Knight v Secretary to the Department of Justice [2003] VSC 341

6. On 16 July 2003, the applicant filed an originating motion seeking to extend the time to commence "this appeal due to special circumstances". On 30 July 2003, Gillard J ordered that on or before 13 August 2003, the applicant file and serve an affidavit in support of his application to extend time.

9. By affidavit sworn 8 August 2003 the applicant set out his reasons for the delay in making the application. The reasons, in summary, are that the applicant was apparently unaware of the procedural requirements of s.148 of the VCAT Act and that by reason of his incarceration and his lack of representation he does not have access to a law library or to the court.

12. The application came on before me in the Practice Court on 3 September 2003. At the commencement of the hearing, and in order to avoid further delays, I granted the applicant leave to amend his summons and originating motion to include an application for leave to appeal pursuant to s.148(1) of the VCAT Act. I considered it expeditious to hear and determine both the application for extension of time and the application for leave to appeal at the same time.

15. Mr Pizer of Counsel, who appears for the Secretary to the Department of Justice, (the respondent) opposes the applicant's application for an extension of time on the basis that any application for leave to appeal is hopeless and or bound to fail.

Background to the proceedings before the Tribunal

19. The applicant is a high security prisoner, serving lengthy sentences of imprisonment at Her Majesty's Prison Barwon. In October 2002, he filed an application for review of an internal review decision made by the Department of Justice in relation to the review of an application by him for access to documents under the FOI Act.

22. In December 2002, VCAT made its decision in another FOI Act proceeding involving the same parties. The Tribunal decided that a handwritten document that recorded the names of persons who sent mail to, or received mail from, the applicant was an exempt document under s.33(1) of the FOI Act. It should be noted that to be exempt under s.33(1) of the FOI Act, two conditions must be satisfied. First, disclosure of the document must involve the disclosure of information relating to the "personal affairs" of a person. Secondly, such disclosure must be "unreasonable". The Tribunal found that "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."

25. Subsequently and on 14 February 2003, a directions hearing was conducted in the Tribunal in relation to the further application made by the applicant. By that time there was only one document in dispute. That document was a five page typed document that recorded the names and other personal information of persons who had visited the applicant during a specified period. At the directions hearing, the respondent Department applied for an order dismissing or striking out the proceeding. The Tribunal gave directions for the filing and serving of submissions in relation to that application and directed, by consent, that the application be determined "on the papers".

28. The parties filed and served their submissions in accordance with the directions made at the directions hearing and, on 10 April 2003, Mr Macnamara determined the application "on the papers". In his reasons for decision Mr Macnamara summarised the parties' submissions and the applicable law. Mr Macnamara accepted that the proceeding would be an abuse of process if it could be characterised as "seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions". Mr Macnamara found that the proceeding could be so characterised.

32. It is apparent that for leave to appeal to be granted the applicant must identify a question of law[1] which arises from the decision under challenge.[2]

35. The "notice of appeal" filed by the applicant sets out five grounds of appeal. The first ground relied upon by the applicant is -

"That the Tribunal erred in law `when he found that the application in question was an abuse of process, when he did not consider all of the circumstances relevant to the application'."

39. As submitted by Mr Pizer, it is apparent that the first ground relied upon is not a proper ground of appeal. It in fact is no ground, as it does not state what "circumstances relevant to the application" were not considered. It is apparent from my reading of the nine page reasons for decision of Mr Macnamara that he had regard to all of the written submissions by the parties. Accordingly, I accept the submission of Mr Pizer that this ground of appeal is invalid. In any event, it is totally without substance.

42. The second ground upon which the applicant relies is that "the Tribunal erred in law when he found that the applicant was seeking to re-agitate issues which have as a matter of substance already been determined in a prior decision, when (a) the application in question concerned a different document; (b) the applicant indicated that submissions he would make in the application would differ from those he made in the previous proceeding; and (c) the applicant indicated that many of the reasons for the decision in the previous decision were not applicable to the application in question".

45. The second ground does not, in my opinion, identify an error of law. It appears to me that in reality the applicant seeks to challenge the factual findings of Mr Macnamara that he was "seeking to re-agitate issues which have as a matter of substance already been determined in a prior decision". In my view, that finding of fact was open to be made by Mr Macnamara.

48. The third ground upon which the applicant relies is "that the Tribunal erred in law when he found that the applicant did not provide evidence to support the contention that differences existed between the two documents in question and the submissions that had and would be made, when this would involve a determination of the substance of the application".

51. Whatever the precise meaning of this convoluted ground is, it is apparent that Mr Macnamara did not make any finding "that the applicant did not provide evidence to support the contention that differences existed between the two documents in question". On the contrary, the written submissions of the applicant which were before Mr Macnamara, contended that there were differences between the document considered by the Tribunal in its earlier decision and the document under consideration by Mr Macnamara. It is quite apparent that the issue of differences between the two documents was considered by Mr Macnamara. He said, at paragraph 18 of his decision -

"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 handwritten; 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 with 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 (the Tribunal at the earlier hearing) 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."

55. Contrary to the applicant's assertion, Mr Macnamara did not make any finding that "the applicant did not provide evidence to support the contention that differences existed between the two documents in question". It is apparent that ground 3 does not arise out of the decision of Mr Macnamara.

58. The fourth ground the applicant relies upon is "that the Tribunal erred in law when he found that he would follow the prior decision if called upon to determine the present application".

61. Mr Macnamara, in paragraph 21 of his decision, said -

"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 [the Tribunal in its earlier decision]. Nothing that Mr Knight has said indicates any error in the approach which (the Tribunal) took."

65. There is, in my view, no basis to suggest that Mr Macnamara erred in making the statement in question. It is quite clear that the statement made by Mr Macnamara that "if it were however a matter of the Tribunal following or not following one of its earlier decision ... " he would unhesitatingly do so is in any event not relevant to the decision which was made by Mr Macnamara.

68. The fifth and final ground upon which the applicant relies is "that the Tribunal erred in law when he found that the fact that the application could, as submitted by the applicant, be determined `on the papers', supported the decision to dismiss the application when the reasons for that submission was (sic) that there were no witnesses to be examined and only documentary evidence was to be submitted."

71. It became apparent during the submissions made to me by Mr Knight that this convoluted ground refers to paragraph 21 of the reasons for decision of Mr Macnamara whereby he said -

"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."

75. Plainly this statement is not a reason for Mr Macnamara's decision to dismiss the proceeding. Furthermore, it appears to me that there is no basis for the suggestion that Mr Macnamara erred in making the statement in question. It is beyond argument that a proceeding ought not to be dismissed or struck out under s.75 of the VCAT Act if the ultimate fate of the proceeding depends upon contested questions of fact that would be established or illuminated by oral evidence or cross-examination. Mr Macnamara was doing no more than making the observation that the conclusion that he had already reached, that is that the proceeding ought to be dismissed, was fortified by the fact that the applicant had conceded that if the matter were "sent to trial" an oral hearing involving evidence from witnesses would not be necessary. That is, the applicant did not assert that there was any issue before the Tribunal which would require oral evidence.

79. For the above reasons it is apparent in my view that the proposed appeal of the applicant is unarguable and bound to fail. Certainly, in any view, it is not attended by sufficient doubt so as to justify the grant of leave.

82. The power to extend time pursuant to s.148(5) of the VCAT Act is discretionary. Clearly the purpose of the discretion is to do justice between the parties.[3] It is apparent that each case depends upon its own facts and there are a variety of factors which may influence the exercise of the discretion, amongst other factors, including the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.[4] In the circumstances of the case before me I am satisfied that the applicant has given an adequate explanation for the delay and the reasons for the delay. However, it is apparent that the applicant bears the onus of proving that an extension should be granted, and in circumstances where in my opinion any appeal brought to this court would be bound to fail, it appears to me that no good purpose is to be served by acceding to his application to extend the time limit. Accordingly, the application is dismissed.

85. It is appropriate to note that in the course of the hearing before me the applicant was highly critical of the Tribunal dismissing his claim summarily and without providing what the applicant termed a "full hearing". In my view, it was entirely open to the Tribunal to proceed as it did in the circumstances of this application. Objectively, and leaving aside the issues raised in this application, there was never any realistic prospect that a document which contained the names of a range of persons who had visited the applicant in prison would be other than exempt under s.33(1) of the FOI Act. It is difficult indeed to see how disclosure of the names of those who visit the applicant in prison would not involve unreasonable disclosure of information relating to their personal affairs in circumstances where there can be no public interest in such disclosure, but that such disclosure would be to the world at large. It must be remembered that substantial community resources are involved in the conduct of proceedings before courts and tribunals in this State. Some litigants, such as the applicant in this proceeding, are not deterred by the risk of costs orders being made against them. Scarce resources of the community which are invested in courts and tribunals should not be allowed to be squandered by applicants bringing futile applications before courts and tribunals. In the circumstances, in addition to being satisfied that the decision of Mr Macnamara contained no error of law I am additionally satisfied that the course taken by him was totally proper and did not warrant criticism in any way.

[1] Chapter 11 of Supreme Court Rules, Rule 4.11(1)(b)(iv).

[2] Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[3] Carlos Constructions Pty Ltd v Housing Guarantee Fund Limited [2002] VSC 444.

[4] Jackamarra v Krakouer [1998] CLR 516.