Victoria Police v Burton [1999] VSC 534

Victoria Police v Burton [1999] VSC 534 - VSC 1999 case summary — Zoe

In this proceeding by way of Order 56 of the Rules, the plaintiff the Victoria Police sought leave to appeal against a decision and order made by the Victorian Civil and Administration Tribunal constituted by Mrs. A. Moshinsky, Q.C. (hereinafter called "the Tribunal") on 5 November 1998. The appeal by way of this proceeding from the decision of the Tribunal arises out of attempts made by the first respondent Bob Burton (hereinafter called "the respondent"), an adviser in environment matters, to access documents allegedly held by the Victoria Police relating to allegations of environmental sabotage at Coode Island, on which island a well-known environmental disaster occurred. The request by Burton for access to documents was first made, pursuant to the provisions of Freedom of Information Act 1982 ("the Act") by a letter of 13 January 1995. That request sought documents relating to a number of matters, including tree spiking at Cann River, eco-terrorism/environmental sabotage material on a group known as Earth First, briefing by police by the Forest Protection Society and the police investigation into a reported break-in to the Victorian Association of Forest Industries Office in 1991. In response to this request, the appellant released 229 folios, and partly released 100 folios (with certain material deleted as being exempt under the Act). Access to a further 110 folios was denied completely on the basis of claimed exemption. In late 1996 Burton sought an internal review of the documents to which access had been denied. The decision to refuse access was upheld by the reviewing officer on 30 May. On 29 July 1996 the respondent applied pursuant to s.50(2) of the Act to the then Administrative Appeals Tribunal for a review of the decision to deny access. On 5 November, the respondent wrote to the appellant Police Force seeking the inclusion of documents relating to alleged environmental sabotage at Coode Island. On 22 November 1996 in a preliminary conference before Deputy President Galvin of the Administrative Appeals Tribunal, the Deputy President requested the Police Force to locate 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". It may be convenient to state at this point that the Victorian Civil Administrative Tribunal Act which established that Tribunal came into operation on 1 July 1998, the previous Tribunal being abolished by another enactment which provided that all proceedings which had been commenced the former Tribunal which were taken to have been commenced before its successor VCAT.

[10]

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.

[12]

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.

[14]

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:

[48]

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.

[51]

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.

[72]

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:

[75]

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.

[77]

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.

[78]

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.

[79]

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.

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Judgment (81 paragraphs)

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