N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33

CITATION: N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33 revised - 5/06/2002 DIVISION: General Division APPLICANT PARTIES: N RESPONDENT Director General, Attorney General's Department FILE NUMBER: 013090; 013091 HEARING DATES: 22/11/2001 SUBMISSIONS CLOSED: 11/22/2001 DATE OF DECISION: 03/08/2002

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - judicial function MATTER FOR DECISION: Jurisdiction LEGISLATION CITED : Freedom of Information Act 1989 Victims Compensation Act 1987 (R) Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 CASES CITED: Attorney-General (Commonwealth) v Breckler [1999] HCA 28 197 CLR 83 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Loughnan v Altman (1995) 39 FCR 90 APPLICANT In person REPRESENTATION:

RESPONDENT T F Robetrtson, barrister SC ORDERS: 1. Application No. 013090 is dismissed; 2. Application No. 013091 to be relisted for a further planning meeting.

1 There are two applications for review arising under the Freedom of Information Act 1989 (FOI Act) before the Tribunal. N, the review applicant, has made two related requests for access to documents held in the files of the Victims Compensation Tribunal (VCT). Access to some of the documents requested has been refused. The determination has been made by the Attorney General's Department, the portfolio department for the VCT, as it considers that the VCT is not an agency within the meaning of the Act for the purpose of the requests as they relate to the documents withheld. Accordingly the Department is the respondent to the applications for review. Background 2 In May 1992 N was assaulted by X and Y. They were charged. After being charged Y complained in October 1992 that he had been the victim of an offence committed by N in 1978. X complained to the Police of an offence said to have been committed by N in 1987. X was a Year 8 student at that time and N his teacher. Those complaints gave rise to the trial of N on serious charges. He was convicted and sentenced to a term of imprisonment. He appealed to the Court of Criminal Appeal. The conviction and sentence was quashed, the Court decided not to order a new trial and a finding of not guilty was entered: (20 August 1997, CCA (Gleeson CJ, Handley JA and Studdert J)). 3 N applied to the VCT for compensation in respect of the 1992 assault and was awarded on appeal to the District Court $25,000. X made a similar application in respect of the alleged offence of 1987 against him by N and was awarded compensation of $7,500; as did Y, who was awarded the maximum sum of $50,000. (In the case of Y there was no finding that N was the offender.) 4 N's requests relate to documents held in the VCT files covering the three compensation applications. Application No. 013090 5 The first application for review relates to the FOI request made by N on 18 March 1998 to the Registrar, VCT, the subject of a determination made after internal review on or about 7 May 1998. The request sought information and documents in relation to the application made by X, describing the documents sought as 'part of X's affidavit and supporting documentation which relates specifically to his allegation against me' and 'all letters from his solicitors which relate to me and which could not be considered exempt on the basis of legal professional privilege'. He also sought access to a letter from Mr La Fontaine, solicitor to the VCT 'which appears in my file at the VCT (I applied and was awarded $25,000 in compensation from the District Court on appeal for X's assault on me)'. 6 N also sought information concerning the steps which the VCT had taken under Part 5 of the Victims Compensation Act 1987 to have X and the other offender reimburse the VCT for their assault on him in May 1992. According to counsel for the agency, the request was apparently treated as a request for documents containing such information. Application No. 013091 7 The second application for review arises from an FOI request by N made 14 September 1998 to the Registrar, VCT, the subject of a determination made after internal review on or about 27 November 1998. In that request N sought documents relating to four named persons, only two of whom (X and Y), he was informed, had lodged claims with the Tribunal. 8 Without detailing its terms, his request sought any document concerning compensation claims by or awards to X and Y, at least insofar as the documents contained allegations against N. The request included copies of letters from solicitors relating to N in the possession of the Tribunal; and documents disclosing the representations of X and Y before the Tribunal or any appeal to the District Court. According to counsel for the agency, it appears that the VCT treated this as a request for its files in relation to the X and Y matters. 9 It will be seen that the two requests made at different times essentially traverse the same area, i.e. the VCT's documents relating to the claims made by X and Y naming N as the perpetrator of offences against them. Applicability of FOI Act 10 This ruling deals with the preliminary question raised by the respondent as to whether the Tribunal has jurisdiction to deal with the applications for review. The respondent contends that the FOI Act does not cover documents of an agency to the extent that they are held in connection with any functions it performs as a court or tribunal. 11 The relevant exclusion is found in s 10 of the FOI Act, which provides: ' 10. Act not to apply to judicial functions of courts and tribunals (1) For the purposes of this Act: (a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court's judicial functions, be taken to be, or to be included in, an agency, and (b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court's judicial functions, be taken to be, or to be included in, an agency. (2) For the purposes of this Act: (a) neither a tribunal nor a person who is the holder of an office pertaining to a tribunal shall, in relation to the tribunal's judicial functions, be taken to be, or to be included in, an agency, and (b) neither a registry or other office of a tribunal nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the tribunal's judicial functions, be taken to be, or to be included in, an agency.' 12 Section 10 operates as a qualification to the ordinary definition of agency. An 'agency' is defined in s 6(1) as a 'Government department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9, exempt from the operation of this Act in relation to all of its function.' Section 9 provides that any body or office specified or described in Schedule 2 is, in relation to such functions as are specified, exempt from the operation of the Act. No courts or tribunals are listed in Schedule 2. Instead provision is made in s 10 for those bodies to be exempt in respect of their 'judicial functions'. 'Judicial functions' is defined in s 6(1) to mean, as relevant to these matters, 'in relation to a court or tribunal … such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it …'. 13 I accept the submissions of counsel for the agency that in approaching the question of what functions are judicial functions, it is not necessary to have regard to the distinction that has developed in Commonwealth constitutional law, that has resulted in many federal tribunals being found not to be engaged in the exercise of judicial functions within the meaning of the Commonwealth Constitution: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; and Attorney-General (Commonwealth) v Breckler [1999] HCA 28; 197 CLR 83. 14 This is a State Act applying to the State constitutional environment, one not affected by the strict demarcation of power found in the Commonwealth Constitution. 15 The present case involves a public authority that Parliament has chosen to call a 'Tribunal'. It is possible of course that a body might be called a 'Tribunal' but on closer examination of its statutory framework and mode of operation be found not to be a tribunal in the sense in which the term is normally used; and conversely, a body might not have the name 'Tribunal' or 'Court' but be found on closer examination to be capable of being so described. For instance, bodies with names such as 'Board' or 'Commission' often are given quasi-judicial functions; and would for the purposes of the FOI Act, constitute a 'court' or 'tribunal'. 16 In my view the following are some, at least, of the characteristics that a body called a 'tribunal' would be expected to possess. The body would - · Be impartial and detached from the ordinary processes of executive government · Have a defined jurisdiction · Receive claims or applications · Determine claims following a process of examining submissions, receiving evidence and assessing that evidence by reference to standards of proof · Use a process of assessment that gives rise to the making of a reasoned decision applying the relevant law · Make a final order that is binding. 17 The term 'tribunal' is used in contradistinction to the term 'court' to convey, I consider, that body has functions analogous to a court, but operates in a more informal way than a court and may have special procedures; and members that may differ in qualifications and expertise from judges. In this instance, membership is confined to Magistrates. (See generally Part 2.) 18 The VCT (as it operated at the time of the claims the subject of the present FOI applications) was governed by the original Act, the Victims Compensation Act 1987. (The VCT now operates under the Victims Support and Rehabilitation Act 1996.) The respondent has supplied the Tribunal with a copy of the original Act. In my view it is clear, applying the above tests, that the VCT possessed the characteristics of a 'tribunal'. 19 There is provision for an application procedure for 'awards of compensation'. The VCT is required to receive and consider applications. There are provisions as to the material to be furnished in support of an application. The VCT has a power of determination, and a standard of proof is specified (balance of probabilities). It is required to incorporate in its notice of determination, a statement of reasons for the determination. Criteria to which the VCT is to have regard in exercising its discretion are specified. 20 The scheme differs from the usual court situation in that the proceedings are not structured as a contest against a named respondent. The scheme is one where if a claim is successful, the government bears the cost. This is subject to any recovery obtained from a known offender who has been found guilty of the act giving rise to the claim and who has been given notice of any such proposed order for recovery. There is provision in the Act for the VCT to obtain assistance from the Crown Solicitor; and in the event that an award of compensation is made, the head of the Attorney General's Department is bound to pay the award out of the statutory Compensation Fund. (See generally Part 3.) 21 There are detailed provisions governing the conduct of hearings. Hearings are normally open to the public, but there are strict prohibitions applying to publication of the identities of any names that are mentioned in the course of proceedings. There are provisions for taking evidence on oath, compelling the attendance of witnesses and powers are conferred on the VCT enabling it to deal with misconduct in proceedings. (See generally Part 4.) 22 N contended in the short written submissions attached to application for review no. 013090 that the VCT is not a Tribunal as it does not adhere to the principles of natural justice and procedural fairness. In my view the FOI Act does not go so far as to require adherence to the requirements of natural justice and procedural fairness for the purposes of determining whether a body falls within the scope of the s 10 exclusion. It is enough to satisfy s 10 (read in conjunction with s 6) that the body engages in the 'hearing' and 'determination' of claims. 23 In any event I agree with Mr Robertson, and disagree with N, as to N's suggestion that the VCT does not adhere to standards of procedural fairness. There are detailed provisions as to the procedures that the VCT is to adopt in dealing with applicants, and the ordinary common law principles have not been ousted. 24 N's grievance is that he, as the alleged offender, was not given an opportunity to be heard in the proceedings that gave rise to the award of compensation to X and Y. The VCT Act is not structured, as noted earlier, on the basis that there is any named respondent. Nor are there any requirements for notice of claims to be given to alleged or known offenders. It is an example of a system in which ex parte claims are made, and the process of questioning and contradiction is left to the Crown Solicitor's office. (The VCT also has powers to obtain additional information if necessary, which conceivably could extend to making inquiries of alleged offenders.) But it is in my view obvious that in a system of criminal injuries compensation, alleged or known offenders would not ordinarily be exposed to the applicants (their alleged victims) as part of the usual process for hearing and determination of claims. 25 (I also agree with Mr Robertson that any analogy with the case of Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 is misplaced. That case involved a situation where a report had been made public without giving the named person an opportunity to be heard in circumstances where the named person was said to be involved in criminal conduct but there had never been any court finding to that effect. As Mr Robertson observed, no issue of that kind should arise in the case of the VCT as there is an express prohibition on publication of identities of any person referred to in proceedings.) APPLICATION NO. 013090 26 I have confidentially inspected the documents which have been withheld by the respondent in respect of this application. There are 13 documents. A Schedule was provided to the Tribunal at hearing. The respondent undertook to supply N with a copy of the Schedule with identifying names removed. 27 All are the subject of the s 10 claim. 28 The documents relate to the three compensation claims, N's claim and the claims by X and Y. Documents 1 to 4 belong to the one file dealing with the claims by X and Y, while documents 5 to 13 belong to the file relating to the claim by N. (I note that the officer in charge of the files, Ms Vernon, Director, Victims Services deposed in an affidavit filed in these proceedings that Documents 1-5 (not 1-4) belonged to the first of the two files.) 29 An outline of the contents of these documents follows: First Group of Documents Document 1 is a letter to the Registrar, VCT from the solicitor for the claimant indicating in essence that the solicitor has taken over the conduct of the claim from a previous solicitor. Document 2 is a professional assessment of the claimant given to the Tribunal in support of the application. Document 3 is a statement to police made by the claimant relating to alleged assaults by N. Document 4 is a covering letter from solicitors for the claimant forwarding material in support of the application. (That material does not form part of Document 4) Second Group of Documents Document 5 is a notice of a provisional order for restitution issued to a person convicted of an offence relevant to the award of compensation, the named victim in this instance being N. Document 6 is an affidavit of service of notice of a provisional order. Document 7 is a notice of a provisional order for restitution issued to a person convicted of an offence relevant to an award of compensation, the named victim in this instance being N and an affidavit of service of notice of a provisional order. Document 8 is a print out of licence details relating to one of the notice recipients. Document 9 is a print out of licence details relating to one of the notice recipients. Document 10 is a Director of Public Prosecution case inquiry record relating to one of the notice recipients. Document 11 is a Director of Public Prosecution case inquiry record relating to one of the notice recipients. Document 12 is a letter from solicitors to the Tribunal seeking deferral of determination of N's claim pending the outcome of the trial of N in relation to the alleged offence of 1987. Document 13 is a further letter from solicitors to the Tribunal to the same effect. 30 In respect of the first group of documents, I am satisfied that Documents 2 and 3 are documents of a kind that are clearly relevant to the hearing and determination of a claim. 31 The position in relation to Documents 1 and 4 is, perhaps, more arguable. They are both in the nature of professional communications with the Registry. My view is that professional communications between claimants, their representatives and the Registry in relation to the conduct of a current claim do fall within the scope of the definition of 'judicial functions' in the FOI Act. The definition, as I read it, is relatively broad and covers 'such functions of the … tribunal as relate to the hearing and determination of proceedings'. Communications of the kind reflected in Documents 1 and 4 are necessary to the efficient conduct of a claim, and fall within the scope, I consider, of those functions that 'relate to' the hearing and determination of claims. 32 This interpretation of 'relate to' is similar to that adopted in relation to the words 'in connection with' in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 upon which counsel for the respondent relied by way of analogy. There Wilcox J observed at 478 that the words ''in connection with have a wide connotation requiring merely a relationship between one thing and another. They do not necessarily require a causal relationship between the two things …' and referred to a Canadian trial judge's ruling that the words 'include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing.' 33 I agree with counsel for the respondent that the words 'relate to' have a similar broad connotation. 34 In respect of the second group of documents, I am satisfied that Documents 5 to 11 'relate to' the determination of the claim. They relate to the steps necessary to be taken by the VCT to enforce the determination as reflected in the order. 35 Documents 12 and 13 are in the nature of a submission from a person with an interest in a claim. Such a communication may be relevant to the VCT's scrutiny of a claim. The VCT has, as would be expected, a wide power to have regard to 'such other matters as [it] considers relevant': s 20(3). I am satisfied that it is a document that could be relevant to the hearing and determination of a claim. 36 Accordingly I am satisfied that the documents in issue all have the benefit of the exclusion conferred on the VCT by s 10; and are not subject to the FOI Act. APPLICATION NO. 013091 37 The respondent tendered at hearing an Amended Schedule of Documents subject to claims for exclusion or exemption. The respondent undertook to supply N with a copy of the Schedule with identifying names removed. 38 The Amended Schedule divides the documents in issue as follows: File 95-7026 (16 documents), file relating to application by Y; File 97-33047 (30 documents), file relating to application by X. These documents have not been lodged for inspection by the Tribunal. This is one of three groups of documents for which exemption is claimed. It is said to be 'too voluminous' to produce, and a decision is awaited on the s 10 point. 39 As to the second group of documents ('transcripts of VCT and District Court proceedings') they are said to be exempt by reference to the exemption contained in cl 11. They have not been lodged. 40 The third group comprises two documents which have been lodged. One is a letter from the NSW Police Service to the VCT requesting file information from the VCT in respect of its investigation of an allegation that a fraudulent claim had been made on the Tribunal; and the second is subsequent advice to the Tribunal in respect of the Police Service's conclusions. In respect of those two documents the respondent relies on the clause 6 exemption (unreasonable disclosure of personal affairs). 41 As to the transcripts the respondent did not in the cover page seek an agency exclusion based on s 10 but submitted that they had exempt status by reason of cl 11(a) or (c) of Schedule 1 to the Act. Cl 11(b) may also be relevant. 42 The whole of cl 11 is set out below: ' 11. Documents relating to judicial functions etc A document is an exempt document if it contains matter the disclosure of which would disclose: (a) matter relating to the judicial functions of a court or tribunal, or (b) matter prepared for the purposes of proceedings (including any transcript of the proceedings) that are being heard or are to be heard before a court or tribunal, or (c) matter prepared by or on behalf of a court or tribunal (including any order or judgment made or given by the court or tribunal) in relation to proceedings that are being heard or have been heard before the court or tribunal.' 43 Transcripts would appear to have the benefit of the cl 11 exemption. At hearing counsel for the respondent referred to the case of Loughnan v Altman (1995) 39 FCR 90 at 95, where the Court ruled that court transcripts fell within the scope of the equivalent Commonwealth FOI Act exclusion (whose terms are different, but not in a material way for present purposes). In my view transcripts fall within the s 10 exclusion; but in any event would have the benefit of the cl 11 exemption. 44 This exemption is also relied on in relation to all the documents listed in the Amended Schedule, all of which are the subject of a s 10 claim, in the event that the s 10 claim is not successful. 45 The claim in respect of the third group of documents (the cl 6 claim) is not the subject of this ruling. 46 The Amended Schedule (the first group of documents) contains descriptions of Documents 1 to 16 of File 95-7026 and Documents 1-30 of File 97-33047. I will not set out the descriptions seriatim here. In the case of both File 95-7026 and File 97-33047 the document descriptions start with the application for compensation. In each case the remaining document descriptions refer to correspondence passing between the VCT and the solicitor for the applicant; or to correspondence between the VCT and medical experts (the first file); and between the VCT and various law enforcement agencies (the second file). The descriptions are consistent with the various stages of the VCT process from application, through the information gathering process and finally to the issuance of notices of determination. 47 If these descriptions are accurate, the documents would, I consider, have the benefit of the s 10 exclusion. But, as I have not seen these documents, I am not in a position to make a finding. 48 Whether the second group (transcripts) and the third group (the two letters) remain in issue given their non-inclusion in the Amended Schedule is unclear on the material before me. Appropriate Orders 49 Counsel for the respondent submitted that the applications for review should be dismissed in their entirety. 50 It follows from my conclusions that Application No. 013090 should be dismissed for want of jurisdiction. 51 For the reasons already given, I am not able at this point to make orders in respect of Application No. 013091. It may be that in light of my ruling, the review applicant may be prepared to enter into consent orders without the need for the documents to be presented for inspection. I will direct that Application No. 013091 be relisted for a further planning meeting. ORDERS 1. Application No. 013090 is dismissed. 2. Application No. 013091 to be relisted for a further planning meeting. REVISED 5 JUNE 2002