Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731

1. The jurisdiction of the Tribunal in the subject application for review of the Respondent's deemed refusal of a request made by the Applicant pursuant to the Freedom of Information Act 1982 is a review of the Applicant's original request dated 15 November 2012, to be provided with various documents or categories of documents held by Respondent.
2. On or before 10 October 2013, the Applicant must provide the Department with the name of the barrister who will be given the Lists referred to in Order 3, who will sign the undertaking referred to in Order 4, and who will perform the task referred to in Order 5 ('the Appointed Counsel').
3. On or before 11 October 2013, the Department must give the Appointed Counsel the print-out of the RecFind entries for the 5,295 files and 8,879 documents ('the Lists'), as described in paragraphs 33 and 36 of the Further Supplementary Affidavit of Jonathan Anthony Ciullo sworn on 12 September 2013.
4. Before being provided with the Lists, the Appointed Counsel must sign a confidentiality undertaking in the form of Schedule A set out below.
5. On or before 25 October 2013, the Appointed Counsel must file with the Tribunal and serve on the parties a document identifying which of the 5,295 files and 8,879 documents referred to in the Lists the Applicant considers may fall within the terms of the Applicant's Freedom of Information Request dated 15 November 2012 and wishes to have reviewed in accordance with the process identified below ('the Document'), which (for the avoidance of doubt) will not include any of the files listed in exhibit JC-1 to the Affidavit of Jonathan Anthony Ciullo sworn on 27 May 2013.
6. The Document must be kept confidential between the parties, their legal representatives and the Tribunal.
7. The Department will conduct a thorough and diligent search for the files and documents referred to in the Document, and will provide the files and documents it has located to the expert (referred to in Order 8) as soon as it can (on a staggered basis, if necessary).
8. Pursuant to s 94(1) of the VCAT Act, the Tribunal will call in the assistance of an expert ('the Expert') to:
   • (a) review the files and documents provided to the Expert in accordance with Order 7;
   • (b) provide a report to the Tribunal and the parties, by 15 November 2013, advising which (if any) of the documents provided to the Expert (whether as part of a file or on a stand-alone basis) fall within the terms of the Applicant's Freedom of Information Request dated 15 November 2012 ('the Relevant Documents').
9. The parties are to seek to agree the identity of the Expert by 14 October 2013. If agreement cannot be reached between the parties, then:
   • (a) on or before 15 October 2013, the parties shall each provide written submissions of no more than 2 pages to the Tribunal indicating an expert or experts that they consider appropriate to be appointed;
   • (b) the Tribunal will determine the identity of the Expert.
10. Before being provided with the files and documents referred to in Order 7, the Expert must sign a confidentiality undertaking in the form of Schedule B set out below.
11. The Applicant will pay the costs of the Appointed Counsel, the Expert and of the retrieval, production and return of files and documents contemplated by these Orders, and the Department's costs of processing documents identified as relevant to the Request in accordance with the Freedom of Information Act 1982.
12. Within 14 days of the Expert providing a report to the Department, the Department shall advise the Applicant and the Tribunal whether it will release the Relevant Documents to the Applicant, or whether it denies access to any of those documents or part of them (and, if so, on what basis).
13. The Respondent's Application for a Stay is refused.
14. Costs reserved.

I, [insert name], counsel for the Applicant, give this undertaking to the Tribunal and the Respondent to enable me to be provided with a copy of the print-out of the RecFind entries for the 5,295 files and 8,879 documents ('the Lists') described in paragraphs 33 and 36 of the Further Supplementary Affidavit of Jonathan Anthony Ciullo sworn on 12 September 2013.

1. I will keep the information in the Lists confidential, save as provided for in Order 5 of the Tribunal's orders made on 8 October 2013 ('Orders').
2. I will not disclose the information in the Lists to an unauthorised person, save as provided for in Order 5 of the Orders.
3. I will use the Lists and the information in the Lists solely for the purpose of preparing the document referred to in Order 5 of the Orders.
4. I will take all reasonable steps to ensure that an unauthorised person does not have an opportunity to inspect or otherwise have access to the Lists.
5. I will return the Lists to the Respondent at the conclusion of the process described in Order 5 of the Orders, and will destroy any copies of the Lists I have made.
6. For the purposes of the undertaking, 'unauthorised person' means any person other than:
   • (a) a member of the Tribunal as constituted in this proceeding or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;
   • (b) the legal representatives of the Respondent;
   • (c) the Expert referred to in Order 8 of the Orders.

I, [insert name], Expert called in to assist the Tribunal, give this undertaking to the Tribunal and the Respondent to enable me to be provided with the files and documents referred to in Order 7 ('Files and Documents') of the Tribunal's orders made on 8 October 2013 ('Orders').

1. I will keep the information in the Files and Documents confidential, save as provided for in Order 8 of the Orders.
2. I will not disclose the information in the Files and Documents to an unauthorised person, save as provided for in Order 8 of the Orders.
3. I will use the Files and Documents and the information in the Files and Documents solely for the purpose of preparing the report referred to in Order 8 of the Orders.
4. I will take all reasonable steps to ensure that an unauthorised person does not have an opportunity to inspect or otherwise have access to the Files and Documents.
5. I will return the Files and Documents to the Respondent at the conclusion of the process described in Order 8 of the Orders, and will destroy any copies of the Files and Documents I have made.
6. For the purposes of the undertaking, 'unauthorised person' means any person other than:
   • (a) a member of the Tribunal as constituted in this proceeding or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;
   • (b) the legal representatives of the Respondent.

Mr Pizer of Counsel with Mr P Liondas of Counsel instructed by Herbert Smith Freehills

Mr P Gray SC with Mr G Mukherji of Counsel instructed by Victorian Government Solicitor's Office

1. This preliminary hearing is a continuation of proceedings in relation to Tabcorp Holdings Limited's ('Tabcorp') request pursuant to the Freedom of Information Act 1982 (the 'FOI Act') (the 'Request') to be provided with various documents held by the Department of Treasury and Finance (the 'Department').
2. The issue raised at this further preliminary hearing is the scope of Tabcorp's Request. Specifically, whether Tabcorp, on 30 January 2013, having ostensibly agreed to refine the Request to the 50 folders initially identified by the Department as containing potentially relevant documents (the 'Initial Tranche of Folders'), is now prevented from requesting further searches to be conducted on additional potentially relevant files subsequently uncovered by the Department and identified to the Freedom of Information Commissioner.

1. On 22 March 2013, Tabcorp applied to this Tribunal seeking a review of the Department's deemed decision to refuse access to documents falling within the terms of the Request.
2. On 12 June 2003, Senior Member Proctor made orders setting down for hearing an application by Tabcorp that the Department conduct further searches for relevant documents.
3. On 9 July 2013, an initial hearing in relation to that application took place, and the Tribunal found that it 'cannot yet be satisfied that all relevant documents have been located after a thorough and diligent search'.[1]
4. Pursuant to orders made by the Tribunal on that day, the Freedom of Information Commissioner was called upon to assist the Tribunal in respect of a review as to whether a thorough and diligent search had been undertaken by the Department.
5. On 2 August 2013, the Commissioner provided her report to the Tribunal which stated the outcome of her enquiries as follows:

(1) The Department has identified that 5,295 files were created by the Department in the relevant period (the identified relevant files).

(2) Of the identified relevant files, 47 files were destroyed. The Department has not yet provided details of which of the identified relevant files were destroyed or other details relating to the destruction of the files.

(3) Of the identified relevant files, 27 are missing. The Department has not yet provided details of which of the identified relevant files are missing.

(4) The Department had identified that "some" of the relevant files are now held at -

(i) the Department;

(ii) the Public Records Office Victoria (PROV);

(iii) Grace Records Management (Grace); and

(iv) other government agencies or departments.

(5) The Department informed me that it has not taken any steps to retrieve any of the identified relevant files as it considers that "this would be an unreasonable diversion of the Department's resources" based on the information provided in the Department's letter to me of 2 August 2013.

(6) The Department has also identified 8,879 documents (the identified relevant documents) which were registered in the RecFind Index during the relevant period. The Department is currently uncertain whether it will be able to electronically cross-reference the location of the identified relevant documents to determine how many additional files (i.e. in addition to the identified relevant files), if any, would need to be reviewed in order to identify all the documents created in the relevant period.

(7) As at the date of this letter, the Department has not informed me which of the identified relevant files are located at -

(a) the Department;

(b) PROV;

(c) Grace; and

(d) Other government agencies or departments.

The Department has informed me that it is currently attempting to obtain this information.

(8) The Department has estimated (based on a random sample of 200) that approximately one sixth of the identified relevant files are held at PROV and that it would take up to 35 days to retrieve these files at a cost of $1,000 (or $2,000 for return to PROV).

(9) The Department has estimated (based on a random sample) that approximately half of the identified relevant files are held at Grace and that it would take approximately 5 days to retrieve these files at a cost of $17,861.

1. After receipt of the Commissioner's report, the Tribunal reconvened for further submissions as to whether a thorough and diligent search had been conducted. At the commencement of the hearing, the Department advised the Tribunal that it wished to raise a new submission with the Tribunal as to the scope of the Applicant's Request. Counsel for the Applicant advised that he had only been made aware of the Department's new legal issue as of 15 minutes prior to the hearing and all were in agreement, including the Tribunal, that an adjournment was appropriate to allow the Applicant to consider the Department's new position. The Tribunal made orders adjourning the preliminary hearing to 13 September 2013.
2. On 27 August 2013, the Department filed an outline of submissions on the scope of the Request and on 3 September 2013 Tabcorp filed its submissions in reply.

1. The Department's new position is that the scope of the review application before the Tribunal is confined to the terms of Tabcorp's 30 January 2013 refined FOI request[2] (the 'Refined FOI Request'). The Applicant submits, and the Tribunal accepts, that the Department's new position has 'radically changed'; having already participated in a directions hearing, a compulsory conference and a preliminary hearing on the basis that the Tribunal could order it to conduct further searches for relevant documents.[3]
2. To consider the Department's submission, it is necessary to again revisit the history of this matter.[4]
3. Tabcorp's [initial FOI] Request of 15 November 2012 sought access to the following four categories of documents which related to the privatisation of TAB and the public float of Tabcorp in 1994:
   • (a) All notes, memoranda, minutes or briefs referring to an agreement or proposed agreement to the effect set out in the definition of 'Government Agreement' in clause 1 of the Memorandum of Understanding, and/or to the effect set out in clause 10.3 of the Memorandum of Understanding. This category is limited to documents created between 1 March 1994 and 15 August 1994;
   • (b) Any drafts of the agreement or proposed agreement referred to above at paragraph 1 (howsoever entitled), and any attachments to such drafts. This category is limited to documents created between 1 March 1994 and 15 August 1994;
   • (c) All notes, memoranda, minutes or briefs referring to the Treasurer's Letter, and any drafts of the Treasurer's Letter. This category is limited to documents created in June 1994; and
   • (d) All verification drafts of the Prospectus for the float of Tabcorp, and any notes, memoranda, minutes or briefs accompanying such drafts. This category is limited to documents created in June 1994.
4. By letter dated 14 December 2012, the Department wrote to the Applicant in accordance with sub-s 25A(6) of the FOI Act, providing notice of its intention to refuse the Request pursuant to sub-s 25A(1) because the work involved would substantially and unreasonably interfere with the performance of the Department's functions.[5]

The Department ... has specifically considered the resources required to inspect the pool of documents indentified as potentially relevant to the terms of your request. To date, the Department has indentified not less than 50 folders that may contain potentially relevant documents.

Unfortunately during the period covered by the request the Department did not have a comprehensive electronic document management system. Therefore it is estimated that a review of each folder has to be undertaken manually and a conservative estimate is one hour per folder based on previous experience.

This means that to perform an inspection of approximately 50 folders could take about 50 hours to locate any potentially relevant documents. Please note that this estimate does not take into consideration the time that would be required to conduct consultations with any internal or external parties regarding the information contained in any documents that may be indentified as relevant, though it is expected that this would take a substantial amount of additional time.

I have further been informed that there are back-up tapes for the period March-August 1994. The resources and costs associated time restoring back-up tapes are extensive. Please note that not all of these tapes would contain any potentially relevant documents. However, to ensure that the Department meets its obligations to conduct a thorough and diligent search with respect to this FOI request, all of these tapes would need to be restored, catalogued and searched. This would vastly increase the estimates provided above.

Based on the estimated time it would take to search for potentially relevant documents, proceeding with your request in its current form would substantially and unreasonably divert the Department's resources from its other operations.

The technology and methodology utilised to store documents has changed drastically over this time. The record keeping of documents that were more than 18 years old was often in hard copy format only. Therefore, the estimates provided above may come to be grossly inadequate when actual searches and review of the documents are conducted.

The Department may be in a position to process your request if it is narrowed further by:

Limiting the request to the Department's need to search only the hard copy folders and not any back-up tapes; and/or

Limiting the search to any folders (or parts of folders) containing the final copies of the Memorandum of Understanding, the Treasurer's letter dated 29 June 1994 and the draft Prospectus for the float of Tabcorp.

1. Tabcorp's solicitors responded to the 14 December letter by an email dated 19 December 2012. That email relevantly said this: [6]

We confirm that Tabcorp agrees that the Department need only search for hard copy documents and not any back-up tapes.

However, we would be pleased to meet with you as soon as possible in an attempt to resolve any remaining concerns held by the Department with respect to processing Tabcorp's FOI request forthwith. We are available Thursday and Friday of this week. Would you please advise which day and time is convenient.

In the meantime, it would greatly assist matters if you are able to provide us with an index of the folders referred to in your letter which contained documents potentially responsive to Tabcorp's request.

1. Tabcorp's solicitors sent a further email on 20 December 2012, saying:

We have not had any response to our email sent to you yesterday at 12.52 pm. Would you please let us know as a matter of urgency when you are available to meet with us in relation to your letter dated 14 December 2012.

1. Later that day, Brad Holmes (of Tabcorp's solicitors) had a conversation with the Department's FOI Officer, Ms Chung. Mr Holmes then sent her an email,[7] saying:

I confirm our telephone conversation this afternoon that the Department is not able to meet with us today or tomorrow, amid that you are not able to confirm a date upon which the Department may be able to meet with us to discuss Tabcorp's FOI request.

The effect is that, having taken over 30 days to respond to the FOI request, the Department has now caused the time for processing that request to be suspended until after consultation has taken place, but will not commit to conducting that consultation.

1. On 24 December 2012, the Department sent a further letter to Tabcorp's solicitors.[8] The letter said:

You agreed by email dated 19 December 2012 that the Department need only search for hard copy documents and not any back-up tapes.

However, subsequent to my earlier correspondence, I was informed only late last week that the Department has retrieved a large number of additional files (in excess of 150 files) that were created by or for the purposes of the Department's external lawyers in relation to the matters covered by the request.

I have been further informed that all or most of the documents in these files would likely be subject to legal professional privilege (section 32 of the Freedom of Information Act 1982).

I am of the view that including these files within the searches would make the request "voluminous" and the work involved would substantially and unreasonably interfere with the performance of the Department's functions.

I advise that the Department will be in a position to process your request if you agree that the searches to be conducted for this request are limited to the hard copy folders originally identified excluding the back-up tapes and the legal files outlined above. [emphasis added]

The Department has estimated that it would take approximately 60 hours to locate the potentially relevant documents. Therefore, the potential access charges payable for the request would be at least $1200.00 based on $20.00 per hours search time and $0.20 per each A4 page released in the decision.

Please note that this is an estimate only. At this stage, I am unable to estimate the number of pages that will be released to you in the decision.

Should you wish to proceed with the request as indicated above, please forward a cheque for $600.00 payable to the Department representing approximately 50 per cent of the estimated charges.

1. On 31 December 2012, Tabcorp's solicitors wrote to the Department saying:[9]

It would greatly assist our consideration of the Department's proposal if you would please provide us with an index to the 50 folders as we have previously requested.

1. On 4 January 2013, Tabcorp's solicitors sent a follow up email to the Department:[10]

We have requested on several occasions that the Department provide us with an index to the 50 folders it has identified in order to progress this matter. We have had no response to any of our requests. Would the Department please afford us the courtesy of a response to this request.

1. Later on 4 January 2013, the Department replied to Tabcorp's solicitors,[11] relevantly saying:

The Department does not have in existence a comprehensive index of the more than 50 folders nor any kind of index in an appropriate form that can be provided to you.

1. At this point it is appropriate to note two observations made by Tabcorp's Counsel in his submissions, namely that:
   • (a) The correspondence from the Department between 14 December 2012 and 24 December 2012 already indicates that the Department had identified additional files to those initially advised; and
   • (b) Notwithstanding the Department's advice in its letter dated 4 January 2013, Mr Cuillo subsequently exhibited an index to his affidavit dated 27 May 2013 as exhibit JC1.
2. On 30 January 2013, Tabcorp provided the Department with the requested $600 deposit. Tabcorp's letter to the Department states:

We refer to recent correspondence in relation to Tabcorp's FOI request. In particular, we refer to your letter dated 24 December 2012 which contained a proposal from the Department in relation to processing Tabcorp's FOI request.

Prior to the Department's 24 December 2012 letter, the Department had identified approximately 50 Folders potentially containing documents responsive to Tabcorp's FOI request. However, in a letter dated 14 December 2012, the Department stated that a search of these folders for potentially relevant documents would "substantially and unreasonably divert the Department's resources from its other operations", and that accordingly the Department was unable to process the request. Further correspondence then passed between us in relation to a proposed consultation regarding Tabcorp's FOI request. In this correspondence we confirmed that Tabcorp's request only extended to hard copy documents.

Subsequently, prior to any consultation having occurred, we received a letter from you dated 24 December 2012 stating that, in addition to the approximately 50 folders of documents previously identified, the Department had subsequently identified in excess of 150 additional "files" which relate to the matters covered by Tabcorp's FOI request. The Department's letter stated that "including these files within the searches would make the request "voluminous" and the work involved would substantially and unreasonably interfere with the performance of the Department's functions. "The letter then stated that the Department would process Tabcorp's FOI request if Tabcorp agrees that the searches to be conducted are limited to the 50 hard copy folders originally identified. The Department's letter also stated that, should Tabcorp wish the Department to process the request on this basis, then we should forward a cheque for $600 representing approximately 50% of the total estimated charges.

In order to assist in our consideration of this proposal, we requested an index to the 50 folders identified by the Department. We were informed on 4 January 2013 that "the Department does not have in existence a comprehensive index of the more than 50 folders nor any kind of index in an appropriate form that can be provided to you".

As you would appreciate, it is difficult to properly assess the Department's proposal in the absence of any knowledge of the contents of the 50 folders identified. However, in the circumstances, we are instructed to accept the Department's proposal on the basis that if, having reviewed the documents produced by the department , Tabcorp wishes to make a further request for documents which are contained within the 150 folders referred to, then Tabcorp reserves the right to do so.[12] [emphasis added]

1. The Department now takes the position that by Mr Holmes' letter of 30 January 2013, Tabcorp excluded from the scope of its Request any documents other than documents held in the Initial Tranche of Folders.[13] Therefore, the [initial FOI] Request has at all times since 30 January 2013 been limited to documents within the Initial Tranche of Folders.
2. The Department submits that it has completed a thorough and diligent search with respect to the Initial Tranche of Folders having reviewed the 66 files in the Department's possession and compiled and placed in evidence before the Tribunal a list of those files.[14] Accordingly, the Department submits that no occasion arises for any further enquiry as to the thoroughness and diligence of the Department's searches,[15] and so it has fulfilled its obligations under the FOI Act.

1. Tabcorp rejects the Department's submissions that the Request is now confined to the Initial Tranche of Folders. In particular, Tabcorp submits that in order to validly invoke sub-s 26A(1) of the FOI Act an agency, here the Department, must first comply with the preconditions set out in sub-s (6). The Department failed or refused to do so. As a consequence, the scope of the Request has not been limited or refined by reason of either or both of the following grounds:[16]
   • (a) First, Tabcorp's Refined FOI Request was made in circumstances where the Department had failed to comply with paras 25A(6)(b) and (c) of the FOI Act and by reason of that failure Tabcorp is not bound by the terms of that request; and
   • (b) Secondly, or in the alternative, the Refined FOI Request was made on the implied condition that the Department had undertaken the necessary enquiries to identify those folders as being the only likely repository of the documents sought. With such condition not being met, the Tribunal can order further searches if it considers it appropriate to do so.
2. Counsel further referred to the affidavit of Brad Holmes[17] in which he deposes to the circumstances of the letter on behalf of Tabcorp, dated 30 January 2013, to the effect that such letter was predicated upon the following understanding, namely that:
   • (a) on the basis of correspondence with Ms Chung [for the Department] the Department had undertaken the necessary enquiries to correctly identify the 50 folders as being the likely and only repository of documents sought by the Request, other than the legal files and back-up tapes;
   • (b) if there had been a possibility that the documents may be located within some other repository then Ms Chung would have said so and she did not;
   • (c) he would not have agreed to the Department's proposal had he known that there existed other repositories that were likely to contain relevant documents; and
   • (d) he would not have agreed to the Department's proposal had an index being provided which clarified that the approximately 50 hard copy folders were in fact unlikely to contain relevant documents, which in fact turned out to be the case.

1. The FOI Act confers, as a public right, the right of any member of the community to request access to information contained in documents in the possession of the Government of Victoria and other bodies constituted under the law of Victoria.[18]
2. Section 17 relevantly provides that:
   • (a) Any person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or the Minister for access to the document;[19]
   • (b) The request shall provide sufficient information to enable the identification of the documents sought;[20] and
   • (c) The request shall not be refused on the ground that it does not comply with sub-s 17(2) without the applicant having been given a reasonable opportunity of consultation with the agency with the view to making a request in a form that complies with that subsection.[21]
3. Section 25A specifies circumstances in which either the Minister or an agency may refuse to grant access to documents. Relevantly, for present purposes, para 25A(1)(a) provides that the request may be refused where the agency or Minister is satisfied that the work involved in processing the request in the case would substantially and unreasonably divert the resources of the agency from its other operations.
4. The agency's right to refuse pursuant to s 25A(1) is expressly limited by preconditions in sub-section (6) which provides as follows:

(6) An agency or Minister must not refuse to grant access to a document under subsection (1) unless the agency or Minister has -

(ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.

1. As a preliminary issue, the Respondent contended that the Tribunal has no power to consider compliance with sub-s 26A(6) in the current context where Tabcorp elected not to seek a review of the Department's (foreshadowed) refusal under sub-s (1) but rather confined the Request in a manner suggested by the Department, as acknowledged in its letter of 30 January 2013.
2. In the Tribunal's view, such interpretation is predicated upon the Department's primary submission that it was not obliged to comply with sub-s (6) for the purpose of Tabcorp making a valid amendment to its Request in a form acceptable to the Department. For reasons which follow, this primary contention is rejected and the Tribunal must be able to consider compliance with sub-s (6) for the purpose of determining whether the scope of the current review extends to the original Request or the Refined FOI Request only.
3. Subsection 25A(1) seeks to provide a pragmatic and efficient procedure whereby a relevant agency or Minister may avoid an otherwise expected substantial and unreasonable diversion of resources in meeting an FOI request. Nevertheless, such a provision constitutes a significant exception to the obligations otherwise cast upon an agency to deal with requests under the FOI Act and provide access to documents which are not exempt. Not surprisingly therefore, the right of an agency or Minister to refuse to deal with a request is strictly prescribed within the terms of sub-s (6).
4. An applicant is reliant upon information provided by the agency together with a reasonable opportunity to consult, to make an assessment as to whether to accede to the agency's foreshadowed refusal, by agreeing to a more limited request, or whether it will pursue a review of a deemed refusal.
5. Consistent with the Parliamentary direction embodied in sub-s 3(2) that the provisions of the FOI Act be interpreted so as to further the objects set out in sub-s 3(1), the Tribunal concurs with Tabcorp's submission to the effect that an agency [or Minister as the case may be] must comply strictly with the terms of sub-s 25A(6) before a refusal may be validly made pursuant to sub-s 25A(1).[22]
6. Equally, 'making the request in a form that would remove the ground for refusal' as contemplated by sub-para 25A(6)(a)(ii), is also predicated upon such strict compliance with sub-s 25A(6). Tabcorp contended this to be an implied precondition. In the Tribunal's view, at the very least, this is the case. The better statutory interpretation is that such precondition is explicit within the terms of the section. A variation or limitation to an original request only arises in the context of an agency or Minister indicating its intention to refuse an application pursuant to sub-s 25A(1). In this context, an applicant is not in a position to obtain information from or engage in consultation with the relevant agency, other than as required by sub-s (6).
7. In the Tribunal's view, without imputing improper motives to the Department, the subsequent disclosures made available to Tabcorp through this proceeding or indirectly through the Supreme Court discovery process, highlights the critical importance of the sub-s (6) procedure being followed comprehensively and cooperatively. It is abundantly clear that this did not happen in this case. The Tribunal is satisfied that the evidence confirms that the Department had not undertaken necessary or adequate enquiries, in response to the Request, as distinct from the discovery process in the Supreme Court proceeding, so as to be satisfied that the approximately 50 hard copy folders were the only likely repository of documents sought, other than the legal files and the back-up tapes. As a consequence, the basis upon which the Department purported to invoke sub-s 25A(1) was inadequate, false or misleading. Furthermore, its failure to comply with sub-s 25A(6), as detailed below, unjustly procured a purported variation to the Request.
8. The Respondent sought to resist reliance upon the objects clause in the FOI Act for the interpretation of s 25A by reference to Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd[23] in which Cole J stated the following principle:

whilst regard may be had for the objects clause to resolve uncertainty or ambiguity the objects clause does not control clear statutory language or command a particular outcome of exercise of the specialty power.[24]

1. Having now had the opportunity to consider Rosemount's case in the context of the particular section being considered in that case, the Tribunal endorses the submissions of Tabcorp to the effect that:
   • (a) Rosemount's case is distinguishable on its facts. As indicated above, sub-s 3(2) of the FOI Act contains a clear Parliamentary direction requiring provisions of the Act to be interpreted so as to further the objects set out in sub-s (1). In marked contrast, the objects clause in Rosemount's case identified multiple and potentially competing objects;
   • (b) The interpretation advanced by Tabcorp does not seek to control statutory language through application of the objects clause. Rather, it seeks to give effect to the objects clause by reference to the consequences which flow from a failure to comply with sub-s 25A(6). The interpretation advanced by the Department would permit a restriction to an original request, without any justification being made by an agency for its foreshadowed refusal to comply with the original request.
2. The Tribunal finds that the Respondent did not validly exercise a right to refuse access to certain documents in accordance with the Request, pursuant to sub-s 25A(1), because it failed or refused to comply with paras 25A(6)(b) and (c) for the following reasons:
   • (a) The Department failed to meet with Tabcorp's solicitors to discuss the Request, despite those solicitors requesting such a meeting by email on 19 December 2012 and 20 December 2012 as set out above;
   • (b) The Department refused to provide Tabcorp with an index of the Initial Tranche of Folders, despite being asked to provide that index on 31 December 2012 and 4 January 2013 as set out above.[25] The Tribunal notes that Mr Ciullo was able to produce the said index as an exhibit to his affidavit on 27 May 2013;
   • (c) The Department told Tabcorp that there were back-up tapes for the period March to August 1994 but failed to mention that 'at the time of the FOl request, back-up tapes from the period were being restored as part of the discovery process' in the Supreme Court;[26] and
   • (d) The Department failed to inform Tabcorp that the Initial Tranche of Folders had been identified as part of the Supreme Court discovery process using the RecFind Index. Had Tabcorp been informed of that fact, it could have engaged in meaningful consultation about the likelihood of there being further repositories of relevant documents. Instead, the Department wrongly or mistakenly represented that all relevant documents were to be found in the approximately 50 hard copy folders, the Arthur Robinson & Hedderwicks legal files and the back-up tapes.
3. The Tribunal is satisfied that the Department has not justified its failure to provide an index of the approximately 50 hard copy folders, as requested on multiple occasions. Had it done so in a timely manner then Tabcorp would have been alerted to the fact that relevant files were missing from those folders. In particular, there was no identification of files relating to the Memorandum of Understanding, the Treasurer's letter or the State agreement. Such information would have militated against Tabcorp agreeing to a refined Request. Furthermore, if Mr Holmes had understood that there might be more repositories where files were retained then the reservation contained in the letter of 30 January could have been more expansive or Tabcorp may not have agreed to a Refined FOI Request at all.
4. Non-compliance by the Department with the terms of sub-s 26A(6), is not cured by the apparent acquiescence by Tabcorp to a Refined FOI Request. The Tribunal accepts Tabcorp's submissions to the effect that the Department's failure coupled with representations made by it had the effect of procuring such Refined FOI Request upon a false premise or materially inadequate disclosures. Accordingly, the Department is not entitled to limit its response to such Refined FOI Request. It would be unconscionable and contrary to the underlying objective of the FOI Act if the Department could now rely upon its inadequate disclosures and consultation and failure to comply strictly with sub-s 25A(6) by insisting that Tabcorp effectively agreed to change the Request to the Refined FOI Request, and that the current review before this Tribunal is similarly limited.
5. As stated by former Tribunal President Kellam and Deputy President Galvin in Kelly v Department of Treasury and Finance:[27]

It is the express object of the Act to extend the right of access to government information to the community (s.3(1)) and it is clear enough that the object of s.25A(6)(c) is to facilitate that access. The measure imposes a positive obligation upon a respondent to assist the applicant in providing information.

1. The Tribunal rejects the submission made by the Department to the effect that the Department was not obliged to satisfy any particular statutory criteria as preconditions to Tabcorp making a valid altered Request.[28] In the Tribunal's view, such interpretation is not logical. The only reason that Tabcorp was required to consider refining the Request was by reason of the foreshadowed refusal by the Department. The only basis upon which an applicant could make an informed decision whether to accept a refusal to a request or modify the request in a manner acceptable to the agency, is upon receipt of information and the opportunity to consult, as contemplated by sub-s 26A(6).
2. Accordingly, the [original FOI] Request made by Tabcorp stands [the Tribunal acknowledges that Tabcorp is content to exclude the back-up tapes and the Arthur Robinson and Hedderwicks files]; and the current review before the Tribunal is a review of the Department's compliance with such Request. In this context the Department may nevertheless seek to limit the ambit of the Request pursuant to para 25A(1)(a).

1. On 9 September 2013, Tabcorp filed a summons in Supreme Court Proceeding No SCI 2012/4846 ('Supreme Court Proceeding') seeking orders pursuant to rule 29.08(2) and 29.11(a) of the Supreme Court (General Civil Procedure) Rules 2005 ('SC Rules') requiring the State of Victoria to conduct further searches to identify whether there are any documents falling within specified categories of documents alleged to be relevant to the matters in issue in the Supreme Court Proceeding ('Discovery Application').
2. The Discovery Application was heard in the Supreme Court on 30 September 2013 with the decision reserved.
3. The Department contends that issues to be determined by the Supreme Court on the Discovery Application include issues that Tabcorp is agitating before the Tribunal in this proceeding. This is oppressive to the Department and gives rise to the possibility of inconsistent outcomes. The existence of parallel applications or proceedings on the same issues has been recognised as proper grounds for a stay.[29] For these reasons the Department submits that Tabcorp's application for orders in relation to further searches should be stayed.
4. In this proceeding, Tabcorp has previously referred to the relation between this matter and the Supreme Court discovery process, for example:
   • (a) Tabcorp has submitted that the connection between the First Ciullo Affidavit and the Supreme Court proceeding is both unusual and strong;[30] and
   • (b) Tabcorp has contended that the evidence provided in the First Ciullo Affidavit is directly relevant to the issue of the adequacy of discovery in the Supreme Court Proceeding.[31]
5. Section 29.01.1 of the SC Rules requires the State to have carried out a 'reasonable search' for the purposes of discovery. The Department is required to have carried out thorough and diligent searches in answering the refined FOI Request.
6. In Foster v Department of Health[32] the Tribunal noted that:

Every case will turn on its own facts as to whether a department has conducted a thorough and diligent or sufficient search. What is required is a search which is sensible and appropriate to the circumstances. It does not mean an extravagant or excessive search.[33]

1. The standards of searches therefore before the Supreme Court is for a 'reasonable search' and before the Tribunal is for a search 'sensible and appropriate to the circumstances'. In the Department's submission, if the Supreme Court accepts Tabcorp's contention that the documents it seeks are significant to the issues in the Supreme Court proceeding, then these two standards are operatively equivalent standards.
2. In essence, therefore, the questions relating to discovery raised by the Discovery Application are the same as questions raised before the Tribunal by this review with the only notable difference being that the scope of the enquiry before the Court is necessarily larger than the enquiry currently before the Tribunal. In the circumstances, the Department seeks a stay of this review application pending judgment being provided by the Court in the Discovery Application.
3. In Owners Corporation No1- PS336302K v Fairfax House Quest Lodging Pty Ltd (Owners Corporation)[34] the Tribunal confirmed that it has the power to order such a stay pursuant to s 80 (which provides the Tribunal with the general power to make directions), s 97 (which provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings), and sub-s 98(3) (which provides that the Tribunal may regulate its own procedure subject to the Act, regulations and rules).[35]
4. In Dowie v Northey[36] the Tribunal noted that:

Prima facie a complainant is entitled to have his or her complaint heard in the ordinary course of the procedure and business of the Tribunal. It is a grave matter to interfere with this entitlement by a stay of proceedings which must be justified on proper grounds. The respondent, or the person who seeks the stay, needs to show that it is just and convenient that the complainant's ordinary right should be interfered with. The Tribunal's task is to balance justice between the parties having regard to all relevant factors. Each case must be judged according to its own circumstances. The effect of the stay on both complainant and respondent must be weighed. In appropriate cases proceedings may be allowed to proceed to a certain stage and then stayed.

1. The peculiar circumstances of this case justify interference with Tabcorp's prima facie right to have this proceeding heard in the ordinary course of the Tribunal's business:
   • (a) the Discovery Application has been made in a superior court, very recently, while this application is pending;
   • (b) it is uncontroversial that the FOI request the subject of this proceeding, are a subset of the documents that are relevant in the Supreme Court Proceeding;
   • (c) the questions raised in the Discovery Application encompass the questions raised in this application by Tabcorp;
   • (d) there is a potential for inconsistent outcomes if the Tribunal determines questions raised in this matter that are also raised by the Discovery Application in the Supreme Court Proceeding; and
   • (e) the searches conducted in relation to the FOI request, the subject of this proceeding, were dependent on searches performed in the course of discovery in the Supreme Court Proceeding. Conclusions on the adequacy of the discovery should most appropriately be reached in the context of the Discovery Application and not in this proceeding.
2. Counsel for the Respondent, in oral submissions, also addressed the submission of Tabcorp in come detail and in particular highlighted the areas of overlap with the Discovery Application and the real and potential risk of inconsistent decisions.
3. Counsel impressed upon the Tribunal that the test of 'reasonable' search, for the purpose of the Discovery Application; and the test of a 'thorough and diligent search' for the purpose of the FOI application effectively become indistinguishable once the Supreme Court forms the view that the documents sought bear some relevance to the proceeding and therefore require an assessment of significance and proportionality.
4. Counsel conceded that if the Supreme Court makes its decision relying solely upon s 55 of the Civil Procedure Act 2010 then no issue of inconsistency will arise.

1. In order to properly inform the Tribunal of the nature and scope of Tabcorp's application to the Supreme Court on 9 September 2013, Tabcorp has filed the affidavit of Brad Holmes dated 3 October 2013, which includes the following exhibits:
   • (a) the relevant Supreme Court summons (Exhibit BKH-1);
   • (b) Tabcorp's written submissions in the Discovery Application (Exhibit BKH-2);
   • (c) the State's written submissions in the Discovery Application ('State's Discovery Submissions') (Exhibit BKH-3);
   • (d) the transcript of the hearing of the Discovery Application (Exhibit BKH-4); and
   • (e) correspondence between Tabcorp's solicitors and the State's solicitors in relation to the release of Tabcorp from any implied undertaking which attaches to the State's Discovery Submissions for use in this proceeding (Exhibit BKH-4).
2. Relevantly, Tabcorp's summons seeks:

2. Orders pursuant to rules 29.08(2) and r 29.11(a) of the Supreme Court (General Civil Procedure) Rules 2005, further or alternatively s 55 of the Civil Procedure Act 2010, that:

(a) The Defendant conduct further searches to identify whether there are any documents falling within the categories listed in the schedule to this summons which are required to be discovered in the proceeding under rule 29.01.1(3).

(b) The Defendant make and serve on the Plaintiff an affidavit stating:

(i) whether any documents relating to the categories listed in the schedule to this summons are or have been in the Defendant's possession; and

(ii) if such documents have been but are no longer in the Defendant's possession, when the Defendant parted with such documents and the Defendant's belief as to what has become of such documents.

1. The categories listed in the Schedule to Tabcorp's summons in the Discovery Application are as follows:
   1. Minutes and briefs to the then-Treasurer Alan Stockdale in relation to the letter from Mr Stockdale to Tabcorp and VicRacing dated 29 June 1994, and in relation to any drafts of the letter.
   2. Minutes and briefs to the then-Treasurer Alan Stockdale in relation to the Memorandum of Understanding dated 15 March 1994 signed by Mr Stockdale, and in relation to any drafts of the document.
   3. Minutes and briefs to the then-Treasurer Alan Stockdale in relation to the proposed Government or State Agreement.
   4. All correspondence between the then-Treasurer Mr Alan Stockdale on the one hand, and either or both of Mike Tilley and Michael Roux on the other hand, in relation to the Treasurer's letter, the Memorandum of Understanding, the proposed State or Government Agreement, or the Prospectus.
   5. All documents referring to the amendment to the Joint Venture Agreement on or around 23 May 1994 to delete the condition precedent of a "Government Agreement" and to insert the condition precedent of a "non-binding instrument".
2. In oral submissions, Counsel conceded that there was some overlap in documents sought under categories 2, 3 and 4 above. Categories 1 and 2 are not encompassed by the FOI Request.
3. The Discovery Application was heard before Sifris J in the Supreme Court on 30 September 2013. His Honour has reserved his decision. No indication was given as to when the decision would be delivered.
4. Tabcorp contends that numerous questions arose on the Discovery Application. However, the Department focussed upon two issues said to also arise before the Tribunal: the question of whether there is a reasonable belief that documents exist; and the 'standard of searches'[37] conducted for documents.
5. In relation to the first question, the Tribunal has already made relevant findings for the purpose of its orders made on 9 September 2013, namely that the Tribunal could not then be satisfied that the Department had conducted a thorough and diligent search. This question does not need to be revisited at this stage.
6. In relation to the 'standard of searches' Tabcorp submits that the question before the Supreme Court is not the 'same question' or 'operatively equivalent'[38] to the 'standard of searches' question before the Tribunal. In particular:
   • (a) The State's discovery obligations in the Supreme Court are not the same as the Department's obligations to conduct a thorough and diligent search for documents the subject of a request under the FOI Act:

(i) The question of a reasonable search in the Discovery Application must take into account, among other things, the nature and complexity of the Supreme Court Proceeding and the significance of any documents to be found in the context of the issues raised in the Supreme Court Proceeding.[39] Accordingly, the concept of a reasonable search under the Supreme Court Rules requires a 'consideration of proportionality'.[40] That is, in determining the scope of required discovery, the Court must take into consideration the time, trouble and expense in finding a category of documents as compared with the likely benefit to be obtained by the party seeking discovery, in terms of the likely significance to the issues in the proceeding of any document to be found.[41]

(ii) No similar consideration of proportionality arises before the Tribunal in assessing whether a thorough and diligent search has been conducted. For example, the Tribunal is not concerned with making a qualitative assessment about the significance of any document to be found. That is because a document either falls within the terms of a request or it does not.

(b) In the Supreme Court Proceeding the State emphasised the different nature of the questions before the Court and the Tribunal:

(i) The State's Discovery Submissions relevantly said this:[42]

It should be noted that the categories of documents sought as part of the FOI Request are not on all fours with the documents sought by way of particular discovery on the Summons; further, the production of such documents under freedom of information laws is not conditioned by considerations of relevance in terms of rule 29.01.1. Further, none of the evidence regarding the FOI proceeding is directly relevant to the issues to be determined on the present application. It certainly cannot be relevant to, let alone determinative of, the question before this Court as to the adequacy of the State's discovery in this proceeding. (emphasis added).

(ii) Senior Counsel for the State said this in oral submissions:[43]

The FOI request was a request of different compass in a different jurisdiction made for different purposes, and subject to different conditions ...

(c) By contrast, in this proceeding the Department suggests that the standard of search to be applied in the Supreme Court Proceeding will vary depending on whether the Court accepts that the documents are 'significant' to the issues in the proceeding.[44] The Department further submits that, if the Supreme Court finds that the documents are significant to the issues in the proceeding, then the standards of search applied by the Tribunal and the Court will be operatively equivalent.

(d) Tabcorp invites the Tribunal to reject the Department's position for the following reasons:

(i) The Court does not apply different tests depending on whether a document is 'significant' or not. Rather, the significance of a document to be found is a factor that the Court will take into account under rule 29.01.1(5) in determining what a 'reasonable search' requires;

(ii) The Department treats the issue of 'significance' as if it is a binary question on which the Court will make a finding: a document is either significant or it is not. But significance is a relative concept, and the Court's view as to the relative significance of a particular document (or class of documents) is weighed in the balancing exercise contemplated by rule 29.01.1(5). There will be no formal finding that a document is 'significant', or 'not significant';

(iii) It follows that the Court will not proceed by first determining the significance of a document or class of documents and then determining what standard of search is required. Rather, the question of significance will form part of the overall evaluation of determining what a reasonable search requires in the particular circumstances of the case.

(e) Tabcorp further contends that no such evaluation will take place in this proceeding. As stated, a document either falls within the scope of a request or it does not. That being so, the 'standard of searches' question before the Supreme Court is not the 'same question' or 'operatively equivalent' to the 'standard of searches' question before the Tribunal.

(f) Moreover, the four categories of documents sought in the Request are not the same as the five categories of documents sought in the Discovery Application. For example, in the Discovery Application Tabcorp seeks minutes and briefs in relation to a Memorandum of Understanding dated 15 March 1994. No documents in relation to the Memorandum of Understanding are sought in the Request. Further, in the Discovery Application Tabcorp seeks only minutes and briefs to the then-Treasurer, Alan Stockdale, in relation to the Treasurer's Letter. In the Request a broader range of documents relating to the Treasurer's Letter is sought.

1. Since the question before the Supreme Court is not - and will not become - the 'same question' as the question before the Tribunal, there is no real or material risk of inconsistent outcomes. In fact, given the different nature of the questions falling to be determined, there would be no inconsistency between a conclusion that the State had conducted a reasonable search for documents relevant to the Supreme Court Proceeding and a conclusion that the Department had not conducted a thorough and diligent search for documents falling within the terms of the Request.
2. The Department notes that the searches conducted in relation to the Request were dependent on searches performed in the course of discovery in the Supreme Court Proceeding, and then contends that 'conclusions on the adequacy of discovery should most appropriately be reached in the context of the Discovery Applications.[45]
3. Tabcorp submits that this contention is misplaced. The Tribunal is not being asked to determine the adequacy of discovery in the Supreme Court Proceeding. Rather, it is being asked whether the Department has conducted a thorough and diligent search for documents falling within the terms of the Request. In answering that question, the Tribunal will not be called upon to determine the adequacy of the State's discovery in the Supreme Court Proceeding.
4. In his oral submissions, Counsel developed a submission that, even if the questions before the Supreme Court and the Tribunal were the same, there is currently no risk of inconsistent outcomes, given the current state of proceedings.
5. On 9 July 2013, the Tribunal was not satisfied that all documents, the subject of the Request, had been located after a thorough and diligent search. If further Orders are now made, as sought by the Applicant, there can be no inconsistency with any finding of the Supreme Court unless and until the Tribunal makes further findings in future.
6. Finally and in the alternative, Tabcorp submits that the stay should be refused in the exercise of the Tribunal's discretion having regard to:
   • (a) the significant delay that has already occurred in the context of this proceeding, which has been largely occasioned by the conduct of the Department (eg. changing its position as to the Tribunal's power to order further searches after proceeding for several months on the basis that the Tribunal had such a power); and
   • (b) the minimal, if not remote risk, of inconsistent decisions.
7. Granting a Stay would lead to even further delay, and would be likely to render the proceeding nugatory as the trial in the Supreme Court Proceeding is due to commence in February 2014.

1. In the Tribunal's view, Tabcorp's submissions present a comprehensive and compelling analysis of the material differences between the Discovery Application before the Supreme Court and the FOI review application before the Tribunal. In particular, while the respective proceedings clearly relate to the same underlying historical transactions, the ambit of the enquiry in each proceeding is not identical and the test to be applied in each case is materially different. Furthermore, the Tribunal accepts that in making a determination as to whether the Department, in the particular circumstances of this case, has conducted a thorough and diligent search and ultimately whether any documents fall into an exempt category, does not extend to an assessment of whether such documents are discoverable for the purpose of the Supreme Court Proceeding. To this extent different findings by the Court and Tribunal are not inconsistent in terms of the jurisdiction being exercised in each case.
2. The Tribunal accepts that making Orders of the kind now sought by Tabcorp, does not of itself raise a risk of inconsistent findings with the Supreme Court. For the reasons advanced by Tabcorp, the risk of inconsistent findings as between the Court and the Tribunal are minimal. However, in the event that Justice Sifris delivers his decision prior to the Department complying with any further Orders of the Tribunal, which raise any real concerns of future inconsistent decisions, the Department may seek a Stay of further compliance at that stage.
3. The Tribunal also accepts Tabcorp's alternative submission, in the event that there is substance to the Department's case, that this is a proper circumstance in which to exercise discretion not to grant a Stay. The conduct of this proceeding has been the subject of multiple vigorous and ultimately unsuccessful challenges by the Department which has caused inordinate delay. The Tribunal is satisfied that a further Stay will likely render the proceeding a futile exercise in the face of the impending Supreme Court substantive proceeding.
4. Accordingly, the Respondent's application for a Stay is refused.

1. Respondent's Counsel opposed the making of any further orders on the basis that the Tribunal does not have reasonable grounds to believe either that any more of the requested documents do exist or that the Department has not already conducted a thorough and diligent search.
2. Counsel referred the Tribunal to recent cases within the Tribunal[46] as well as earlier authorities which applied the general principles in the context of various factual circumstances.[47] Counsel also relied upon the three affidavits of Jonathan Ciullo;[48] the affidavit of Suzanne Ritchie,[49] the affidavit of Brad Holmes,[50] and the affidavit of Alison Hill.[51] From these documents Counsel sought to point out that:
   • (a) Mr Cuillo has described in some detail: the process of discovering documents for the Supreme Court Proceeding; the initial and subsequent extended use of key word searches; and the review undertaken of the 66 folders identified in the JC1 document;[52]
   • (b) Mr Cuillo has already responded in some detail to the concerns raised by the Tribunal in paragraph 32 of the reasons for decision dated 9 July 2013;
   • (c) Mr Ciullo also gives an explanation as to why documents were not created by or were not in the possession of the Department; and identified likely repositories of the subject documents beyond the ambit of the Department's possession;[53]
   • (d) Mr Ciullo refers to four missing files, which were subsequently located but did not reveal any documents of relevance;[54] and
   • (e) Ms Ritchie refers to three files retrieved from Johnson Winter and Slattery, the Solicitors for the State in the Supreme Court Proceeding, which were reviewed and found not to be relevant.
3. Counsel could not inform the Tribunal as to the source of instructions to external parties involved in the privatisation of TAB, but submitted that it should not be assumed that merely because documents had not been located that the search conducted by the Department must therefore be flawed. It has not been practicable to search all physical files. Accordingly, the Department could only rely upon the RecFind Index.
4. Applicant's Counsel submitted to the effect that matters which have come to light since the Tribunal's decision of 9 July 2013 do not form a sufficient basis for the Tribunal to change its opinion that it cannot be satisfied that there has been a thorough and diligent search performed to date. The Tribunal agrees. Indeed, certain information contained in the most recent affidavits relied upon by the Department raise additional concerns as to the thoroughness of the Department's searches. Furthermore, the question as to whether further documents in the requested categories in fact exist is somewhat problematic given that the Department itself has not or cannot provide any clarification as to the process by which the privatisation of the TAB took place, the role played by the Department in it; and the source of instructions given to external parties.
5. Mr Ciullo deposes that he and his colleague Ms Belski were satisfied that no other relevant files or documents existed following the comprehensive searches for hard copy files in the context of the discovery process for the Supreme Court Proceeding.[55] However, Mr Ciullo also deposes to the fact that the VGSO returned 87 files of which 66 were subsequently reviewed[56] and 9 were found to be relevant.[57] Exhibit JC1 contains item 15 which document is identified as being comprised in 'Volume 2 Part 2'. Exhibit JC1 did not otherwise identify Volume 2 Part 1; or Volume 1. It was only upon further enquiries being made that a further three files were provided to VGSO. Ms Ritchie's affidavit itemises these files. However, there has been no explanation as to how these additional new files were located, whether they were recorded in the RecFind Index; and if not, why not.
6. Mr Ciullo also deposes to documents created by the then Treasurer Stockdale and his private staff. In the recent Supreme Court hearing, evidence was given of advice received from the former Treasurer that he was ordinarily briefed in writing and that documents would not have been destroyed.[58] To date there is no evidence that the documents were in fact returned to the Department, but equally there is no evidence as to the whereabouts of any such documents.
7. Finally, Mr Ciullo's references to four missing files, which had been identified in the RecFind Index, being subsequently found, did not otherwise reveal the circumstances in which such files were lost or mis- filed.
8. In view of the above, the Tribunal cannot be satisfied that the Department has conducted a thorough and diligent search for the categories of documents encompassed by the Request. The further orders proposed by Tabcorp represent a constructive procedure which will assist Tabcorp, through a confidential arm's-length process, to identify possibly relevant documents from the printout of the RecFind entries previously provided to the Freedom of Information Commissioner. In the first instance, this process will not entail any additional labour on the part of the Department other than simply providing the printout. The proposed independent counsel will be charged with identifying likely relevant documents for review. Only then will the Department be asked to search and retrieve such documents or files which can then be subject to review by the appointed expert. The suggested process will minimise reliance upon the Department's resources to a search and retrieval function and in so doing, is not likely to impact unreasonably upon its resources.
9. At the hearing, the parties indicated that they would resolve certain differences over the proposed orders and provide a settled form by consent. The parties produced the proposed orders which, apart from two small points of difference, were by consent. These orders have now been incorporated in the final orders with the Tribunal determining the final form.

[1] Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234 (12 July 2013) at [32].

[2] Respondent's submissions dated 27 August 2013 at paragraph 13.

[3] Applicant's submissions dated 3 September 2013 at paragraph 1.

[4] I refer to my decision of 12 July 2013 in Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234 at paras 10-17.

[6] Email from Brad Holmes to Vivian Chung dated 19 December 2012.

[10] Holmes Affidavit dated 26 April 2013 at 19.

[12] Exhibit BKH 3 to the Holmes Affidavit dated 26 April 2013.

[13] Respondent's submissions dated 27 August 2013 at 3.5.

[14] First Affidavit of Jonathan Ciullo at para 60 and annexure JC-1.

[15] Respondent's submissions dated 27 August 2013 at 13.

[16] Applicant's Submissions dated 3 September 2013 at 3.1-3.2; and 23-24.

[17] Sworn 26 April 2013, at paras [33] and [36].

[22] Newman v Victoria Police (1997) 12 VAR 387.

[26] Ciullo Affidavit dated 27 May 2013 at [75].

[27] [2001] VCAT 419 (31 March 2001) at 13.

[28] Department submission dated 12 September 2013 at [14].

[29] Moore and Others v Inglis (1976) 9 ALR 509 at 513-4 (Mason J); see also Re AWB Ltd (ACN 081 890 459) (No 10); Australian Securities and Investments Commission v Lindberg [2009] VSC 566; (2009) 76 ACSR 181 at [264]. With reference to the possibility mentioned in Moore that forum non conveniens principles might apply where the relevant tribunals differ in character, the rule is substantially the same in any event: see the plurality judgment in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571:

Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale (47) [47 [1937] HCA 1; (1937) 56 CLR 277 at 281], Dixon J observed of that latter situation that "(t)he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration. ...

It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue (48). [48 See Moore v Inglis (1976) 50 ALJR 589; 9 ALR 509 and, on appeal, (1976) 51 ALJR 207.]

[30] Tabcorp's outline of submissions dated 11 June 2013 paragraph 23.3.

[31] Tabcorp's submissions dated 11 June 2013 paragraph 23.6.

[32] [2013] VCAT 648.

[34] [2012] VCAT 1837.

[35] Owners Corporation No1- PS336302K v Fairfax House Quest Lodging Pty Ltd (Owners Corporation) [2012] VCAT 1837 at [51].

[36] [2000] VCAT 823 at p 5.

[37] Respondent's Further Stay submissions dated 3 October at [8].

[39] Supreme Court (General Civil Procedure) Rules 2005, r 29.01.1(5).

[40] Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporations Ltd [2011] VSC 401 at [25]. See also State's Discovery Submissions at [67] (Exhibit BKH-3).

[41] UBS AG, Australia Branch v Galileo Japan Funds Management Ltd; In the matter of Galileo Japan Funds Management Ltd (Responsible Entity) [2012] FCA 364 at [31], [37] and rule 29.01.1(5) of the Supreme Court Rules. See also the State's Discovery Submissions at [67] (Exhibit BKH-3).

[42] State's Discovery Submissions at [73] (Exhibit BKH-3).

[43] Exhibit BKH-4: Transcript at p 52, lines 17-21.

[44] Respondent's further Stay Submissions at [8].

[45] Respondent's further Stay Submissions at [12.5].

[46] Foster v Department of Health (Review and Regulation) [2013] VCAT 648, Hennessy v Department of Justice (Review and Regulation) [2013] VCAT 1310.

[47] Zeqaj v Department of Justice - FOI Officer (General) [2011] VCAT 2008, Re Cristovao and Secretary, Department of Social Security 53 ALD 138, Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10.

[48] Sworn 27 May 2013; 3 July 2013, and 12 September 2013.

[50] Sworn 26 April 2013 which contained the exhibits BKH4 and BKH5.

[51] Sworn 26 August 2013 which annexes correspondence concerning compliance with Tribunal orders made on 9 July 2013.

[52] Paragraphs 44-55, 57, 59 of the 1st affidavit.

[54] Paragraph 68 of the 2nd affidavit; and para 47 of 3rd affidavit.

[55] Paragraph 47-57 of the 2nd affidavit.

[56] Listed in Exhibit JC1 to Mr Ciullo's affidavit.

[57] Paragraph 57 of the 2nd affidavit.

[58] Transcript 5. Refer also to BKH2 exhibited to Counsel's written submissions for the State in the Supreme Court Discovery Application.