Smeaton v Victorian Workcover Authority (Review & Regulation) [2013] VCAT 1433

1. The decision of the respondent in respect to Document 73 in this proceeding is varied as shown in the Schedule 1 attached to these orders.
2. On or before 6 September 2013, WorkCover is to provide to VCAT full copies of pages 22, 150, 152, 241, 243, 244 and 251. VCAT will then decide these pages.
3. The parties are invited to make further submissions on the issue of whether further decisions should be made in respect of the approximately 60 documents the subject to this proceeding, not included in the decided sample (see reasons for decision).
4. On or before 30 August 2013, Mr Smeaton is to file and serve a submission as to the issue of deciding the remaining 60 documents, or advise he is not making a further submission.
5. On or before 6 September 2013 WorkCover is to file and serve a submission in reply, or advise it is not making a further submission.

1. This proceeding has a long history, which I partially set out in Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 435. To that I add, the proceeding commenced on 14 February 2011 and is now about 2 ½ years old, easily the longest running of Mr and Mrs Smeatons' 50 or so applications to VCAT under the Freedom of Information Act 1982 (the FOI Act).
2. On 29 October 2012, VCAT made orders with respect to sample documents in this proceeding and gave written reasons (Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1549).
3. It was considering exemptions under the FOI Act, which WorkCover claims concerning the "live e-mails" of six employees, not including archived material. WorkCover has provided Mr Smeaton with approximately 800 pages of e-mails with some 'personal affairs exemptions' and advised it considered 78 documents as fully exempt. One partially exempt 'document' (Document 73) was approximately 700 e-mails (printed over 298 pages) where exemption was claimed for the name and contact details of non-executive WorkCover employees. WorkCover had released the substance of those e-mails to Mr Smeaton.
4. As VCAT commonly does where large numbers of documents are involved, it ordered that the proceeding be conducted with reference to a sample of the documents.
5. WorkCover provided a sample of 14 documents, enlarged at Mr Smeaton's request. Mr Smeaton was concerned that the sample was not representative. I advised I would inspect the other documents and consider whether the sample appeared representative. I did so and regarded the sample as representative. During the proceeding Mr Smeaton maintained his objection to VCAT deciding the case based on a sample. During at least one directions hearing, I assured Mr Smeaton that after a decision was made on the sample, and WorkCover revised its decision on the balance of the documents, if he was concerned WorkCover's later decisions were flawed, VCAT would hear submissions and make decisions on the balance of the documents. I also commented that the sampling process had worked well in the past with both parties abiding by the decision on the sample only.
6. On 29 October 2012, with reference to the sample documents, I:

1. agreed three sample documents (Nos 34, 40 and 44) were exempt under section 30(1) (internal working documents); 2. did not agree Document 1 was exempt under section 31 (law enforcement documents), but exempted a name under section 33(1) (personal affairs exemption);

1. did not agree Document 46 was exempt under section 31, but agreed it was exempt under section 30(1);

1. agreed Documents 45, 51 and 70 were exempt under section 32 (legal professional privilege); 2. agreed to redact from documents under section 33(1) (personal affairs) private e-mail address (Document 12), the name of non-executive staff members and telephone numbers (Document 52) and the names and contact details appearing in document 73A, as WorkCover has redacted them in a copy provided to Mr Smeaton; and 3. Did not agree that Documents 24 and 29 were exempt under section 35(1)(b) (Information obtained in confidence) but agreed to redact personal affairs information in Document 29.
2. WorkCover purported to apply the logic of the sample decision to the balance of the documents and provided further documents to Mr Smeaton. Mr Smeaton claimed that WorkCover had misapplied the sample decision to Document 73 and sought a directions hearing.
3. On 20 December 2012, a directions hearing was held. Mr Smeaton wished to re-argue VCAT's decision that the names of non-executive staff (VPS 6 and below) should not be released, as set out in the reasons of 29 October 2012. That was not open to him.
4. He also submitted WorkCover had not properly applied the section 33 decision to the 700 emails (Document 73). He did not make such a submission about the rest of the documents and the other decisions based on the sample. WorkCover submitted the 29 October 2012 decision had finalised the proceeding and the only further action available to Mr Smeaton was an appeal to the Supreme Court of Victoria.
5. In my then view, given that the sampling process does not have a legislative basis, VCAT could be obliged under the FOI Act to make decisions concerning the non-sample documents. The issue was not fully explored. In the interests of efficiently conducting the proceeding, I decided to decide the exemptions with respect to all of the emails that made up Document 73. I ordered WorkCover to provide various information to me.
6. In the New Year, I returned to the issue. I was faced with various difficulties on the basis of the copies of the emails provided, a complete copy and a redacted copy as provided to Mr Smeaton. I held a directions hearing and provided a detailed analysis of the documents to WorkCover. I did not provide a copy to Mr Smeaton as to do so would reveal the information in dispute. WorkCover agreed to review its decisions concerning the pages of Document 73 and provide a fresh copy to Mr Smeaton.
7. On 10 May 2013, it did so. However, Mr Smeaton remained dis-satisfied with the result, accusing WorkCover of dishonest conduct and noting ongoing failures to properly release information. About that time, he took the view that given events to date, VCAT should after a further hearing, decide whether every document in dispute (the remaining 60 or so documents) was exempt under any of the exemptions claimed.

1. At a directions hearing on 25 June 2013, WorkCover submitted that:
   1. As it is empowered to do so under sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), VCAT decide the issues with reference to a sample of documents only. The obligation of the original decision maker to make a decision about every relevant document within the scope of an FOI request does not, by operation of the FOI Act or the VCAT Act, oblige VCAT to make a decision about every document;
   2. On 29 October 2012, VCAT made its final decision, on the basis of that sample, in this proceeding. At that point, VCAT's jurisdiction ended, and could only be re-opened following:
      1. a successful appeal by a party to the Supreme Court of Victoria under section 146 of the VCAT Act,
      2. where VCAT decided to correct a mistake in orders under section 119 of that Act;
      3. via a re-hearing under section 120, given the absence of a party at a previous hearing; or
      4. where there was a need to amend the document under section 127 of that Act.

With none of those paths open to Mr Smeaton, it was not then open to him to return to VCAT asking it to make decisions about other documents not within the scope of the sample;

1. VCAT's orders of 20 December 2012 and 26 March and 2 April 2013 were directed at informing itself as to how the redactions decided under section 33 of the FOI were being performed; and the tribunal now has no jurisdiction as the proceeding is decided; and

1. In the alternative, if VCAT accepted it has jurisdiction, it should not re-open the matter. There is little to be achieved given VCAT has inspected all the documents and has informed the parties it considers the sample is representative of the documents as a whole. To make further decisions about further documents, in the absence of an established denial of procedural fairness is against the public interest. VCAT has properly evolved the procedure of determining large FOI matters by reference to sample documents. The practice achieves optimum and efficient use of the resources the tribunal, agencies and applicants as required by section 98(1)(d) of the VCAT Act. It also encourages finality in litigation, which should be achieved in this case.

1. As with other aspects of the FOI Act, Mr Smeaton's ongoing disputes with WorkCover over the years, have posed new tests for procedural issues. Given the new novel issues raised concerning sampling, I reserved my decision.

1. I reject WorkCover's submission that, in this case, because VCAT on 16 April 2012 and later dates ordered the proceeding would continue by way of a representative sampling process, that the sampling process having being undertaken and decided on that basis, VCAT has no further jurisdiction in the matter. Those orders were made in the context of Mr Smeaton continuously objecting to the sampling process and the tribunal advising him that he had the right to have those documents decided.
2. At one directions hearing (or maybe more), I assured Mr Smeaton that once a decision on a sample was made, if he was dissatisfied with how WorkCover applied the decision to other documents, he could return to VCAT to dispute the other documents. At the time, my understanding was (and is) that this is the common understanding about the sampling process. I also understood, and have experienced (eg. Tilley v VicRoads (General) [2010] VCAT 483), that applicants in other cases have not returned after a decision on a sample to further dispute the issues in a particular case.
3. While assuming that a decision in this proceeding with respect to a sample would probably finalise the proceeding, it was not my intent to end VCAT's jurisdiction in making the orders of 29 October 2012.
4. If required, it would be appropriate to make orders under section 119 of the VCAT Act, to make that position clear.
5. In hindsight in this case, the utility for such an approach in this case is clear. If Mr Smeaton had not sought review of WorkCover's treatment of Document 73, he would have received less information than he has now received. In short, WorkCover's first attempt to accurately redact the names in Document 73 (a difficult task) was not sufficiently accurate. Even now there are a few remaining issues to clarify.

1. After receiving a new version of the e-mails from WorkCover following the tribunal's decision of 29 October 2012, Mr Smeaton immediately raised his concerns as to whether WorkCover had accurately redacted the names of personnel in accord with the decision.
2. As described above, when I examined the version of the supplied documents, with reference to evidence as to the names of executive officers whose names were not redacted, I observed various discrepancies between my decision on what had been released, as well as internal inconsistency in what had been released.
3. I recorded those concerns in a confidential schedule provided to WorkCover. On 10 May 2013, WorkCover provided a further version to Mr Smeaton and at the 5 June 2013 directions hearing made submissions, including providing a commentary addressing the schedule I had provided it.
4. Given the ongoing dispute and my view that VCAT has ongoing jurisdiction, I have decided all but six of the 298 pages and have directed WorkCover to provide complete copies of those six pages so final decisions can be made.
5. WorkCover has not provided the full originals of pages 22, 150, 152, 241, 243 and 244 of Document 73. I assume this is an oversight. It appeared it may also not have provided a full copy of page 251. I have ordered that they be provided to VCAT so that final decisions can be made with respect to them. The missing text in the copies provided is minor, to the extent there may be no missing text in page 251. However, rather than assume what is missing or not, in the context of this long running dispute it is better to attend to these final documents.
6. Attached is a schedule, which records VCAT's decisions concerning each of the 298 pages of e-mails, as numbered by me in the course of this proceeding in folders provided by WorkCover. I have not recorded whether there were redactions before 10 May 2013. I simply refer to the current documents.
7. On the schedule I record whether WorkCover's decision is:

1. Affirmed with redaction/s (the bulk of the pages); 2. No order - Already released in full (not inc ph nos & emails). Where mobile phone numbers or email addresses are redacted from an email or text is said not to relate to the Smeatons (eg. page 134), I do not treat them as redactions. Mr Smeaton has long made it clear he does not seek people's emails and phone numbers;

1. Vary decision - partial further release, in there is to be a partial further release of a name or names;

1. Vary decision (subject to precondition). In two instances (pages 49 and 51), I suspect a first name is the first name of an executive officer. If so, it should be released; or 2. Varied - Release in full (in a few cases, WorkCover submitted pages should be released in full).
2. It is appropriate to make some comment about the decisions.
3. In its written submission dated 10 May 2013, WorkCover indicated that as well as releasing the names of people in senior or executive roles it has released the names of officers with responsibility for the subject matter of the document in question. I regard that as a matter for WorkCover and have not altered my original decision with respect to the sample and the redaction of names under section 33(1) of the FOI Act.
4. With respect to Document 190, WorkCover had mistakenly released the name of a junior officer named in the document in a previous release to Mr Smeaton. In the 10 May 2013 release it "re-redacted" the name. In my view, "the horse had bolted". However, given Mr Smeaton already has a copy of the document, there is no need to again order that it be released. This also leaves me to comment that I have no doubt that Mr Smeaton with respect to various documents well knows whose name has been redacted by the context of the redaction. However, that should not cause VCAT to release such names of junior staff. The principle that such staff names are not to be released should as a general principle be upheld.
5. Finally with regard to Document 73, in addition to the schedule attached to these orders which shows the page numbers of the document and the decisions, a further version will be provided to WorkCover which shows the names redacted and gives instructions as to partial release. This cannot be provided to Mr Smeaton. To do so would disclose redacted content.
6. To be clear, given Mr Smeaton's propensity to attempt to relitigate issues, the only outstanding issue with respect to Document 73 are decisions on pages 22, 150, 152, 241, 243, 244 and 251, once WorkCover provides full copies of the original versions.

Mr Smeaton's request that the other 60 documents be decided

1. While I have not reached a final view on the issue, there is merit in WorkCover's submission that under sections 97 and 98 of the VCAT Act, VCAT should refuse to further consider the remaining 60 documents. Under those sections, VCAT may determine the procedure it adopts to determine in this and in every proceeding.
2. This is subject to the requirements that VCAT acts fairly (section 97) according to the substantial merits of the case, affords the parties natural justice and conducts each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment (here the FOI Act) and a proper consideration of the matters before it permit (section 98).
3. One of the reasons I decided it was appropriate to make a decision about every individual page of Document 73 is that at the first opportunity after learning of my decision and receiving a new version of Document 73, Mr Smeaton pressed his case that the redactions had not been properly made.
4. The situation concerning the remaining 60 documents is different. Mr Smeaton raised no concerns about them for many months after the VCAT's 29 October 2013 decision and the following release of documents by WorkCover. To all intents and purposes it appeared both to VCAT and to WorkCover that this aspect of the proceeding was finalised. Mr Smeaton has provided no real basis for his late change of mind, apart from his dissatisfaction as to how WorkCover processed Document 73.
5. I say this in the context of my repeated observations in written decisions concerning disputes between the parties that there appears to be little public interest in the ongoing trawling through the minutia of the documents in question.
6. Arguably, in the interests of finality of proceedings, VCAT should refuse to further consider the 60 documents and once WorkCover has provided original versions of the few pages of Document 73 and they are quickly decided, the proceeding should end, subject to appeal rights.
7. There is precedent for a tribunal dealing with an issue on the basis of the sample and refusing to then deal with a like case. In Ashmore v British Coal Corporation [1990] 2 QB 138, Ms Ashmore together with approximately 1,500 other women engaged as colliery canteen workers, complained to a British industrial tribunal that she was employed on less favourable terms to comparable male employees. The tribunal ordered that 14 sample cases be selected representing the issues common to all claims, but that the decision in such cases, although persuasive in effect, would not be binding on the other claims. Ms Ashmore was kept fully informed of the selection process in which 14 sample cases were chosen. Together with all the other unselected claims, her application was stayed pending determination of the sample claims. The industrial tribunal dismissed the sample claims and the decision was upheld on appeal. Ms Ashmore bought her claim to the industrial tribunal which held that although the decision in the sample cases was not technically binding on her it would amount to an abuse of process to relitigate factual issues raised. Ms Ashmore's appeal on this point was dismissed by first the Employment Appeal Tribunal and then the Court of Appeal.
8. The Court of Appeal said that where sample cases had been selected to enable the tribunal fully to investigate and make findings on all relevant evidence, relitigation of the same issues, being analogous to a collateral attack on the tribunal's decision, would defeat the purpose of sample selection and be contrary to the interests of justice and policy unless there were fresh evidence which justifies re-opening the issue.

1. At the last directions hearing (5 June 2013), Mr Smeaton was concerned to have the opportunity to make a submission should I be attracted to WorkCover's submissions about the 60 documents.
2. To ensure Mr Smeaton and WorkCover are accorded natural justice, it is appropriate to invite Mr Smeaton to make a final written submission on the remaining issue and then to provide WorkCover a right of reply. I will then decide whether to further consider the correct and preferable approach to the non sample documents.
3. As a matter of 'housekeeping', WorkCover may have loaned me the only original version of Document 73 that exists. If so, it may arrange with VCAT registry to collect the copy, on the understanding that on or before 6 September 2013, it will return that version of Document 73 to me.

No order - Already released in full (not inc ph nos & emails)

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Do not have original - WorkCover to Provide to VCAT

No order - Already released in full (not inc ph nos & emails)

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No order - Already released in full (not inc ph nos & emails)

Varied - Release in full, as WorkCover submitted on 10/5/13

Varied - Release in full, as WorkCover submitted on 10/5/13

No order - Already released in full (not inc ph nos & emails)

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No order - Already released in full (not inc ph nos & emails)

Varied - Release in full, as WorkCover submitted on 10/5/13

No order - Already released in full (not inc ph nos & emails)

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No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

Do not have original - WorkCover to Provide to VCAT

Do not have original - WorkCover to Provide to VCAT

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

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No order - Already released in full (not inc ph nos & emails)

Do not have original - WorkCover to Provide to VCAT

Do not have original - WorkCover to Provide to VCAT

Do not have original - WorkCover to Provide to VCAT

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

May not have original - WorkCover to Provide to VCAT

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

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No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)

No order - Already released in full (not inc ph nos & emails)