mr Knight said that the Tribunal was not bound to follow its own decisions and "it would be unconscionable for the Tribunal to hold itself bound in this proceeding by the decision in the previous proceeding". He concluded that a hearing relative to Document 9 could be determined "on the papers" and would not require a full hearing.

10. In reply Mr Batskos submitted that the mode of recording the information in the two documents was not the significant factor, rather it was "the type of information in Document 4 in the previous proceedings (ie. information identifying individuals having some form of contact with the applicant) which is very similar or the same as the person refers information in Document 9 in the present proceeding". Mr Batskos said that the accessibility or otherwise of the information to the applicant was beside the point because what was found relevant in the earlier decision by Ms Steele was the accessibility of this information to the world at large were it released under the Freedom of Information Act. He submitted that the Tribunal should follow its earlier decision unless it was clearly wrong. He referred to Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; (2000) 16 VAR 334, 344.

11. He concluded that Mr Knight's concession that the hearing with respect to Document 9 could be done "on the papers" entailed a concession that there were no significant questions of fact or law which required a final hearing.

12. It is appropriate to set out the two statutory provisions to which reference has been made, namely Section 33 of the Freedom of Information Act 1982 which forms the basis for the exemption upheld by Ms Steele in the earlier proceeding with regard to Document 4 and which is relied upon once again by the respondent in this proceeding with respect to Document 9:

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(2) Subject to sub-section (4), the provisions of sub-section (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

(3) Where a request by a person other than a person referred to in sub-section (2) is made to an agency or Minister for access to a document containing information relating to the personal affairs of any person (including a deceased person) and the agency or Minister decides to grant access to the document, the agency or Minister (as the case may be) shall if practicable notify the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) of the decision and of the right of appeal against the decision provided by section 50(2)(e) to the person or, in the case of a deceased person, to the person's next-of-kin.

(a) a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains health information concerning the person making the request; and (b) the principal officer or the Minister, as the case may be, believes on reasonable grounds that the provision of the health information would pose a serious threat to the life or health of the person--

the principal officer or Minister must not give access to the document so far as it contains that information and--

(c) the procedure set out in Division 3 of Part 5 of the Health Records Act 2001 applies as if the refusal of access were a refusal under section 26 of that Act; and

(5) Where but for this sub-section the principal officer of an agency to which the provisions of sub-section (4) may apply would not be a registered medical practitioner within the meaning of the Medical Practice Act 1994, the agency shall appoint a registered medical practitioner within the meaning of the Medical Practice Act 1994 to be the principal officer of the agency for the purposes of sub-section (4).

(6) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document of a kind referred to in sub-section (1) where information as to the existence or non-existence of that document, if included in a document of an agency, would cause the last-mentioned document to be an exempt document by virtue of this section.

(7) Nothing in this section shall be construed so as to affect the procedures for access to adoption records contained in the Adoption Act 1984.

(8) Nothing in this section shall be construed so as to affect the procedures for access to information kept in a register maintained under Division 1 of Part 7 of the Infertility Treatment Act 1995.

"information relating to the personal affairs of any person" includes information--

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined."

13. Next it is appropriate to consider the terms of Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 which is relied upon by the respondent as justifying the order which it seeks. The section is in the following terms:

"(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 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."

14. It is clear that the information withheld by the respondent in the present proceeding with respect to Document 9 and by Ms Steele in the previous proceeding with respect to Document 4 constitutes information with respect to the personal affairs of the relevant individuals. The question for Ms Steele was whether the release of that information constituted an unreasonable disclosure for the purposes of Section 33(1) of the Freedom of Information Act. She concluded that it did.

15. Section 75 permits the Tribunal to affect a summary dismissal of a proceeding on a number of basis, namely that:

16. The reference to abuse of process raises the related but distinct doctrines of res judicata and issue estoppel whereby adjudications between the same parties and their privies are treated as final and binding subject only to appeal rights and not capable of being re-opened in subsequent proceedings. The concept of abuse of process is generally cognate with these doctrines but wider still. For instance in Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290 the New South Wales Court of Appeal concluded that when a would be developer sought a new planning permit which was not materially different from the permit previously sought and adjudicated upon by the New South Wales Land and Environment Court, a second application to that court constituted an abuse of process. Davies AJA considered that the doctrines of res judicata and issue estoppel did not in the circumstances apply. He continued:

"Nevertheless, it is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions." [1999] NSWCA 303; (1999) 105 LGERA 290, 293 paragraph 14

17. The question for determination here is whether, as Mr Batskos would have it, Mr Knight is, to use the words of Davies AJA "seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions". If he is, then the present proceeding is an abuse of process and is liable to be and should be summarily dismissed pursuant to Section 75.

18. Mr Knight draws attention to a substantial number of differences between Document 4 in the earlier proceeding and Document 9 in the present proceeding. Specifically and on the basis of my own perusal of the documents, the one document, Document 4, is hand written; the other document, Document 9, is a computer record. Whilst there is some limited overlap between the individuals involved it is perhaps understandable that those who find it possible and convenient to have the advantage of personal visits to Mr Knight (as recorded in Document 9) generally would not take the trouble to enter into written correspondence with him. Conversely those who, for whatever reason are unable or cannot conveniently have personal visits to Mr Knight, communicate with him by letter. The two groups are therefore largely if not totally, mutually exclusive. In my view however Mr Batskos is correct in observing that the identity of legal issues relative to the two documents lies not in their form or in the individuals involved but in the conclusion reached by Ms Steele that disclosure to the world at large of the names or other identifying information of those who associate with Mr Knight would be an unreasonable disclosure of their personal affairs. Ms Steele framed her conclusion in words specific to Document 4 recording as it did persons who corresponded with Mr Knight rather than those who called upon him. In my view however, there is a substantial identity in principle. The underlying and connecting factors being that both groups are groups which associate and communicate with Mr Knight specifically. That wider principle underlies Ms Steele's determination.

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.

20. Mr Knight also made reference to the accessibility to him of the information in the two documents. He gave no clue as to why that access would be differential. One imagines that Mr Knight is as able to remember or not remember those who visit him as he is able to remember those with whom he corresponds. Nevertheless, since the gravamen of Ms Steele's determination related to the consequences for the personal affairs of Mr Knight's correspondence and interlocutors rather than Mr Knight himself, this consideration seems to be beside the point.

21. In so far as reference was made to the issue of the Tribunal following its own decisions as a matter of precedent, this also seems to be beside the point. The doctrine of abuse of process applies by virtue of the finality of the first decision and the failure to attack it by means of the appeal process. It does not depend upon any view by the subsequent court or tribunal that the first decision was right. It is sufficient that the first decision was given and remains undisturbed. If it were however a matter of the Tribunal following or not following one of its earlier decisions, I would unhesitatingly follow the line taken by Ms Steele. Nothing that Mr Knight has said indicates any error in the approach which she took. Finally, I am fortified in the conclusion that the respondent should obtain the summary dismissal that it seeks by the knowledge that even if this matter were "sent for trial" upon Mr Knight's own view of things, not even an oral hearing would be necessary.