Victoria Police v Burton [1999] VSC 534

5. The hearing of the respondent's application for review commenced before the Tribunal on 11 November 1997 and, having been heard from time to time over 11 sitting days, was concluded on 23 July 1998. There appear to have been jurisdictional disputes between the parties from the outset, at least according to the affidavit of Alisa Flavel, a law clerk employed by the Victorian Government Solicitor who, under supervision took care of this proceeding for the appellant, sworn on 10th December 1998. These disputes appear to have included whether or not it was the Ombudsman who had jurisdiction in relation to complaints about the inadequacies of searches (which Burton was asserting) rather than the Tribunal. The respondent was represented by counsel throughout the hearing and a number of submissions concerning costs were made. One of these submissions was apparently made on the last day of the hearing before the decision was made, it being put before the Tribunal that Burton had received a bill of costs from his solicitors in the sum of $92,948 (this all occurring about 23 July 1998).

8. In the meantime, the respondent's counsel had had access to some documents at the Victoria Police Centre. The Administrative Appeals Tribunal made a number of preliminary findings that attracted further submissions. On 22 July 1998 the police informed Burton that there were two boxes of Coode Island documents which were available for inspection.

11. On 3 September 1998 the Tribunal made some findings in relation to further documents, gave directions on the issues of jurisdiction and missing documents. After that date, an affidavit of a police officer Lock concerning searches for Coode Island documents was sworn and filed. On 5 November 1998 the decision of the Tribunal was handed down. It concluded that the applicant Burton was substantially successful, he obtaining access to a large number of documents in respect of which access had been refused and also access to documents which had previously been missing. It will be necessary for me to refer in some detail to the reasons for the Tribunal's decision. The ordinary rule in hearings before the Tribunal is that the parties bear their own costs. The discretionary power to order costs exists, however, and in this case the Tribunal found that the applicant was entitled to be indemnified in part as to the costs which he had incurred. It ordered that the respondent (the appellant on this appeal) should pay 60% of Burton's costs. On 3 December, the appellant commenced the proceedings seeking leave to appeal by way of originating motion and on 29 January 1999 Master Wheeler granted the appellant leave to appeal.

14. The appellant's notice of appeal was dated 1 February 1999. This notice has to be considered in the light of the provisions of Part 5 of the Victorian and Administrative Tribunal Act ("the VCAT Act") and in particular the opening words of s.148 which provides that "A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding - " (my emphasis). Any appeal therefore must be from an order and no general visitation to the reasons and opinions is provided for in s.148. But the grounds of appeal beyond doubt must raise a question of law. Mr. Walters, Q.C., who appeared with Mr. K. Mueller for the respondent in this appeal, attacked this aspect at the outset claiming that the notice of appeal in the present case appeared to disregard these limitations. The orders appealed against in the notice of appeal purport to be set out in paragraph 1 of the notice. However, only 1(a) of the alleged orders is an order, namely an order by the Tribunal that -

"Failing agreement between the parties the Respondent to pay an amount equal to 60% of the Applicant's costs (including any reserved costs on County Court Scale A. The Applicant shall be entitled to costs for senior counsel but for no more than two practitioners whether senior and junior counsel, two junior counsel, or counsel and solicitor per day on the days that two or more practitioners appeared before me."

Paragraphs (b), (c), (d) and (e) are not orders appealed against. They masquerade as orders appealed against, when in fact they are but reasons for decision, made on the way to the order of the Tribunal. Interposition of the powers of the Master between the determination of the Tribunal and the hearing by this Court is meant to be efficacious. If these matters were not raised before the Master on 27 January 1999, the appellant was, in my evaluation, in breach of the rights conferred upon it. The notice of appeal goes on to set out questions of law, presumably meant to be the questions of law under s.148. Mr. Walters strongly attacked this formulation as well, on the basis that most of the so-called questions of law are questions of fact, e.g. whether there was evidence before the Tribunal that costs had been incurred by the applicant. Whilst it is true, for example, that question of law 4(c) to the following effect "Whether in exercising its discretion to award costs the Tribunal took into account erroneous and irrelevant considerations or failed to take into account properly relevant considerations" is, even under the modern law, probably a question of law (see Baldwin.& Francis v. Patents Appeal Tribunal (1959) A.C. 663 at 693, the appellant did not put before this Court the transcript so as to enable the Court to know what was the evidence available to be taken into account or such other matters, not falling within the general description of relevant evidence, which were or were not taken into account. What the appellant did, very late in the day, was to put forward some 60 pages of a very substantial transcript, I have little doubt selectively chosen, in order to support the arguments to be advanced. I am of the view that the way the appeal was formulated was mischievous and contrived so as to enable the facts to be re-visited. This was all the more deplorable since what was being appealed against (and it is the only order appealed against) was an order for costs made by the Tribunal which sat through the whole of a long hearing and beyond any doubt was in the best position to evaluate whether or not an order different to the order ordinarily required to be made by the Act in these appeals should have been made.

19. Paragraph 5 of the notice of appeal purports to set out grounds which travel through the announced reasons for the decision made by the Tribunal many of which were never addressed in argument and those that were merely a formulation, in the notice of appeal, of the arguments to be advanced. I express the strongest possible view that such notices of appeal should be discouraged and steps should taken prior to the hearing to have such notices put into an appropriate form or be struck out. As it happens, Mr. S. Kaye, Q.C., with Mr. B. Dennis, who appeared for the appellant, in his outline of his written submissions, and his oral submissions and argument to this Court, put the propositions upon which he relied with his customary clarity and focus, so that counsel for the respondent, and the Court, were able to cope with the intellectual disarray engendered by the notice of appeal.

22. The bulk of the evidence is to be found in the affidavits of Alisa Flavel to which I have previously referred, and in the multiple exhibits, particularly to her affidavit of 10 December 1998. There were, however, filed in opposition some affidavits on behalf of the first respondent. I have considered all of this voluminous material over a considerable period. Unfortunately, it contained most of the submissions put before the Tribunal. I say again, the Parliament has decided that the only appeal from this Tribunal shall be on questions of law. I have no doubt that there has been an attempt in this case to draw in in short form as much as possible of what transpired in the whole of the hearing (probably in an attempt to get a review of the facts, for wider purposes) under the pretext of calling upon the Court to consider whether the costs order which was made ought to have been made. I will refer to the cost provisions in due course. Notwithstanding some differences relied upon by counsel for the appellant between the provisions applicable to this case and the general costs provisions prevailing in the superior courts, there is no reason to doubt that the legislature conferred upon this Tribunal an unfettered discretion to make costs orders to the contrary of the ordinary prevailing order that both the parties will be left to pay their own costs. I can say at the outset (although I will address the reasons in due course) that having regard to the findings of fact made by the tribunal (some set out in a number of decisions that it made prior to the final decision), it would be nothing short of surprising had it not visited the bulk of the costs upon the Victoria Police whose role in suppressing access to critical documents was strongly criticized by the Tribunal. A reading of the material put before me could lead to no other conclusion than that it was not only open to the Tribunal, but a finding of fact bound to be made, that the Victoria Police Force, knowing where the relevant documents sought to be accessed were, first faked a want of knowledge as to the whereabouts of them and then belatedly "found" the Coode Island documents. It produced them only after strong indications were given by the Tribunal about the appellant's conduct, (conduct of obfuscation, avoidance and suppression) which amounted to a refusal to produce documents. The Victoria Police Force (one of the most important institutions in our State, older than our State, and a major force for good and against wrongdoing in our society) hardly covered itself with glory in this attempt to prevent a proper investigation of the basis for statements made as to environmental sabotage in relation to the Coode Island disaster. The Victoria Police Force had absolutely nothing to do with the occurrence of that disaster and it would appear that it was originally misled by some unscientific and inaccurate views expressed by a scientist whose opinion was then accepted by the Police Force. It should be said that within a period of 18 months the Victoria Police Force abandoned the theory that there had been any environmentalist-led sabotage with respect to the Coode Island disaster. It remains a mystery, as I would apprehend, to the Tribunal and certainly to me, why the Police Force did not turn over at the outset the documents that were sought and which were ultimately produced.

25. The grounds disclose an attempt to attack the exercise of a discretion as to costs by seeking to impugn the findings of fact underlying it and with no regard to the balancing process inherent in the exercise. An examination of the Tribunal's reasons reveals a number of factors that were weighed up by the Tribunal in reaching the decision that led to the order. As I have indicated, to the extent that this is even permissible, I know no more than what the exhibits to the affidavit of Alisa Flavel of 13 March, and her later affidavit, discloses. Strangely enough, the affidavit of 15 March says it is made "from my recollection of the evidence and argument, aided by notes that I took during the hearing and notes taken by Mr. Dennis of counsel at the hearing after we listened to parts of the Tribunal's tape-recording of the proceeding." Essentially throughout the hearing before me matters claimed by the appellant to be underpinned by the evidence were challenged as being no more than assertions from the Bar-table as to what the evidence was, the respondents claiming the evidence was not as stated. I note that none of the witness statements, their exhibits and other exhibits and documents which must have been before the Tribunal were produced to this Court. In those circumstances, claims that the discretion miscarried because matters were taken into account that should not have been taken into account, or matters ignored that should not have been ignored cannot carry much weight.

28. Before turning to articulate the grounds as ultimately presented to me on behalf of the appellant in this appeal, I refer to two matters. First, the decision of the Court of Appeal in TAC v. O'Reilly & Ors [1998] VSCA 106 and second, to various parts of the reasons for decision of the Tribunal. In O'Reilly, the Court of Appeal in the separate judgments of Tadgell, Ormiston and Callaway, JJ.A. considered the general principles in respect of making awards of costs, emphasizing, and referring to the statements of the High Court in Latoudis v. Casey (1991) 70 C.L.R. 534 that in general an award of costs is to be seen as compensating the successful party and not punitive of the unsuccessful party. Tadgell, J.A. viewed the judgment in the case as appearing to be sceptical of any proposition that there is no jurisdiction to order a successful party to bear the costs of an unsuccessful party and doubting whether the compensatory principle was an absolute rule, as to so conclude would be contrary to the conferring of discretion in unqualified terms. In particular see the statements of Tadgell, J.A., and the authorities considered there by him, at pp. 11-12, all with respect to the powers of the administrative tribunals to award costs as compared to those of courts of record. His Honour noted that the diverse and disparate powers of the AAT to award costs were not to be assimilated to those of courts of law, as indeed the decision of the AAT would indicate. In O'Reilly (one of the four decisions that are subsumed under that title) it was concluded that the exercise of the Deputy President of the AAT of the power to make an order as to costs revealed no error of law. However, there appears to be little doubt that in the exercise of the broad discretion the Tribunal was entitled to have regard to many considerations, including whether it was just in the circumstances that the applying party should receive compensation for its costs. Ormiston, J.A. expressed the strong view that it has been unfortunate that appeals relating solely to costs were brought citing various decisions in the High Court and other courts as to that aspect. Whilst Ormiston, J.A. reiterated some previously expressed dissatisfaction as to the width of the discretion with respect to the type of case then under consideration, his Honour went on to say (p.31) that:

"it has been accepted for many years that it is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its powers to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party."

A fortiori that principle should apply here, as the Tribunal in this case made an order in favour of the successful party but moderated it because some issues, of a less significant kind, had been lost. There is ample authority to suggest that there may be many reasons why in many cases no such diminishing should take place. But it cannot be doubted that the power exercised by the Tribunal in this case to reduce the costs order in favour of the respondent here Burton, by 40%, existed. It is probably just as difficult to attack that reduction as the order made by the Tribunal that the appellant should pay the respondent's costs of the hearing at the Tribunal.

33. I note that Callaway, J.A., whilst agreeing with Tadgell, J.A.'s orders, put the view, a matter subsequently reiterated and still the subject of some ongoing evolution in courts of appeal, that no question of law is involved in a decision simply because a tribunal makes a finding of fact not supported by evidence. Nor is it sufficient merely that a conclusion of fact is shown to be unsound. The consequence will depend upon the nature of the decision and the character and significance of the finding or conclusion. His Honour also stated at p.37:

"A fortiori it is usually insufficient that a tribunal gives too much, or too little, weight to a finding of fact that is supported by evidence if the appeal is limited to an appeal on a question of law."

Thus, as I would apprehend, the question of whether a verdict, particularly one on an issue of costs, is perverse or unsatisfactory is not a question of law, within the meaning of the relevant section in this case.

38. I will first set out relevant provisions of the Freedom of Information Act 1982, the Act pursuant to which the respondent Burton made application for access to documents. Section 58 provides as follows:

(1) Subject to sub-section (2), in any proceedings before the Tribunal arising under this Act the costs incurred by a party shall be borne by that party.

(2) The Tribunal may order that the costs incurred by an applicant in the proceedings shall be borne by the person who made the decision under review."

44. Section 50(2) of that Act is in the following terms:

"(2) Subject to section 51, an applicant may apply to the Tribunal for review of -

(a) a decision refusing to grant access to a document in accordance with a request;

(b) a decision deferring the provision of access to a document;

(c) a decision as to the amount of a charge that is required to be paid before access to a document is granted, whether or not the charge has already been paid by the applicant, provided that the Ombudsman has certified that the matter is one of sufficient importance for the Tribunal to consider;

(d) a decision under section 12(2)(a) not to specify a document in a statement; or

(e) a decision to disclose a document under section 33(3), or to disclose a document contrary to the applicant's view as obtained under section 34(3), or not to amend a record pursuant to a request under section 39."

Section 27 provides as follows -

"(1) Where, in relation to a request for access to a document of an agency or an official document of a Minister, a decision is made under this Part that the applicant is not entitled to access to the document in accordance with the request or that provision of access to the document be deferred or that no such document exists, the agency or Minister shall cause the applicant to be given notice in writing of the decision, and the notice shall -

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and the reasons for the decision;

(b) where the decision relates to an agency, state the name and designation of the person giving the decision;

(c) where access is given to a document in accordance with section 25 state that the document is a copy of a document from which exempt matter has been deleted;

(i) his right to apply for a review of the decision;

(ii) the authority to which the application for review should be made; and

(iii) the time within which the application for review must be made; and

(e) where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28 or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman.

(2) In a notice under sub-section (1), an agency or Minister -

(a) is not required to include any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document;

(b) if the decision relates to a request for access to a document that is an exempt document under section 28 or 31 or that, if it existed, would be an exempt document under section 28 or 31, may state the decision in terms which neither confirm nor deny the existence of any document."

66. The respondent Burton had originally made a request from the Victoria Police for the production by them of all documents relevant to the allegations by the police that the explosion at Coode Island had been caused by sabotage resulting from the likely involvement of environmental terrorists (the Coode Island documents).

69. According to the affidavit of Mr. Parsons, the solicitor for Burton, sworn 13 April 1999, paragraph 2:

"On 22nd November 1996 the first respondent attended a preliminary conference held before Deputy President Galvin. The first respondent repeated his earlier request to the appellant for production by the police of all documents relevant to the allegations by the police that the explosion at Coode Island had been caused by sabotage resulting from the likely involvement of environmental terrorists. Deputy President Galvin directed that the appellant ascertain the existence and whereabouts of such documents and, if not exempt, make them available to the first respondent."

73. I refer to that now because, as will appear, one of Mr. Kaye's arguments was that the description of the documents as relevant to the allegations by the police was confined literally to those allegations, and not to background matters in relation to investigations and inquiries that led to those allegations, that is, it did not include documents containing material that might have borne upon, caused or been connected with the statements made by police that the explosion at Coode Island was due to environmental sabotage. I say now that the construction contended for is impossibly narrow, illogical and incorrect. I do not doubt that from the time of that preliminary conference and the statements of Deputy President Galvin (that statement being heavily relied upon by the appellant here as confining the production of documents to police allegations and not inquiries and investigations that preceded the allegations) that the Victoria Police knew that the Coode Island documents were sought as part of the request. It would appear that until the submissions as to costs the Victoria Police never raised any issue as to the irrelevance of the request for Coode Island documents. The fundamental feature of the appellant's case on this aspect has been to say that the statement by the appellant that it had no such documents did not constitute a refusal to produce them. In my opinion, any reasonable view of the Galvin direction (even before the

Tribunal first ruled and later directed their production) must have required their production. The Tribunal clearly concluded that the police were sitting on the documents and would not produce them. They ultimately produced in excess of 300.

76. Their pertinence is not a matter for this Court but it was the view of the Tribunal (which was in a position to make an objective judgment about it) that there had been an attempt to hide behind an unacceptably literal construction of s.50(2), so that it could be put that it did not amount to a decision refusing to grant access to falsely claim , when required by the Tribunal to answer, that the documents were not in the possession of the body being called upon to grant access. The evidence apparently accepted by the Tribunal (and to some extent reproduced in material before this Court) would indicate that Burton made repeated attempts to obtain the documents, first, when he was representing himself at directions hearing and contacting the Victorian Police on his own behalf and then later on when counsel were employed, to whom undertakings were given to produce the documents. If Parson's evidence as to that is correct, counsel for the respondent were obstructed in a number of respects and their accessing of such documents as were produced were made as difficult as possible. The Tribunal ultimately held that the appellant's refusal to allow Burton's counsel to have copies of the documents, subject to the usual undertakings was not warranted.

79. The Tribunal made and gave in writing, after submissions had been made various rulings and findings on the way to the final determination. The first of these (Exhibit AF10 to the affidavit of Alisa Flavel) of 15 March 1999 (all of the relevant findings are exhibits to her affidavit) was given on 2 March 1998. That involved preliminary findings as to whether a number of documents that had been sought were fully or partly exempt under the Act. There appear to have been sample documents selected. The Tribunal stated that the object of the Act was to extend to the community a general right of access (s.3) and consistent with the object the onus lay on the Victoria Police to establish, as to all the information in each of the documents in issue, that the refusal was justified, relying on s.55(2). It is not necessary for me to refer in detail to those findings save to say that Tribunal concluded that parts of the documents were exempt, full exemptions was claimed in respect in nearly all of the documents and only one was released in full (document 80). On 29 June, after the parties had made further submissions in relation to documents, the Tribunal made additional preliminary findings. All of the preliminary findings were stated not to be intended to constitute the judgment or reasons on the whole application but as being intended to aid the parties to consider the remainder of the documents and hopefully come to an agreement as to disclosures and exemptions. The Tribunal indicated that the Victoria Police was to undertake the appropriate search exercise referred to by the Tribunal in its reasons of 2 March. The Tribunal stated that the claims made by the respondent that the documents be entirely exempt was clearly wrong. It referred to the failure of the respondent to undertake the exercise even after discovery and production even after preliminary findings and to its delays and failure to do so. Even at that stage, the applicant Burton did not escape some criticism as the Tribunal expressed concern at the time taken during the hearing on the question of public interest. A reading of these reasons, and the findings as to specific documents, reveals that the appellant put serious obstacles in the path of the applicant. It fought strongly over each document and, many sentences in many documents.

82. On 3 September 1998 the Tribunal released further findings on further documents and made determinations on the issue of jurisdiction. It is not necessary to address the detail of the documents but in respect to many a positive finding was made that their disclosure would not be contrary to the public interest and in one case (para. 6.6) a finding that disclosure would be contrary to the public interest and that there was a risk that the effectiveness of the police investigation could be undermined by its disclosure. In the course of those reasons the Tribunal stated:

"However in the light of the evidence called as to the Coode Island documents, had they been before me, I may have formed a different view on the public interest issue. I note in the letter from the Ombudsman to the applicant of 12/12/97 it was said: 'In hindsight, it was very unfortunate that such claims (suspecting saboteurs for the Coode Island damage) were openly made to the media.'"

Doubtless the view of the Ombudsman was partly driven by the fact that the claim initially made by the police about environmental saboteurs had been totally abandoned within the next 18 months. The Tribunal stated that in circumstances where documents did exist and had not been destroyed, both the applicant and the Tribunal were entitled to be satisfied that a thorough and diligent search to locate the documents had been undertaken. As will appear, Mr. Kaye before me argued that there was no warrant in the Act for a requirement for a thorough and diligent search other than through the Ombudsman. The claim made with respect to those documents by the Police Force was that they had been in the custody of the Coroner. The Tribunal took the view that it was or should be standard procedure to record what documents were held by the agency and to note where they had gone to. It could hardly be doubted that that explanation for the non-production verged on the misleading. In my view, to suggest that because the Police Force gave them to the Coroner (if it did) it had no subsequent responsibilities with respect to the production of the documents is incorrect. According to the Tribunal, it was informed from the Bar-table by the representatives of the Victoria Police that "it would be too onerous for a list of documents to have been compiled when the documents were given to the Coroner". Not surprisingly, the Tribunal viewed this persiflage with scepticism. I refer to it as being the type of information that was likely, and reasonably, to have influenced the Tribunal on the question of costs, once the ultimate findings were made. The Tribunal held that it would be contrary to the object and purpose of the legislation if it could not satisfy itself that the documents did not exist and could not be located, once that was put into issue by the applicant. This statement was obviously made because the claim was being made to the Tribunal (and it was made to me also) that although the matter was before the Tribunal and the matter was raised by the applicant, the Tribunal had to send the matter off to the Ombudsman to exercise his s.27 jurisdiction for diligent search. In my view, the Tribunal rightly rejected such a stultifying inhibition of its powers which would be bound to lead to a delay and increased costs. The Tribunal expressed the view that "the advice that documents are missing is a refusal to give access, which is a reviewable decision. The review of a refusal may not be limited to grounds of exemption. Pursuant to section 54 the Tribunal has the same powers as the agency in respect to a request; accordingly, in my opinion, it can direct that further searches be undertaken." Thus at that stage the Tribunal formed the conclusion and expressed the view that it had jurisdiction in the issue of the missing documents and in those circumstances it formed the view it could determine on the evidence whether the documents no longer existed or simply could not be located and depending on the circumstances it might affirm the respondent's decision or directed further searches be made.

87. At that point of time, the Tribunal accepted that the Coroner could not locate the documents. It clearly expressed the opinion that under the terms of paragraph 50(2)(a) refusing to grant access to a document encompasses both a decision that the applicant was not entitled to access and the decision that no such document existed. Thus, it decided that the Tribunal could satisfy itself as to whether the applicant was entitled to access, to whether the documents exist and that the applicant was entitled to be informed pursuant to paragraph 27(1)(e) of the Act where the decision is to the effect that the documents do not exist or cannot be located. It also concluded that the right to complain to the Ombudsman was predicated on the thorough and diligent search having been undertaken by the agency and not in lieu thereof.

90. On 5 November 1998 the Tribunal announced its decision and it made an order. It is not necessary to go to the orders which provided for access to documents with certain deletions. But paragraph 6 of the order was in the following terms:

"6. Failing agreement between the parties the Respondent to pay equal to 60% of the Applicant's costs (including any reserved costs) on County Court Scale A. The Applicant shall be entitled for costs for senior counsel but for no more than two practitioners whether senior counsel and junior counsel, two junior counsel or counsel and solicitor per day on the days that two or more practitioners appeared before me."

94. It also made the following observations relevant to the question of costs and I summarise:

(a) it confirmed that determination on the issue of jurisdiction and stated that it was satisfied that the respondent had now undertaken a thorough and diligent search of the documents and that access had now been provided to all existing relevant documents;

(b) it considered the matters raised by the parties in relation to the Coode Island documents in detailed submissions and costs made to the Tribunal;

(c) it accepted that the correct principle should be that the Tribunal would depart from the general rule as to costs if in all the circumstances it was appropriate to do so. The general rule of course is that each party bears its own costs. I note in passing that Mr. Kaye did not dispute that that statement of principle was correct;

(d) it was for the applicant Burton to show why the Tribunal should exercise a discretion to order costs in his favour;

(e) (i) the respondent unreasonably withheld material and prolonged proceedings;

(ii) the then respondent was obliged to give due regard to the process required by the FOI Act;

(iii) the Victoria Police failed until earlier in 1998 to undertake a thorough and diligent search for the Coode Island documents;

(f) the applicant was not bound to show that he was unconditionally bound to pay such costs prior to the determination of the proceeding.

On 27 November the Tribunal released more elaborate reasons, of some 31 pages. It is self-evident that these are too substantial to reproduce and consider in detail. I will deal with them when dealing with counsel's submissions. However, on the critical costs issue (and I do not overlook that that is the issue that has been sought to be brought to this Court), the Tribunal paid regard to the statements made by the High Court in Latoudis v. Casey (1991) 70 C.L.R. 534 (per McHugh, J. 566-567), that "an order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation." It stated:

"The substance of the respondent's submission was that costs had not been incurred if the applicant's advisers were acting either on a pro bono basis or liability for cost was contingent on success or more relevantly on an order for costs being made in favour of the applicant. In my opinion the submission has to be rejected. The applicant is entitled to be indemnified if, as a consequence of the proceedings and the order he becomes unconditionally liable to pay costs. Neither the applicant nor the respondent is entitled to a windfall at the expense of an adviser acting under a conditional agreement. I do not consider it appropriate and refused a request by the respondent to cross-examine the applicant as to the basis of his arrangement with his professional advisers. If there is an issue as to the applicant's liability for costs it is a matter that can be raised on a taxation, proof of payment or direct payment can protect the respondent in such circumstances. To avoid any ambiguity or difficulty arising from the fact that the order for costs only entitles the applicant to a percentage of his costs, which may conflict with any cost agreement, I have made the order in terms that the respondent pay an amount equal to 60% of the costs on the appropriate scale. "

107. The Tribunal (para. 112) went on to indicate that the applicant had been substantially successful both in obtaining access to a large number of documents in respect of which access was refused and in obtaining access to documents previously said to have been missing. The Tribunal made this positive finding:

"I accept that the respondent unreasonably withheld material and prolonged the proceedings. That the respondent failed to give due regard to the process required by the FOI Act. And that the respondent failed, until earlier this year, to undertake a thorough and diligent search for the Coode Island document."

In effect, the Tribunal did not order full costs because the applicant had not succeeded on his public interest argument in favour of complete access. It is not clear on reading the reasons whether or not the Tribunal went through the intellectual process of determining that the applicant would have been entitled to all of his taxed costs had he not failed on the public interest issue and then reduced the costs by 40%. Or whether it simply considered all the issues and by an "intuitive synthesis" process decided on 60%. For the purposes of this hearing, it is not necessary to know that, because the Act clearly confers a discretion and the manner of its exercise is not reviewable, so long as there was some reasonable basis upon which departure from the "no costs" rule could be justified, and a basis upon which a balancing exercise as to the costs could or should have been undertaken.

112. Before turning to consider the submissions made by counsel, I should say that much of the material put before me in this case by way of affidavit was re-visiting facts as though this were not an appeal. Both sides liberally re-presented the history of all the matter, almost as though it was believed that this was a form of re-hearing by this Court as to whether or not a costs order ought to have been made. It would have been more relevant and valuable had the notice and grounds of appeal focussed on questions of law instead of arguing that a different decision as to costs ought to have been made.

115. Mr. Kaye for the appellant frequently addressed as to the facts, that is whether those findings of fact made that the police suppressed, or evaded or were deliberately slow in producing documents, ought to have been made. Submissions of that kind were positively unhelpful, particularly without the transcript of evidence. They appeared to be made without regard to the single issue here, namely whether there was a basis upon with the Tribunal was entitled to exercise its discretion as to costs. Finally, before embarking upon a consideration of the arguments advanced, I note the bill of costs rendered by Slade & Parsons, Burton's solicitors (part of Exhibit AF4 to the affidavit of Alisa Flavel of 10 December 1998), dated 29 July 1998 which set out the total costs and disbursements on the Supreme Court scale at $92,947 and on County Court scales averaging $91,000. Disbursements of nearly $83,000 were involved in these amounts, nearly all fees for counsel.

118. Mr. Kaye's submissions in substance were as follows: First that it was the respondent Burton to establish a binding legal obligation on him to pay the costs before he was entitled for an order for costs under s.58 of the Act. The submission was that he had to establish that obligation and the Tribunal erred in awarding him costs without finding that he had established it. Second, that the Tribunal's order for costs was based in part upon the view it had formed that the Victoria Police had an obligation to make adequate and diligent searches for the documents, a matter which the appellant contends the Tribunal had no jurisdiction. Third, that the Tribunal erroneously concluded that adequate inquiries had not been made for the documents. Fourth, the Tribunal failed to take into account all relevant considerations. And fifth, the Tribunal took into account irrelevant considerations.

121. I turn to the first submission, that is that having regard to the form of s.58, even if the Tribunal favoured making an order for costs instead of no order for costs, it could only make such an order if it was satisfied that the costs had been incurred, that is, that they were an indemnity in respect of a binding legal obligation on the party to pay costs to his solicitor. The argument was sought to be founded upon statements in Adam v. Blunden Improved Motor Coach Builders Ltd. (1921) 1 K.B. 495 at 499, 505 and Goundry v. Sainsbury (1910) 1 K.B. 645 at 649 and Latoudis v. Casey (supra). Mr. Kaye sought to contrast the provision of s.58 to the ordinary rules that prevail in the ordinary courts, namely that costs follow the event. He argued that s.58 contained an express stipulation that the costs which were payable must be those "incurred by the party", contrasting the use of the phrase "incurred" with the legislation that authorizes courts to award costs, e.g. Supreme Court Act s.24(1), County Court Act s.78(a); Magistrates' Court Act s.131. But there is no doubt that the respondent was represented by counsel; there is no doubt that counsel's fees were rendered to the solicitor and included in the solicitor's bill of costs to the client. At the heart of the complaint was that an evidentiary obligation lay on the applicant-respondent to prove, by calling evidence, that he was liable to meet the costs. The submission made to me was that the Tribunal had declined to hear evidence on it. This is, in my judgment, something of a misdescription as the position was that the Victoria Police sought to have the Tribunal direct that Burton be called, in order to be cross-examined by counsel for the police. This application was rejected and in my view appropriately rejected. The Tribunal was in possession of the relevant information concerning the delivery of the bill of costs. Not only tribunal of this kind, but courts, should be slow to embark upon hearings as to whether a bill of costs, or the costs apparently being incurred as the proceeding goes on, had been actually incurred, or would or could be paid, or whether there was some other "deal" lying behind the bill of costs. In my view, the Tribunal was entitled to infer that the applicant had incurred costs. I note the observations of Pincus, J. in Hodgson & Anor v. Endrust (Australia) Pty. Ltd. & Anor (1986) 11 F.C.R. 152 at 154 to the following effect:

"Before me, counsel for the applicants argued there was an onus upon the party on the record seeking to enforce an order for costs to show the existence of a retainer, which onus had not been discharged. The trend of the authorities and in particular in the decision of the House of Lords in Davies v. Taylor is, in my view, to the contrary; the court will hold, in the absence of proof of an express agreement to the contrary, that a solicitor acting upon instructions for the party on the record is taken to be entitled to look to that party for costs, even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation. The doctrine is one of deemed retainer."

In the United Kingdom it had been earlier held in R. v. Miller (Raymond) & Anor (1983) 3 All.E. 186 that the law was that costs were incurred if the client was responsible to meet them. The fact that he was the client lead to a presumption that the client was personally liable for costs, a presumption that might the rebutted if it could be established that there was an express or implied agreement that the client would not have to pay. Both in Hodgson and Miller the issue arose in the context of taxation of costs where the issue of whether or not there was an agreement to pay the costs might be raised. See too Johnston v. Santa Theresa Housing Association [1992] NTSC 29; (1992) 83 N.T.R. 14. Adams seems to me to be distinguishable on the basis that there was evidence before the Court that there was no liability to pay costs. This rendered inapplicable any entitlement to a costs order. Mr. Kaye did not much address the requirements of s.93 of the Legal Practice Act 1996, to the following effect that legal costs are recoverable (a) under a costs agreement made in accordance with the Act, or (b) in the absence of a costs agreement, in accordance with any applicable practitioner remuneration order or a scale of costs; and (c) if neither (a) nor (b) applies, according to the reasonable value of the legal service provided. Even if there had been no costs agreement in this case, costs are and were recoverable from the client. Once the Tribunal moved away from the ordinary situation that no order for costs would be made, there was no reason to take the position that the applicant had to call evidence to prove the incurring of costs, because the usual presumption arises upon the production of the bill.

Mr. Kaye also argued that the language used by the Tribunal indicated that it had passed to the Registrar (the Taxing Officer for the Tribunal), the power and obligation to make a decision as to whether or not, and to what extent, costs would be ordered. This is clearly incorrect as the Tribunal made a positive order that the respondent was to pay 60% of the applicant's costs. Perhaps the language used, to the effect that "if there was an issue as to the Applicant's liability for costs, it is a matter that can be raised on taxation. Proof of payment or a direct payment can protect the respondent" might, with the benefit of hindsight have been better expressed having regard to the order that had been made. However, I have no doubt that what was intended was that with respect to the Registrar, his consideration of what was the amount within that liability for allowable costs might take into account proof of direct payment, e.g. payment of counsel's fees, already made. Moreover, paragraph 109 of the reasons makes it clear that if there were any ambiguity arising from the order as to 60% only of the costs decided to be ordered, the 60% was 60% of scale costs, not costs agreed to be paid, if there were any such agreement. An associated submission was that the form of the order was uncertain and unworkable on the basis that it provided for the payment to the practitioners on a particular day. However, I do not regard that the form of order as creating any confusion. If taxation of the costs was to take place the only costs that would be allowed would be those of the two practitioners in attendance on each particular day, surely a simple question of fact. If it was senior counsel and the solicitor, it would be their cost. If it were a junior counsel and a solicitor it would be their cost. If it were three, one would expect it to be counsel. The evidence appeared to suggest that normally only two practitioners attended on each day. For these reasons I reject the first submission made on behalf of the appellant.

127. The second submission was concerned with whether or not the Tribunal had any jurisdiction to determine whether documents sought by the applicant existed, whether adequate searches had been made for them and whether or not there was any jurisdiction at all to make any form of inquiry as to documents. This was founded upon the proposition that s.52 of the Freedom of Information Act only empowered the Tribunal to review a decision "refusing to grant access" to a document. The argument thus was that a failure to produce was not a refusal to grant access nor was a response by an agency that a particular document did not exist amount to a refusal to grant access to a document. I have already made some reference to this and take the view that such a statement may amount to a refusal, and did in these circumstances.

130. Mr. Kaye argued throughout that the critical matter concerning production of documents were the terms of Deputy President Galvin's direction. Thus he contended that the relevant documents did not relate to an issue of environmental sabotage but whether they were related to the police allegations. In my view, this argument must be rejected as it seeks to impose upon the document issue such a narrow perspective that the purposes and intention of the Act could or might be frustrated. I find it unacceptable that the order made was intended to be so narrowly confined, that is, as to the police allegations but not to any of the facts and circumstances that preceded to the allegations, or arguably led to them, or which were connected with them after the allegations were made. In my view the Tribunal's function was not to be circumscribed in that way. There is no doubt that on the findings of fact that were made that the Victoria Police had not produced relevant documents until a very late stage. Even then, the claim that the "missing" documents had been inadvertently or unknowingly left with the Coroner was never sworn to by a witness who could swear to it but it appears to be a Bar-table assertion. This is a different issue from the issue as to whether or not the Tribunal was entitled to take into account the deliberate obfuscation by the Victoria Police. This is an issue as to the relevance of the documents. Mr. Kaye submitted that they were not relevant. That issue had already been decided against him by the Tribunal which rightly took the view that the applicant was entitled to pursue the documents that bore upon the environmental sabotage theory, even though the police had ultimately abandoned it. It is apparent enough on reading the material that the theory falsely originated with one Barnes on illusory grounds, later exploded, based upon alleged cutting of metal piping. The argument advanced by Mr. Kaye that these Coode Island documents did not relate to environmental sabotage but only related to whether or not the police had conspired to concoct the story is impossible of acceptance.

133. The argument was also advanced that the Tribunal had no power to review the response by the Victoria Police that the documents did not exist. The Tribunal clearly did conclude that it had that power at least in the circumstances here prevailing when it reached provisional views that the documents did exist but had been either suppressed or diverted out of the possession of the Victoria Police. I refer to statements made by the Tribunal and some of the preliminary decisions. The Tribunal took the view that it ultimately obtained the documents but should have got them earlier, in January 1998 on the so-called Napier inspection. It would appear to me on examining the material that it was never asserted by the appellant Victoria Police that the documents were not relevant to the request but merely that they were missing. The argument was also advanced by Mr. Kaye that the whole issue of whether the search for documents had been adequate and thorough was never a matter for the Tribunal but only for the Ombudsman. I have already indicated my view this argument is incorrect. It may be that in many circumstances the matter might be run through the Ombudsman but once the Tribunal was seized of the issue, its right to direct appropriate inquiries could not be subordinated to and fettered by the overlapping power in the Ombudsman, if he were called upon to exercise the powers. It appears in this case, in any event, that the applicant before the Tribunal was putting the matter in a dual basis, namely that he would if necessary go the "Ombudsman route" but was first putting the case that since both parties and all of these issues were before the Tribunal, the Tribunal should deal with them. In my judgment, there is nothing in the Act to suggest that the Tribunal did not have the jurisdiction which it decided it did have and did exercise. With respect to the argument there is no jurisdiction under s.52(a) to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal. I reject that submission. In any event, s.27 was not likely to be intended to apply to a case in which the issue of proper disclosure of documents was actually before the Tribunal. It should be noted that the Lock affidavit was put in after the preliminary orders made by the Tribunal. It was the Lock affidavit that explained how Barnes had taken the documents and, moreover, that he had a track record of doing this. It was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. It is obvious that the appellant did not deny that documents related to the public allegations of sabotage had existed. The failure of the appellant to call evidence as to the whereabouts of such documents (until the Lock affidavit) was significant and in my judgment a matter entitled to be taken into account by the Tribunal on the question of costs, as were all of the circumstances surrounding the long battle to get the appellant to produce the appropriate documents. The mere assertion on behalf of the appellant that no such documents were in its possession or control could not strip the Tribunal of the power to consider the matter. The question of access to these documents is not a question of benevolence and pursuant to s.13 of the Act the applicant had a legal and enforceable right to obtain access in accordance with the Act. In this particular case, the power of the Ombudsman to inquire appears to have been an irrelevancy. Section 27(1)(e) limits the ambit of that section where the decision does not relate to a request for access to a document that, if it existed, would be an exempt document. It is certainly arguable that the provisions of s.27(1)(a) might well exclude the Ombudsman's powers in the circumstance where the documents, if they were existed were similar to those with respect to which exemptions under s.31 were being argued for by the applicant to the Tribunal. I note that s.50(4) provides that on hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including the power to decide that access should be granted. The Tribunal ultimately made a decision, based upon the Coroner reporting that the Coroner's Court did not have the documents. Until 25 September 1998 that allegation that it did was unsupported by evidence. Neither the applicant nor the Tribunal had the opportunity to test it and it appeared to be inherently unlikely that the event had occurred. No police officer connected with the public statement by the Police Force that the fire had been caused by environmental saboteurs was ever called. In my judgment, the Tribunal stood against the proposition that the erection of an impenetrable barrier to the access of documents, conceivably embarrassing, should be permitted, and took a strong view about the effectiveness of the relief that it should order. It was not necessary for the Tribunal to decide whether or not a mere assertion that documents cannot be located, without any detail of any kind, could ever a proper evidentiary basis for determining whether or not the decision was one to which s.50 relates.

136. With respect to the argument that relevant considerations were not taken into account, it was submitted on behalf of the appellant that the failure of the respondent to make out a case of public interest pursuant to s.50(4) of the Act was important and relevant, that that issue occupied a substantial amount of time at the hearing and in the course of seeking to establish the relevant public interest the respondent had made serious allegations against the appellant. Thus the argument was that in determining that the appellant pay the costs of the respondent the Tribunal failed to give adequate weight to the failure of the applicant to establish public interest. Moreover, it was put that the Tribunal partly based its order for costs on the proposition that the first respondent substantially succeeded and that in so finding, it failed to take into account properly or at all the respondent's failure on the issue of public interest and the fact that a substantial number of the documents were found to be either exempt or partially exempt. However, this is no more than an assertion that either no costs should have been awarded or a lesser amount than 60% of the costs. Similarly, with respect to the other ground that irrelevant and erroneous considerations were taken into account, the argument is that the Tribunal took into account, and wrongly took into account, the behaviour of the Victoria Police in resisting access and putting obstacles in the path of access. In support of this argument it was said that a number of the claimed exemptions were upheld by the Tribunal. Mr. Kaye argued that the allowance of 40% for the public interest failure was too little. Nevertheless he was careful to avoid admitting that this was no more than a mere disagreement with the Tribunal's conclusions as an exercise of discretion, although the Tribunal regarded that public interest override of exempt documents was not made out. It was up to the Tribunal to evaluate that aspect against the strong view it had formed about the conduct of the appellant. The Tribunal was in the best position to determine the matters to which Mr. Kaye referred, namely the allegations made against the police, the upholding of claimed exemptions and the like and it did so. It was not possible to mount a persuasive argument that an allowance of 40% (or put the other way round, a no greater allowance of costs of more than 60%) was not reasonable in the whole of the circumstances, even if one takes reasonableness as being one of the touchstones of the exercise of discretion. As long as the discretion has been founded upon a consideration of all the appropriate matters, there is a long history of superior courts not interfering with the evaluation of the Tribunal below, particularly on an issue of costs. Mr. Kaye thoroughly ransacked the Tribunal's reasons but has failed to come up with anything that established error or denotes an inappropriate exercise of discretion.

139. I note that the Tribunal's hearing of this matter was episodic and spread over a long period of time. There is no doubt that the appellant had the time and circumstance in which it may have made application to a superior court to restrain the Tribunal from ordering production of documents now said to be irrelevant, or directing searches. It did not do so, but ultimately elected to co-operate, belatedly, with the Tribunal in the relevant respect. I have formed the view that the matters taken into account by the Tribunal were open to be taken into account on the question of costs and there is no miscarriage of the exercise by the Tribunal of the discretion in the relevant respect. The Tribunal appears to me to have paid appropriate attention to the relevant principles. Contrary to Mr. Kaye's assertion, the Tribunal was well aware of the principles pronounced by the High Court of Australia in Latoudis v. Casey (supra) and did not impose a costs order by way of punishment. What the Tribunal appeared to be concerned with was the delay and difficulties occasioned to the applicant. As such it appropriately exercised its discretion to award costs, but diminish them having regard to a failed issue.

142. For these reasons the appeal is dismissed. Subject to hearing counsel in respect of the costs of the appeal, the appellant is ordered to pay the first respondent's costs of the appeal.