Pallas v Roads Corporation

[2013] VCAT 1967

Victorian Civil and Administrative Tribunal|2013-11-22

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Court

Victorian Civil and Administrative Tribunal

Decision date

2013-11-22

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

For the reasons indicated in relation to the question whether or not the defendant is to be characterised as a Trading Corporation, I find that it is, in summary, primarily as governmental and regulatory agency. Activities which might otherwise be characterised as trading or commercial are not properly so characterised merely because, in the conduct of its regulatory functions, the defendant carries on those functions in a 'business like' role.

[2]

[2010] VSC 389 [161]

[3]

Document 1, it will be recalled, was prepared for the respondent by architect firm Denton Corker Marshall. It is marked . A perusal of the document shows that it is liberally annotated with handwritten amendments. Mr Duarte said that the document was a very preliminary analysis. My perusal of the document certainly bears that out. Mr Duarte's evidence showed that it included the formulation of possible or potential land use and planning controls in the vicinity of the Hoddle Street corridor. Mr Duarte described it as a type of document. Again, a perusal of the document itself bears out this characterisation. Mr Duarte said that the document was never finalised and again, a perusal of the document itself bears this out. This is a classic internal working document. It includes matters of opinion, recommendation and advice formulated by consultants and by VicRoads. It represents a record of a dialogue between officers of the agency, VicRoads, bearing in mind that for the purposes of this exemption the consultants to VicRoads are to be regarded as for the purposes of the exemption. It is part of the deliberation process, viz, the Corporation's thought processes. Mr Belmar on behalf of the applicant did not give the confidentiality undertaking and inspect the document himself. He did not admit that this document was an internal working document for the purposes of On the other hand, his submissions did not seriously seek to controvert that view. The public interest considerations which may be derived from previous decisions of this Tribunal, its predecessor, the Administrative Appeals Tribunal of the State of Victoria and the Commonwealth Administrative Appeals Tribunal, undertaken by Judge Hampel in her determination case which synthesis was adopted by both parties, points away from the release of this document and to a conclusion that its release would be contrary to the public interest. As Her Honour said in the synthesis:

[5]

In addition, disclosure of documents 'reflecting possibilities considered but not eventually adopted, [is contrary to the public interest] as such disclosure would be likely to lead to confusion and ill informed debate'.
Mr Duarte was concerned that release of these documents which refer to options entailing compulsory acquisition of particular identified properties and potential changes of land use controls on others could have the effect of 'blighting' the land in question. He feared that the person whose land was so 'blighted' might have a damages claim against the corporation.
In cross-examining Mr Duarte, Mr Belmar took him to documents in the Stonnington Planning Scheme which show a road widening reservation for Punt Road which is Hoddle Street's continuation immediately to the south of the Yarra River. He also took Mr Duarte to various policy documents associated with that scheme and other schemes, including provisions in the State Section of planning schemes which apply to all planning schemes in the State and which pertain to transport policies and canvassed those sorts of issues. The purport of this cross-examination seemed to be that, if these sorts of matters, including the road widening reservation on Punt Road, could be given a public airing, there was no reason why the options considered in Document 1, for instance, ought not be given the same public airing.
I reject that line of argument. What is found in a planning scheme made under the Planning and Environment Act 1987 is the result of a very extensive statutory process including, in most cases, the conduct of a public consultation process involving an independent panel. This is the antithesis of the preliminary and confidential process which was undertaken in relation to the Hoddle Street corridor. Again, where property is the subject of a reservation, there is a regime for compensating the owners of the 'blighted' land under Part 5 of the Planning and Environment Act. Release of this draft material which has the potential to blight land would not attract the no doubt carefully formulated regime for compensation existing under that part of the Planning and Environment Act.
The damage which might be done by the release of this material would, to some degree, be mitigated by the public statement reported in the press that the Hoddle Street study had been 'shelved'. On the other hand, the terms in which that statement was made would not be sufficient to allay concerns entirely for those who might be affected. The announcement was not that the proposals had been shelved in the sense of irrevocably abandoned, rather these options were to be re-evaluated at some future date in light of a changed traffic context in which public transport to Doncaster was to be provided by a heavy rail installation rather than the bus service which was the premise on which the present study was based. The context would also be changed by the construction of the proposed 'East-West' link, linking the city end of the Eastern Freeway with Citylink and the Tullamarine Freeway. Mr Duarte said, however, that this would not diminish the vital importance of this thoroughfare and heavy traffic which would continue to use the Hoddle Street corridor. Press commentary indicated that in the absence of exits from the east-west link to the east of the city, citybound traffic from the Eastern Freeway would not use this link, therefore, citybound traffic exiting the Eastern Freeway would continue to use Hoddle Street. The Hoddle Street corridor, therefore, would continue to require some sort of major upgrade to remove or minimise its present problematic state. Options disclosed in Document 1, therefore, whilst not immediately proceeded with might be regarded by concerned members of the public as merely postponed.
The exemption under Section 30(1) is made out with respect to Document 1.

[10]

Document 4, unlike Documents 1 and 2 is not a document as to the specifics of the Hoddle Street corridor but rather about the processes which could be brought to bear on a study of options for the corridor. It does not raise the sensitive issues of land use controls and compulsory acquisition which Documents 1, 2 and 3 do. It is not evident to me that a document dealing with the issue of the operation of a piece of proprietary hardware would compromise frank communications about these sensitive issues between officers. Therefore, whilst the first portion of this exemption created by Section 30(1) has been made out, the second has not been. Access should be granted to this document. I am conscious that this document is marked 'draft' and the final version has not been released. The draft status of this document, however, does not exhibit the vices which traditionally have rendered draft documents inappropriate for release, viz that they consider options which have not ultimately proceeded. Had the final document been released, there might have been much to be said for not releasing the draft, so that the public could be guided only by the document as finalised. As it is, however, the final document has not been released and so there seems no reason not to allow public access to the draft. The Freedom of Information Act includes an exemption under Section 34(1) relative to information acquired by an agency or Minister from a business, commercial or financial undertaking where the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage. The undertaking in question here would be URS whose proprietary product RISQUE is in question. There was no evidence as to the unreasonable disadvantage. It may be that the evidence incidentally disclosed that URS as a consultancy performing paid work for government was a 'business undertaking'. No reliance was placed by the respondent on this exemption. In those circumstances, I put it to one side.

[14]

None of the exemptions claimed with respect to Section 36(1)(a) is made out. As indicated previously, to make good this exemption, it is necessary to point to evidence indicating a substantial adverse affect upon the economy were disclosure to occur. There was no evidence along those lines placed before me. The very nature of the matters in contemplation here shows that they are very costly. The study itself was costed at $5m, implying that actual implementation of the matters under consideration would be vastly more expensive. Figures going to the billions of dollars were mentioned in a Parliamentary debate to which I was referred. Nevertheless, there was a lack of evidence that release of these documents would, however, have substantial adverse affect on the economy. Since the burden of proof lies on the respondent, the exemption is not made out.
The exemption under Section 34(4) raises somewhat more difficult issues. This exemption only applies 'in the case of an agency engaged in trade or commerce' (Section 34(4)(a)(ii)). The only matter that seemed to be relied upon as indicating that the Corporation was engaged in trade or commerce was its conduct of the study which generated the documents in dispute here and the contemplation that, had any of the options canvassed in it been adopted by Government, it would have been the task of the Corporation to implement that option. The proposition therefore, seems to be that arterial road building by a Government agency entails the engagement in trade or commerce. The passage quoted from Gibson's case at [35] referring to the High Court's decision in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 604 indicates that activities in trade or commerce must 'of their nature, bear a trading or commercial character'. Government road building is a governmental function, not a commercial or business function. The Tribunal referred to an agency being engaged in trade and commerce by reason of its involvement in property transaction. At [37] the Tribunal footnoted City Parking Pty Ltd v City of Melbourne (1996) 10 VAR 170. The evidence here disclosed that the City of Melbourne had appointed a commercial property consultant to turn its property portfolio into a profitable revenue source for it. The transaction which gave rise to the documents which were sought was the lease of a city property to a car parking property. The business and commercial character of this operation was obvious enough. In Gibson's case itself, the documents in question were generated by a proposal to relocate the public library in a country town. The applicant apprehended that the relocation was dictated, not by a desire to serve the ratepayers, but a desire on the part of a council and/or private entrepreneurs to make profit by property dealing.
VicRoads no more engages in trade or commerce when it undertakes a major arterial road construction or revision project than does a Government analyst in giving a certificate as to what a particular substance is or Law professor in providing an opinion under a statutory process as to Aboriginal heritage issues. The exemptions claimed under Section 34(4) of the Freedom of Information Act therefore, are not made out. Whatever property transactions are in prospect here are carried out for Governmental purposes, not for commercial purposes. The property purchases that might be involved here would be compulsory acquisition, an exercise of sovereign power, not a commercial process.
In carrying out its road building functions the Corporation engages in Governmental activities rather than in trade or commerce. In the same way as the Minister in Unilan in making the speech at the International Conference and the Secretary of the Department of Sustainability and Environment in engaging in correspondence relative to the renewal of timber harvesting licences.
Nor can it be said that VicRoads is engaged in trade or commerce in putting a road project out to tender or in awarding a contract which has been the subject of a tender process. No doubt the contracting process in a general sense is a manifestation of trade or commerce. The construction companies which might tender for and undertake the contract clearly are engaged in trade or commerce. That fact does not mean that the Corporation is. A consumer who purchases a consumer item from a department store is not, for that reason, engaged in trade or commerce, although the department store most certainly is and the sale transaction must be regarded as part of the processes of trade or commerce.

[16]

As previously explained, both parties agreed that even although public interest questions had been considered in the application of the exemption established by Section 30(1) of the Freedom of Information Act, the issue of the public interest could be revisited under Section 50(4) of the statute which would permit the release of this exempt material, despite the exemption, if the Tribunal 'is of opinion that the public interest requires that access to the documents should be granted under this Act'.
For reasons already given, I have concluded that a number of public interest considerations militate against release and therefore any further public interest matters which might be considered would have to be of such significance as to outweigh the public interest consideration pointing away from release. The applicant relied on the following public interest matters:
1. The public interest is served by the provision of open and accountable government and, in particular, in access to information held by government.
2. The public interest is served by the public being able to access accurate information relevant to issues of significant specific public interest and which have been subject to media reports.
3. The public interest is served by continued debate on such matters including any debate provoked by the release of further information.
4. The public interest is not served by the denial of access to information regarding issues on which final decisions have been made.
5. The public interest is served by Members of Parliament from non-Government parties being able to assess Government action and submit policy alternatives to the public on the basis of comprehensive and accurate information.
Mr Batskos in response to these matters submitted, amongst other things, that the public interest considerations which might lead to an exemption being overridden in the public interest under Section 50(4) must go beyond the relatively abstract matters referred to in the above grounds. He submitted, and I agree, that the evident scheme of the Freedom of Information Act is that it starts with a presumption that documents generated by agencies within the meaning of the Freedom of Information Act should be available for public access broadly because these documents had been generated in the course of the conduct of public business. The various exemptions set out in the Freedom of Information Act, however, represent exceptions to this rule. Most of the exemptions, save for the exemptions relative to personal affairs and Cabinet documents are subject to override in the public interest under Section 50(4). The abstract principles of transparency and the desirability of public documents being available to facilitate public debate have already been considered by Parliament and given affect to by the presumption that documents of agencies under the Freedom of Information Act should be available for public access. Something over and beyond these general and abstract principles is needed for the public interest override under Section 50(4) to operate. Again, in one of the original and still leading cases on the public interest override, the Full Court of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, 73 in the joint judgments of Kaye, Fullagar and Ormiston JJ said 'the statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement'. What is required for the override to operate is to demonstrate that some benefit is to be derived by the public from the release. For reasons previously explained, this must go beyond the mere abstract proposition that there should be transparency in Government and the public debate will be more fully informed by the availability of all public documents for scrutiny.
The exemption upheld here should not be regarded as overridden 'in the public interest'.

Parties

Applicant/Plaintiff:

# Pallas

Respondent/Defendant:

Roads Corporation

Legislation Cited (1)

Administration Act 2004

Cases Cited (14)

Pallas v Roads Corporation (Review and Regulation) [2013] VCAT 1967 (22 November 2013)

It will be seen that this exemption is made good if two things are established. First, that release of the documents would have the effect of disclosing the matter described in 1(a) and secondly, that such disclosure 'would be contrary to the public interest'. Therefore, merely to show that a document is an internal working document does not in itself establish the exemption. A further criterion of public interest must also be established.
In establishing the first part of the exemption it must be shown, as Mr Batskos who appeared on behalf of the respondent submitted, either that disclosure of the document would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or a Minister, or disclose matter in the nature of consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister. In either case, the relevant matter must have come about in the course of or for the purposes of the deliberative processes involved in the functions of the agency or Minister.
The exclusion of the exemption relative to documents 'by reason only of purely factual material' as stated by sub-section (3) does not exclude from the exemption any material which might be purely factual. If, for instance, a document disclosed that certain advice had been given to a Minister or to an officer of an agency, the record of the tendering of that advice would be a purely factual matter; but its disclosure would entail disclosure of opinion, recommendation or advice and the excluding provision limiting the exemption would have no application. As to who an officer is, the definition in Section 5 of the Act extends the concept to 'any person employed by or for the agency, whether that person is one to whom the provisions of the Public Administration Act 2004 apply or not'. The concept of 'officer' has been held to extend to consultants or independent contractors Brog v Department of Premier and Cabinet (1989) 3 VAR 201; Mildenhall v VicRoads (1996) 9 VAR 262, 370. The deliberative processes of an agency or a Minister are the Minister's or agency's thinking processes, processes of reflection upon the wisdom of a proposal or a decision or a course of action: Brog v Department of Premier and Cabinet (1989) 3 AR 201, 208.
According to Maxwell P in Secretary Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425, 447 [77] the public interest consideration relevant to the second element of the exemption under Section 30(1):

In Friends of Mallacoota Inc v Department of Planning and Community Development [2011] VCAT 1889 [51] Judge Hampel summarised the considerations which, according to previous decisions of this Tribunal, its predecessor and the Commonwealth Administrative Appeals Tribunal, might arise under Section 30(1)(b) of the Act as follows:

Her Honour's synthesis of the law on this element of the exemption was specifically adopted by Mr Belmar of counsel on behalf of the applicant.
There is some uncertainty as to whether the existence of a public interest criterion in this exemption means that, once the exemption is held to be made out in light of its own public interest criterion, there might be no ability to resort to the 'public interest override' in Section 50(4) of the Freedom of Information Act to which reference will be made below. In Landes v VicRoads [2009] VCAT 2403 I summarised what I considered to be the present state of authority on that point.

Mr Batskos on behalf of the respondent placed reliance on this exemption on the basis that release of the documents would be premature and be likely to have a substantial adverse affect on the economy of Victorian insofar as release would provide information as to 'the sale or acquisition of land or property by the Crown, urban rezoning, the formulation of land use and planning controls ...'. He submitted that, to show that release of the documents would disclose information relative to sale or acquisition of property, re-zoning land use controls and so forth, in itself and without more established that, for the purposes of the Act, such disclosure would be reasonably likely to have a substantial adverse affect on the economy of Victoria. It was unnecessary in a case such as this, he said, to provide further evidence as to the economic impact of the release. The mere nature of the information involved sufficiently established the exemption. In any event, he said, there would be a reasonable likelihood of the adverse affect if the possibility was real and not fanciful or remote. He referred to Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836, 842.
Mr Belmar resisted these submissions. Mr Batskos said that he was unaware of authorities specifically on the point.
In my view, the construction advocated by Mr Batskos is unlikely to be the correct one. It would mean that, for instance, disclosure of a document in a manner 'deemed premature' would fall within the exemption if the document disclosed material relative to a compulsory acquisition of property by the Crown, no matter how remote or insignificant the relevant piece of real estate was. In these circumstances, according to this view, the very nature of the information contained would be sufficient to deem there to be a substantial adverse affect on Victoria's economy. I reject that submission. In my view, to make good this exemption it would be necessary for there to be evidence which not only characterises the material which would be disclosed by release of the relevant document but also establishes a necessary substantial adverse affect on the economy.
The next exemption relied on by the respondent was constituted by Section 34(4)(a)(ii) of the . That provision states as follows:

Mr Batskos relied on the following paragraphs from the determination of Judge I.J.K. Ross (as he then was), then Acting President of the Tribunal in Gibson v Latrobe City Council [2008] VCAT 1340.

The primary meaning of trade and commerce as the passage quoted from Deane J in the Ku-Ring-Gai Co-operative case relates to 'business dealings' and the passage quoted from the High Court's judgment in the Concrete Constructions' case indicates that matters will be in trade and commerce only if they bear a trading or commercial character.
In Chapman v Luminis Pty Ltd (No. 5) [2001] FCA 1106; (2002) 123 FCR 62, a proceeding claiming damages for misleading and deceptive conduct was brought arising out of a report given by a consultant relative to Aboriginal heritage issues. The consultant gave the opinion in discharge of a statutory obligation, having been appointed a 'reporter' under the relevant Aboriginal heritage legislation. The Federal Court held that in those circumstances, since the reporter was discharging a statutory function and not acting in a business or commercial capacity, the giving of the report was not in trade or commerce. In Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 an officer of the Commonwealth, being a chemical analyst, conducted tests on a substance seized from industrial premises and issued a certificate of analysis stating that the subject was a prohibited drug. The certificate was used by the Director of Public Prosecutions in a prosecution. Whilst convicted at trial, the accused was acquitted on appeal and brought proceedings against the Commonwealth, inter alia for misleading and deceptive conduct under the Trade Practices Act 1974. Amongst the things which it was necessary for the plaintiff to make out for success in the claim for damages for misleading and deceptive conduct was that the certificate was given in trade and commerce. Beazley JA with whom Young CJ in Eq and Mason P concurred, concluded that the giving of the certificate was not an action in trade and commerce. Her Honour said there were two which led her to that conclusion, stating:

[2007] NSWCA 370; (2007) 70 NSWLR 268, 298 [141]

Eight months later, the Government suspended the scheme altogether with the result that there was no floor price. In Unilan Holdings Pty Ltd & Ors v Kerin [1992] FCA 211; (1992) 35 FCR 272 the plaintiff sought damages against the Minister for misleading and deceptive conduct. Hill J felt that there was no remedy under Section 52 of the Trade Practices Act 1974 because the Ministerial statement was not made in trade and commerce. His Honour said:

Again, in Auswest Timbers Pty Ltd v The Secretary to the Department of Sustainability and Environment [2010] VSC 389 , the plaintiff sought damages for misleading and deceptive conduct against the Secretary relative to certain statements which had been made by the Secretary concerning the renewal of licences to harvest timber. Croft J, rejecting the claim, said at paragraph [171], having reviewed a number of authorities, including Unilan:

(2002) 123 FCR 62

(2007) 70 NSWLR 268

(1992) 35 FCR 272

(1990) 169 CLR 594