(1) A person who suffers loss as a result of a decision by the Chief Health Officer to give an authorisation to an authorised officer under this Division may apply to the Secretary for compensation if the person considers that there were insufficient grounds for the giving of that authorisation. > > (2) If the Secretary decides that there were insufficient grounds for the giving of an authorisation to an authorised officer under this Division, the Secretary is to pay just and reasonable compensation to the applicant. > > (3) The Secretary must send notice in writing of the decision under subsection (2) as to the payment of compensation under this section to each applicant for the payment of compensation. > > (4) The Secretary is taken to have refused to pay any compensation if the Secretary has not decided an application for compensation under this section within - > > > (a) 28 days of receiving the application; or > > > > (b) the period agreed to by the Secretary and the applicant for the payment of compensation under subsection (5).

(7) An applicant for the payment of compensation under this section who is dissatisfied with a decision by the Secretary as to the refusal to pay compensation or as to the amount of compensation may apply to the VCAT for a review of the decision.

1. Section 204(1) of the PHW Act thus entitles a person who has suffered loss as a result of a decision by the Chief Health Officer (CHO), to give an authorization to an authorized officer under Division 3 of Part 10 of the PHW Act (the CHO's authorization),[2] to apply to the Secretary for compensation, if the person considers that there were insufficient grounds for the CHO to give that authorization.
2. The Secretary refused the Application, by letter dated 28 September 2020 (Decision).[3]
3. On 3 October 2020, the Applicant applied to the Tribunal for review of the Decision, under s 204(7) of the PHW Act and in so doing, invoked the Tribunal's review jurisdiction.[4]
4. Under s 204(2) of the PHW Act, compensation is only payable if the Secretary (or the Tribunal on review) 'decides that there were insufficient grounds for the giving of an authorisation to an authorised officer'.
5. The relevant authorisation was given by Professor Brett Sutton, as CHO, under s 199(2)(a) of the PHW Act which provides:

1. Chief Health Officer may authorise exercise of

... > > (2) If this section applies, the Chief Health Officer may, for the purpose of eliminating or reducing the serious risk to public health, authorise -

(a) authorised officers appointed by the Secretary to exercise any of the public health risk powers and emergency powers;[5] and

...

1. There are two applications currently before the Tribunal:
2. First, an application dated 24 March 2023, whereby the Respondent seeks an order under s 75 of the VCAT Act dismissing or striking out this proceeding (Proceeding) on the basis that it is frivolous, vexatious, misconceived, lacking in substance, or is otherwise an abuse of process. (Section 75 Application).[6]
3. Secondly, an application dated 13 April 2023, whereby the Applicant seeks an order under s 80(3) of the VCAT Act directing the Respondent to produce documents (unredacted) in relation to which the Respondent claims legal professional privilege (Discovery Application).[7]
4. The Tribunal will draw upon the oral and written submissions of both parties regarding both applications.[8]
5. There have been similar applications for review to the Tribunal under s 204(7) of the PHW Act, (Truemans[9] and Wentworth[10])( the Determined Proceedings) which have now been determined and are relevant to the Proceeding.
6. In summary, in the Determined Proceedings, the Tribunal found that there were not insufficient grounds for the CHO to make the relevant authorisations under s 199 of the PHW Act (being authorisations also in issue in the Proceeding), affirmed the Secretary's decisions and dismissed the applications.
7. The Determined Proceedings are referred to further below. The Tribunal notes that Applicant's Counsel did not suggest that the decisions in the Determined Proceedings were wrong in any respect. Rather, Counsel submitted that the Applicant seeks to rely upon a different argument not previously raised or considered by the Tribunal. In my view, for the reasons which follow, a proper construction of the relevant provisions of the PHW Act does not permit or contemplate the kind of enquiry which the Applicant now seeks to prosecute.
8. Before dealing with both applications in detail, it is appropriate to outline the Tribunal's jurisdiction in the Proceeding and the primary question to be determined in any review under s 205(7) of the PHW Act.

1. The parties have both made extensive submissions on the nature and extent of the Tribunal's jurisdiction in this matter. The following extract from the Respondent's submissions were adopted by the Applicant:[11]

[8] The Tribunal exercises original and review jurisdiction.[12] > > [9] In this proceeding, the Tribunal is exercising review jurisdiction pursuant to s 42 of the VCAT Act, which provides that: > > (1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment[13] to review a decision made by a decision-maker.[14] > > [10] In this proceeding, review jurisdiction is conferred on the Tribunal pursuant to s 204(7) of the PHW Act which entitles an applicant for compensation under s204(1) of the PHW Act, who has been refused compensation, to apply to the Tribunal for review of the decision to refuse compensation. > > [11] Thus, the enabling enactment that confers on and determines the scope of the Tribunal's review jurisdiction is s 204(7) of the PHW Act.[15] The decision under review is the Decision made by the Secretary under s 204(2). > > [12] In reviewing the Decision, the Tribunal is conducting a de novo review of the decision on the merits and determines the Applicant's application under s 204(1); it stands in the shoes of the original decision-maker, the Secretary, and considers afresh whether 'there were insufficient grounds for the giving of an authorisation to an authorised officer' pursuant to s 204(2).[16] > > [13] The Tribunal's function in a review proceeding under s 40(b) of the VCAT Act was described by then Justice Bell, as President of the Tribunal in the freedom of information review proceeding, Knight v Corrections Victoria [2010] VCAT 338, as follows:

2. Now to the function of the tribunal.
3. It is well established that, when exercising its review jurisdiction under s 40(b) the Victorian Civil and Administrative Tribunal Act 1998, the tribunal stands in the shoes of the original decision- maker. In legal character, its jurisdiction is substitutionary not appellate, and administrative not judicial. Its function is to make the correct or preferable decision on the merits. In doing so, the tribunal is not bound by the original decision and (where relevant) it may receive additional evidence. It has full jurisdiction to make all necessary findings of fact and to determine all relevant questions of law.

[14] That is, the Tribunal is tasked with determining whether the Decision ought to stand or fall. In so doing, the Tribunal is not confined to consider only the matters before the Secretary in making the Decision.[17] Nor does the Tribunal conduct a merits review of the Secretary's decision under administrative law by, for example, considering whether relevant or irrelevant matters were taken into account.[18] The Tribunal determines the matter afresh.

4. In summary, the Respondent contends, and I agree, that the Tribunal determines the Application under s 204(2) of the PHW Act. Standing in the shoes of the Secretary, the Tribunal must determine (and only determine) whether:

... there were insufficient grounds for the giving of an authorisation to an authorised officer under this Division,

1. The Tribunal accepts that where the Respondent refers to 'and only determine' it is not ignoring the further consequence of a determination in favour of the Applicant. Hence, if the Tribunal found that there were insufficient grounds for the giving of an authorisation to an authorised officer, the issue of compensation would then need to be determined.
2. For reasons further set out below, in my view, the Applicant's submissions in the Proceeding seek to enlarge the function of the Tribunal, without proper consideration for the legislative constraints.
3. The Tribunal in Truemans examined the nature of this review jurisdiction, as follows:[19]

[55] In Wilner, the Tribunal dealt with Section 50(5A) of the Freedom of Information Act 1982 which required the Tribunal to determine whether there existed reasonable grounds for the claim that a national security document is an exempt document. In Wilner, Justice Garde observed in the context of that legislative provision, at [23]: > > [23] The test is objective. The Tribunal must determine for itself whether reasonable grounds exist. This does not amount to a full merits review of the decision of the Acting Chief Commissioner to grant a certificate of exemption. The subjective belief of the person responsible for obtaining the issue of the certificate is immaterial. > > [56] In McKinnon, the High Court when reviewing the AAT's powers to review a Certificate under the Commonwealth Freedom of Information legislation, made similar observations

as to the importance of applying the statutory test before it.

[57] At [131] the Court observed that the function of the Tribunal as it applied in that case was mandatory and entirely statutory. The Court made it clear that the Tribunal must focus on the language of the legislation itself and observed in the context of the decision then under review that the legislation is perfectly clear in asking whether there exist reasonable grounds for the claim that the disclosure of documents would be contrary to the public interest. The Court then said, (still at 131):

It does follow...that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review...It further follows that the Tribunal is not obliged to undertake a balancing exercise...the role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review...whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds are so unreasonable that no reasonable person could hold the opinions on which they are based, does not arise for decision in this appeal.

[58] The Secretary contends, the Tribunal's role in this case is similarly strictly limited to determining whether there were insufficient grounds for giving the authorisation.

[59] Further section 204 of the PHW Act does not, the Secretary submits, require that every ground relied upon by the CHO when giving the authorisations was sufficient. Rather, if there was any ground, or combination of grounds, upon which the giving of an authorisation was sufficient, the Tribunal should affirm the deemed decision of the Secretary to refuse to pay compensation.

[60] I agree.

[61] I agree with the Secretary that the language of section 204 of the PHW Act is very clear.

[62] On a plain reading of the provision, the review jurisdiction of the Tribunal is restricted in this way. The only basis for a payment of compensation under section 204 of the PHW Act, is if the Secretary, (or this Tribunal standing in the shoes of the Secretary), decides that there were insufficient grounds for the giving of an authorisation to an authorised officer under Division 3 of the PHW Act. If the Secretary, (or this Tribunal standing in the shoes of the Secretary), so decides, the Secretary is to pay just and reasonable compensation.

[63] The relevant statutory test then is an objective one - were there insufficient grounds for the giving of the authorisation? The only basis upon which the Secretary is liable to pay compensation is if the Secretary decides there were insufficient grounds for the giving of an authorisation to an authorised officer.

[64] This is what the Tribunal, standing in the shoes of the Secretary must determine. It is not for this Tribunal to determine whether the correct and preferable decision was for the CHO to give the authorisations. It is not for the Tribunal to conduct a full merits review of the decision of the CHO to give the authorisation. Rather the Tribunal must only determine whether there were insufficient grounds for the giving of the authorisation.

[65] Although the Secretary carries the onus of establishing that the grounds for the giving of an authorisation were not "insufficient", I further agree with the Secretary, that this is not however an onus to establish that each and every ground relied upon by the CHO was sufficient or was not insufficient. It is not a balancing of the grounds relied upon. I agree with the Secretary that if one ground relied upon by the CHO for the making of the authorisation were shown by the Secretary to be sufficient, then that would support the Secretary's (deemed) decision to refuse to pay compensation.

[66] Alternatively, if taken together it was open that a combination of the grounds relied upon by the CHO were sufficient, or were not insufficient, to support the making of the s 199 authorisations, again, that would require the Tribunal to affirm the Secretary's decision.

1. I endorse the above analysis.
2. Accordingly, I accept that the following principles and limitations govern the Tribunal's jurisdiction to determine a review of the Secretary's Decision:[20]
   1. The review under s 204 of the PHW Act is unusual as it is a review of a decision, namely the Decision currently under review, which considered an anterior decision, namely the authorisation/s made by the CHO under s 199 of the PHW Act;
   2. The Tribunal stands in the Secretary's shoes and, pursuant to s 204(7) of the PHW Act, is limited to determining whether the Secretary's decision, that there were not "insufficient grounds" for the CHO's decision under s 199 of the PHW Act, is correct and preferable;[21]
   3. The Tribunal's review does not extend to reviewing the CHO's decision to make the s 199 of the PHW Act authorisation (in terms of standing in the CHO's shoes to consider if it was the correct or preferable decision);
   4. The power of review conferred on the Tribunal by s 204(7) of the PHW Act does not involve the exercise of the characteristic function of a full merits review, it does not decide whether the s 199 of the PHW Act decisions were correct or preferable;
   5. The Tribunal does not need to have all the documents that were before the CHO to exhaust his rationale in determining to authorise the use of powers under s 199 of the PHW Act;
   6. Similarly, the Tribunal does not require all documents that were before the Secretary in making the Decision;
   7. The Tribunal's review is only concerned with the Secretary's Decision under s 204(2) of the PHW Act, not with the CHO's decision under s 199 of the PHW Act and in neither case is the Tribunal required to have before it every document which was before the relevant decision maker.
   8. The Tribunal's task is to determine, is there a ground or a combination of grounds that exist, such that there were not insufficient grounds for the grant of the authorisation under s 199 of the PHW Act?
   9. In the Proceeding, the Secretary bears the onus of establishing that the grounds for the giving of the authorisations were not insufficient. As expressed by the Tribunal in Truemans, that onus is not an onus to establish that each and every ground relied upon was sufficient.[22] Nor is the task a balancing of grounds relied upon[23]. Instead, if there was any ground or any combination of grounds upon which the giving of the authorisation was sufficient, the Tribunal should affirm the Secretary's Decision.[24]
3. Focusing upon the primary determination to be made, the Tribunal endorses the Respondent's interpretation of jurisdiction as follows:[25]

[16] ... As a creature of its statute, the Tribunal can only exercise the jurisdiction conferred on it by an enabling enactment and cannot make orders that it is not permitted to make by the enabling enactment or the VCAT Act.[26] Here, that enabling enactment confers jurisdiction to review the Secretary's Decision, which is in turn confined to the CHO's authorisation, and no more. > > [17] There is no jurisdiction to review the anterior decision of the Minister on 16 March 2020 to declare a state of emergency pursuant to s 198 of the PHW Act, nor the subsequent decisions of authorised officers to exercise the emergency powers in making directions under the PHW Act, such as the Restricted Activity Directions, which imposed restrictions on the Applicant's capacity to work. Such collateral attacks are not open on a proper construction of s 204 of the PHW Act and the VCAT Act.[27]

4. The Tribunal further concurs with the Respondent's focus upon s 204(1) of the PHW Act to the effect that it defines the limits of the Tribunal's review:[28]

[21] Relevantly, s 204 is first confined by operation of the phrase, "this Division", in s 204(1) of the PHW Act. "This Division" refers to Division 3 of Part 10 of the PHW Act. Division 3 is entitled emergency powers. While Authorised Officers can be authorised under other parts of the PHW Act, it is the specific authorisations under Division 3 that s 204 contemplates. This means the Tribunal's review can only be confined to the making of authorisations only under that division. > > [22] That is, the only relevant "authorisation to an authorised officer" under Division 3, in respect of which a s 204 application for compensation can be made, is found in s 199(2) of the PHW Act. Thus, the relevant authorisation which s 204 addresses is, and only is, the CHO's authorisation made pursuant to s 199(2) of the PHW Act. > > [23] At the relevant time,[29] section 199 provided: > > (1) This section applies if -

(a) a state of emergency exists under section 198; and

(b) the Chief Health Officer believes that it is necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health.

(2) If this section applies, the Chief Health Officer may, for the purpose of eliminating or reducing the serious risk to public health, authorise -

(a) authorised officers appointed by the Secretary to exercise any of the public health risk powers and emergency powers; and

(b) if specified in the authorisation, a specified class or classes of authorised officers appointed by a specified Council or Councils to exercise any of the public health risk powers and emergency powers.

(3) The Chief Health Officer may at any time revoke or vary an authorisation given under this section.

1. Section 199 of the PHW Act has since been amended by the addition of the word "reasonably" in front of "necessary" in s 199(1)(b) of the PHW Act. The Applicant submits that the earlier version ought to be the one that the Tribunal applies.[30]
2. In my view, the earlier version of s199(1)(b) of the PHW Act clearly applies because it operated at the relevant time when the authorisations by the CHO were made. The Applicant has made a claim for compensation based on an insufficiency of grounds for the making of authorisations by the CHO, when the CHO was subject to the former s199(1)(b) of the PHW Act . In denying the Applicant's application for compensation, the Secretary in turn made the Decision that there were not insufficient grounds for the giving of the relevant authorisations, having regard to the evidence available to the CHO at the relevant time. Although the Tribunal is charged with making a fresh determination, upon review of the Secretary's Decision, it is both necessary and appropriate that the same standard applies.
3. Section 199(1) of the PHW Act sets out relevant preconditions to the CHO's exercise of the power under s 199(2) of the PHW Act , namely:[31]
   1. First, there must be a state of emergency in existence under s 198: s 199(1)(a). It is not in dispute that a state of emergency existed;[32]
   2. Second, the CHO must believe that it is necessary to grant an authorisation under s 199 to eliminate or reduce a serious risk to public health: s 199(1)(b).[33]
4. Significantly, once these preconditions are satisfied, that is "If this section applies" the CHO "may...authorize officers appointed by the Secretary ...". The CHO does not have any role to play in the appointment of officers under s 30 of the PHW Act. Furthermore, their appointment by the Secretary vests in them the authority "to exercise any of the public health risk powers and emergency powers".
5. Hence, when standing in the Secretary's shoes in conducting the review, the Tribunal is required to determine: were there sufficient grounds for the CHO to form the belief, required by s 199(1)(b) of the PHW Act, to make the authorisations?
6. If the CHO formed the belief required by s 199(1)(b) of the PHW Act, he was then able to authorise:
   1. an authorised officer appointed by the Secretary to the Department to exercise any of the public health risk powers and emergency powers: s199(2(a); or[34]

1. The Respondent clarified the ambit of an authorization under s 199 of the PHW Act. The Tribunal concurs with each of the following propositions:[35]

[25] Relevantly, in both sub-limbs of s 199(2), the authorisation made by the CHO to authorised officers is at large, in that it authorises the use of "any" of the public health risk powers and emergency powers, where the relevant preconditions for their use are satisfied; s 199(2) does not provide for the CHO to make an authorisation of a specified or a narrower class of public health risk powers and emergency powers. > > [26] Further, the CHO is not authorising a specific or contemplated use of the powers. Rather, he or she is authorising an authorised officer to make that subsequent decision. > > [27] Finally, the authorisation is not a delegation, but an authorisation to an authorised officer to then independently determine whether to use the emergency or public health risk powers. > > [28] The CHO may at any time revoke or vary an authorisation given under s 199: s199(3). That is, should the CHO no longer hold the belief in s 199(1)(b), that an authorisation is reasonably necessary to eliminate or reduce a serious risk to public health, the CHO may, in his or her discretion, revoke or vary that authorisation... > > [29] Under the s 199(1)(a) authorisations, which are the subject of the s 204(2) Decision, the CHO authorised authorised officers to exercise any public health risk and emergency power. In relation to the Applicant's alleged loss, by instruments of authorisation, the CHO authorised authorised officers that made directions which restricted certain activities[36] (the Authorisations)... The Tribunal is tasked with determining if it is satisfied that the CHO had sufficient grounds in so doing. > > [30] The subsequent decisions of the authorized officers, for example, in making stay at home and other directions in the exercise of those public health risk and emergency powers, cannot be the proper subject of review by this Tribunal under this jurisdiction.[37]

2. Professor Sutton's evidence is contained in his Statement dated 8 September 2021.[38]
3. Professor Sutton confirmed that:

1. He did not provide authorised officers with draft directions or directed or required that directions be made in a particular form;[40] and 2. All the authorisations were unlimited.[41]
2. As mentioned above, the Authorisations are not a delegation of power, but an authorisation to an Authorised Officer to then independently determine whether to use the emergency or public health risk powers in ss 200 and 190 of the PHW Act respectively.
3. In my view, the Respondent's Counsel has provided a clear and compelling analysis of the operative provisions under the PHW Act as well as summarizing the ancillary matters about which the CHO had to be satisfied before making his decision to issue authorizations.
4. I further endorse the following submissions of the Respondent:[42]

[53] These matters [referring to the analysis of s 199] establish and explain a bifurcation in the decision-making. The CHO's authorisation is merely that - an authorisation of a use of a power. It is then for authorised officers to make subsequent decisions, in response to specific circumstances, on how the powers should be exercised. At both s 199 and s 200 stages, the decision-makers: the CHO and then, the authorised officers, are obliged to have regard to the objective and principles of the Act, the relevant statutory provision (s 199 and 200 respectively) and the Charter. However, the relevant factors to be taken into account at each decision-making stage may differ. > > [54] The Authorisations thus do not control, nor amount to a direction or restriction on the authorised officers in the manner in which they should exercise the emergency powers.[43] There is no evidentiary basis for such an argument. The argument is also illogical legally. It represents a misconstruction of the Act by seeking to conflate ss 199 and 200. It relies on an interpretation of ss 199 and 200, that "authorisation" in s 199 should be read to mean "authorisation to make a specified direction", where there is no basis to do so. > > ... > > [55] The parties have identified directions relevant to this proceeding, set out in a schedule to Professor Sutton's statement (Directions). Dr Romanes (Deputy Public Health Commander at the relevant times), Professor Michelle Giles (Senior Medical Advisor) and Professor Sutton made the directions between 30 March 2020 and 16 August 2020. > > [56] The evidence is that, pursuant to s 199 of the Act, the CHO authorised the following authorised officers to exercise the emergency powers:

a) Dr Romanes to exercise the emergency powers, by instruments of authorisation, on 20 March 2020 and then also on 13 April 2020 and 11 May 2020;

b) Professor Giles by instrument of authorisation dated 11 September 2020; and

c) himself by instrument of authorisation dated 13 September 2020, which also authorised Dr Romanes and Professor Giles.

[57] These authorisations, dated 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020 in respect of the authorised officers Dr Romanes, Professor Giles and Professor Sutton, are referred to as the Authorisations. The Authorisations authorised the exercise of emergency powers pursuant to s 200, pursuant to which the Directions in the schedule to Professor Sutton's statement were made.

[58] The evidence establishes the following matters:

a) the first precondition to the application of s 199, in s 199(1)(a), was satisfied: a state of emergency existed at the time each of the Authorisations were made;

b) the second precondition to the application of s 199, in s 199(1)(b) was also satisfied:

1. Professor Sutton's evidence is that over March 2020 he became increasingly concerned about the threat to public health posed by COVID-19 and formed the view on and from 15 March 2020 that COVID-19 posed a serious risk to public health as defined in the Act;[44]

2. on this basis, he also formed the view that powers in the Act, other than the emergency powers, would be insufficient to adequately respond to and mitigate that threat. For this reason, he formed the view that it was necessary to grant an authorisation under s 199 to authorised officers so that they could exercise emergency powers in s 200, to eliminate or reduce the serious risk to public health posed by COVID-19.[45]

[59] In making the Authorisations, the CHO also had proper regard to the relevant guiding principles.

[60] The evidence also sets out how the CHO had proper regard to the Charter.[46]

1. In summary, the Respondent submits that the Discovery Application should be dismissed with costs for the following reasons:[47]

a) seeks to improperly enlarge the Tribunal's jurisdiction; > > b) delays the efficient determination of the Proceeding; > > c) wastes the Tribunal's and the parties' resource in the pursuit of Documents that do not bear on the issues that fall to be determined in the Proceeding. In that context, and having regard to the history of the Proceeding, the Discovery Application constitutes a fishing expedition and an abuse of process; and > > d) invites the Tribunal to take the solemn step of abrogating the Respondent's legal professional privilege in circumstances where no justification for doing so can be shown, particularly given the limited relevance that such content can have to the issues in dispute in the Proceeding.

2. After hearing and reading the comprehensive oral and written submissions of both parties, I agree with the Respondent's analysis. Following is a summation of the relevant law, factual circumstances, and submissions which I adopt.
3. On 11 May 2022, the Tribunal, constituted by Senior Member (SM) Smithers, ruled on a discovery application brought by the Applicant in the Proceeding (Thompson Discovery Ruling).[48] The interlocutory application sought orders under s 49(3) or s 80(3) of the VCAT Act requiring the Respondent to produce specified documents, or permitting the issuance of summonses to produce under s 104 of the VCAT Act. The Tribunal refused the application, and its findings are addressed below.
4. The Applicant now submits that at the time of the preliminary hearing and the Thompson Discovery Ruling by SM Smithers, the Applicant put his case to the Tribunal in a different way than he does now.
5. Specifically, the Applicant now advances his case having regard to the preliminary Ruling of Deputy President (DP) Lambrick in Grujic v The Secretary Department of Health (Review and Regulation).[49] The Grujic Ruling also concerned the production of documents.
6. The Applicant submits that both he and Mr Grujic were in a comparable situation in that:[50]
   1. Both ran a business which was forced to restrict its operations as a result of 'lockdown' directions made by authorised officers;
   2. Both businesses lost revenue in the same way as a result;
   3. Both sough compensation under the same statutory scheme and on a fundamentally similar basis; and
   4. Both cases depend on a determination made by the Tribunal as to whether there were 'insufficient grounds' for Professor Sutton to have granted the particular authorisations to the person or persons who ultimately exercised the 'lockdown' powers that resulted in their inability to generate revenue during the lockdown period.
7. The Applicant also relies upon s 30 of the PHW Act which provides:

(1) The Secretary by instrument may appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act. > > (2) The Secretary must not appoint a person to be an authorised officer under this section unless the Secretary is satisfied that the person is suitably qualified or trained to be an authorised officer for the purposes of this Act.

8. The Applicant submits that the applicant in Grujic justified his application, in part, on the basis that there was no evidence as to why the CHO appointed the particular persons which he did.
9. The Applicant in turn relies upon the Grujic Ruling as endorsing an enquiry into the qualifications and experience of the persons authorised. The Applicant submits to the effect that such endorsement follows from the following comments:[51]

[66] Given that the parties agree that the directions made by the authorised officers are not open to challenge before this Tribunal, I agree that it is a perfectly legitimate line of enquiry relevant to his claim for compensation for the applicant to understand the basis of the CHO's decision to authorise the authorised officers in the manner in which he did. > > [67] I am satisfied that before commencing his substantive case and engaging in cross-examination of the one witness currently identified as giving evidence on behalf of the Secretary, Mr Grujic is entitled to understand the grounds for the CHO giving the relevant authorisation to the (particular) authorised officer(s). He is entitled to be given any relevant documents.

10. In my view, s 30 of the PHW Act has been taken out of context and has no bearing on the current review. Contrary to Applicant Counsel's oral assertions to the contrary, the Applicant's submissions clearly conflate the Secretary's authority and decision to authorise persons under s 30 of the PHW Act with the authority and decision of the CHO to authorize any authorised officers to exercise powers under s 199(1) of the PHW Act.
11. Furthermore, the above extract from the Grujic does not explicitly provide the support upon which the Applicant seeks to rely. If any clarification were needed, it seems plain to me by the further comments of DP Lambrick extracted below.[52]
12. DP Lambrick ordered the Respondent to produce the following categories of documents, as sought by Mr Grujic:

(a) Documents which explain the Chief Health Officer's rationale for making the authorisations, which go beyond the documents already disclosed by the Respondent (as annexed to Professor Sutton's written statement), relating to why COVID-19 is a serious threat to human health and that the exercise of powers under section 200 of the Public Health and Wellbeing Act 2008 ("the PHW Act"), and therefore authorisations under s 199, were reasonably necessary (internal briefings, policy documents, internal memoranda or emails that informed and/or advised the Chief Health Officer of such matters);

(b) Documents which explain the Chief Health Officer's rationale for appointing many authorised officers (as opposed to one or few) to exercise the section 200 powers (internal briefings, policy documents, internal memoranda or emails that informed and/or advised the Chief Health Officer of such matters);

(c) Documents which explain the Chief Health Officer's rationale for giving authorisations which were unlimited (and not restricted) (internal briefings, policy documents, internal memoranda or emails that informed and/or advised the Chief Health Officer of such matters); and/or

(d) Documents which explain the Chief Health Officer's rationale for appointing Dr Romanes and/or Dr van Diemen to exercise powers (unrestricted) under section 200 of the PHW Act.

1. Order 2 of the Grujic Ruling expressly reserved the Respondent's right to claim privilege or public interest immunity in respect of the content of any documents identified as responsive to the specified categories.[53]
2. Equivalent categories of documents have already been produced by the Respondent in the Proceeding, as requested by the Applicant, subject to certain pages which the Respondent redacted, claiming legal professional privilege and which are now the subject of the Discovery Application.
3. It is noted that the Respondent provided the four categories of documents to the Applicant[54] despite the Tribunal's findings in the Thompson Discovery Ruling where SM Smithers refused that application, finding that the request 'constitute[d] a fishing expedition'.[55]
4. The document/s now in dispute comprise a document described as:

Brief to Victorian Chief Health Officer, Health Protection Branch - Authorised Officer appointment and authorisation under the Public Health and Wellbeing Act 2008 dated 11 May 2020 (Brief).[56]

1. The Respondent confirmed that the Brief was produced in a partially redacted form, based on privilege, as it contains legal advice. It was provided in a redacted form under cover of an email that expressly claimed that privilege.[57]
2. Before the Respondent's privilege claim could be determined, Mr Grujic withdrew his proceeding following the Tribunal's dismissal of the Determined Proceedings.
3. It is these redacted pages which the Applicant now seeks on the basis that the Respondent has:
   1. Waived privilege; or
   2. The Tribunal ought exercise its discretion to override privilege under s 80(3) of the VCAT Act.
4. Section 106 of the VCAT Act protects privilege in the following way:

(1) Except as provided by section 80(3) or 105, a person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court. > > (2) ...

5. The Tribunal concurs with the Respondent's analysis,[58] namely that by reason of s 106 of the VCAT Act, the Respondent is to be excused from answering a question or producing a document in a proceeding if the Respondent could not be compelled to answer the question or produce the document in proceedings in the Supreme Court, except as provided for by s 80(3) of the VCAT Act.
6. Section 80(3) of the VCAT Act provides:

... > > (3) The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.

7. As the power in s 80(3) of the VCAT Act is discretionary and is being invoked to compel production of privileged documents, it follows that strong and compelling reasons are required to compel that production.[59]
8. The basis on which the Discovery Application appears to be put, is that the Tribunal should have, inter alia, all documents which go to the CHO's rationale for making authorisations under s 199 of the PHW Act, including where those documents are privileged. I agree with the Respondent that this represents a misconstruction of s 204(7) of the PHW Act and effectively seeks to supplant the exercise of the Tribunal's discretion under s 80(3) of the VCAT Act.
9. I interpose here to deal with the Applicant's most recent reliance upon certain comments made in DP Lambrick's Grojic Ruling as amounting to an endorsement of submissions made by Mr Grujic. I reject this interpretation. The Grujic Ruling acknowledged the submissions made by Mr Grujic but otherwise focused upon the sufficiency of grounds to give the requisite authorisations.
10. Notably DP Lambrick also acknowledged:[60]

[50] The Secretary contended that it was not for this Tribunal to second-guess the skills/qualifications of the authorised officers in circumstances where section 30 of the PHW Act gives the power of appointment of suitably qualified persons to be authorised officers exclusively to the Secretary. > > [51] I agree that it is not. That however is not what is being sought in this case. [emphasis added] > > [52] Whilst I accept that it is the Secretary who appoints a person to be an authorised officer for the purpose of the PHW Act and it is the Secretary who must be satisfied that the person is suitably qualified or trained to be an Authorised officer for the purposes of the PHW Act, I do not consider that this in and of itself answers the questions posed by Mr Grujic as to whether, when the particular authorisation was given by the CHO, there were insufficient grounds for the giving of that authorisation by the CHO. > > [53] The challenge is to the sufficiency of the grounds for the granting of the authorisations. This is the very question to be determined by the Tribunal. > > [54] The Secretary carries the onus of establishing that the grounds for the giving of an authorisation were not "insufficient". > > ... > > [61] I agree that the relevant statutory test is an objective one - were there insufficient grounds for the giving of the authorisation. I agree that the only basis upon which the Secretary at first instance can pay compensation is if the Secretary decides there were insufficient grounds for the giving of an authorisation to an authorised officer. > > [62] This is what the Tribunal, standing in the shoes of the Secretary must determine. > > [63] I further agree that it is not for this Tribunal to determine whether the correct and preferable decision was for the CHO to give the authorisations. The Tribunal does not conduct a full merits review of the decision of the CHO to give the authorisation. Rather the Tribunal must only determine whether there were insufficient grounds for the giving of the authorisation. > > ... > > [66] Given that the parties agree that the directions made by the authorised officers are not open to challenge before this Tribunal, I agree that it is a perfectly legitimate line of enquiry relevant to his claim for compensation for the applicant to understand the basis of the CHO's decision to authorise the authorised officers in the manner in which he did. > > [67] I am satisfied that before commencing his substantive case and engaging in cross-examination of the one witness currently identified as giving evidence on behalf of the Secretary, Mr Grujic is entitled to understand the grounds for the CHO giving the relevant authorisation to the (particular) authorised officer(s). He is entitled to be given any relevant documents. > > ... > > [72] The focus of this applicant's contentions is on the sufficiency of grounds for the granting of the authorisations to the authorised officers.

11. In my view, the Grujic Ruling focused upon the sufficiency of grounds, not upon whether the Applicant can inquire into the basis of the Secretary's authorisation under s 30 of the PHW Act and not upon any necessary entitlement of the Applicant to interrogate the CHO as to why he chose to authorise one particular individual over another.
12. In any event, I do not rely upon an interpretation of the Grujic Ruling. This was an interim Ruling. No final decision was made in Grujic. To the extent that the Applicant now seeks to rely upon the Grujic Ruling, in my view, it is plainly wrong.

1. In the Secretary's Decision the following authorizations were identified:[61]

On 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020, pursuant to section 199(2)(a) of the Act, the Chief Health Officer relevantly authorised:

(a) Dr Annaliese van Diemen (Deputy Chief Health Officer);

(b) Dr Finn Romanes (Public Health Commander and Deputy Public Health Commander); and

(c) Dr Michelle Giles (Deputy Public Health Commander), as being authorised officers appointed by the Secretary under section 30 of the Act, to exercise any of the public health risk powers and emergency powers under the Act (Authorisations).

Since 17 March 2020, Dr Van Diemen, Dr Romanes and Dr Giles have issued a number of directions in response to the Covid-19 pandemic, relying on the emergency powers in section 200 of the Act.

1. The Secretary made the following findings in reaching the Decision:[62]

I am satisfied that the Chief Health Officer:

(a) gave the Authorisations when a state of emergency existed;

(b) believed it was necessary to grant the Authorisations to eliminate or reduce a serious risk to public health, and granted the Authorisations for that purpose;

(c) had proper regard to the relevant guiding principles set out in the Act in giving the Authorisations; and

(d) gave proper consideration to any relevant human rights under the Charter of Human Rights and Responsibilities Act 2006 (Charter) and acted in a way that is compatible with those human rights, in giving the Authorisations.

1. Professor Sutton's Statement[63] confirms the dates upon which he initially made authorizations under s 199 of the PHW Act (in total about 198) which included the authorizations referred to in the Decision. Professor Sutton further referred to directions made by authorized persons which the Applicant indicated may have been the cause of his loss. Professor Sutton confirms that these persons were amongst those which he authorised under s 199 of the PHW Act and he was aware those officers would make directions as required. Furthermore, he confirmed that he was aware of his obligations under the Charter for the purpose of making the authorisations under s 199 of the PHW Act.
2. Professor Sutton further confirmed:

I am informed that those directions, listed in full in a schedule at the conclusion of this statement, include the:

(a) Restricted Activities Directions (Restricted Areas) in the versions of those directions numbered 6 to 14 inclusive, which Dr Romanes and I authored;

(b) Stay at Home Directions (Restricted Areas) in the versions of those directions numbered 5 to 19 inclusive, which Dr Romanes and I authored; and

(c) Permitted Worker Permit Scheme in the first version and its later versions up to that numbered 7, which Dr Romanes, Professor Giles and I authored (together, the Directions).

1. Respondent's Counsel submits to the effect that it is not part of the Tribunal's review and the Tribunal therefore has no jurisdiction to examine any or all 198 authorisations issued by Professor Sutton for the purpose of ascertaining the state of mind of Professor Sutton in deciding to authorise particular individuals. I agree.
2. I return now to the substantive submissions of the Respondent's response to the Applicant's Discovery Application.[64]

1. The Applicant submits that the CHO's rationale for making the authorisations in the form he did is relevant and that by the Respondent calling the CHO to explain his decision-making, the Respondent has acted inconsistently with the maintenance of client legal privilege (within the meaning of s 122(2) of the Evidence Act 2008 (Vic)).
2. In my view, there is no inconsistency as alleged, and this is a spurious argument in the context of a review hearing before the Tribunal. I concur with the Respondent that the Applicant's submission misunderstands the nature of the review and the purpose of evidence in the Proceeding.
3. The filing of evidence from the CHO is not inconsistent with the maintenance of privilege in legal advice to him on parts of his decision. The Tribunal is not considering the merits of the CHO's decision, rather it is to determine if one or a combination of the grounds which the Secretary has identified that the CHO relied upon, were nevertheless insufficient to justify a belief that the authorisation was necessary to eliminate or reduce a serious risk to public health.
4. The Applicant also relies upon principles of waiver of privilege at common law, in particular:[65]

(f) Where a party asserts that the basis of an impugned administrative decision is contained in the content of privileged documents, the documents are necessarily open to scrutiny in the case and privilege is therefore waived. ...[66]

(g) The holder of the privilege is not allowed, after disclosing as much he or she pleases, to withhold the remainder of the protected communication. Fairness requires the protected communication to be produced, particularly where the protected communications influenced or underpinned the content of a document that the party chose to deploy to advance its own interests.[67]

1. The Applicant also referred to the key issues listed in the document signed by Professor Sutton and provided to the Applicant in partial redacted form.[68] Applicant's Counsel submitted that the Applicant is entitled to be aware of all advice upon which Dr Sutton relied to inform his decision to grant or continue the particular authorisation or existing authorisations.
2. In my view, there is no legal basis for applying the common law principles here. In any event, I cannot see how the Applicant would be any more assisted by such principles:
   1. There is no requirement in this case for all documents, which the CHO considered, to be disclosed;
   2. The Respondent bears the onus of producing such documents as will satisfy the Tribunal that the grounds relied upon by the CHO were not insufficient; and
   3. There is no compelling reason why the disclosure of the redacted pages would in any way obviate the grounds already disclosed to the Tribunal.
3. Furthermore, I concur with the Respondent that there is no basis for an exhaustive review and thus no exceptional circumstances justifying the departure from the rule in s 106 of the VCAT Act and the invocation of a discretionary power in s 80(3) of the VCAT Act to compel production of privileged documents.
4. It is also noteworthy that the Grujic Ruling is an interim ruling and not final reasons for judgment. The way in which the Applicant relies on it in this Discovery Application is inconsistent with the final reasons for judgment in the Determined Proceedings. The Grujic Ruling also makes no finding on whether privileged documents ought to be produced. Indeed, as indicated above, the orders contemplated that privilege might be claimed and maintained.
5. It is well recognised that the discretion to waive legal professional privilege should only be exercised in exceptional circumstances.
6. In Principal Registrar VCAT v Kate Jones & Herald & Weekly Times Pty Ltd,[69] Judge Bowman noted that s 106 of the VCAT Act sets out the general rule in relation to privilege, while sections 80(3) and 105 of the VCAT Act are exceptions to this general rule. It follows that the Tribunal should only be moved to exercise its discretion to depart from the general rule in exceptional circumstances.
7. The Tribunal further considered the operation of s 106 of the VCAT Act, and its intersection with s 80(3) of the VCAT Act, in South Mor_a_ng Pastoral Co Pty Ltd v Whittlesea CC[70] (South Morang Pastoral Co), which provides a detailed analysis particularly apposite to the current Proceeding.
8. South Morang Pastoral Co concerned an application for production of a partially privileged Council officer report_._[71] In that proceeding the Tribunal held that, while s 80 of the VCAT Act provides the Tribunal with the power to require the production of any document irrespective of the rules relating to privilege, it was inappropriate in the exercise of the discretion available to require that the report in question be produced. This was because the circumstances were such that the disclosure of the advice was not necessary for a proper consideration of the case and would not prevent open and transparent decision-making by the Tribunal.
9. In so finding, the Tribunal made the following comments in South Morang Pastoral Co:[72]

[9] The ordinary rule in relation to legal professional privilege is subject to an exception in relation to Tribunal proceedings. Section 80(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that the Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious and fair hearing and determination of a proceeding. This power to give directions is exercisable by any member. > > Sub-section (3) of s 80 goes on to provide that the Tribunal may give directions under the section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in s 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents. > > [10] Section 106(1) VCAT Act provides that a person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court. However that is subject to the specific exception in 80(3). > > [11] I think that the specific statutory provision of s 80(3) makes it clear that I have the power to require production of the officer's report in spite of the claim of privilege raised in relation to it. > > [12] I have the power, but that does not mean that I need exercise it. Section 80(3) provides that the Tribunal "may" give directions for production of the document. In the exercise of the discretion thereby provided I may decide not to require production. I may decide, on balance, that it is not necessary or appropriate to do so. In terms of s 80(1), I may decide that such production is not necessary for the expeditious or fair hearing or determination of the proceeding. In coming to such a conclusion I may take the view that legal professional privilege represents a sound and important principal in relation to the administration of justice and the conduct of litigation. It is based on sound public policy that should only be overruled (pursuant to s 80(3)) where there are strong and compelling reasons for doing so. There may well be circumstances where on balance, and in the ultimate interests of justice, it would be appropriate to take such a course. I recognise that there is an advantage, not just to parties to litigation, but to the conduct of litigation generally, that parties should be able to have access to legal advice on a basis that the advice is privileged and can be kept confidential unless the client chooses to waive the privilege.

10. The Tribunal went on to observe: [73]

[22] Mr Pitt submitted that the full officer's report ought to be required because it would give the Tribunal a better understanding of the context in which the Council made its decision and would enable a better understanding of the grounds of refusal. > > [23] I do not think that access to the legal advice is necessary for this purpose. I believe that the parties, through their submissions and evidence, can provide information of the context, so far as is relevant, in which the Council made its decision. It should be remembered that the review is a rehearing. The Tribunal will make its decision on the basis of the evidence and submissions put before it. Indeed, the context in which it makes its decision will be different, and probably considerably better informed, than the one in which the Council made its decision. In general terms, it does not strike me that a better understanding of the context in which the Council made its decision is important to the Tribunal. As for understanding the grounds of refusal, the Council will have an opportunity of advancing its case to substantiate its grounds of refusal. I do not see that disclosure of the advice sought is necessary for a proper consideration of the case by the Tribunal. If I were hearing the case, I would not be starting from some presumption in favour of the decision made by the Council. I think the Tribunal should make up its mind on the basis of the case before it.

11. I concur with the Respondent that the findings in South Morang Pastoral Co are both relevant and persuasive, as the issue before the Tribunal in that proceeding are analogous to those before the Tribunal here. The Respondent claims legal professional privilege over the content of one of the documents, namely portions of the Brief. A copy of the Brief was provided to the Applicant as requested, despite there being no orders requiring its production.
12. There has been no justification or compelling reason given by the Applicant for the Tribunal to exercise its discretion to abrogate the privilege. The application is predicated upon a misinterpretation of the legislation and misunderstanding of the Tribunal's role on review.
13. I will now deal briefly with the case relied upon by the Applicant. Loielo v Giles,[74] concerned a judicial review of a decision taken by Professor Giles, a person to whom a s 199 PHW Act authorisation had been given. Professor Giles' consideration of the legal advice provided to her regarding her decision-making powers and the manner in which they interacted with the Charter of Human Rights and Responsibilities Act 2006 (Vic) was a matter in issue in the proceeding. This was because it went to her 'state of mind' at the time of making the decision under review, and Professor Giles deposed an affidavit canvassing such matters. It was in that context that the Court found that there was a 'waiver' in respect of the content of the relevant advice.
14. It my view, Loielo is readily distinguishable on the facts and has no bearing on the exercise of the Tribunal's discretion in the Proceeding. I concur with the Respondent's analysis: the legal advice was provided to the CHO; the test for the Tribunal is whether the Secretary considered that the CHO did not have insufficient grounds; the relevance of the legal advice does not warrant an order requiring production of the privileged content. Again, once the nature of the review proceeding is properly understood, to abrogate the Respondent's privilege in the manner sought by the Applicant would inappropriately deviate from the standard protections afforded under s 106 of the VCAT Act.

1. I concur with the Respondent that the Tribunal must determine the Discovery Application within the four walls of its review jurisdiction in the Proceeding. It is now well settled that each of the Determined Proceedings raise the "same" threshold legal question[75] on review, namely: [76]

were there insufficient grounds for the giving of the authorisation to an authorised officer? (the Question)

1. On the Question, the Respondent bears the onus.[77] The Question is not: were all the grounds sufficient? The Tribunal is also not undertaking an exhaustive analysis of the CHO's thought processes.
2. The nature of the review was also well settled in the Determined Proceedings. While this Tribunal is not bound by the precedent of other decisions of the Tribunal, there is public interest in the proper administration of justice that like proceedings be consistently determined. This principle is well recognised and applied.
3. In Wentworth, the Tribunal referred to the decision of Deputy President Macnamara, as he then was, in Midas v Commissioner of State Revenue,[78] stating:

[I]t is desirable in the interests of comity and uniformity that a Tribunal should adopt the same principles in deciding various review applications which arise under the same statute. To do otherwise would make the Tribunal's decisions a wilderness of single instances rather than what we hope they should be, a manifestation of the rule of law and a manifestation of the principle that like cases need to be treated alike.

1. I also endorse the comments and approach of Senior Member (SM) Billings in Wentworth where he went on to state, in relation to how the proceeding should be determined and the scope of the review:

I would depart from Truemans or Thompson only if I considered that they were clearly wrong. I do not consider them to be clearly wrong.[79]

1. I further endorse the Respondent's analysis of the ways in which production of documents may be required in a VCAT review proceeding, by reference to ss 49 and 80(3) of the VCAT Act.[80]
2. Production of documents in Tribunal review proceedings is limited. The production is not akin to general discovery. Section 49 of the VCAT Act prescribes the relevant test Parliament has determined for documents which ought to be produced in review proceedings.
3. I am satisfied that the Respondent has met its obligations under s 49 of the VCAT Act. The Applicant has not established any further relevance, on proper grounds, for a discretionary order under s 80 of the VCAT Act for the production of the redacted documents.
4. As indicated above, in my view the Applicant's argument on waiver misunderstands the nature of the review in s 204(7) of the PHW Act and the nature of document production in reviews of this kind. I endorse the following analysis of the Respondent:[81]

a) First, section 49(1)(b) of the VCAT Act requires the Respondent to produce documents relevant to "review of the decision". The relevant "decision" is the Secretary's s 204(2) decision as to whether there were insufficient grounds for the CHO to give an authorisation. That is the "decision", for the purposes of the review and it defines the scope of the production obligation on the Respondent pursuant to s49(1)(b). The "decision" is not the CHO's s 199 decision. Thus all documents which may go to the CHO's rationale are not, necessarily, required to be produced. > > b) Second, the Tribunal does not require, and the production obligation does not oblige, the Respondent to produce all material in the CHO's possession or those documents the CHO actually had regard to when making s 199 authorisations, nor all material before the Respondent in making the Decision. Section 49(1)(b) is not framed in those terms. > > c) Third, the review is not a review of s 199 authorisations. The PHW Act has not provided for the Tribunal to review s 199 authorisations but confers jurisdiction only to review s 204(2) decisions. The distinction may appear slight but it is significant because it focuses the Tribunal's jurisdiction only on the s 204(2) decision. The Decision and the Question provide the subject matter of the Tribunal's review and the touchstone for relevance, within the jurisdictional limits. It is thus not the CHO's rationale or state of mind that determines relevance, relevance is determined by whether a matter bears on Secretary's Decision, noting the way in which the review is confined. > > d) Fourth, s 49(1)(b) is satisfied if documents produced are relevant to the review and enable the Tribunal to fairly and properly determine the review.[82] In this case, that threshold has been met. It would be burdensome and oppressive if production was required of every document in the Respondent's possession that could have relevance to the review[83] or exhaustively went to the secondary decision-maker's rationale.

1. Where s 49 of the VCAT Act provides the relevant and specific source of the production obligation, s 80(3) of the VCAT Act has no further work to do in the Proceeding:[85]

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

1. Section 80(3) of the VCAT Act may, for example, apply in relation to a non-party or in the Tribunal's original jurisdiction. Further, even if s 80(3) of the VCAT Act were to be invoked, it would still be conditioned by the Tribunal's jurisdiction and the relevance of the documents sought.
2. For all the above reasons, I am satisfied there is no justification for the Tribunal to make any order for the production of documents in unredacted form under s 80(3) of the VCAT Act or otherwise and accordingly, the application will be dismissed.

1. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion - > > > (a) is frivolous, vexatious, misconceived or lacking in substance; or > > > > (b) is otherwise an abuse of process. > > ...

2. There are well-established principles that guide the Tribunal in the determination of a s 75 VCAT Act application. Both parties provided a separate list of relevant principles[86] all of which I endorse.
3. In short, the Respondent justifies a summary dismissal of the Proceeding because the threshold question raised has already been considered and determined in three prior applications in the Determined Proceedings and there is no reasonable prospect of a different outcome in the Proceeding.

The threshold question raised in the Proceeding

1. Respondent's Counsel has helpfully summarised the relevant issues previously considered in the Determined Proceedings, which have been outlined above in extracts from Truemans. The Tribunal adopts this analysis as equally applicable to the Proceeding:[87]
2. The Applicant initially expressed his claim in terms of a loss suffered as a result of the 'imposition of the Stage 4 restrictions in the greater Melbourne area'. Subsequently,[88] the Applicant identified specific directions which he says caused the losses in respect of which he claims compensation. Those directions have already been referred to above.[89] Professor Sutton confirmed in his Statement that the persons who made those directions were authorized under s 199 of the PHW Act on 17 March 2020, 20 March 2020, 13 April 2020, 11 May 2020, 11 September 2020 and 13 September 2020.[90]
3. The Question, for the purposes of the review under s 204(7) of the PHW Act, in the Proceeding, is: did the CHO have insufficient grounds for making those authorisations on the above dates?

1. The Respondent submits and I accept that, the Tribunal has already determined, in the Determined Proceedings, that the CHO did not have insufficient grounds for the making of the authorisations that are in issue in the Proceeding.
2. The Respondent further submits that the evidence of the CHO filed in each of the Determined Proceedings was almost identical (other than to address the specific directions raised in each proceeding)[91] and set out the CHO's belief that the authorizations under s 199 of the PHW Act continued to be necessary throughout 2020.[92]
3. Accordingly, the CHO's evidence which has been tested and accepted in the Determined Proceedings, addresses the authorisations in issue in this Proceeding and so responds to the Question in the Proceeding.
4. I further accept that the Sutton Statement is similarly relevantly identical to the statements filed in the Determined Proceedings, other than addressing the different directions raised by the Applicant.[93]
5. In Wentworth, the Respondent further applied to VCAT that the CHO's evidence in Truemans be accepted as evidence in the Wentworth proceeding. The Tribunal made such findings.[94]
6. Although clearly the findings in another Tribunal hearing do not automatically apply or bind the Tribunal in this hearing, there is a well acknowledged public interest in the proper administration of justice that like proceedings be consistently determined.
7. In Wentworth, the Tribunal referred to the decision of Deputy President Macnamara, as he then was, in Midas v Commissioner of State Revenue,[95] stating:

[I]t is desirable in the interests of comity and uniformity that a Tribunal should adopt the same principles in deciding various review applications which arise under the same statute. To do otherwise would make the Tribunal's decisions a wilderness of single instances rather than what we hope they should be, a manifestation of the rule of law and a manifestation of the principle that like cases need to be treated alike.

1. SM Billings then stated, in relation to how the proceeding should be determined and the scope of the review:

I would depart from Truemans or Thompson only if I considered that they were clearly wrong. I do not consider them to be clearly wrong.[96]

1. I endorse SM Billings comments.
2. In so finding, the Tribunal agreed in Wentworth that it ought to determine the threshold question first. In determining that application, it accepted the evidence of Professor Sutton comprehensively, as the Tribunal did in Truemans.[97]
3. Having examined the Determined Proceedings, I do not consider that they were clearly wrong, indeed I concur with the findings and determinations made in those Proceedings.
4. I also accept that the relevant evidence in the Proceeding falls within the province of the Respondent, hence, as in the previous cases, the likelihood or possibility that the Applicant may be able to adduce relevant evidence (on the Question) is extremely low.
5. I am unable to find any basis on which the Proceeding could be determined differently to the disposition in the Determined Proceedings. It follows that the further prosecution of the Proceeding is thus misconceived.
6. For the further reasons set out below, I concur with the Respondent that the pursuit of the Proceeding in circumstances where it is obviously untenable and manifestly groundless, is vexatious and amounts to an abuse of process.[98]

1. The Applicant also raises issues with the lawfulness of, or seeks compensation in respect of, particular directions made by persons authorised by the CHO pursuant to s 199 of the PHW Act.
2. As the Tribunal has found in this Proceeding and in Wentworth, it has no jurisdiction to review the making of those directions, including no jurisdiction to order compensation in respect of any losses that may have flowed from those directions. Accordingly, these grounds are misconceived and lacking in substance.[100] As such, the Applicant's pursuit of the Proceeding on this basis is vexatious and amounts to an abuse of process.[101]

Failure to adequately consider request for compensation

1. As to the balance of the grounds, the Applicant complains that the Respondent 'did not adequately consider the Applicant's request for compensation and was unreasonable in her decision'.[102] These matters are not relevant to and do not inform a de novo review of the Decision under review.
2. For completeness, I set out the responses given by the Respondent to relevant principles to be observed when seeking a s 75 VCAT Act Application:[103]
3. First:
   1. the Tribunal should exercise caution in the exercise of the discretion, particularly in relation to a self-represented litigant as the consequence is depriving a party of the opportunity to have their case determined in the ordinary way.[104]
4. In response, the Respondent submits that the Applicant is legally represented. Furthermore, the substantive matter which must first be determined in this proceeding has already been determined in the usual way.
5. Secondly:
   1. the Tribunal should only make an order under s 75 when satisfied that, due to one of the grounds in s 75, the case is "obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail."
6. In response, the Respondent submits that this includes, but is not limited to, where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[105]
7. Thirdly:
   1. the Tribunal's role in determining a s 75 application is not to examine, assess or determine whether to accept the Applicant's evidence, but to proceed on the basis that the Applicant will prove the allegation raised.[106]
8. However, the Respondent submits that the threshold question for the Tribunal to determine in the Proceeding (and which can finally dispose of the Proceeding) is almost wholly within the purview and evidence of the Respondent. That evidence has now been heard and accepted in the Determined Proceedings. Further, the Tribunal may accept and rely on the evidence in Determined Proceedings as evidence in this Proceeding (without the need to separately call that evidence), if it considers it desirable to do so.[107] Here, the Tribunal may admit and rely on the evidence of the then CHO in determining this application.
9. Fourthly:
   1. the Tribunal should not summarily dismiss a proceeding which might depend on findings of fact based on contested evidence and should take the Applicant's case at its highest.[108]
10. However, again the Respondent submits that in the Proceeding, the Applicant's evidence would go only to any loss suffered as a result of an authorisation and cannot logically bear on whether there were insufficient grounds for the CHO to make the s 199 PHW Act authorisations.
11. In relation to the Applicant's submissions on the relevant principles, for the reasons already addressed above, I reject the Applicant's interpretation of the Grujic Ruling to the effect that it is 'perfectly open' for the Applicant to advance his case on the basis that there were insufficient grounds for the CHO to give the particular authorisations to the particular people that he did, on the basis that those people lacked the necessary skills or experience to exercise the powers that were granted to them.[109]
12. Furthermore, the Applicant submits to the effect that, in giving the authorisations to 196 persons to exercise power independently under s 200 of the PHW Act, there is no evidence 'establishing that any of those 196 persons possessed the necessary skill or experience to be given such powers to use at their discretion' and the absence of such evidence clearly establishes that there were insufficient grounds for giving those 196 persons the particular authorisations that were given to them.
13. Again, for the reasons already addressed above dealing with the jurisdiction of the Tribunal in exercising the current review, the Applicant's submissions are entirely irrelevant and therefore frivolous and vexatious.
14. I concur with each of the above Respondent's responses.

Application of section 75 of the VCAT Act to the Proceeding

1. As indicated, the Tribunal has previously heard legal argument in three proceedings and in each case determined that there were not insufficient grounds for the CHO to make the relevant authorization under s 199(1) of the PHW Act.
2. In Truemans, the Tribunal found that:[110]

[4] Insufficient grounds would be established if it could be shown that the authorisations:

(a) did not satisfy the legislative preconditions in ss 199 and 201;

(b) were inconsistent with the objectives and / or guiding principles in the PWH Act; or

(c) were inconsistent with the Charter (see [142]) (the three tests to properly answer the Question).

[5] On each of these tests the Tribunal found in favour of the Secretary. Relevantly, these tests respond to evidence that is wholly within the domain of the Secretary, that is, the applicants' evidence does not logically bear on these tests.

1. Accordingly, in the Determined Proceedings, the Tribunal was satisfied that Professor Sutton:
   1. had proper regard to the objects and principles of the PHW Act;
   2. made his decision in the context of the legislative conditions being satisfied, including: whether a state of emergency existed under s 198; and the requirements of s 199 of the PHW Act were met (which includes the definition of serious risk to public health); and the requirements under s 201 of the PHW Act as to the format of the instrument; and
   3. had proper regard to the Charter in terms of the authorisation under s 199 of the PHW Act.
2. Relevantly, in Truemans, the Tribunal referred to the decision in Willner v City of Melbourne[111], applying the High Court's decision in McKinnon v Secretary, Department of Treasury (McKinnon)[112] to find that the task on review in the s 204(7) PHW Act proceeding is not a full merits review, but an objective determination of whether reasonable grounds exist for the Secretary's decision under s 204(2) of the PHW Act (that the CHO did not have insufficient grounds to make the s 199 PHW Act authorisations). If the Tribunal finds any one ground or combination of grounds, for the Secretary's decision, was sufficient, the Tribunal should affirm the decision.[113]
3. In Truemans, the Tribunal found in favour of the Secretary on every ground relied upon. The Respondent submits that to be successful in this Proceeding, the Applicant would need to displace that finding in relation to all of those grounds or a relevant combination of the grounds, to establish that there were insufficient grounds for the making of the authorisations under s 199 of the PHW Act, having regard to McKinnon. I agree.
4. It follows that for the Tribunal to reach a different decision in this Proceeding would involve an almost complete rejection of the evidence accepted by the Tribunal in the Determined Proceedings, and the making of comprehensively different findings of facts on the same evidence. In my view there has not been any credible basis advanced by the Applicant which would support different findings.

1. Consistent with the findings made in the Determined Decisions, where the Tribunal was satisfied that there were not insufficient grounds for the CHO to make the relevant authorisations under s 199 of the PHW Act, I am satisfied that there is no realistic prospect of a different determination being made in the Proceeding if it proceeded to a full hearing.
2. Ultimately, the Tribunal has determined to dismiss the Discovery Application and summarily dismiss the Proceeding, having found that the Applicant has fundamentally misconceived the Tribunal's jurisdiction in the Proceeding and the application of legal professional privilege and misinterpreted relevant provisions of the PHW Act.
3. For the reasons given, the Tribunal is satisfied that:
   1. The Discovery Application is in essence an unjustified fishing expedition with no proper basis and no realistic prospect of affecting the outcome of the Tribunal's review;
   2. The Applicant has no realistic prospect of achieving an outcome different to that made in the Determined Proceedings; and
   3. The further pursuit of the Proceeding to full and final hearing is now misconceived, and would be a waste of the Tribunal's and parties' resources.
4. The Tribunal finds that the Question is the same in the Proceeding, as it was in the Determined Proceedings (and as accepted by the Tribunal in the Thompson Discovery Ruling, at [142]); and for the purpose of determining the current applications, the Tribunal admits into evidence the Statement of Professor Sutton, filed in the Proceeding, as evidence in the Proceeding.
5. Orders will made:
   1. Dismissing the Discovery Application;
   2. Dismissing the Proceeding under s 75 of the VCAT Act;
6. It is noted that the Respondent has applied for costs in the event of the dismissal of both applications. The question of costs will be reserved, pending further written submissions, and will be determined on the papers, subject to leave granted to either party to request a further hearing, on the questions of costs only.

[1] Tribunal Book (TB) 281, Refer Applicant's Outline of Submissions dated 15 August 2023, [4].

[2] Section 199(2)(a) of the PHW Act is the operative provision by which such authorisations are given.

[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) ss 40(b) and 42.

[5] The emergency powers are provided under s 200 of the PHW Act.

[6] TB 75-76; 82-103, Application dated 24 March 2023.

[7] TB 222-237, Applicant's Outline of Submissions dated 15 August 2023.

[8] The Applicant principally relies upon Submissions dated 15 August 2023, TB 222-237; and 19 September 2023, TB 297-298. The Respondent principally relies upon its Submissions dated 15 August 2023 and 3 October 2023.

[9] 815 Truemans Cabin Hire Pty Ltd v The Secretary, Department of Health [2022] VCAT 1187 (Truemans) (unreported, Deputy President Lambrick, as she then was, 17 October 2022). A summary of the decision in Truemans is found as a schedule to the Respondent's submissions dated 15 August 2023, TB 290-294.

[10] Wentworth Hair Salon v The Secretary, Department of Health [2022] VCAT 1298 (Wentworth) (which concerned two separate proceedings which were joined and heard concurrently: Z993/2020 and Z257/2021 (unreported, Senior Member Billings, 10 November 2022).

[11] TB 128-130, Outline of Respondent's Submissions dated 3 February 2021.

[13] Section 3 defines 'enabling enactment' to mean 'an enactment by or under which jurisdiction is conferred on the Tribunal'. See Djime v Kearnes (28 February 2019) [2019] VSC 117 (Cavanough J) at [116].

[14] VCAT Act, s 42_. Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559_, 564 [19] (Warren CJ) (Sudi).

[15] YSB v YSB (Human Rights) (09 December 2020) [2020] VCAT 1396 (Justice Michelle Quigley, President) at [11].

[17] This is sometimes referred to as the Tribunal being "at large": Victorian Casino & Gaming Authority v Hulls [1998] 4 VR 718, 725 per Phillips JA (Brooking and Batt JJA concurring) followed in Knight at [29].

[18] Contrary to the Applicant's submission, Applicant's Broad Outline of Submissions (Applicant's Broad Outline), paragraphs 36 and 45.

[20] The Tribunal adopts the submissions of the Respondent, TB 307-312.

[24] Truemans at [59], [60], and [65]-[66].

[25] Tribunal Book (TB) 130, Outline of Respondent's Submissions [16]-[17].

[26] Chen v Victorian Legal Services Commissioner (14 December 2020) [2020] VSC 842 (Ginnane J) at [67] citing Sudi at 564 [19]. See also Cherukuri v Danthuluri (Civil Claims) (22 August 2016) [2016] VCAT 1444 (A Dea, Member) at [8], that as a "creature of statute, the Tribunal only has the jurisdiction granted by Parliament and so, if the Tribunal had no jurisdiction to hear and determine a proceeding, it must be dismissed".

[28] TB 131-132, Outline of Respondent's Submissions [21]-[23].

[29] Section 199 has since been amended, by the Public Health and Wellbeing Amendment (State of Emergency and Other Matters) Act 2020 (which entered into force on 8 September 2020, the date of assent), whereby "reasonably" was inserted in front of "necessary" in s 199(1)(b), by s 6 of that Act. In addition, after s 3(3), a new subsection 3(4) has been added that does not limit the definition of serious risk to public health...

[30] TB 139 Applicant's Submissions [11].

[31] TB 132, Outline of Respondent's Submissions [24].

[32] The declaration of a state of emergency is contained in the Respondent's s 49 material.

[33] Version of s 99(1)(b) at the relevant time.

[34] Section 199(2)(b) of the PHW Act is not relevant as there were no authorisations made by Councils that were relevant to the COVID-19 directions in issue.

[35] TB 133-134, Respondents Outline of Submissions [25]-[30].

[36] Being the Restricted Activity Directions (Restricted Areas) (No 5), Restricted Activity Directions (Restricted Areas) (No 6) and Restricted Activity Directions (Restricted Areas) (No 7).

[37] Section 200 of the PHW Act provides for the four emergency powers that can be exercised by an authorised officer authorised under s 199 of the PHW Act to do so. The Respondent's Submissions confirm that there are no relevant directions made pursuant to the public health risk powers.

1. [39] Sutton statement, paragraph [74]. In the Applicant's submissions [16], it is suggested that it may have been possible for Professor Sutton to vary an authorisation orally once it was given: Professor Sutton's evidence is that this did not occur: Sutton statement, paragraph [76].

[42] TB 163-, Respondent's Submissions 9 September 2021 [53]-[54].

[43] Cf Applicant's Submissions [37].

[44] Sutton Statement, paragraphs [60], [64].

[45] See for example Sutton statement, paragraphs [131]-[137].

[46] See for example, Sutton statement, paragraphs [143]-[146].

[47] TB 321, Respondent's Submissions in Reply 3 October 2023, [56]-[57].

[48] Thompson v The Secretary, Department of Health [2022] VCAT 504.

[49] [2022] VCAT 1189 (18 October 2022) (Grujic').

[50] Applicant's Outline dated 15 August 2023 [5]-[7].

[53] TB 690, Elizabeth Brett Affidavit [18].

[54] TB 691, Elizabeth Brett Affidavit [21].

[55] [2022] VCAT 504 (11 May 2022) and TB 689, Elizabeth Brett Affidavit at [11].

[56] First Brett Affidavit at paragraph [21].

[57] TB 302, Respondent's Submissions [20]-[23].

[58] TB 300-301, Respondent's Submissions 3 October 2023.

[59] South Mor_a_ng Pastoral Co Pty Ltd v Whittlesea CC [2005] VCAT 375 (4 March 2005) at [12].

[64] TB 303-312, Respondent's Submissions in Reply dated 3 October 2023.

[65] TB 229-230, Applicant's Outline of Submissions 15 August 2023, [19](f) & (g).

1. [66] Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86, [72]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 7) [2018] VSC 99, [101].
2. [67] Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475, 487-488; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96; Matthews v SPI Electricity Pty Ltd & Ors and SPI Electricity Pty Ltd v ACN 060 674 580 & Ors, [55].

[68] TB 261-263. It is noted that paragraph 118 and 19 of the document and the whole of Attachment 2 (referable to Charter advice) are redacted.

[69] [2005] VCAT 375 (4 March 2005) at [45] - [46].

[70] [2002] VCAT 397 (23 May 2002).

[71] [2022] VicPRp 56; (2002) 11 VPR 158 (23 May 2002).

[74] [2020] VSC 619 (Loielo).

[75] See, for example, Wentworth, at paragraph [10].

[76] Wentworth at paragraphs [12], [37] and [38] and Truemans at paragraph [52]. Refer also Thompson Discovery Ruling [13].

[77] See, for example, Truemans at paragraph [53].

[78] [2010] VCAT 1690 at [10].

[79] Wentworth at paragraphs [20] to [21] of the 'Ruling on evidence given orally on 27 October 2022', wherein the reference to 'Thompsons' is a reference to the First Discovery Application.

[80] TB 212-213, Respondent's Submissions 17 November 2021.

[81] TB 309-310, Respondent's Submissions 3 October 2023.

[82] Noy at [91]; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248 (Niall JA) at [76].

[83] See, for example, Kassam & Ors v Hazzard & Ors [2021] NSWSC 1195 in relation to a notice to produce in proceedings challenging public health directions. The Court refused the application, inter alia, on the basis that the notice was too wide (at [16]) and sought documents not going to matters relevant to the Minister for Health's decisions to make public health orders under the relevant NSW act (the Public Health Act 2010 (NSW)) and the production would be oppressive in the circumstances.

[84] Refer TB 311-312, Respondent's Submissions 3 October 2023.

[85] This principle was enunciated by the High Court in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] FCA 9; (1932) 47 CLR 1 at 7 (followed in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566) per Gavan Duffy CJ and Dixon J

[86] Applicant's Submissions, TB 296-297; and Respondent's Submissions TB 286-287.

[87] TB 282-283, Respondent's Submissions 15 August 2023 [8]-[13].

[88] Applicant's Submissions dated 1 November 2021.

[89] TB 284, Respondent's Submissions 15 August 2023, [21].

[92] Which the Tribunal accepted in Wentworth at [70], finding that there were not insufficient grounds for the CHO deciding not to revoke the authorisations, that is, to continue to make and have the authorisations in force.

[95] [2010] VCAT 1690 at [10].

[96] Wentworth at paragraphs [20] to [21].

[97] Truemans, at paragraphs [204], [215] - [216], [221] - [223], [228] and [234] - [235].

[98] See Cabot v City of Keilor [1994] VicRp 14; [1994] 1 VR 220 per Gobbo J and Lee v Mitsilias [2005] VCAT 247.

1. [100] See the PHW Act, s 204(7) and Wentworth at paragraphs [65] and [66] citing Thompson v The Secretary, Department of Health [2022] VCAT 504 at [62] (Thompson).

[101] See Smeaton v WorkSafe Victoria [2010] VCAT 1437.

[102] See Applicant's 'Review and Regulation List - Review of a Decision' dated 3 October 2020 under heading 'Reasons for Application'.

[103] TB 286-287, Refer Respondent's Submissions summary of main principles.

[104] Van Niekerk v TEEG Australia Pty Ltd (Human Rights) [2023] VCAT 41 (Van Niekerk) at paragraph [80], citing State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[106] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1638, referring to Noonan v Owners Corporation No. 2 PS409115E [2011] VCAT 1934 at [17].

[108] Van Niekerk at paragraph [83] citing Campagnolo v Benalla and District Football League Inc [2009] VSC 228 at [41].

[110] TB 291, Summary of the Tribunal's Findings in Truemans attached in a schedule to the Respondent's Submissions dated 15 August 2023, TB 290-293.

[111] [2015] VCAT 1594

[112] [2006] HCA 45; (2006) 228 CLR 423.