Applicant Disputes Ruling of a Tribunal Asserting Police Misconduct
Marke v Victoria Police [2021] VSC 483 (13 August 2021)
In 2003, the applicant who was a member of Victoria Police, was alleged in a media report to cover up a child sexual abuse by a priest. Later on in his application to become a bail justice, he was told that there were potential issues in his application in relation to the events in 2003. The applicant thus issued complaints to the Victoria Police alleging that there had been police misconduct, malfeasance in public office, and corruption.
Facts:
The applicant was a member of Victoria Police for 36 years until 2009. During his period of police service, in 2003, the applicant was referred to in a media report as having been involved in covering up child sexual abuse by a priest. The media entity involved later apologised as the matter was found to have been unfounded by the Ethical Standards Division.
When the applicant resigned from Victoria Police he was issued with a certificate of service. In 2014, the applicant applied to become a bail justice. In the course of that process, in June 2014 a senior officer of Victoria Police contacted the Honorary Justice Office (‘HJO’) with information relating to the applicant’s application. The applicant was told that there were potential issues with his application and prepared a response directed to his version of the events in 2003.
Later in July 2014 the applicant issued a ‘Privacy Complaint’ and the ‘Conduct Complaint’ to Victoria Police concerning the report of information by the police officer to the HJO. In August 2014, the applicant also filed the same complaints to the Independent Broad-based Anti-Corruption Commissions (‘IBAC’). It was concluded that there had been some miscommunication between the officer concerned and the HJO.
The applicant claims, in substance, that he has been the victim of ‘Police Misconduct’ and ‘Malfeasance in a Public Office’. He also says that there was and has been ‘corruption’ and a ‘cover up’. The applicant made two separate but overlapping applications to the Victorian Police seeking access to documents relevant to at least the contact made by the senior police officer with the HJO and the outcomes of his subsequent Privacy Complaint and Conduct Complaint. The Victoria Police claimed that over particular documents or parts of documents, disclosure would involve an unreasonable disclosure of information relating to the personal affairs of persons and it would be contrary to the public interest to disclose information provided in confidence as it would be reasonably likely to impair the ability of Victoria Police to obtain similar information in the future.
Issue:
Whether or not the Tribunal erred when it deliberated over the FOI and VCAT Act provisions
Applicable law:
Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 117(5), 119(1) & (2) - requires the Tribunal to make findings on material questions of fact.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1) - provides that a party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding to the Trial Division of the Supreme Court in any other case if the Trial Division, as the case requires, gives leave to appeal.
Freedom of Information Act 1982 (Vic), ss 3(1) & (2), 33(1) & (2), 35(1)(b) & 50(4) - provides for the documents which are exempt from disclosure.
Marke v Victoria Police [2006] VCAT 1364 - provides that from filing a notice of appeal in Court, preparing own documents, and appearing in person, it is evident that the applicant is not a complete stranger to processes of litigation, certainly not in the Tribunal.
Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109; (2016) 218 LGERA 167 - the Court of Appeal has given examples of errors that may constitute relevant questions or errors of law ‘involved’ in the decision of a Tribunal, such as:
(a) whether the Tribunal identified and applied the correct legal test;
(b) whether there was any evidence at all to support a finding of a material fact; and
(c) whether the facts fell within a statutory provision properly construed.
Karakatsanis v Racing Victoria Limited [2013] VSCA 305; (2013) 42 VR 176, [21] - emphasised that appeal will not lie in respect of complaints concerning the weight afforded to evidence.
Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, [28]-[29] - provides that in order to engage statutory jurisdiction, a question of law should bear directly upon the relief sought.
Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248, [85] - supports the finding that whether the Tribunal used numbers or names in its reasons can say nothing about whether or not any of the Tribunal’s orders ultimately disposing of the matter were either erroneous or correct.
Analysis:
The Senior Member surveyed the applicable principles as contended by the Victoria Police and held that certain documents did not require release because she cannot accept the applicant's submission that the documents will unveil corruption or wrongdoing. The Senior Member accepted some of the claimed exemptions – particularly, in respect of personal affairs information although the extent of those claims was confined, and some were not accepted.
Appeal is by leave, from an order, and only on a question of law. The jurisdiction of the Court is confined and conditional. Appeal under sub-s 148(1) is not a right. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal. Appeal will not lie in respect of complaints concerning the weight afforded to evidence because a complaint of that kind does not give rise to a question of law.
Conclusion:
The Court is not satisfied that the reasoning of the Tribunal gives rise to any ‘question of law’ with respect to the VCAT Act important to the success or failure of a substantive appeal if leave were allowed. For that reason, leave to appeal must be refused. The Court ordered to dismiss the application. Under s 117(5) of the VCAT Act, it is enough for VCAT to make findings on the facts upon which its decision turns and to explain the logic of the decision. The applicant has been granted the short extension of time sought.
