1. Tabcorp Holdings Limited ('Tabcorp') made a request under the Freedom of Information Act 1982 (the 'FOI Act') for access to certain documents (the 'Request') from the Department of Treasury and Finance (the 'Department'). Tabcorp maintains that the Department has not conducted a thorough and diligent search for relevant documents. Tabcorp seeks a preliminary order from the Tribunal that the Department be required to conduct further searches to ensure that all the documents within the terms of its Request are located.
2. Tabcorp seeks a further preliminary order that it be released from the implied undertaking attaching to the affidavit of Jonathan Ciullo dated 27 May 2013, filed in this proceeding on behalf of the Department. The implied common law undertaking stipulates that Tabcorp may only use the affidavit for the purposes of this proceeding (the 'Harman undertaking'). [1]
3. Therefore, Tabcorp seeks orders to the effect that:
   • (a) the Department conduct further searches for documents falling within the terms of the Applicant's Request; and
   • (b) the Applicant be released from the Harman undertaking to allow the Applicant to use the Affidavit in the Supreme Court proceedings between the parties.

1. On 24 August 2012, Tabcorp issued proceedings in the Supreme Court of Victoria against the State of Victoria claiming entitlement to compensation following the granting of Gaming Machine Entitlements in Victoria to new licensees when the 18 year poker machine licenses held by Tabcorp (and Tattersall's) expired on 15 August 2012 (the 'Supreme Court proceedings').[2] The Supreme Court proceedings is listed for hearing on 1 October 2013.[3]
2. The State of Victoria and therefore the Department, was obligated to discover all documents relevant to the issues in contention in the Supreme Court proceedings. To this end, the State of Victoria and the Department interrogated its RecFind Index to identify files that might contain documents which could be relevant for the purposes of discovery for the Supreme Court proceedings.[4]

1. To assist the Supreme Court proceedings, Tabcorp sought access to documents from the Department under the FOI Act. By letter dated 15 November 2012, Tabcorp's solicitors, Herbert Smith Freehills, made the Request to the Department for documents pursuant to the FOI Act.
2. The affidavit of the Applicant's solicitor, Bradley Holmes dated 5 July 2013, asserts that the documents encompassed by the Request are 'central' to the claims made in the Supreme Court proceedings.[5]
3. The documents, the subject of the Request, are all associated with three key documents created for the purposes of the privatisation and public float of the TAB on the Australian Stock Exchange on 30 June 1994; and created in the period 1 March 1994 to 15 August 1994. The documents encompassed by the Request therefore comprise a subset of the files identified or to be identified in the discovery process for the Supreme Court proceedings.
4. The three key documents are a:
   • (a) 'Memorandum of Understanding signed by Mr Stockdale on behalf of the State of Victoria on 15 March 1994 relating to the float of Tabcorp;
   • (b) 'Treasurer's Letter' signed by Mr Stockdale on behalf of the State of Victoria on 29 June 1994 'to confirm the principles on which the Government of Victoria is privatising the TAB'; and
   • (c) 'Prospectus' lodged by Tabcorp with the Australian Securities Commission inviting submissions from the public for shares in Tabcorp.
5. With reference to the above background, the Request sought access to the following four categories of documents:
   • (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.
6. 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.[6]
7. The letter of 14 December 2012 advises that the Department has specifically considered the resources required to inspect the pool of documents identified as potentially relevant to terms of the Request. The Department had identified 50 folders which, due to their age, were not in electronic form, and so would require one hour each to be manually reviewed.[7] Each identified document would then need to be assessed to determine whether an exemption to the Act applied.[8] Furthermore, the Department advised that it would be necessary to restore, catalogue and search back-up tapes of archived documents during the relevant period (March 1994 to August 1994), significantly extending the time estimated to process the Request.[9]
8. The Department suggested that it may be in a position to process the request if the Applicant revised and narrowed the terms of the Request on certain terms.[10] Various emails were sent and telephone calls were made between the parties regarding the scope of the Request.[11]
9. Prior to coming to an agreement about the scope of the Request, by letter dated 24 December 2012, the Department wrote to the Applicant advising that over 150 additional files, formerly in the custody of the Department's external lawyers for the Tabcorp float, had been identified as possibly relating to the Request (the 'Additional Files'). The Department stated that most of the documents were likely to be subject to the legal professional privilege exemption in s 32(1) of the FOI Act.
10. Further consultation took place between the parties. The Applicant sought an index of the 50 original files from the Department. The request was denied, with the Department stating 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'.[12]
11. On 19 December 2012, Tabcorp agreed that the Department need only search for hard copy documents and not any back-up tapes.[13] The Department sought payment of $600 representing approximately 50% of the charges payable for searches and photocopying pursuant to sub-s 22(3) of the FOI Act.[14]
12. On 30 January 2013, Tabcorp provided the Department with the requested $600 deposit. The Applicant's letter to the Department states:

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 which are contained within the 150 folders referred to, then Tabcorp reserves the right to do so.

1. On 22 March 2013, pursuant to s 53 of the FOI Act, Tabcorp lodged the substantive application in this proceeding at VCAT for a review of a deemed refusal by the Department to grant access to the documents requested. The Applicant submits that the Department did not make a decision on the Request within the 45-day period set out in the FOI Act.[15]
2. On 26 March 2013, the Department notified the Applicant of its decision in respect of the Request. The Department advised that it had located within the 50 folders of relevant hard copy documents, nine documents relevant to the Request. Access was granted in full to 8 documents and access was denied in full to one document on the grounds of legal professional privilege.[16] The only other documents located were 6 duplicate copies of the Treasurer's letter.

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.[17]
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;[18]
   • (b) The request shall provide sufficient information to enable the identification of the documents sought;[19] and
   • (c) The request shall not be refused on the ground that it does not comply with 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 s 17(2).[20]
3. Section 25A specifies circumstances in which either the Minister or an agency may refuse to grant access to documents. Relevantly for present purposes, s 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. Access is also not required to be given to exempt documents,[21] which include documents which would be likely to prejudice the proper administration of the law or justice in a particular case or instance.[22]
4. Part VI of the FOI Act provides for review, by the Tribunal, of certain decisions under the Act, including decisions refusing to grant access: s 50(1)(a), which includes a deemed refusal by virtue of the agency failing to notify the applicant of a decision within the specified time.[23]

Preliminary Question - Has the Department conducted a thorough and diligent search?

...before the Tribunal can determine whether that decision is the correct or preferable one, it must first identify its scope. More specifically, the Tribunal must identify which documents are the subject of that decision. The starting point here is the Request, as the decision is a (deemed) refusal to provide access to all the documents that fall within the terms of the Request.

The Tribunal must then satisfy itself that all such documents have been located after a thorough and diligent search. If it is not satisfied of that fact, it cannot be satisfied that it is reviewing a decision that it is authorised by statute to review: namely, a refusal to provide all - and not just some - of the documents that fall within the terms of the Request...

...the Tribunal must order the Department to perform further searches if it is satisfied that a thorough and diligent search for all relevant documents has not been conducted... the Tribunal should be satisfied that the Department has not conducted a search of that kind.[24]

1. On 29 April 2013, the Tribunal ordered that the Department must file and serve an affidavit of how it searched for and identified the documents which are the subject of the Request, including a description of and the source and location of each of the 50 or more folders the subject of this proceeding. The Department duly filed an Affidavit, affirmed 27 May 2013, by Jonathan Ciullo, Senior Solicitor in the Department's Gambling Policy and proceedings team (the 'Affidavit').
2. The Affidavit details the extent of searches including the results of those searches. Relevantly, the Affidavit states that:[25]

The first step in Ms Belski's search was to identify and locate all of the hardcopy files that may have contained documents relevant to the FOI request.

For this, she was able to utilise the results of the initial searches conducted by the Department as part of the Supreme Court discovery process. This was because the first step in the discovery process was to identify all hardcopy files in the Department's possession that might contain documents relevant to the matters that are the subject of the Supreme Court proceedings and the documents referred to in the FOI request...

To identify all hard copy files in its possession ... the Department used its RecFind Index. RecFind is the electronic index system that was used by the Department at the time of the Tabcorp float to catalogue all of the files opened by the Department and keep track of their locations.

The RecFind Index is not an electronic document management system and does not contain any electronic files or copies/scans of the hardcopy documents contained in files. It simply records the date and title of the files that were opened by the Department at the time of its use, as well as where the files are located.

It was Department protocol to update the RecFind Index each time a file was moved to a different office, archived or sent offsite to a storage facility. The information stored in the RecFind Index has since been merged into an electronic document management system called Trim which was rolled out in the second half of 2006.

The RecFind Index is electronically searchable. A keyword or date can be entered into the RecFind search engine to identify files (and their locations) with titles that contain the keyword or files with the date.

However, because the documents on those files are not in the RecFind Index, it is not possible to electronically search for relevant documents, only the titles, dates and locations of potentially relevant files.

For discovery, the Department searched for files created in or after 1992 in the RecFind Index using a variety of broad keywords such as Tab, Tabcorp, gambling and gaming, etc. The results were reviewed and a list was compiled of the files which may have contained documents relevant to the Supreme Court proceedings...

1. Based on the information contained in the Affidavit, the Applicant submits that the Department has not conducted a thorough and diligent search for all relevant documents.[26]
2. In summary, the Applicant submits:
   • (a) The Department only relied upon the results of the broad searches it had earlier conducted as part of the Supreme Court discovery process;
   • (b) The Department did not perform any targeted or focussed searches that were based upon the terms of the Request;[27]
   • (c) The Department relied entirely upon the 'broad keywords' it used in the Supreme Court discovery process; and
   • (d) The Department should have interrogated the RecFind Index by using the following keyword searches:

• "Treasurer's Minute" (and variables, e.g. "Minute to the Treasurer
• "Treasurer's Briefing" (and variable, e.g. "Brief to the Treasurer"

• "State Agreement"
• "Government Agreement"
• "Memorandum of Understanding" (and variables, for e.g. "MOU")
• "Prospectus"

1. At the hearing, the Department's Counsel advised that searches utilising all of the keywords suggested under paragraph (d) above have in fact now been conducted by the Department, with nil results relevant to the Request.[28]
2. Counsel further indicated that the Affidavit disclosed the existence of some 150 additional files which had formerly been in the custody of the Department's external lawyers for the Tabcorp float;[29] and other relevant documents may be held by external consultants engaged by the Department at the relevant time.
3. The Department insists that it has conducted a thorough and diligent search for documents relevant to the Request.[30]
4. As indicated during the hearing, it is inexplicable why searches to date have not revealed any further documents within the records of the Department, ancillary to the proposed Government Agreement, Treasurer's letter or Tabcorp Prospectus. It is not apparent whether the failure to reveal any further documents relate to inherent limitations in structure and content of the RecFind Index. If that be the case, the physical searches of files to date will suffer the same limitation. There is also no evidence before the Tribunal as to how the Department's files are internally indexed; and whether a search within a specified time period of all of such files might readily and conveniently reveal folders relevant to the Request. In these circumstances, the Tribunal cannot yet be satisfied that all relevant documents have been located after a thorough and diligent search.
5. The Tribunal considers that this is an appropriate circumstance in which to enlist the assistance of the Freedom of Information Commissioner. Accordingly, orders will be made pursuant to s 51 of the FOI Act, calling upon the Commissioner to assist the Tribunal in the current review and in particular to undertake a physical search for relevant files, with the assistance of the Department and within prescribed parameters.

1. The Department procured the Affidavit pursuant to an Order of the Tribunal as a consequence of which an implied undertaking attaches to such Affidavit to the effect that Tabcorp may only use such Affidavit for the purposes of this proceeding.
2. However, the Tribunal may, in appropriate circumstances, release a party from such an implied undertaking if that party can demonstrate 'special circumstances'[31] or 'cogent and persuasive reasons'.[32] The leading decision in the Tribunal to consider such an application is Kelly v Department of Treasury and Finance (No 2) (2002).[33] Applicant's Counsel submitted that Kelly is directly applicable to the current case and accordingly, the Tribunal should exercise its discretion to release Tabcorp from the implied undertaking on the basis of 'special circumstances' or 'cogent and persuasive reasons'.
3. It is appropriate to briefly summarise the way in which the Applicant seeks to rely upon the Affidavit in the Supreme Court proceedings.
4. The Affidavit makes it clear that in processing the Request, the Department relied upon documents retrieved for the purposes of the Supreme Court proceedings.
5. After describing the initial process of searching the RecFind Index, for the purposes of discovery in the Supreme Court proceedings, the Affidavit indicated that various folders were identified and sent to the Victorian Government Solicitor's Office and Johnson Winter & Slattery, to be reviewed for the purposes of discovery. That review process was apparently split approximately 50/50 between VGSO and JWS.[34]
6. Applicant's Counsel submitted that, in the discovery process conducted for the State, there was performed an initial cull of the documents that would be manually retrieved and reviewed for the purpose of discovery in the Supreme Court proceedings.
7. An initial manual review was then conducted by the Department to further cull the documents before they were sent to the VGSO and JWS for review. Consequently, a question may arise as to whether that process amounted to a reasonable and sufficient search so as to discharge the State's discovery obligations in the context of the Supreme Court proceedings.
8. In his affidavit, Mr Holmes deposed:[35]

I was not previously aware that the discovery process in the Supreme Court proceedings was conducted by key-word searches of file titles in an electronic index in order to identify potentially relevant documents, or that the [Department] only sent a sub-set of such documents to the State's solicitors for the purposes of discovery.

I consider these matters are relevant in assessing the adequacy of the State's discovery in the Supreme Court Proceeding, and if the Tribunal grants this application for a limited release from its implied undertaking, Tabcorp intends to raise these matters in the Supreme Court Proceeding.

1. The decision in Kelly arose from the explosion at the Longford gas plant in September 1998, which led to group proceedings commenced against Esso, and in which Esso made cross-claims against the State of Victoria.
2. In December 1999, Esso made 321 requests for access to documents under the FOI Act. The Department refused to grant access, and Esso sought a review of that decision.
3. In the context of those review proceedings, the Department filed witness statements and a 'gas file index' (which listed various documents held by the Department).
4. Esso sought a release from the implied undertaking in relation to these documents. This release was sought for the purpose of challenging the adequacy of discovery made by the State in the group proceedings before the Supreme Court. In granting the release, the Tribunal found that, to be released from the implied undertaking, an applicant must show 'special circumstances' or 'cogent and persuasive reasons'.[36] As to what constitutes 'special circumstances' in this context, the Tribunal drew upon the criteria enunciated by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited:[37]

For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document preexisted litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information of the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps the most important of all, the likely contribution of the document to achieving justice in the second hearing.[38]

1. Having regard to these criteria the Tribunal in Kelly, then found 'special circumstances' to exist, by reason of the following matters.
2. First, that there was 'significant commonality' between the parties to the Court proceedings and the parties to the proceedings in the Tribunal.[39] In this case, the Tribunal accepts that the same commonality applies. Tabcorp is the Applicant in the present proceeding and the Plaintiff in the Supreme Court proceedings. The Department, which is part of the State, is the Respondent on the present application. The State is the Defendant in the Supreme Court proceedings.
3. Secondly, the Tribunal found that the documents sought were neither highly confidential; nor did they contain community sensitive material or personal data.[40] In the present application, the Tribunal accepts that the subject Affidavit may be similarly described. In particular, the Affidavit merely describes the process by which discovery was given in the Supreme Court proceeding, and by which documents were gathered for the purposes of meeting the FOI Request. Steps taken by the State to comply with its discovery obligations, or its obligations under the FOI Act, cannot be regarded as confidential information or comprising community sensitive material or personal data and it was not contested otherwise.
4. Furthermore, in Kelly no prejudice could be identified from the limited release sought from the implied undertaking.
5. Again, the Tribunal accepts that, in this case, similar circumstances pertain as to the potential use of the Affidavit. The Department has not sought to rely upon any potential prejudice or injustice.
6. Thirdly, the Tribunal in Kelly acknowledged that the proposed use of the document and whether it could be said to be in the interests of justice, was a relevant factor. Indeed, the Tribunal said:

... The interests of justice may be served by the limited release from the undertaking. In our view the Supreme Court is entitled to be acquainted with such circumstances as are known about the documentation which may be relevant to proceedings before it, particularly in circumstances where the respondent has asserted that it is oppressive for it to make full discovery...[41]

1. Tabcorp seeks to be released from the implied undertaking to a limited extent only: namely, to allow it to use the Affidavit to challenge the adequacy of the State's discovery in the Supreme Court proceedings. The Tribunal accepts that, given the importance of the discovery process in the Supreme Court proceedings, it is in the interests of justice for Tabcorp to be able to use the affidavit in that way, as it sets out the steps taken by the State in making discovery in that proceeding.
2. Furthermore, having regard to the criteria enunciated in Springfield in the present case:
   • (a) The commonality between the parties before the Tribunal and the parties in the Supreme Court proceeding also extends to legal representation: Tabcorp's solicitors, Herbert Smith Freehills, act for Tabcorp in both proceedings; and the Department's solicitors in this proceeding, the Victorian Government Solicitor, has assisted the State in the Supreme Court proceedings;[42]
   • (b) The Affidavit sets out the steps taken by the State to comply with its discovery obligations in the Supreme Court proceedings. The connection between the Affidavit and the Supreme Court proceedings is therefore both unusual and strong;
   • (c) The Affidavit was not a document in existence before this proceeding was commenced; rather, it was prepared for and in the course of, this proceeding; and
   • (d) When the Department filed and served the Affidavit, it must have understood that its contents could be aired and discussed in an open hearing.
3. The Tribunal accepts that these remaining grounds are also clearly satisfied and notes that the Department did not directly contest them.

1. Counsel for the Department resisted the application primarily upon further grounds which purportedly distinguished the current case from Kelly.
2. First, Counsel submitted that in Kelly the applicant for the waiver was concurrently prosecuting an application in the Supreme Court proceedings challenging the adequacy and sufficiency of discovery. By contrast, Tabcorp does not have a concurrent challenge to the adequacy of discovery on foot in the Supreme Court proceedings and therefore, does not get to first base in relying upon the criteria set out in Kelly.
3. In the Tribunal's view, this objection is not sustainable for the following reasons:
   • (a) A careful reading of the Reasons in Kelly, does not disclose that an application to the Supreme Court challenging discovery had been made prior to the application before the Tribunal. Indeed, the Tribunal in Kelly refers to submissions on behalf of the Department consistent with such an application not having yet been made;[43]
   • (b) The Tribunal in Kelly clearly contemplated that the release would be limited to the use of the subject documents in the Supreme Court proceedings in relation to applications to be made to the Court in relation to discovery;[44] and
   • (c) In any event, as submitted by Applicant's Counsel, there is nothing in the reasoning in Kelly which requires, as a precondition, the existence of a concurrent challenge.
4. Secondly, Counsel resisted the application for release on the basis that case management principles do not permit Tabcorp to challenge the discovery provided by the State in the Supreme Court proceedings at this stage. In support of this proposition Counsel referred to:
   • (a) The authority of Aon Risk Services Australia Ltd v Australian National University[45] in which the High Court held that in determining whether a party should be permitted to amend pleadings the court should have regard to the 'concerns of case management'; and
   • (b) Orders previously made in the Supreme Court proceedings gave the parties a timetable for the filing of any applications in relation to discovery and no applications have been made; and
   • (c) The Supreme Court proceeding is currently set down for hearing on 1 October 2013.
5. Any further challenge in respect of the adequacy of discovery in the Supreme Court proceedings will inevitably risk the vacation of the trial date.
6. In the Tribunal's view, there is no inconsistency with the application of case management principles. In particular:
   • (a) The Affidavit is dated 27 May 2013 and, accordingly, only came to the notice of Tabcorp subsequent to the date by which the Supreme Court had ordered any applications in relation to discovery to be made, namely, 16 May 2013. In the circumstances, it cannot be presumed that the Supreme Court would not exercise its discretion favourably to Tabcorp or that Tabcorp is necessarily and irrevocably precluded from bringing a further application, in light of new evidence;
   • (b) The question of vacation of the trial date is again a proper matter for the discretion of the Supreme Court Judge. It cannot be presumed that the trial date will necessarily be vacated in the context of a challenge to the discovery process, but if such challenge is otherwise permitted, then the timing of the trial date will be considered in that context. Furthermore, as indicated by Tabcorp's Counsel, there are other proceedings on foot, at the instigation of the State, which may impact upon the timing of the trial date in any event. On 13 June 2012, Justice Sifris ordered the State to produce over 100 documents over which they had claimed privilege. The State has appealed that decision to the Court of Appeal. Its application for leave to appeal is listed to be heard on 19 July 2013. It is unclear, if leave is granted, whether the substantive application will also be heard on 19 July; and
   • (c) Tabcorp's Counsel further clarified (without objection from Counsel for the Department) that the context of Hargrave J's order that any applications in relation to discovery be made by 16 May 2013, was Tabcorp's foreshadowed challenge to the State's claims of privilege. It was for this reason that a tight time-frame was set, with the application to be heard before a different judge, Justice Sifris, in case it was necessary to inspect any of the purportedly privileged documents. Counsel submitted that there was no suggestion during discussions before his Honour Justice Hargrave, on 30 April 2013, that this order would shut-out any party from challenging the adequacy of discovery in any other respect.
7. Thirdly, Tabcorp has already challenged the discovery process in the Supreme Court proceedings by challenging the claim by the State to privilege in various documents. Relying upon the authority of Port of Melbourne Authority v Anshun Pty Ltd[46] ('Anshun') Counsel submitted that Tabcorp was estopped from making a further challenge in relation to discovery in the Supreme Court.
8. In the Tribunal's view, this objection is misconceived and the following submissions made by Tabcorp's Counsel correctly present relevant facts and law:
   • (a) An Anshun estoppel prevents a party, in a subsequent proceeding, from raising a claim or defence which could have been raised in the first proceeding. There is nothing in Anshun, or in any subsequent authority to which the Tribunal was referred, that suggests that the principle extends beyond separate proceedings to interlocutory applications within the one proceeding;
   • (b) In any case, an Anshun estoppel only applies if it was unreasonable not to raise the claim or defence in the earlier procedures. The Anshun case itself provides an instructive example. In Anshun, a workman sued the Port of Melbourne Authority (which owned a crane) and Anshun Pty Ltd (which had hired the crane from the Authority). The Authority and Anshun claimed contribution against each other. The workman recovered judgment, and liability as between the defendants on their contribution claims was apportioned. The Authority then brought a separate proceeding against Anshun on the contract of hire, claiming to be fully indemnified against the loss awarded against it to the workman. Exactly the same facts underlay this claim and the claim in the earlier proceeding, and allowing this new claim to proceed therefore risked inconsistent judgments. In the present case, there is no similar overlap between a challenge to claimed privilege, and an application in relation to the adequacy of discovery; and
   • (c) It is unclear how it is said that Tabcorp could have been expected to raise the adequacy of the searches conducted by the State by way of discovery, in an application made on 16 May 2013, when it did not get notice until 27 May 2013 (by way of the Affidavit) of the process used by the State in conducting that discovery. Therefore, it plainly cannot be a matter that was expected to be relied on in the context of some earlier application. Even if Anshun principles were relevant; the facts of the present case do not justify its application.
9. Finally, Counsel for the Department submitted that, in view of the above further objections, and the fact that there is no prospect of Tabcorp pursuing a challenge to discovery in the Supreme Court proceedings, to grant a waiver of the implied undertaking will facilitate an abuse of both the process associated with the Supreme Court proceedings as well as the process of making a freedom of information application before the Tribunal. It was further contended that granting a waiver in these circumstances will essentially allow Tabcorp to mount a collateral challenge to issues in relation to the discovery in the Supreme Court proceedings where these issues have already been ventilated and decided by the Supreme Court; and in circumstances where the time for making such applications has expired.
10. Furthermore, Counsel submitted that the application is premature in view of the pending appeal by the State to the Court of Appeal, which will determine the claim for privilege and may therefore preclude any further application by Tabcorp in the Supreme Court discovery process.
11. As indicated during the hearing, the last objection can be addressed by providing that any release from the implied undertaking is subject to a stay operating until the current State Appeal to the Court of Appeal has been determined or otherwise disposed of.
12. In relation to the claimed abuse of process, this argument has been comprehensively considered and rejected by Merkel J in Johnson Tiles Pty Ltd v Esso Australia Ltd & Anor.[47] This case arose out of the same factual circumstances as Kelly. In the proceeding before the Federal Court, representative proceedings were commenced against Esso in negligence with cross-claims made against the State of Victoria and other State entities alleging misleading and deceptive conduct. In the context of these proceedings the Federal Court made extensive Orders as to discovery. Shortly thereafter, Esso lodged a number of requests under the FOI Act to various State entities which related to matters likely to arise in the course of the substantive proceedings. The State entities contended that the requests were an abuse of process, were vexatious and oppressive in that they undermined the integrity of the Courts' discovery processes and had the tendency to interfere with the administration of justice in the principal proceedings. The State submitted that the FOI request gave Esso a collateral advantage in that they required the making of enquiries and the provision of documents beyond that required by the discovery order. In short, the objection now made by the Department in the current application appears to be identical to that made the State in Johnson Tiles before the Federal Court. Merkel J concisely described the issue for the court as follows:

[1] The present motion concerns the statutory entitlement of a litigant to request documents from a government agency under freedom of information legislation to assist in the presentation and conduct of the litigant's case against the agency, and whether there are any limitations on that entitlement.

1. This is precisely the same circumstance which has given rise to the application before this Tribunal.
2. After setting out relevant provisions of the FOI Act, Merkel J notes that the FOI request made by Esso was for access to documents in categories that were significantly wider than those permitted in the discovery order. Accordingly, an issue arose as to whether there was any limitation on Esso's right to make those requests under the FOI Act. Merkel J then analysed the nature of the rights conferred under the FOI Act:

[26] The starting point for the consideration of any limitation on a right to request and assert an entitlement to access to documents under the FOI Act must be the Act itself. The principle of "open" government resulted in the Act conferring a public right of access to official documents of the government and its agencies for the reason that it is in the public interest to do so. Accordingly, the purpose for which a person wishes to obtain access to a document is of no relevance to that person's right of access and need not be disclosed as a basis for seeking access. Thus, the right to requested access is not in any way restricted by the purpose for which access is being sought.

1. Pausing at this point, it was completely transparent in both the proceeding before the Federal Court, as it is equally before the Tribunal, as to the underlying purpose of the respective FOI requests, namely to facilitate the discovery process in separate court proceedings.

[27] In order to protect the right of access, and the obligation to provide it, from being abused or misused the legislature has carefully prescribed the procedures that are to be followed to obtain access to the documents requested (ss 17-24), as well as the grounds upon which access may be refused: ss 24A-27 and Pt IV. The legislature has not granted any general exemption in respect of agencies involved in litigation. Rather, by s 31, it has chosen to exempt specific "law enforcement" documents where, for example, disclosure of those documents would be likely to prejudice investigations of breaches of the law, proper administration of the law in a particular instance, or the fair or impartial trial of a particular case: s 31(1)(a) and (b).

[28] In these circumstances there is much to be said for the view that the only limitations imposed on the right of access to documents, even when litigation is pending, are those found in the Act...

[29] Does the fact that the person making the request is also a party to litigation against the agency to whom the request is made alter that situation?

1. Again, Merkel J is considering precisely comparable circumstances to the case before the Tribunal. His Honour continued:

[31] The observations of the Court of Appeals of New York concerning the right of access under the New York FOI legislation where litigation is pending, are equally applicable to the FOI Act in respect of the access being sought by Esso in the present case. When called upon to consider the principles applicable to the FOI Act the Supreme Court of Victoria has acknowledged the public interest in "open" government and in the general right of access conferred by the Act. As a result, the Act is to be construed liberally and the exceptions narrowly. See Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 877 and 879 per Gray J; Department of Premier and Cabinet v Birrell (No 2) [1990] VicRp 5; [1990] VR 51 at 53 per Murphy J; Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322 at 323 per Young CJ and Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 at 60-1 and 64 per Ashley J.

[32] In Victorian Public Service Board v Wright [1986] HCA 16; (1986) 64 ALR 206 at 212 the High Court, in discussing the combined effect of ss 3 and 16 of the FOI Act, said:

In the light of these sections it is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information.

[33] Although the Supreme Court of Victoria has not had to deal directly with the issue arising in the present case in Sobh Brooking J (at 50) commented:

To do something which is or results in a departure in some sense from existing practice and procedure is not necessarily to prejudice the proper administration of the law. It is clear that in s 31(1)(a) the proper administration of the law includes the civil law: Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322. Now we all know that the Freedom of Information Act is often used for the furtherance of civil proceedings. We have in the Rules of Court provision not only for discovery in ordinary cases but also for discovery to identify a defendant, discovery from a prospective defendant and discovery from a non-party: O 32 of Ch I. Disclosure of documents might be sought under the Act in a wide variety of situations. The agency or the minister, or the Crown, might or might not be a party or a possible party to existing or contemplated litigation. It is O 29 and O 32, aided by judicial decisions, which determine, so far as the Supreme Court is concerned, whether and at what stage and in what circumstances discovery and inspection of documents may be obtained in or for the purposes of pending or contemplated litigation. I cannot believe that it would be seriously argued that disclosure of a document under the Act would prejudice the proper administration of the law if its production would confer upon a litigant or prospective litigant an advantage which he does not enjoy under our civil practice and procedure.

[35] In Farbman & Sons the court also stated (at 82) that, although it is a matter of concern that FOI legislation might be used during litigation for improper purposes, such as harassment and delay, the potential for abuse in that way is, in a sense, the price of open government and should not be invoked to undermine the statutory right. I agree that any "misuse" of the FOI Act ought not lead to an interpretation of the Act that undermines the statutory rights it confers. However, there might be some limitations on the exercise of the right of access under the Act if the exercise of the right is calculated, or has the tendency, to interfere with the administration of justice or the processes of the court in a particular case.

[36] Plainly, if any statutory power is exercised with an intention to interfere with the administration of justice, or where there is a real risk that the exercise of the power would, in the circumstances, have that effect the principles relating to contempt of court will be applicable: see, for example, Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460 at 467-8; [1982] HCA 65; 43 ALR 449 at 453; and Sentry Corp v Peat Marwick Mitchell & Co [1990] FCA 278; (1990) 95 ALR 11 at 39-41. Contempt cases of the kind to which I have referred usually arise in the context of the exercise of coercive or compulsive statutory investigatory powers in a matter which is the subject of pending litigation in a court in circumstances where the court's procedures deny, or do not permit, the exercise of such powers in the course of the judicial process. The issue in such cases is whether the exercise of the coercive or compulsive power is intended to interfere with the administration of justice or carries a real risk that it would have that effect.

[37] The present case involves quite different issues. There is no question of the exercise of any coercive or compulsory statutory investigatory power or anything analogous thereto. Rather, the FOI Act involves the exercise of a right conferred upon all members of the public to have access to government documents, subject to the provisions and the exemptions provided for in the Act. As explained, the exemptions include documents whose disclosure might interfere with the due administration of justice. Thus, it is difficult to envisage how the exercise of a right to make a request under the FOI Act, which itself contains procedures to ensure there is no interference with the administration of justice, can constitute a contempt of court.

[38] However, the State contends that Esso's right to make the FOI requests and to demand that the requests be processed under the Act confer collateral advantages that are inconsistent with, and undermine, the court's discovery processes. One answer to that contention is that the FOI Act affords members of the public, who are litigants in a court proceeding, a collateral, but lawful, means of seeking to obtain and present the evidence needed for the presentation and conduct of the litigant's case.

1. His Honour then refers to a number of authorities where a party's claim for discovery in one proceeding in furtherance of another proceeding, was upheld. Referring to the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd.[48] His Honour continued:

[43] Mason CJ and Toohey J (at CLR 507; ALR 411) said that resort to the statutory power for a purpose which was open under the court's own processes cannot amount to an abuse of process. Relevantly, for present purposes, the court's discovery processes can be utilised by Esso to apply for discovery of the documents sought by it under the FOI Act. There is nothing in the nature of the court's processes in a civil proceeding that would not permit an application to be made, and granted, for discovery of the documents the subject of the FOI requests. Whether the court would exercise the power to order discovery or compel inspection of the documents is a matter that would depend on the circumstances. I do not regard the restricted and staged discovery orders made to date as precluding Esso from applying for discovery of the documents it has requested under the FOI Act.

[44] In any event, as Brennan J pointed out (at CLR 517-18; ALR 419), "[t]here is no abuse of a court's process in a party's taking advantage of a legitimate means of obtaining evidence to be used in pending litigation". Similarly, McHugh J (at CLR 558-9; ALR 451) observed that obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the court, as the evidence gathering procedures of a party are not limited to the use of court proceedings. His Honour added:

No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation.

[45] McHugh J accepted that the exercise of a statutory power might constitute a contempt if it gave a party advantages which it would otherwise be denied by the rules of procedure but, nevertheless, concluded that something more is required than a finding that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.

[46] The State relied on the observations of McHugh J claiming that there might be a contempt by the exercise of statutory power where "advantages" are obtained. As explained earlier, his Honour was referring to the exercise of a compulsive statutory power and not the exercise of a public right. In any event, in making the observation relied upon by the State McHugh J specifically cited a passage from the judgment of Gibbs CJ in Pioneer Concrete (at CLR 468; ALR 453), where his Honour was dealing with the exercise of a coercive statutory investigatory power in a situation where there is litigation pending and the court's procedures "deny" any entitlement to apply for the exercise of such a power. The circumstances alluded to by McHugh J in Caltex Refining, and by Gibbs CJ in Pioneer Concrete, have no application in the present case. As explained above, the court's procedures not only do not deny the entitlement to apply for discovery in respect of the documents requested by Esso, but permit its procedures to be used to apply for access to those documents, which is akin to the situation that arose in respect of s 29(2)(a) of the Clean Waters Act 1970 (NSW) in Caltex Refining. While it is true that the court, in its discretion, may refuse to order discovery of all the documents requested, that situation has not yet arisen. Even if it does, for the reasons set out above, I do not accept that the pursuit of access under the FOI Act to the refused documents would be unlawful.

1. In the Tribunal's view, the same analysis applies equally to the current application. Furthermore, the Department has not demonstrated that the exercise of the right of access under the FOI Act has been calculated, or had the tendency, to interfere with the administration of justice or the processes of the court. Equally, there is no question of the exercise of any coercive or compulsory statutory investigatory power or anything analogous thereto.
2. Merkel J concluded:

[47] For the above reasons the contentions of the State that Esso's FOI requests constitute an interference with the administration of justice and an abuse of process are without substance.

[48] The other main contention of the State is that the FOI requests undermined the basis upon which the limited discovery order was made and, therefore, are vexatious and oppressive, as they undermine the integrity of the court's processes.

1. Pausing again, this objection is somewhat analogous to the current objection by the Department that the discovery process in the Supreme Court has been completed and the Tribunal should not be enlisted to facilitate a further opening up and challenge to that process:

[54] The procedures involved in the State consulting with Esso, as required under s 17(4), and making a decision as to the validity of the requests under s 17(1) do not in any way interfere with the ability of the State entities to comply with the discovery order. For present purposes I will assume that the State entities will be entitled to an extension of time within which they are to comply with the discovery order. However, even making that assumption, no oppression or vexation has arisen. Nor, given the likely time frame for the FOI Act and the discovery processes to be completed, is it likely to arise in the near future. Ultimately, I am not satisfied, on the evidence before the court, that the simultaneous processing of the FOI requests, in accordance with the procedures provided for under the FOI Act, is likely to interfere with the State entities' ability to complete discovery in accordance with orders of the court.

1. As indicated above, whether the Supreme Court Judge permits Tabcorp to further challenge the adequacy of discovery, in reliance upon the Affidavit, is entirely a matter of the proper exercise of discretion, having regard to all relevant facts before the Court. The release of Tabcorp from its implied undertaking does not of itself in any way encumber the exercise of such discretion.

1. For the reasons stated, the grounds of objection presented on behalf of the Department to the release of Tabcorp from its implied undertaking are without proper basis and are rejected.
2. Accordingly, it is proposed to order that Tabcorp be released from the Harman undertaking in order that it may use or rely upon the Affidavit in the limited ways sought, provided however that there will be a stay on such release until the determination by the Court of Appeal of the current appeal to it by the State in the proceedings between it and Tabcorp or the early disposal of such appeal.
3. Orders are made as appear herein.

[1] See Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[2] Para 5 of the Affidavit of Jonathan Ciullo.

[3] Para 7 of the Affidavit of Jonathan Ciullo.

[4] Para 8 of the Affidavit of Jonathan Ciullo.

[7] Para 14, Affidavit of Jonathan Ciullo.

[8] Para 15, Affidavit of Jonathan Ciullo.

[9] Para 16, Affidavit of Jonathan Ciullo.

[10] Respondent's s 49 Statement at 2.10.

[11] Respondent's s 49 Statement at 2.13-2.16.

[12] Email from Vivian Chung to Brad Holmes dated 4 January 2013.

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

[16] The Department claimed exemption on the basis of the document being subject to legal professional privilege.

[21] Being documents that are exempt by virtue of a provision of Pt IV: ss 5 and 20(2).

[24] Applicant's submissions at 16-18. Footnotes and emphasis omitted.

[28] Supplementary Affidavit of Jonathan Ciullo dated 3 July 2013

[31] Kelly v Department of Treasury and Finance (No 2) (2002) 19 VAR 330; [2002] VCAT 1019 at [45], [46], and [48].

[33] 19 VAR 330; [2002] VCAT 1019 at [45], [46], and [48] per President Justice Kellam and Deputy President Galvin.

[37] [1992] FCA 472; (1992) 38 FCR 217.

[42] The Affidavit at [55] and [56].

[46] [1981] HCA 45; (1981) 147 CLR 589.

[47] [2000] FCA 495; (2000) 174 ALR 701.

[48] [1993] HCA 74; (1993) 178 CLR 477; 118 ALR 392.