1. The decision under review to refuse access to the report of Ambulance Victoria is affirmed.

1. This case is about whether an investigation report prepared by a solicitor is legally privileged and exempt from release under the Freedom of Information Act 1982 (Vic) (FOI Act).
2. The circumstances in which the report was prepared are unique and they are highly relevant to why the applicant, MVX, is seeking its release.
3. On 20 December 2024, VCAT made a pseudonym order in this proceeding anonymising the applicant, to preserve his privacy.
4. MVX commenced as a Graduate Ambulance Paramedic with Ambulance Victoria in 2013. It was his lifelong ambition to be a paramedic.
5. On 6 April 2020, he attended a meeting with senior Ambulance Victoria staff and was advised, in substance, that his participation in the Graduate Ambulance Program would cease. MVX was devastated.
6. On 9 April 2020, MVX wrote an email to the CEO of Ambulance Victoria. The letter commenced:

This is my resignation letter, not from Ambulance Victoria, but life itself.

1. This sorrowful communication went on to outline numerous concerns MVX said that he had raised throughout his employment, which he believed had not been adequately addressed. His concerns included unresolved bullying allegations he raised, how some of his sick leave was managed, his return to work and the mishandling of his progression and performance management.
2. That same day, MVX attempted suicide outside the headquarters of Ambulance Victoria. He subsequently spent a period of time in hospital, in intensive care, but he has since, remarkably, made a full physical recovery. He remains disquieted about the trajectory of his employment at Ambulance Victoria, where he no longer works.

1. In April 2022, VCAT received an application from MVX under section 50(1)(a) of FOI Act.
2. The application to VCAT followed a request by MVX to Ambulance Victoria, in November 2021, for a range of documents related to his employment. Relevant to this proceeding, he sought all 'witness statements [sic] interviews, memos [sic] outcome of the investigation into [MVX]'s suicide attempt' (Investigation Documents Request).
3. Following consultation with MVX, Ambulance Victoria clarified the Investigation Documents Request. The revised request was expressed by Ambulance Victoria as follows:

The document that records the outcome of the investigation into the circumstances surrounding your suicide attempt at Ambulance Victoria Headquarters in Doncaster on 9 April 2020. Any emails, meetings, or memos from AV staff responding to the outcome of the investigation into my suicide attempt.

1. By correspondence dated 24 February 2022, Ambulance Victoria advised MVX that it had identified 47 documents relevant to his request. It granted access in full to 37 documents, in part to two documents and denied access to eight documents. The documents to which access was denied included the report that was ultimately the subject of this proceeding.
2. MVX subsequently sought a review by the Office of the Victorian Information Commissioner (Commissioner).
3. A review was due by 31 March 2022, but the Commissioner advised MVX that it was unlikely that the review would be completed by this time.
4. MVX applied for a review in VCAT on the basis that his request for access to documents under the FOI Act was taken to have been refused by the Commissioner.[1]
5. By the time of the VCAT hearing, only one document was in dispute. This was a report, prepared by a lawyer employed by Maddocks Lawyers (Maddocks), of an investigation into the concerns raised by MVX in his email to the CEO of 9 April 2020 [2] (Report).
6. On 5 March 2025, MVX's application came before me for hearing. Ms Zhu, Solicitor, appeared on behalf of Ambulance Victoria and called evidence from Mr James Davis, Senior Lead, Enterprise Agreements, at Ambulance Victoria. MVX appeared to give evidence and make submissions on his own behalf. I reserved my decision.

1. Under section 13 of the FOI Act, MVX has the right to obtain documents, unless a document is wholly or in part an exempt document.
2. Section 3 says the Act's object is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria, and other bodies constituted under the law of Victoria for public purposes, and that any discretions conferred by the FOI Act shall be exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
3. Section 16 requires agencies to administer the FOI Act with a view to making the maximum amount of information promptly and inexpensively available to the public.
4. The above is subject to exemptions from release, including the exemptions relevant here.
5. Ambulance Victoria bears the onus of satisfying VCAT that the documents in dispute are exempt from disclosure.

1. Before the VCAT hearing on 5 March 2024, the exemptions said to be in issue in this proceeding were:
   • section 32(1) of the FOI Act, which relates to legal professional privilege and client legal privilege; and
   • section 33(1) of the FOI Act, which protects personal information, here the names of staff of Ambulance Victoria and of a firm of solicitors from unreasonable disclosure.
2. By the time of the hearing, the section 33(1) of the FOI Act exemption was not pressed.
3. In response to questioning from the Tribunal at the hearing, Counsel for Ambulance Victoria stated that, while the Report contains personal affairs information, the 'focus' of the hearing was on the application of legal professional privilege to exempt the entire Report from release.
4. The result was that no evidence was called at the hearing, and no submissions were made, about the application of the section 33(1) of the FOI Act exemption to the Report.
5. If the remaining exemption under section 32(1) of the FOI Act is allowed, section 50(4) of the FOI Act gives VCAT (a rarely used) discretion to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33 of the FOI Act) where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under the FOI Act.
6. I therefore only deal with the section 32 of the FOI Act exemption and the application of section 50(4) of the FOI Act.

Section 32 of the FOI Act - Legal professional privilege exemption

1. Section 32 of the FOI Act says that a document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.
2. The reference to legal professional privilege raises the usual common law considerations regarding the application of the privilege. The reference to 'client legal privilege' picks up the same concepts, using the terminology from Division 1 of Part 3.10 of the Evidence Act 1995 (Cth).
3. A document will be exempt under the legal professional privilege limb of section 32(1) of the FOI Act if:

a) it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or completed litigation; > > b) it contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or > > c) it contains confidential communication between the client (or the client's agent) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or completed litigation.[3]

4. The test to be applied is an objective one and it looks to the primary or substantial reason for the communication. Where there are mixed purposes, the task is to identify the dominant purpose.

1. Mr Davis did not commission the Report himself or initiate the investigation on behalf of Ambulance Victoria.
2. He gave evidence that the Report was commissioned by the CEO of Ambulance Victoria, before he became involved.
3. After the investigation commenced, Mr Davis was tasked by Ambulance Victoria to share information with Maddocks and to be the investigator's direct contact person.
4. At the hearing, Mr Davis adopted as true and correct a witness statement, dated 17 March 2023, in which he described the commencement of the investigation in the following way:

In response to [MVX's email of 9 April 2020], I am aware that Ambulance Victoria engaged Maddocks Lawyers to conduct an investigation into the concerns raised by [MVX] and to provide a report to Ambulance Victoria on the investigation conducted.

The purpose of the report was to provide Ambulance Victoria with legal advice about the concerns raised, whether previous complaints had been addressed, and whether any further action was required by Ambulance Victoria so that it could made decisions in relation to [MVX]'s employment.

1. In oral evidence, Mr Davis relevantly stated that:

a) the CEO of Ambulance Victoria made a deliberate decision to engage a law firm to provide a report, so that the report could be covered by legal professional privilege; > > b) Ambulance Victoria considered the entirety of the Report to constitute legal advice; > > c) to the best of his knowledge, the Report was provided to and accessed by him and only two other people at Ambulance Victoria, being the CEO and the Executive Director of People and Culture; and > > d) to the best of his knowledge, he is the only current employee of Ambulance Victoria who knows the password to the document, which is stored securely and not on MVX's personnel file.

2. Counsel for Ambulance Victoria further advised the Tribunal that the Report was kept confidential by Maddocks Lawyers under its 'client document protocol'. However, the FOI litigation file was not specifically locked down to have restricted access, because the firm's IT system is secure. Counsel confirmed to the Tribunal that the Report has not been disclosed under compulsion or otherwise to any external oversight bodies.
3. In response to questions from MVX, Mr Davis confirmed that MVX had not been asked to participate in the investigation because:

It was an end-to-end review of actions taken by Ambulance Victoria and the purpose was to provide Ambulance Victoria with legal advice on actions we have taken... Noting that the report was not making a decision on the applicant's employment, it would be appropriate that there was not an opportunity to provide input... The dominant and sole purpose was to provide legal advice on actions taken - not to make a future decision.

1. When MVX pressed Mr Davis on whether, before the investigation, Ambulance Victoria had already formed a view about its previous actions concerning him, Mr Davis said:

[Ambulance Victoria] did have an initial view that allegations or complaints had been responded to... The distinct purpose was to get external legal advice to confirm that was accurate... and for that to be provided to the CEO to provide clarity on actions taken.

1. The Tribunal sought therefore to clarify the intended subject matter of the Report. Mr Davis said, 'it's both complaints and employment'.
2. On the issue of the impact of the release of the Report, Mr Davis emphasised that, if the Report is released, Ambulance Victoria would be 'less likely' to commission reports to probe and identify gaps, which could lead to 'outcomes in employment matters which we don't learn from and improve from'.
3. On the issue of whether the public interest is relevant to release of the Report, Mr Davis said that the Report is confined to MVX's employment matters and is not relevant to external processes involving review and scrutiny of Ambulance Victoria.

1. In oral evidence, MVX gave an overview of his employment with Ambulance Victoria, relevant to his request for release of the Report. The salient aspects were that:

a) he started as a Graduate Ambulance Paramedic in 2013; > > b) he made a bullying complaint in 2014, the investigation of which was not concluded because the subject of the complaint resigned from Ambulance Victoria; > > c) when issues were raised concerning his performance, Ambulance Victoria would not allow him to rely on the bullying incidents in mitigation of his position, because the allegations had not been substantiated; > > d) he raised several questions with Ambulance Victoria during his employment about processes and procedures that were unclear or inconsistently applied. While his queries were supposedly answered, the underlying issues of clarity and/or consistency were not addressed;[4] > > e) when WorkSafe Victoria investigated concerns he raised during his employment, Mr Davis had made a representation to WorkSafe Victoria about the training MVX was undertaking at Ambulance Victoria that was materially inaccurate; > > f) it was in the context of feeling his concerns were being ignored that, when Ambulance Victoria told him he could no longer be a paramedic in April 2020, he wrote to the CEO and attempted suicide via overdose; and > > g) after this, Maddocks was engaged to conduct an investigation into his concerns, but they never invited his input.

2. MVX produced 33 incident reports that he submitted to Ambulance Victoria in October 2021 via its Health Safety Claims System (Incident Reports). He says these documents show that he raised issues that were not appropriately investigated while he was employed at Ambulance Victoria.
3. At the time he submitted the Incident Reports, MVX was not aware that an investigation had been conducted by Maddocks. He submitted them in the context that he had not received a response to the letter to the CEO written at the time of his suicide attempt, in April 2020.
4. MVX stated that he is driven to obtain the Report in the public interest because of his perception of deficiencies in the investigation process. He believes that scrutiny should be brought to bear on the situation.

1. Ambulance Victoria filed two written submissions, which counsel addressed at the hearing.
2. Ambulance Victoria submitted that the Report was prepared by Ambulance Victoria's external legal advisers, Maddocks Lawyers, and constitutes a confidential communication between a lawyer and Ambulance Victoria as the client, for the dominant purpose of providing legal advice. The Report is therefore subject to legal professional privilege, and that privilege has not been waived.
3. The position of Ambulance Victoria was therefore that the correct and preferable decision is that the Report is exempt in full, based on section 32 of the FOI Act, and that it is not in the public interest to otherwise grant access to the document.
4. The written submission referenced three previous VCAT decisions. Counsel elaborated on their relevance at the hearing, as follows:

a) Harrison v Victoria Police (Review and Regulation) [2022] VCAT 280 - this case was said to be an example of a decision by VCAT to apply the exemption related to legal professional privilege to parts of a disciplinary investigation report and, further, not to apply the public interest override to release the otherwise redacted material. > > b) Mostafa v Victorian Workcover Authority (Review and Regulation) [2013] VCAT 782 - this case was commended to the Tribunal because it contains the principles applicable to consideration of the exemption contained in section 32 of the FOI Act that the Tribunal should adopt. It is a case about whether a regulatory investigation report prepared by WorkSafe Victoria was privileged and exempt from disclosure. > > c) Frugtniet v Legal Services Board (Review and Regulation) [2014] VCAT 1299 - this case was said to be authority for the proposition that, where copies of documents are annexed to a privileged investigation report, the copies themselves attract the confidentiality of legal professional privilege.

5. Counsel for Ambulance Victoria went on to rely on the following features of the Report as establishing its confidentiality and dominant purpose:

a) each page is marked privileged and confidential; > > b) the investigation was conducted by a solicitor; > > c) the analysis and findings are legal advice; > > d) the facts recited in the Report are necessarily intertwined with the legal advice provided and are, therefore, also confidential; > > e) the Report constitutes legal advice because it is about Ambulance Victoria's legal obligations; > > f) workplace health and safety obligations are referenced on page 4 of the Report; and > > g) the non-privileged documents annexed to the Report, which were already in existence when provided to the investigator, attract privilege by reason of having been included as copies in the Report.

6. In response to questions from the Tribunal clarifying how the investigation was established, Counsel stated:

a) she did not know how and by what correspondence or terms of reference the CEO of Ambulance Victoria procured the investigation by Maddocks; > > b) Ambulance Victoria had not produced a letter of instruction to Maddocks as part of its evidence in the proceeding, but such a letter would in any event be subject to legal professional privilege; > > c) there was no direct evidence of what two Ambulance Victoria staff were told about the purpose of the investigation prior to their participation in it; and > > d) there was an email marked private and confidential from a Maddocks solicitor to a staff member at Ambulance Victoria,[5] appearing as an annexure after page 40 of the Report,[6] apparently sent at the outset of the investigation. It states what work Maddocks intended to do as part of its investigation, the cost of that work, and its intention to draft a report which would arrive at certain findings of fact and advise on particular matters (Cost Estimate Email).

7. In relation to the potential for the Report to be released in the public interest, on the basis of section 50(4) of the FOI Act, Ambulance Victoria submitted that the override should not be invoked in this case because there are no public interest grounds that demand or necessitate disclosure of the Report. The interests asserted by MVX, it was argued, are purely private interests.
8. In support of this position, Ambulance Victoria submitted:

a) the High Court of Australia has said that a high-threshold public interest must be identified before the public interest override power can be exercised;[7] > > b) there is a difference between what is in the public interest and what is of interest to the public;[8] > > c) the Tribunal must express itself in terms of there being 'no practical alternative but to allow access' and the result has to be 'emphatic'[9]; > > d) the public interest is concerned with the community as a whole,[10] and not an individual or group of individuals. There is generally no public interest in disclosing documents relating to a matter of personal significance to an individual; and > > e) in order for the public interest to override the legal professional privilege exemption in section 32 of the FOI Act, public interest considerations of the highest order must exist[11] noting that the public interest factors in favour of maintaining legal professional privilege are very strong.[12]

1. MVX explained in oral submissions that he has limited capacity to comment on the law cited by Ambulance Victoria because he is not legally trained. The Tribunal also acknowledged that MVX was necessarily at a disadvantage because he has not seen the disputed document.
2. MVX provided detailed written submissions prior to the hearing. It is not possible in these reasons to set out all 19 pages of the document. My summary follows, concerning the three threads to the written submission. These threads underly MVX's argument that the public interest override in the FOI Act should be applied to release the document.
3. First, MVX argued that the Report should be released because there is evidence suggesting that Ambulance Victoria may not have conducted an impartial and thorough investigation.
4. In support of this submission, he drew the Tribunal's attention to the 33 Incident Reports.
5. The subject matter of the Incident Reports were his concerns about various issues that arose during his employment, and the handling by Ambulance Victoria of the issues. Some of the 33 issues, but not all of them, were referenced in MVX's letter to the CEO in April 2020.
6. The responses recorded by Ambulance Victoria in the Incident Reports were to the effect that:

a) the matters had been investigated and previously addressed by Ambulance Victoria; or > > b) the conduct of Ambulance Victoria, referred to a particular incident report, was justified; or > > c) an incident could not be investigated due to the passage of time; or > > d) that there was no breach of policy or health and safety obligations of Ambulance Victoria.

7. MVX says these responses demonstrate that his concerns have not been taken seriously by Ambulance Victoria and that it was therefore not possible for Maddocks to have investigated his suicide attempt thoroughly and independently.
8. Secondly, MVX submitted that it is in the public interest for any investigation into Ambulance Victoria staff to be open to public scrutiny, to ensure transparency.
9. He explained:

a) he is concerned that the investigation conducted by Maddocks was biased and that he was not afforded procedural fairness, because information was not sought from him or any witness he could have proposed; > > b) there is a need to release the Report so that the flaws in the way the investigation was conducted may be exposed, so that they can be addressed; and > > c) release of the Report will allow public scrutiny and transparency and, conversely, a decision to not release the Report

sets a dangerous precedent for a public sector entity to be able to investigate itself, and its senior staff, for alleged misconduct, alleged unethical behaviour and potentially unlawful behaviour and then hide the investigation from public scrutiny and independent oversight.

1. MVX considers his case, and the need for public scrutiny of it, is unprecedented because Ambulance Victoria has recently been exposed to significant public scrutiny of its culture and approach to workplace matters. In this regard, he highlighted that:

a) a Victorian Auditor General's Report, Bullying and Harassment in the Health Sector (2016), has previously identified the significant cost to the community of a failure to properly investigate bullying complaints, including by Ambulance Victoria; > > b) in its Final Report, Independent Review of Ambulance Victoria (2021), the Victorian Equal Opportunity and Human Rights Commission made adverse findings and recommendations about identified shortcomings in relation to safety, respect and trust in the Ambulance Victoria workplace and in relation to equality, fairness and inclusion within the organisation. Recommendation 19, in particular, supports the release of the Report, because it calls for publication of deidentified outcomes of reports and complaints; and > > c) a Victorian Parliamentary Inquiry[13] has recently been convened to inquire into issues impacting the management and functions of Ambulance Victoria.

2. Having regard to these external processes, MVX believes that there are systemic issues in the conduct of investigations by Ambulance Victoria that are not isolated to him.
3. Finally, MVX made submissions about the benefit to him personally of the Report being released. He considers that it will assist him in his treatment and recovery, including by allowing him to participate in the Ambulance Victoria Restorative Engagement Scheme, and by allowing him closure of a significantly traumatic event.
4. However, MVX emphasised that the basis for releasing the Report is not related purely to his private interests, because the document can be provided to external oversight agencies to make sure that Ambulance Victoria is acting ethically and lawfully, which is of benefit to the Victorian community.

1. Ambulance Victoria filed submissions in reply prior to the hearing, having received the written submissions of MVX. These reply submissions focussed on its objection to the application of the public interest override to the Report.
2. In reliance on the Court of Appeal decision in Secretary, Department of Justice v Osland (Osland)[14] Ambulance Victoria stated that the following have 'no role and consideration' in the application of section 50(4) of the FOI Act:

a) revealing the reason for a government decision, any background information, and what information was considered in making it; > > b) enhancing scrutiny of government decision making and how government came to make a particular decision; > > c) ensuring government processes are transparent and accountable; > > d) enabling the public to determine whether the decision as reasonably justifiable; and > > e) facilitating public debate.

3. The submission also indicated that there is a 'well-established history of cases' in which VCAT has decided that the public interest override is not engaged in relation to workplace investigations. There were four cases cited, with their relevance explained by Counsel for Ambulance Victoria in the following terms:

a) Conyers v Monash University [2005] VCAT 2509 - Counsel submitted that this case was indicative of the fact that employment matters would not ordinarily be sufficient to engage the public interest override. While it is not a case concerning an exemption applied to an investigation report, the Tribunal found that the public interest would have to be of the highest order to warrant disclosure of a document otherwise subject to legal professional privilege. > > b) Cochrane v Melbourne Polytechnic (Review and Regulation) [2017] VCAT 1816 - while this case did not relate to documents affected by legal professional privilege, Counsel said that it is relevant by way of example, because the Tribunal found that the public interest would not be served by release of an exempt document, in circumstances where the agency in question was already subject to scrutiny as a public body. > > c) AOZ v JLV (Review and Regulation) [2019] VCAT 31 - while this case was not a case in which the section 32 legal professional privilege exemption was applied, Counsel indicated that it was another example of a case in which the Tribunal determined that the public interest override did not apply to result in the release of documents in a workplace complaint and investigation context. > > d) Mickelburough v Victoria Police (General) [2009] VCAT 2786 - while this is not a case in which documents were said to be confidential under section 32 of the FOI Act, Counsel said that it was relevant by way of example because the Tribunal determined not to apply the public interest override to documents about systemic workplace bullying.

a) as a public sector organisation, it is already subject to scrutiny as a public body and the concern of the applicant to expose a bullying culture or broader workplace issues can be undertaken in those fora; > > b) disclosure of the Report will reveal only issues specific to the applicant and will not reveal broader irregularity or impropriety, so as to clear the air; > > c) legal professional privilege is a fundamental common law right[15] such that the public interest considerations required to override the exemption in section 32 of the FOI Act must be of the highest order; and > > d) there is a greater public interest in the Report not being disclosed, because it is vital for the conduct of internal investigations that information and complaints be obtained and held in confidence. Disclosure of the Report would impact the ability of Ambulance Victoria to obtain full and frank advice and information from those relevant to a workplace investigation.

1. The Report is 38 pages long.
2. As pointed out by Counsel for Ambulance Victoria:

a) the document is marked confidential and legally privileged; > > b) the document has been treated confidentially; and > > c) the investigator was a lawyer.

3. In the body of the Report, the investigator has not stated the purpose for which the Report has been prepared. However, the Cost Estimate Email annexed to it (referred to in para 53 above), outlines the work intended to be undertaken by the investigator and states that the investigator would make findings of fact and advise as to whether there was a lack of action to comply with a particular legal obligation of Ambulance Victoria.
4. Consistent with the Cost Estimate Email, the investigator has reviewed past actions of Ambulance Victoria and made a finding of fact about those actions.
5. While there are a limited number of paragraphs in which a legal instrument, obligation or case law is referenced in the Report, the investigator offers an overall opinion about the facts as they relate to one of Ambulance Victoria's workplace law obligations, and about next steps in relation to MVX's employment.

1. The issue for determination is whether the dominant purpose of the Report was to provide legal advice to Ambulance Victoria.
2. MVX did not make detailed submissions about this aspect of the case because he has never seen the Report. As such, the Tribunal has very closely scrutinised the document to ascertain whether section 32(1) of the FOI Act applies.
3. The case advanced by Ambulance Victoria is that dominant purpose of the Report was to provide it with legal advice.
4. The cases cited by Ambulance Victoria about the application of section 32 of the FOI Act are of limited assistance. While the Tribunal strives to achieve consistency in decision-making, the decision in this case is confined to its facts and the disputed document in question.
5. It is unusual that Ambulance Victoria did not produce any letter of instruction to Maddocks or terms of reference for the investigation in the proceeding. Even if such a communication was subject to legal professional privilege, Ambulance Victoria could have sought to provide the evidence to the Tribunal on a confidential basis, in the same way as the Report, if it was evidence that would assist the Tribunal to identify the dominant purpose of the Report.
6. Despite the absence of a letter of instruction or terms of reference, there was relevant contemporaneous evidence identifying the purpose of the Report provided to the Tribunal, in the form of the Cost Estimate Email.
7. The Cost Estimate Email stated that the investigator would produce a report in which findings of fact were arrived at and in which advice would be provided about a particular legal issue. While there is no evidence before the Tribunal as to whether or not that cost estimate and scope of work was accepted, varied or rejected by Ambulance Victoria, the Tribunal considers the Report to be, for the most part, consistent with what was envisaged by Ambulance Victoria and Maddocks at around the time when the investigation was initiated.
8. In terms of the other available evidence about the purpose of the Report, Mr Davis gave the following evidence of his understanding of the purpose of the Report:

a) In his witness statement and in examination in chief, he stated that the purpose was to obtain legal advice about the concerns raised by MVX in his email to the CEO of 9 April 2020, whether previous complaints had been addressed, and whether any further action was required by Ambulance Victoria so that it could make decisions in relation to MVX's employment; and > > b) Under cross-examination he said, in substance, that the purpose of the Report was to get external legal advice to confirm that concerns raised by MVX had been responded to, that the Report was a review of actions taken by Ambulance Victoria and that the Report was provided to CEO to provide clarity on actions taken.

9. The weight of the evidence supports the conclusion that the Report had dual purposes. Those purposes were to review past actions having regard to documents and two witness interviews, and to provide legal advice about those actions. The question then becomes, what was the dominant purpose of the Report?
10. In reaching a decision, the concept of 'legal advice' is not to be narrowly construed as only arising where there is formal advice given as to the law. While the concept of legal advice does not extend to purely factual or commercial advice, it does extend to a lawyer advising about what should prudently be done in a relevant legal context, provided that it is professional advice given by a lawyer in his or her capacity as such.[16]
11. The Tribunal has found, having regard to the features of the Report described in paragraphs 73 to 77 and the evidence referred to in paragraphs 83 to 85, that the Report was prepared for the dominant purpose of providing legal advice to Ambulance Victoria.
12. Based on the evidence here, no issue arises as to whether any privilege has been waived. I accept the evidence of Mr Davis that the Report has not been shared extensively within Ambulance Victoria, with external parties and that it is stored securely by Ambulance Victoria.
13. The Report is therefore subject to legal professional privilege under section 32 of the FOI Act, in its entirely. This includes the copies of documents in the annexures to the Report because they were prepared for the dominant purpose of Maddocks providing its legal advice. It also embraces the investigator's recitation of past events in the Report, because those parts of the communication are inextricably intertwined with the legal advice provided.

Section 50(4) of the FOI Act - public interest override

1. There are weaknesses in the submissions put by Ambulance Victoria about the application of the public interest override.
2. First, a close reading of the decision of the Court of Appeal in Osland reveals that it does not stand for the propositions asserted by Ambulance Victoria in its reply submission, referred to in paragraph 70 above. It was not decided in that case that facilitating scrutiny and ensuring transparency and accountability in government decision making have 'no role to play' in determining the public interest in the context of section 50(4) of the FOI Act.
3. Second, the Tribunal rejects the contention of Ambulance Victoria that release of the Report would undermine the ability of Ambulance Victoria to effectively undertake reviews of actions or obtain full and frank participation in internal investigations in future.
4. Both of the witness participants in this investigation were part of the operational staff of Ambulance Victoria. Their participation occurred within the scope of their employment and is entirely different to the voluntary participation of an external complainant, whose willingness is relied upon in order for an organisation to become aware of and to investigate complaints.
5. Further, it is curious of Ambulance Victoria to suggest that it would never again review its actions and engage in self-reflection because of a decision to release the Report to MVX. All prudent and accountable public sector organisations should be prepared to engage in review and improvement initiatives, where necessary, irrespective of the outcome of an FOI review in a particular case.
6. Third, it is not the case that the interests asserted by MVX are purely private in nature. He has clearly identified a wider public context to which the Report may be relevant.
7. The case put by MVX in favour of disclosure of the Report in the public interest was logical and well-articulated. The Tribunal accepts as genuine the concerns of MVX to understand why he was not invited to contribute to the Maddocks investigation, to know how deeply the investigator delved into his concerns and to see whether his case is an example of possible past mistakes by Ambulance Victoria in its handling of workplace matters.
8. However, the Tribunal ultimately accepts that the submission of Ambulance Victoria on the public interest override is correct: that is, the asserted public interest is not sufficient to reach the high bar that must be reached to engage the override in section 50(4) of the FOI Act.
9. The possible public interest in understanding how this investigation was conducted and its relevance to the wider culture at Ambulance Victoria is not such as to displace the established legal professional privilege over the document and to require the release of the Report.
10. The correct and preferable decision is therefore to affirm the decision of Ambulance Victoria not to release the Report.

[1] Pursuant to section 49J of the FOI Act, the Commissioner was taken to have refused to grant access to documents because she had not within the required period completed the review of the decision of Ambulance Victoria.

[2] This is the email referred to in paragraphs 6 and 7 above.

[3] See Nekvapil, Victorian Administrative Law (Vol 2) [FOI.32.50] to [FOI.32.120].

[4] Examples given related to discrepancies he identified between the advice he received from clinical instructors in his practice about handling particular patient scenarios, compared with what the written Guidelines of Ambulance Victoria recommended.

[5] The person to whom the email was addressed was not the CEO.

[7] See Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 84 ALJR 528, per French CJ, Gummow and Bell JJ.

[8] Davis v Victoria Police [2008] VCAT 1343.

[9] Secretary, Department of Justice v Osland [2007] VSCA 96 ('Osland') and Asher v Department of Premier and Cabinet [2008] VCAT 450.

[10] Simons v Department of Justice [2006] VCAT 2053.

[11] Chadwick v Department of Property and Services (1987) 1 VAR 444, 454; Smith v Director of Public Prosecutions (1987) 2 VAR 543, 548 (upheld by the Supreme Court on Appeal [1991] VicRp 6; [1991] 1 VR 63); Roberts v Southern Rural Water [2002] VCAT 1423, [12].

[12] Frugtniet v Legal Services Board [2014] VCAT 1299, [107].

[13] Conducted by the Legislative Council Legal and Social Issues Committee, see https://www.parliament.vic.gov.au/ambulancevicinquiry.

[14] [2009] VSCA 69.

[15] The Daniels Corporation International Pty Ltd v ACC [2002] HCA 49, at [11], per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[16] BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [62] per Raleigh J, citing DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 at [45] ; Archer Capital 4A Pty Ltd v Sage Group Plc(No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [12] Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [15].