MEDIA NEUTRAL CITATION: Smeaton v Victorian WorkCover Authority (General) [2010] VCAT 1544

ORDER SUMMARY: The Tribunal sets aside the summonses to S. Rajan, G. Karaisaridis and S. Freeman.

Cunningham v Hayden Real Estate (Geelong) Pty Ltd [2003] VCAT 41

Honeywood v. Department of Innovation, Industry and Regional Development [2004] VCAT 1657

Smeaton v. Victorian WorkCover Authority (General) [2010] VCAT 1264

Smeaton v WorkSafe Victoria (General) [2010] VCAT 1437

In proceedings G207/2010, G244/2010 and G511/2010 ("the three present proceedings") the applicant, Mr. Smeaton, seeks review of decisions made in relation to his requests under the Freedom of Information Act 1982 ("the FOI Act"). There appears no controversy that the intended respondent is in each case not "WorkSafe Victoria" but the Victorian WorkCover Authority and the applications in G207/2010 and G244/2010 are accordingly amended: see Occupational Health and Safety Act section 5 (1) and the Accident Compensation Act 1985.

There are other proceedings on foot between the applicant and the respondent and between the applicant and another respondent. There have also been numerous previous proceedings involving the applicant and/or his wife in respect of which the Tribunal has published reasons for decision. The general background to the proceedings is set out there.

The three present proceedings are listed to be heard together on Friday 24 September 2010. A witness statement has been filed on behalf of the respondent. The statement is by Ms. D. Wilby who, according to the statement, is a manager who manages a branch of the respondent that develops and implements claims management procedures.

Three persons summonsed at the request of the applicant to give evidence in proceedings G207/2010 and G244/2010 have applied to the Tribunal to have the summonses set aside. They are Mr. S. Rajan and Mr. G. Karaisaridis, solicitors employed by the respondent, and Ms. S. Freeman, a partner in KPMG. KPMG has provided services to the respondent being an audit to determine whether it had complied with its statutory obligations in dealing with Mr. Smeaton's wife's WorkCover claims.

On 15 September 2010 I heard submissions in relation to the application to set the summonses aside. Mr. Hurley made submissions for the respondent in relation to the summonses to Mr. Rajan and Mr. Karaisaridis. Mr. Craig made submissions for Ms. Freeman. Mr. Smeaton made submissions seeking to have the summonses upheld.

Mr. Hurley submitted that the summonses to Mr. Rajan and Mr. Karaisaridis should be set aside because neither of them could give relevant evidence in circumstances where the hearing was essentially to consider whether certain identified documents were exempt documents within the meaning of the FOI Act. Mr. Craig, for Ms. Freeman, made similar submissions on the ground of relevance. Both made some submissions on further grounds that are not identical.

Mr. Smeaton resisted the application saying that the issue went beyond whether particular documents were exempt. He asserted that there were additional documents in existence in the form of back up magnetic tapes. In this regard he, Mr. Hurley and Mr. Craig all referred to a decision by Member Proctor in a previous proceeding that concerned the question of back up magnetic tapes. (On 4 August 2010, in proceeding G177/2010, Member Proctor ordered the respondent to search for emails on "the pre 2005 back up medium" subject to Mr. Smeaton paying search costs not exceeding $4235.00: see Smeaton v. Victorian WorkCover Authority (General) [2010] VCAT 1264). Mr. Hurley and Mr. Craig submitted in effect that in the three present proceedings Mr. Smeaton was attempting to re-litigate the question and to circumvent the condition that he pay search costs.

Had the matter rested there it would have appeared that the summonses should be set aside because none of the witnesses could give evidence relevant to the question whether the documents claimed to be exempt were exempt. I note, however, that on 6 August 2010, in proceedings number G207/2010 and G244/2010, Deputy President Macnamara made an order that the hearing on 24 September 2010 proceed without prejudice to the applicant's ability to contend that additional documents in the form of back up magnetic tapes exist which fall within the subject matter of his request but have not been disclosed by the respondent.

It is not clear what evidence Ms. Freeman especially could give that would be relevant to that, if that indeed is properly to be characterised as a live issue in the present proceedings and one that has not already been determined by Member Proctor in proceeding number G177/2010. In these circumstances, it is best to consider whether there are any other grounds on which the summonses should be set aside. In approaching this question I do not find it necessary to canvass each and every ground put forward.

Mr. Smeaton said he wanted the witnesses to give evidence that would demonstrate that there must be documents beyond those identified by the respondent.

Mr. Smeaton sought to persuade me that the summonses should not be interfered with but that instead the presiding Member should determine what questions should be permitted when the witnesses were giving evidence (or earlier perhaps if witness statements were provided). In my view, if the summonses are an abuse of the Tribunal's process they should not be allowed to stand and that question should be determined before the witnesses attend the Tribunal.

With regard to Mr. Rajan and Mr. Karaisaridis Mr. Hurley said that as the solicitors instructing in the proceedings anything they knew arose in the preparation of the case and the prior administration of the FOI request. They could not be asked anything that they could be compelled to answer. The summonses were vexatious, he submitted.

With regard to Ms. Freeman Mr. Craig noted that KPMG was not an agency or prescribed authority within the meaning of the FOI Act. KPMG was a private entity that had performed services for an agency. Mr. Smeaton had no right to see KPMG's documents. The objects of the FOI Act set out in section 3 of the Act were to give the community access to information in the possession of Government and certain bodies constituted under Victorian law. Allowing the summons to Ms. Freeman to stand would mean that any time a private entity worked in tandem with Government that entity could be summonsed to give evidence and produce documents with a view to determining whether Government had complied with its obligations under the FOI Act.

In Pizer's Annotated VCAT Act, 3rd edition, JNL Nominees Pty. Ltd., Melbourne, 2007, the learned author cites authorities including a number of decisions of the Tribunal and states that the Tribunal has implied power under section 104 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to set aside a summons. The grounds include where the recipient of the summons is unable to give relevant evidence, where the summons has been issued for some ulterior purpose, and where the summons otherwise constitutes an abuse of process (at pp. 396-397).

In the context of an application under section 75 of the VCAT Act to strike out a proceeding, the Tribunal has made the observation that "what constitutes an abuse of process must be a question of degree, and would depend on the circumstances of each case. The rationale behind the power to strike out a proceeding for abuse of process is to protect the interests of justice and preserve the integrity of the Tribunal's processes": Cunningham v Hayden Real Estate (Geelong) Pty Ltd [2003] VCAT 41, Deputy President McKenzie, at paragraph 32. The rationale for the power to set aside a summons as an abuse of process is more or less the same.

The respondent's witness, Ms. Wilby, can give evidence about the identified documents. She can be questioned about that and any other relevant matters. On the other hand, if there can be said to be relevant evidence that the recipients of the summonses could give in the present proceedings, still the summonses are properly to be regarded as an abuse of process. Mr. Rajan and Mr. Karaisaridis should not be required to give evidence when their role in the proceeding is a legal or advisory one and not the practical one performed by Ms. Wilby. Ms. Freeman should not be required to give evidence about KPMG's documents and to produce KPMG's documents.

For these reasons I will order that the summonses be set aside.

I note that by order dated 2 July 2010 in proceedings number G207/2010 and G244/2010 Deputy President Macnamara directed that the hearing be before Member Proctor, if available. It has been brought to my attention that Member Proctor is not available on 24 September. Given the discussion at the hearing before me about Member Proctor ordered in separate proceedings it is now even more clear that the preferable course is for the hearing to be before him. I will therefore direct that the hearing be vacated and listed before Member Proctor at the earliest opportunity.

I further note that in the course of preparing these reasons some further correspondence was received by the Tribunal. The first item was a letter by Mr. Smeaton dated 17 September 2010. This included the submission that KPMG fell within the definition of "officer" of the respondent agency: see section 5(1) of the FOI Act. That definition includes a person "employed by or for the agency". Mr. Smeaton referred to a decision of Judge Dove, Vice President, in Honeywood v. Department of Innovation, Industry and Regional Development [2004] VCAT 1657 in which "external consultants" were regarded as "officers": at paragraph 28. Whether or not KPMG would fall within the definition of "officer", however, the FOI Act makes clear that the most that Mr. Smeaton would be entitled to would be access to the agency's, that is the respondent's documents, and not KPMG's documents.

The second item of correspondence was a fax from Mr. Rajan dated today stating that the respondent had become aware today of a further summons issued and served on a Mr. Steve Marshall. Mr. Rajan requested an urgent further directions hearing for the Tribunal to hear an application to set that summons aside. The fax also stated in effect that the respondent was concerned how may other summonses may have been issued at the applicant's request. It may be that Mr. Smeaton will reconsider the question of this and any further summonses upon receiving today's order and reasons. I will however not direct that there be any further directions hearing until the principal registrar confirms precisely what summonses have been issued.

I hope that it may be helpful for me to conclude by referring to some remarks made recently by Deputy President Macnamara in another proceeding in which he summarily dismissed an application by Mr. Smeaton. Mr. Smeaton evidently made statements in that proceeding that were similar to some that he made to me during the course of argument. Deputy President Macnamara said this:

"Mr Smeaton was at pains to identify what he has achieved in his campaign over the years in terms of changes of policy, the documents that he has obtained and the worthy purpose which underlies all that he does. In making these responses he perhaps mistakes the purport of the rather pejorative set of words set out in Section 75. In a case such as the present a finding that an application should be summarily dismissed is not a reflection on an applicant's motives. Rather it simply draws attention to a lack of jurisdiction. As a matter of law, it is frivolous and vexatious to invite a court or a tribunal to exercise a jurisdiction which it does not have even if that invitation is made for the highest and purest of motives". (Smeaton v WorkSafe Victoria (General) [2010] VCAT 1437 at paragraph 17).

1. So too is it an abuse of process to request the tribunal to issue summonses in the present circumstances even if that is done for the highest and purest of motives.