Marke v Victoria Police (Review and Regulation) [2019] VCAT 207

1. Under section 75(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application for review as it relates to the documents described in these reasons as the 'Part 1 documents' is dismissed.
2. The proceeding is listed for an administrative mention on 14 March 2019 so the parties can consider submitting consent orders for the future conduct of the remainder of the proceeding or seek a directions hearing.
3. The principal registrar is directed to return to the respondent the copies of the Part 1 documents which were filed with the Tribunal on a confidential basis.

1. On 6 February 2018, Mrs Gunhild Marke made a request to Victoria Police for access to certain documents. That request was made under the Freedom of Information Act 1982 (Vic) (FOI Act).
2. Mrs Marke's request for access sought documents identified by reference to Victoria Police file numbers C3/4-4517/2002 and C3-4/2658/2004.
3. Mrs Marke sought a total of seven statements made by four people (identified in the hearing by initials A, B, C and D) and one report from the first file (Part 1 documents). From the second, Mrs Marke sought any complaint statements, reports, emails or other documents made or submitted by person C (Part 2 documents).[1]
4. On 25 April 2018, Victoria Police decided to refuse to grant access, relying on exemptions in the FOI Act.
5. In accordance with the FOI Act, Mrs Marke applied to the Office of the Victorian Information Commissioner (OVIC) to review Victoria Police's refusal decision. As OVIC had not made its decision within the statutory time frame, Mrs Marke exercised her right to seek review by this Tribunal.
6. Victoria Police applied for an order summarily dismissing the application for review concerning the Part 1 documents. That application did not include the Part 2 documents.
7. In summary, Victoria Police contended the Part 1 documents had been the subject of earlier FOI Act requests by Mrs Marke's husband, Mr Lance Marke, and so, under provisions of the FOI Act and/or the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the request could not be re-considered by the Tribunal.
8. After hearing from the parties at a hearing on 17 January 2019 and reading their submissions, I have decided to dismiss the application in respect of the Part 1 documents.

1. As noted above, Mrs Marke's husband is Mr Lance Marke. Mr Marke has made numerous FOI Act applications for access to documents relating to events which happened in and after 2003. Many of those applications have yielded documents which have clarified some matters and others have led to further enquiries and requests.
2. Although this is Mrs Marke's application, the context for it is closely linked to past events involving Mr Marke. The relevant matters may be summarised as follows.
3. Mr Marke was a member of Victoria Police for more than 30 years. On 29 April 2003, Victoria Police's Ethical Standards Department (ESD) commenced an investigation to establish whether Mr Marke had attempted to pervert the course of justice by hindering a police investigation. The police investigation related to allegations that an Anglican priest had sexually assaulted children.
4. On 7 May 2003, shortly after the ESD investigation commenced, the ABC's '7:30 Report' televised a story in relation to the allegations. The story then attracted widespread media attention.
5. Mr Marke has always vehemently denied the allegations made against him. He believes the allegations were falsely made with the intention of harming his character and reputation.
6. On 10 October 2003, the ESD investigation concluded and found the allegations against Mr Marke had not been substantiated. Mr Marke sought a further review within Victoria Police, seeking complete exoneration. While Victoria Police changed the finding to unfounded, it declined to make a finding of exoneration. Mr Marke's request for a formal investigation into the conduct of certain police officers was refused.[2]
7. Mr Marke recently obtained a redacted copy of the Chief Commissioner's review in 2006. He and Mrs Marke say the process was inadequate and the Chief Commissioner failed to investigate as required by section 86(1) of the Police Regulation Act 1958 (Vic), which was in force at the time.

1. Victoria Police relied on sections 24A and 50 of the FOI Act and section 75 of the VCAT Act to contend the application for the Part 1 documents application ought to be dismissed.
2. Section 24A says relevantly:

(1) An agency . . . dealing with a request under Part III for access to documents . . . may refuse to grant access to documents . . . , without having caused the processing of the request to have been undertaken or at any later time, if the agency or Minister is satisfied that -

(a) the request is made by, or on behalf of, a person who, on at least one previous occasion, has made a request to the agency . . . for access to the same documents or the same information; and

(b) the request was refused and the Tribunal, on reviewing the decision to refuse the request, confirmed the decision; and

(c) there are not reasonable grounds for making the request again

1. Section 50 of the FOI Act specifies some of the decisions this Tribunal may review. Section 50(6) of the FOI Act says:

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

1. Section 75 of the VCAT Act says, at any time, the Tribunal may dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (section 75(1)(a)), or is otherwise an abuse of process (section 75(1)(b)).
2. There have been many cases about section 75 and the law about how to approach the section is clear.[3] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where an application can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.
3. Although the term 'abuse of process' is not defined in the VCAT Act it is understood to include any process used in a way that is manifestly unjust, oppressive or unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[4] Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. [5]
4. I accept Mrs Marke's submission that section 75 of the VCAT Act is not intended to be used as a pre-hearing assessment of the evidence to be called. Mrs Marke noted that, at this stage, she has not informed the respondent or the Tribunal as to how she intends to run her case or what evidence she intends to place before the Tribunal.

1. Under section 50(6), the Tribunal may refuse to review Victoria Police's decision in respect of the Part 1 documents if satisfied that it has previously reviewed a decision of Victoria Police to refuse access to the same document or the same information.
2. Victoria Police referred me to two previous decisions of this Tribunal.

1. The Tribunal heard and determined one of Mr Marke's FOI Act applications in 2006. The application was dealt with by sampling as the total documents were considerable. Accordingly, the proceeding concerned 11 specific documents which represented the kinds of documents to which the application related. Victoria Police had refused to release all of the documents.
2. On 11 July 2006, Senior Member Preuss set aside Victoria Police's decision in relation to parts of two documents (the other parts being exempt) and affirmed its decision in respect of the remaining nine documents as they were exempt under the FOI Act.[6]
3. Mr Marke made a further FOI Act application in 2013 and, after access was refused, he sought review in this Tribunal in 2014. There were 33 documents in issue. There was no dispute that 25 of those documents had been considered and ruled on by SM Preuss in her 2006 decision.
4. On 14 October 2014, Senior Member Megay dismissed Mr Marke's application in respect of those 25 documents. She determined that, as they had already been the subject of SM Preuss' decision, the application amounted to an abuse of process under section 75(1)(b) of the VCAT Act.[7]
5. At the hearing before me, time was spent identifying the Part 1 documents Mrs Marke had sought and cross referencing them to the documents considered in the two earlier decisions. There was no dispute before me that the Part 1 documents had all been before and ruled on by SM Preuss in July 2006 and that, in October 2014, SM Megay had found the attempt to re-litigate their status under the FOI Act was an abuse of process.

1. Victoria Police contended that section 50(6) of the FOI Act does not require that the application for review had been made by the same person. Noting the wording of section 24A which expressly concerns one or more applications made by the same person, I accept that contention. It is evident from the words of section 50(6) that the question is whether the Tribunal has previously reviewed a request for the same document or the same information.
2. That approach is consistent with the law regarding abuse of process - in my view section 50(6) is directed to attempts to re-litigate earlier findings about the same subject matter.[8]
3. As a question of fact, I am satisfied that the Tribunal has previously reviewed a decision of Victoria Police to refuse access to the Part 1 documents - in fact that has occurred twice as set out above.
4. Section 50(6) of the FOI Act says the Tribunal may refuse to review the relevant decision not that it must. So, the next question is how to exercise that discretion whether to review Victoria Police's 25 April 2018 decision.
5. I accept Mrs Marke (and Mr Marke) continue to want access to the Part 1 documents and regard them as having continuing relevance to their lives and circumstances. I accept they are dissatisfied about what they now know about the Chief Commissioner's 2006 review of Mr Marke's complaints.
6. I am not persuaded their disquiet about that process is a sufficient basis to exercise my discretion to allow reconsideration of the FOI Act status of the Part 1 documents given:
   • The comprehensive consideration SM Preuss gave to that question in 2006 and her finding that the Part 1 documents were exempt;
   • SM Megay's 2014 decision about those same documents; and
   • The principles which underpin the concept of abuse of process in section 75(1)(b) of the VCAT Act.
7. The application as it relates to the Part 1 documents is dismissed.

1. Given the above finding, it is not necessary for me to determine whether section 24A of the FOI Act also applies.
2. Despite that I will refer to the evidence about how the application came to be made and whether it was, as contended by Victoria Police, made by Mrs Marke on her husband's behalf. I do so in part because Mrs Marke gave oral evidence on that matter and it was evident that she and Mr Marke were both distressed at the suggestion Mrs Marke had been put up to making the application for Mr Marke or that either of them had acted improperly.
3. In summary, Mrs Marke's evidence from a witness statement she made on 4 January 2019 and the oral evidence before me was:
   • She sought the documents because she was '. . . seeking the truth about many false and dishonest allegations that have been made against my husband over the past 15 years, which has never been thoroughly investigated or resolved to any satisfactory conclusion.' Further, allegations had been made about her role in events around 2003 and following and she wanted the Part 1 documents to see what had been said as those matters had caused her hurt. Mrs Marke referred to people implicating her as having been involved in the conduct her husband was alleged to have engaged in - she described those statements as false and as lies. Mrs Marke said she had made the request for Mr Marke's benefit and because she wanted to know what lies had been told about her;
   • Mrs Marke sought her husband's assistance to make the application because she did not understand the law or the way the documents were described by reference to file numbers - she knew the documents she wanted but relied on his experience to prepare the request and to correspond with Victoria Police about narrowing and clarifying the request. She said she had looked over a lot of the relevant letters and documents, but a lot had 'gone over her head';
   • When it came to making the initial application for the documents and her witness statement, she said she had asked for Mr Marke's help. She read through the application he had prepared and signed it because she was satisfied with its contents. The same occurred when her witness statement was prepared. I understood that in doing so Mrs Marke relied on her husband's expertise in and knowledge of the FOI Act and proceedings before the Tribunal;
   • Mrs Marke confirmed she was aware of Mr Marke's earlier requests for the same documents; and
   • It was put to Mrs Marke that, after Mr Marke had failed to obtain access to the Part 1 documents for over a decade, they had put their heads together and made the request. Mrs Marke disagreed with that proposition. She said she had asked whether anyone can apply for documents, Mr Marke checked and said 'yes' and she said words to the effect 'let's do that please'.
4. I was satisfied on Mrs Marke's evidence that she was not put up to applying for her husband or that the application was in truth his alone. I accepted her evidence that she wanted to know what had been said in the documents about her. I accepted that the events summarised earlier had a very significant impact on Mrs Marke and her family and that the impact continued as at the hearing date.
5. Having said that, I was also satisfied that Mrs Marke was motivated to assist Mr Marke by applying for the documents she knew he had previously sought and had been refused. I accepted her evidence that she wanted the documents benefit him and so she could know what had been said about her. It seemed to me that Mrs Marke seeks clarification of what happened in and after 2003 and some form of vindication for her husband and, by association, herself.
6. In my view, that dual purpose is entirely unsurprising and is consistent with a longstanding couple feeling their lives have been overshadowed by past events. I infer no inappropriate motive or sleight of hand in the application being made.

1. The effect of my findings is that the application as it relates to the Part 1 documents must be dismissed and the proper characterisation within section 75 of the VCAT Act is that it is an abuse of process.
2. As discussed at the hearing, those words are not intended to suggest Mrs Marke has, in the colloquial sense, abused Victoria Police or the Tribunal by making the application for the Part 1 documents. Nor was it contended they have acted frivolously or vexatiously.
3. Rather, it is the application itself made in circumstances where it has already been the subject of a Tribunal decision, that is the relevant abuse.
4. I have made orders dismissing the application in relation to the Part 1 documents. As for the application about the Part 2 documents, I have invited the parties to submit consent procedural orders or to seek a directions hearing if they cannot reach agreement.
5. In the circumstances, I have further ordered that the copies of the Part 1 documents filed with the Tribunal on a confidential basis are to be returned to Victoria Police.

[1] It was agreed at the hearing that there was no need to identify those persons in these reasons.

[2] This summary comes from Senior Member Preuss's reasons for decision in Marke v Victoria Police [2006] VCAT 1364.

[3] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria & Ors [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074; Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683.

[4] Molyneux v VCAT & Anor [2007] VSC 89 at para 53.

[5] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, per French CJ at para 33.

[6] [2006] VCAT 1364.

[7] Marke v Victoria Police, 14 October 2014, unreported.

[8] See the discussion by Senior Member Steele in Hoskin v Department of Education [2005] VCAT 2921 at paragraphs 38 to 44, including as to the effect of Judge Strong's decision in Olexander v Department of Premier and Cabinet [2002] VCAT 497.