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‘AM5’ and V/Line Corporation (Freedom of Information) [2019] VICmr 113 (19 September 2019)

Date of decision:19 September 2019
Applicant:'AM5'
Agency:V/Line Corporation
Citation:'AM5' and V/Line Corporation (Freedom of Information) [2019] VICmr 113 (19 September 2019)
Headnote:FREEDOM OF INFORMATION – information provided in confidence – personal affairs information – legal professional privilege –employee investigations – investigations reports – correspondence with witnesses – meeting notes – internal emails
Sections in the FOI Act:33(1), 32, 35(1)(b)
Download this file:AM5 and V Line Corporation Freedom of Information 2019 VICmr 113 19 September 2019 - PDF (1 MB)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release additional information to the Applicant.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

19 September 2019

Reasons for Decision

Background to review

  1. The Applicant made a request to the Agency for access to documents relating to investigation and warnings received by the Applicant, documents relating to a job application and their WorkCover file.
  2. In its decision, the Agency identified certain documents falling within the terms of the Applicant’s request. It decided to grant access to some of those documents in part and refused access to other documents in full.
  3. The Applicant seeks access to the information exempted by the Agency in support of an application to the Fair Work Commissioner.

Review

  1. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
  2. I have examined copies of the documents subject to review.
  3. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
  4. I have considered all communications and submissions received from the parties, including:
    1. the Agency’s decision on the FOI request dated 4 February 2019;
    2. the Applicant’s request for review dated 14 February and information provided with the review application; and
    3. the Agency’s submission dated 26 February 2019 dated and further information provided throughout the review.
  1. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.

Review of exemptions

  1. The Agency relied on the exemption in section 33(1) to refuse access to two documents in part. The remainder of the documents were refused in full under sections 32 and 35(1)(b). The Agency’s decision letter sets out the reasons for its decision.

Section 33(1)

  1. A document is exempt under section 33(1) if two conditions are satisfied:
    1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant;[1] and
    2. such disclosure would be ‘unreasonable’.

Does the information constitute ‘person affairs information’?

  1. Information relating to a person’s ‘personal affairs’ includes information that identifies any person or discloses their address or location. It also includes any information from which this may be reasonably determined.[2]
  2. I am satisfied the information exempted by the Agency under section 33(1), which in this instance was names and email addresses of agency officers, is ‘personal affairs’ information for the purposes of section 33(1).

Would disclosure of the information constitute unreasonable disclosure?

  1. Determining whether disclosure would be unreasonable involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
  2. In determining whether the release of the personal affairs information is unreasonable, I consider the following matters are particularly relevant:
    1. the nature of the personal affairs information (for example, whether it is sensitive or its current relevance);
    2. the circumstances in which the information was obtained;
    3. the Applicant’s interest in the information, including their purpose or motive for seeking access to the documents;
    4. whether any public interest would be promoted by disclosure;
    5. whether the individuals to whom the information relates consent or object to the disclosure; and
    6. whether the disclosure of information relating to the personal affairs of any person would, or would be likely to, endanger the life or physical safety of any person.
  1. I have also taken into consideration that the nature of disclosure of a document under the FOI Act is unconditional and unrestricted, which means an applicant is free to disseminate widely or use a document disclosed to them as they choose.[3]
  2. Section 33(2A) requires that, in deciding whether the disclosure of a document would involve the unreasonable disclosure of information relating to the personal affairs of any person, I must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. However, I do not consider this to be a relevant factor in the circumstances.
  3. I have decided it would be unreasonable to release the name of the employee who provided information to the Agency in the course of its investigation and management of a complaint relating to the Applicant. The personal affairs information was provided in a specific context involving an investigation into an alleged workplace incident involving the Applicant. There is a strong public interest in maintaining an Agency’s ability to obtain information from its employees in relation to workplace incidents. If personal affairs information of witnesses were released, the Agency’s ability to thoroughly investigate and manage workplace incidents may be impaired, as people may be less likely to provide frank information to the Agency.
  4. I also consider that, while I have no information before me about whether the employee would object to the release of their personal affairs information, I consider there is an expectation of privacy when communicating information of this nature to an Agency during an investigation.
  5. However, I am not satisfied it would be unreasonable to release the names and email addresses of other Agency officers contained in the documents. Subject to an agency demonstrating that special circumstances apply, it is not unreasonable to disclose the names of non-executive agency officers where they are merely carrying out their usual duties or responsibilities as public servants. In this matter, the nature of the document and the personal affairs information is not sensitive as it relates to the Agency officers in the conduct of their usual duties as public servants.
  6. This view is consistent with the Victorian Court of Appeal decision of Victoria Police v Marke[4] in which it was held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’, the personal privacy exemption ‘arises only in cases of unreasonable disclosure’, and ‘[w]hat amounts to unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case.[5] The Court further held, ‘[t]he protection of privacy, which lies at the heart of s 33(1), is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded to a lesser or greater degree’.[6]
  7. The Schedule of Documents in Annexure 1 sets out my decision in relation to the material exempted by the Agency under section 33(1).

Section 32(1)

  1. Section 32(1) provides a document is an exempt document ‘if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege’.
  2. A document will be subject to legal professional privilege and exempt under section 32(1) where it contains a confidential communication:[7]
    1. between the client (or the client’s agent) and the client’s professional legal advisers, that was made for the dominant purpose of obtaining or providing legal advice or is referrable to pending or contemplated litigation; or
    2. between the client’s professional legal advisers and third parties, that was made for the dominant purpose of pending or contemplated litigation; or
    3. between the client (or the client’s agent) and third parties that was made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.
  1. Whether a document is privileged depends on the intention for which it was made. The purpose for which a document is brought into existence is a question of fact. In instances where a solicitor commissions the provision of a report, it is generally accepted that the relevant intention will be that of the solicitor.
  2. Further, the term ‘dominant’ in determining whether a purpose is a dominant purpose, provides there must be a ‘clear and paramountcy’ of purpose for privilege to attach.[8]
  3. In this case, the Agency applied section 32(1) to Document 11, which is an investigation report compiled by a third party (a business) which, at the request of the Agency’s [legal advisor], regarding the conduct of an investigation into complaints raised by the Applicant. It comprises the investigator’s report of the investigation and the findings of fact concerning each allegation raised. The third party was retained by the Agency’s legal team, following instructions from the Agency to retain an external investigator. The Agency’s legal team reviewed the report and provided advice to the ‘People’ business unit of the Agency as a result of the report.
  4. The required lawyer/client relationship in this matter is between the Agency’s legal team and the ‘People’ business unit.
  5. The Agency submits the report was commissioned by the Agency’s legal team for the dominant purpose of having their internal legal team advise the Agency on the Applicant’s allegations and implications for a disciplinary process that was underway.
  6. Having examined the document and considered the dominant purpose of the report, I am satisfied the document is legally privileged.
  7. The Agency also applied section 32(1) to Document 13, which is a letter from another third party to a [legal advisor] at the Agency, which, at the request of the Agency’s [legal advisor], conducted an investigation into systemic issues within the Agency and allegations made by staff relating to bullying and harassment. It comprises the Investigator’s report of the investigation, their findings and recommendations.
  8. The Agency submits the report was provided to the Agency’s legal team for the dominant purpose of providing advice to the ‘People’ business unit. Upon receipt of the letter, the Agency’s legal team advised the ‘People’ business unit regarding potential disciplinary processes and its obligations under occupational health and safety laws.
  9. Having examined Document 13 and considered the dominant purpose of the report, I am satisfied the document is legally privileged.

Has privilege been waived?

  1. Legal privilege exists to protect the confidentiality of communications between a lawyer and a client. Privilege will be lost where the client has acted in a way that is inconsistent with the maintenance of that confidentiality – for instance where the substance of the information has been disclosed with the client’s express or implied consent.[9]
  2. An implied waiver of privilege will occur when a positive act of a party is inconsistent with maintaining the confidentiality in the communication irrespective that a waiver of privilege was not the subjective intention of the party.
  3. In relation to Document 13, the Agency submits that the Agency has referred to the report on various occasions, however, it was never made public or disclosed its contents other than in broad terms.
  4. Accordingly, the Agency submits the privilege has not been waived for Documents 11 and 13.
  5. Having carefully considered the information before me, I am of the view privilege has not been waived in relation to these documents.
  6. On the information before me, I am satisfied Document 11 and 13 are exempt in full in accordance with section 32(1).

Section 35(1)(b)

  1. A document in exempt under section 35(1)(b) if two conditions are satisfied
    1. disclosure would divulge information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister; and
    2. disclosure would be contrary to the public interest as it would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

Was the information or matter communicated to the Agency in confidence?

  1. When determining whether information was communicated in confidence, it is necessary to consider the position from the perspective of the communicator.[10] Further, confidentiality can be expressed or implied from the circumstances of the matter.[11]
  2. The information considered exempt by the Agency includes internally communicated information, including:
    1. notes taken during a meeting with an employee regarding an investigation into an alleged workplace incident involving the Applicant;
    2. internal emails and letters between Agency officers in the course of the Agency’s investigation and management of alleged workplace incidents.
  3. I am mindful that, in this matter, I do not have specific information before me regarding whether the employees communicated information to the Agency on a confidential basis. In any case, I consider the relevant employees, in their capacity as witnesses to an alleged incident, would more likely than not have considered that the information was communicated in confidence to the Agency, given the nature and circumstances of this matter.
  4. However, the fact the information was communicated in confidence is not the only consideration in relation to the exemption in section 35(1)(b). I must also consider whether disclosure would be contrary to the public interest as the Agency would be impaired from obtaining similar information in the future if the information is disclosed in this instance.

Would disclosure be contrary to the public interest?

  1. The second limb of section 35(1)(b) requires an FOI decision maker to determine whether the disclosure of a document would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
  2. I accept the Agency relies on information provided voluntarily by employees in order to deal with and investigate complaints against its employees. Such information will, by its nature, generally be highly personal, sensitive and confidential.
  3. I accept that if employees, who voluntarily provide information of this particular type (relating to workplace investigations) to the Agency were aware that their identity or the information provided would be disclosed in response to an FOI request, they would be unlikely to communicate similar information to the Agency in the future.
  4. I consider this to be a significant and detrimental outcome that would impede the ability of the Agency to conduct a thorough and considered investigation complaints or incidents involving its employees.
  5. I am therefore satisfied disclosure of this information would be contrary to the public interest as it would be reasonably likely to impair the Agency’s ability to obtain similar information in the future.
  6. Accordingly, I am satisfied certain documents are exempt in under section 35(1)(b).

Deletion of exempt or irrelevant information

  1. Section 25 requires an agency to grant access to an edited copy of a document when it is practicable for the agency or Minister to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
  2. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’[12] and the effectiveness of the deletions. Where deletions would render the document meaningless they are not ‘practicable’ and release of the document is not required under section 25.[13]
  3. I have considered the effect of deleting exempt information from the documents. In my view, it is practicable for the Agency to delete the exempt information in particular documents, because it would not require substantial time and effort, and the edited documents would retain meaning.

Conclusion

  1. My decision on the Applicant’s request differs from the Agency’s decision in that I have decided to release additional information in the documents to the Applicant.
  2. I am satisfied the exemptions in sections 33(1), 32(1) and 35(1)(b) apply to certain information in the documents in part and to certain documents in full.
  3. As it is practicable to edit some of the documents to delete exempt information, I have determined to grant access to certain documents in part.

Review rights

  1. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.[14]
  2. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[15]
  3. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[16]
  4. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
  5. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.[17]

Other matters

  1. Section 49P(5) states that if I decide to disclose a document claimed to be exempt under section 33(1) I must, if practicable, notify any person who has a right to apply to VCAT for a review of my decision of their right to do so.
  2. In considering the meaning of ‘practicable’ in relation to other sections of the FOI Act, VCAT has stated the following:

The use of the word ‘practicable’ in the legislation to my mind connotes a legislative intention to apply common sense principles. ‘Practicable’ is not a term of art or a term of precise meaning.

…. The use of the word indicates there should be imported into the process the exercise of judgment by the agency concerned. It does not allow for the conclusion that because a task is possible, it must, ergo, be undertaken.[18]

  1. VCAT also considers the possibility of an unnecessary intrusion into the lives of third parties is relevant when assessing the practicability of notifying them.[19]
  2. On the balance, I am satisfied it is practicable to notify those individuals of their right to seek review of my decision to disclose their personal affairs information.

When this decision takes effect

  1. I have decided to release documents that contain information relating to the personal affairs of third parties and information provided in confidence.
  2. As stated above, the relevant third parties will be notified of my decision and are entitled to apply to VCAT for a review within 60 days from the date they are given notice.
  3. For that reason, my decision does not take effect until that 60 day period expires. If a review application is made to VCAT, my decision will be subject to any VCAT determination.

Annexure 1 – Schedule of Documents

Document No. Date of Document Document Description Number of Pages Agency’s Decision OVIC Decision OVIC Comments
1. [date] Investigation meeting notes 2 Refused in full

Section 35(1)(b)

 

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document contains notes from a meeting conducted by two Agency officers with an employee regarding an alleged workplace incident involving the Applicant.

I am satisfied the information provided by the employee during the meeting was communicated to the Agency with an expectation that confidentiality would be maintained.

My view is that the release of the meeting notes to the Applicant would have a significant and detrimental effect on the Agency’s ability to conduct similar investigations. If the information provided by a witness to an incident were routinely released under the FOI Act, individuals would be deterred from providing complaint related information to the Agency. This would impair the Agency’s ability to investigate and manage workplace incidents, and in turn could affect its ability to provide a safe workplace. Accordingly, this type of information is exempt under section 35(1)(b).
2. [date] Investigation meeting notes 2 Refused in full

Section 35(1)(b)

 

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document appears to be a draft version of Document 1. It is apparent that Document 1 has corrected typographical errors contained in Document 2 and there are minor variations to the content of the document.

The person listed as communicating information in paragraph 6 of Document 2 differs from the person listed as communicating the same information in Document 1. However, from my assessment of the document in conjunction with Document 1, it appears this was an error.

For the reasons outlined above in Document 1,
I am of the view this document is exempt in full pursuant to section 35(1)(b).
3. [date] Email 1 Refused in full

Section 35(1)(b)

 

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document contains an email from an employee to two Agency officers regarding their recollection of an alleged workplace incident involving the Applicant.

I am satisfied the information was provided by the employee to the Agency officers with an expectation of confidentiality, given the nature of the information and the circumstances in which the information was communicated.

I am satisfied the Agency’s ability to receive similar information in the future will be impaired, for the reasons outlined above in Document 1.

Accordingly, I am satisfied this document is exempt in full pursuant to section 35(1)(b).
4. [date] Email 1 Refused in full

Section 35(1)(b)

 

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document is similar to Document 3. Accordingly, I am satisfied this document is exempt in full pursuant to section 35(1)(b) for the reasons outlined above.
5. [date] Email chain 1 Refused in full

Section 35(1)(b)

 Release in part

Sections 33(1),
35(1)(b), 25

The document is to be released in part with the following information removed in accordance with section 25:

·       the email dated
[date] which is exempt under section 35(1)(b);

·       the names contained in the email dated [date], which are exempt under section 33(1).

 

 Section 35(1)(b): This document is an internal email chain between Agency officers.

The first email contains a forwarded email of an employee’s recollection of an alleged workplace incident.

The second email contains an administrative direction in relation to the first email.

I am satisfied the first email dated
[date] is exempt in full pursuant to section 35(1)(b), for the reasons outlined above in Documents 1 and 3.

I am not satisfied the email dated
[date] is exempt under section 35(1)(b) as it merely contains an administrative direction from an Agency officer to another.

Section 33(1): The email dated [date] contains personal affairs information of four third parties. I am satisfied it would be unreasonable to release the names of the third parties in this instance given the document merely contains an administrative direction and the staff members are not involved in the decision making relating to the matter.
6. [date] Email 1 Refused in full

Section 35(1)(b)

 Release in part

Sections 33(1),
35(1)(b), 25

The document is to be released in part with the following information removed in accordance with section 25:

·       the email dated
[date] which is exempt under section 35(1)(b);

·       the names contained in the email dated [date], which are exempt under section 33(1).

 This document is a duplicate of Document 5. It is exempt under sections 35(1)(b) and 33(1) for the reasons outlined above in Document 5.
7. [date] Email 1 Refused in full

Section 35(1)(b)

 Release in part

Sections 33(1), 25

This document is to be released to the applicant except for the following information as it is exempt under section 33(1):

·      the name of the recipient of the email;

·      the name contained in the attachment; and

·      the mobile telephone numbers.

 Section 35(1)(b): This document contains an email between agency officers following a meeting regarding an alleged workplace incident. The email relates to the meeting that took place and includes an attachment described as a record of the meeting.

The Agency submits the contents of this document relates to details of a witness and their witness statement and the release of this document to the Applicant will prevent and deter employees from assisting with any internal investigations conducted by the Agency.

I am not satisfied the document is exempt under section 35(1)(b) for the following reasons:

(a)    given the email is sent from the interviewees to a witness, I am not satisfied the document contains information communicated to the Agency;

(b)    the document does not disclose information provided by the third party during the interview; and

(c)     the information contained in the document is not sensitive and mostly relates to administrative procedures following the meeting.

Section 33(1): This document contains personal affairs information of agency officers, including names, email addresses, telephone numbers, position titles and business address.

I am satisfied it is unreasonable to release the name of the interviewee and the name included in the attachment given the context in which their personal affairs information is contained in the document.

I am not satisfied it would be unreasonable to release the remainder of the personal affairs information contained in the document:

(a)       given the Applicant is the subject of the alleged workplace incident, it is likely the Applicant is aware of the identity of other persons involved in the alleged incident;

(b)      the nature of the personal affairs information is not particularly sensitive or private given that it appears in the context of Agency officers performing their employment duties rather than their personal or private lives.

However, I consider it unreasonable to release mobile telephone numbers as the information does not further the applicant’s reasons for seeking the documents, and therefore the privacy of those concerned outweighs the public interest in disclosure in this instance.
8. N/A Investigation meeting notes 2 Refused in full

Section 35(1)(b)

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document is a duplicate of Document 2. I am satisfied this document is exempt in full under section 35(1)(b) for the reasons outlined above in Document 1.
9. [date] Letter 1 Released in part

Section 33(1)

 Release in part

Sections 33(1), 25

This document is to be released to the applicant except for the following information as it is exempt under section 33(1):

·     the name of the recipient of the letter.

 Section 33(1): This document is a letter to an employee requesting they attend a meeting in relation to an investigation.

I am satisfied personal affairs information redacted by the Agency is the name of an employee.

I am satisfied it is unreasonable to release the name, given the context in which their personal affairs information is contained in the document, being a witness to an alleged workplace incident involving the Applicant.
10. [date] Email 1 Refused in full

Section 35(1)(b)

 Refuse in full

Section 35(1)(b)

 Section 35(1)(b): This document is similar to Documents 3 and 4. Accordingly, I am satisfied this document is exempt in full pursuant to section 35(1)(b) for the reasons outlined above in relation to Document 3.
11. [date] [Name] Investigation Report 30 Refused in full

Section 32

 Refuse in full

Section 32(1)

 Section 32(1): I am satisfied this document is exempt under section 32(1) for the reasons outlined in my decision set out above.
12. [date] Complaint 2 Released in part

Section 33(1)

 Release in part

Sections 33(1), 25

The document is to be released to the applicant with the name of the agency officer at the top of the document deleted as it is irrelevant under section 25.

 Section 33(1): This document contains an email chain between Agency officers relating to a customer complaint regarding the Applicant.  A copy of the complaint is attached to the email chain, which was released to the Applicant in full.

The personal affairs information exempted by the Agency includes names and email addresses of Agency officers.

I am not satisfied it would be unreasonable to release the personal affairs information of Agency officers contained in this document for the following reasons:

(a)       the nature of the document and the personal affairs information is not sensitive as it relates to the Agency officers in the conduct of their usual duties;

(b)      those officers were directly related to the investigation of the customer complaint regarding the Applicant;

(c)       as the Agency did not consult with the Agency officers, there is no information before me to suggest the Agency officers object to the release of their personal affairs information; and

(d)      given the Applicant is a former employee of the Agency, it is likely that the Applicant knows the email addresses of the Agency staff.

Accordingly, I am not satisfied this information is exempt under section 33(1).

Section 25: I consider the name at the top of the document of the Agency staff member, who printed the email, is irrelevant to this review.
13. [date] [Name] investigation report 8 Refused in full

Section 32(1)

 Refuse in full

Section 32(1)

 Section 32: I am satisfied this document is exempt under section 32(1) for the reasons outlined in my decision set out above.

 

Endnotes

[1] Sections 33(1) and (2).

[2] Section 33(9).

[3] Victoria Police v Marke [2008] VCSCA 218 at [68].

[4] [2008] VSCA 218.

[5] [2008] VSCA 218 at [76].

[6] [2008] VSCA 218 at [79].

[7] Graze v Commissioner of State Revenue [2013] VCAT 869 at [29]; Elder v Worksafe Victoria [2011] VCAT 1029 at [22]. See also Evidence Act 2008 (Vic), section 119.

[8] See Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Commissioner of Taxation v Pratt Holdings [2005] FCA 1247.

[9] Sections 122(2) and (3) of the Evidence Act 2008 (Vic) (for CLP) or Mann v Carnell (1999) 201 CLR 1 at [28] (for LPP).

[10] XYZ v Victoria Police [2010] VCAT 255 at [265].

[11] Ibid.

[12] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[13] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[14] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[15] Section 52(5).

[16] Section 52(9).

[17] Sections 50(3F) and (3FA).

[18] Re Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 at [45].

[19] Coulston v Office of Public Prosecutions Victoria [2010] VCAT 1234 at [42].

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