Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11

"(1) A document is an exempt document if it is -

...

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;

...

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet other than a document by which a decision of the Cabinet was officially published."

Section 28(7) provides that "Cabinet" includes a committee or sub-committee of Cabinet. It appears to have been common ground in the Tribunal that the Committee was a committee of Cabinet.

8 The appellant relied upon the evidence given by John Fitzgerald, one of its employees, and John Matthews, an employee of the authority established to manage the Mitcham-Frankston Freeway Project ("the authority") to found his claim for exemption.

9 Mr Fitzgerald said in his witness statement:

"The substantial purpose of the preparation of a [public sector comparator] is to provide documentation for the purpose of making and supporting a submission to the cabinet or the [Committee] to enable either Cabinet or the [Committee] to make a decision on the relevant project proposal. I attended the meeting on 25 February 2004 and am able to say that [the Committee] considered a submission focused on the [report]."

When it was pointed out to counsel for the appellant that the Premier had announced in May 2003 that the freeway would be constructed by the private sector, he responded that the report was also to be used for the purpose of evaluating bids and negotiating with bidders. The policy required the Minister and Cabinet or the relevant Cabinet committee to approve the public sector comparator and, according to the oral testimony of Mr Fitzgerald, the Committee did approve the report on 25 February 2004. In his oral testimony Mr Fitzgerald also said that among the purposes served by the report was satisfying the Attorney-General that the government's decision was appropriate and assisting the government to negotiate with the private sector bidders.[1]

10 Mr Matthews gave evidence that the authority engaged Pricewaterhouse Coopers to prepare the report for submission to Cabinet. Mr Matthews said in his witness statement:

"I and others in [the authority] assisted the Minister for Transport and officers of DOI (sic) in preparing a submission by the Minister, on the Mitcham-Frankston Freeway Project, for a meeting of the [Committee] which was held on 25 February 2004. I am able to say from my own personal involvement that that submission drew extensively from [the report] .... The [report] was also prepared for the purpose of briefing the Minister for Transport in relation to issues of benefits, risks and costs to be considered by the [Committee] in the course of its consideration as to whether the proposal should proceed. I am able to say that the [report] was used as part of an oral briefing of the Minister prior to the meeting of the [Committee] on 25 February 2004. I am able to say this because I was present at the briefing."

In his oral testimony Mr Matthews said that the report was used to evaluate the bids for the project. The bids were received in April 2004, after the preparation and approval of the report.

11 The Tribunal rejected the submission that the report fell within s.28(1)(b) of the Act. The Vice President said:

"In my view, Mr Fitzgerald's evidence goes no further than establishing that the preparation of a public sector comparator was a necessary step in the process of getting a Partnerships Victoria or other project worth more than $5 million evaluated and approved by the government.

On the evidence ... I am not satisfied that a substantial purpose of the preparation of the [report] was for 'the purpose of submission for the consideration of Cabinet'. It was not the [report] which was submitted for the consideration of Cabinet, but rather the project itself, via, perhaps, the submission of the Minister for Transport in relation to the Mitcham-Frankston Freeway project."

The claim for exemption pursuant to s.28(1)(ba) was rejected on similar grounds. Her Honour said:

"Again, whilst it is clear that the preparation of the [public sector comparator] had as one of its functions that of providing the information against which proposals could be evaluated by the government, or used by ministers in the preparation of their submissions to the [Committee], I am not satisfied on the evidence that a substantial purpose of the public sector comparator was to brief the Minister for Transport on the matters to be considered by the [Committee] when considering the project."

The claim for exemption under s.28(a)(d) received short shrift. Her Honour said:

"Again, I am not satisfied on the evidence before me that the disclosure of the [public sector comparator] would disclose any deliberation of the Cabinet on 25 February 2004."

12 Unfortunately, shortly before the appeal was heard, the respondent withdrew his instructions from his solicitor and did not participate in the hearing of the appeal.

13 Relying upon a number of its prior decisions, the Tribunal proceeded upon the basis that each of the purposes referred to in paragraphs (b) and (ba) in s.28(1) of the Act need not be the sole purpose for the preparation of the document. The purpose could be one of a number of purposes provided it was a substantial purpose. Although this Court has not had the benefit of full argument on the point, I am inclined to think that the Tribunal's approach was correct. The purpose identified in the relevant paragraph of s.28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s.3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view, as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, "the power would not have been exercised",[2] it need not have been the sole purpose for the preparation of the document in question.[3] I do not think that the Act requires release of a document disclosing material considered and dealt with by Cabinet merely because the document, which was principally prepared for submission to Cabinet or to brief a Minister in relation to Cabinet issues, also served another purpose or other purposes.

14 Counsel for the appellant submitted that the Tribunal erred in holding that s.28(1)(b) required consideration of a document by Cabinet in order to establish that the document was prepared for the purpose of submission for consideration by Cabinet. The second sentence in the Tribunal's reasons for rejecting the claim for exemption based upon s.28(1)(b) is expressed in somewhat oblique terms. It may be that her Honour relied only upon the use made of the report without considering the evidence relating to the circumstances in which the report was brought into existence.

15 In my opinion the use made of a document may throw light upon the purpose for which it has been prepared and, in the absence of direct evidence of purpose, may determine the issue. In the present case, while there was generalised evidence of the role of public sector comparators in the process of government decision making, there was also evidence relating to the preparation of the report. The Tribunal's reasons do not disclose how the Tribunal treated the evidence of Messrs Fitzgerald and Matthews as to the purpose for which the report was prepared.

16 Her Honour introduced her conclusion that s.28(1)(b) did not apply by quoting a description by Morris, J. of statements made by employees of a government department in a freedom of information case as "carefully crafted and no doubt settled."[4] The same observation could be made of the witness statements in the present case. The statements closely followed, indeed adopted the verbiage of, the sections relied upon by the appellant. The statements also contained hearsay based upon unidentified sources. For example, Mr Matthews stated, "I always understood that [the authority] was required to prepare a Public Sector Comparator ... for the purpose of submission by the Minister of Transport to Cabinet or, at least the Expenditure Review Committee of Cabinet for its consideration of that project."

17 Nevertheless, in cross-examination the witnesses did not resile from their prepared statements. Her Honour made no adverse findings as to the credibility of the witnesses. Her statement, that Mr Fitzgerald's evidence did no more than establish that the preparation of the report was a necessary step in the process of getting the project approved, suggests that her Honour accepted Mr Fitzgerald's evidence but may have failed to appreciate the implications of his description of the part played by the report in the work of the Committee. I do not think that the fact that the Committee received a submission based upon the report rather than the report itself precluded acceptance of the evidence of Messrs Fitzgerald and Matthews. Unless it was rejected, it could be argued that the evidence led on behalf of the appellant in the Tribunal was capable of supporting the conclusion that the report was exempt by reasons of the provisions of s.28 of the Act.

18 For the same reasons I am of the opinion that the Tribunal's stated reasons for concluding that the report was not exempt by reason of the provisions of s.28(1)(ba) are unsatisfactory. Mr Matthews' evidence, if accepted, may have been capable of establishing that a substantial purpose, in the sense required by the Act, for which the report was made was briefing the Minister for Transport in relation to issues to be considered by a committee of Cabinet.

19 It is possible that the Tribunal found that the report was prepared for the purposes claimed by the witnesses that met the requirements of s.28 of the Act and also found that those were not the substantial purposes for the preparation of the report, but that is not stated in the Tribunal's reasons.

20 The evidence disclosed that the report was the final version produced after a number of drafts and related documents had been made and considered by a number of persons. The evidence of the events leading to the preparation of the report was relevant, for it was capable of throwing light upon the purpose or purposes of the preparation of the report itself. Nevertheless, the question to be determined was whether the report, not the draft and related documents, was exempt. The proceeding involved a number of interconnected documents for which several grounds of exemption were claimed, and accordingly the evidence and the debate before the Tribunal tended to obscure the question whether the report was exempt. The Tribunal's reasons also failed to distinguish between the purpose or purposes for which the report and earlier drafts were prepared.[5] Another difficulty attending the reasons is that, although reference was made to the evidence relating to the existence of purposes other than those referred to in paragraphs (b) and (ba), there was no express consideration and weighing of the significance of the various purposes.

21 As to s.28(1)(d) of the Act, it is not clear from her stated reasons why the vice president rejected the claim for exemption. In his witness statement Mr Fitzgerald said that the Committee "considered a submission focused on the [report]." In his oral testimony he said that the Committee approved the report. In my view it is not sufficient to state baldly that an exemption has not been established without dealing in terms with evidence which is directed to establishing the exemption. Further, the Tribunal's reasons dealt only with the question whether release of the report would reveal the Committee's deliberations, yet it appears to have been a live issue before the Tribunal whether the report disclosed the Committee's decision.

22 Whether the evidence achieved its aim of satisfying the requirements of s.28(1)(d) is another question. The nature of the Committee's approval of the report was not explored in the evidence before the Tribunal. There is a conceptual distinction between approving a report in the sense of recognizing that in format and style it appears to be a public sector comparator and approval by adoption of its contents. In my view it would be necessary to decide what the evidence amounted to for the purpose of deciding whether the report disclosed the deliberations or decision of the Committee.

23 It is necessary that a tribunal's reasons disclose the findings and reasoning upon which the tribunal's conclusion is based. Failure to provide such reasons, which frustrates the ability to review the tribunal's decision, constitutes an error of law.[6] In the present case, in the absence of express findings as to critical factual issues, it is not possible to discern the basis upon which the appellant failed to satisfy the Tribunal that the report met the terms of the exemption provision.

24 For the foregoing reasons I am of the opinion that the Tribunal fell into error. In my view it is appropriate to remit the proceeding to the Tribunal, constituted by the same member who made the original order, to be determined in accordance with law. The Tribunal should deal with the evidence relating to the purposes for which the report was prepared and the question whether the release of the report would

involve the disclosure of any deliberation or decision of Cabinet. If the Tribunal determines that a purpose for the preparation of the report was a purpose referred to in s.28(1)(b) or (ba), it should determine whether that was a substantial purpose.

25 I agree with Buchanan JA, for the reasons which his Honour gives, that this appeal should be allowed, and the matter remitted to the Tribunal as originally constituted for determination in accordance with law.

26 I agree with Buchanan, JA for the reasons given by his Honour, that the appeal should be allowed and that the orders he proposes be made.

[1] The Tribunal may not have fully understood the relevance of the policy, for in her reasons the vice president said that in his evidence to the Public Accounts and Estimates Committee the Treasurer had said that the project "would proceed as a privately funded project rather than as a public/private partnership project." The Treasurer in fact went on to say that the project "falls within the umbrella of Partnerships Victoria because it is a piece of infrastructure which is privately financed and Partnerships Victoria gives us the process and the policy approach to develop and implement it ... "

[2] Mills v. Mills [1938] HCA 4; (1938) 60 C.L.R. 150 at 186 per Dixon, J.

[3] In order to avoid the conclusion that a document prepared both for the purpose referred to in paragraph (b) and the purpose referred to in paragraph (ba) is not exempt, it would be necessary to construe the section as requiring that a document be prepared only for the purposes prescribed by the section, rather than that each paragraph requires the document to be prepared for the sole purpose set out in the paragraph.

[4] Re. Ryan and Department of Infrastructure [2004] VCAT 2346 at p. 6.

[5] The Tribunal's reasons refer to "a PSC", "the PSC" and "the final PSC" but the critical findings are expressed to be made with respect to "the PSC".

[6] See, for example, Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Palmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154 at 163-4 per Malcolm, C.J.; Hunter v. Transport Accident Commission [2005] VSCA 1 at [28] per Nettle, J.A.; Franklin v. Ubaldi Foods Pty. Ltd. [2005] VSCA 317 at [38] per Ashley, J.A.; Dwyer v. Calco Timbers Pty. Ltd. [2006] VSCA 187 at [16]- [18] per Maxwell, P.