Recent Cases: Victoria

MVX v Ambulance Victoria [2025] VCAT 402

Facts 

In November 2021, MVX (“applicant”) applied to Ambulance Victoria (“respondent”) for access to documents related to his employment.  The applicant had raised concerns about his employment in an email to the CEO of the respondent sent in April 2020.  The documents sought included the document that recorded the outcome of an investigation into the applicant’s concerns and related documents.  Ultimately, the applicant applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review and at the time of hearing, one document was in dispute.  This was a report prepared by a law firm (“Lawyers”) of an investigation into the applicant’s concerns (“Report”). 

Reasoning

Legal professional privilege exemption: s 32

The Tribunal held that the Report was prepared for the dominant purpose of providing legal advice to the respondent. While the Tribunal found it unusual that the respondent did not produce a letter of instruction to the Lawyers or terms of reference, the Tribunal viewed a Cost Estimate Email from the investigator at the Lawyers to the respondent as supporting the exemption. The email detailed the report to be produced, which was to include findings of fact and advice about a particular legal issue.  The Tribunal was satisfied that the Report matched this outline.  Evidence given by the respondent supported reason for the Report’s creation: to obtain external legal advice about the applicant’s concerns. The Tribunal acknowledged that there was an additional purpose to the Report in reviewing past actions having regard to documents and 2 witness interviews. However, this was not the dominant purpose.  Therefore, the Report was subject to legal professional privilege under s 32. 

Public interest override: s 50(4)

The Tribunal considered but did not accept the authorities raised by the respondent in support of his claim that the public interest override did not apply.  The Tribunal held that the public interest asserted by the applicant was not sufficient to satisfy the high bar of s 50(4) and to require the release of the Report. Therefore, the correct and preferable decision was to affirm the respondent’s decision not to release the Report. 

Held 

The Tribunal affirmed the respondent’s decision to refuse access to the Report.  

Strachan v LaTrobe CC (Human Rights) [2025] VCAT 328 

Facts

Stuart Strachan (“first complainant”) and Nick Strachan (“second complainant”) together had an interest in land within the Latrobe City Council (“Council”).  The PE Act required notice of any planning permit applications to be given to owners and occupiers of adjoining land to which the application applied.  Under the PE Act, the Council could either give notice itself or require the planning permit applicant (“planning applicant”) to do so. 

The Council wrote a letter to the first complainant (in December 2020) and to the second complainant (in March 2021) about two separate planning permit applications for properties adjoining their land.  The letters included a list of names and addresses.  The first letter referred to both complainants and gave the address of their property, the second letter referred to the second complainant with an address different to their property. 

The first complainant complained to the Council about his address being provided to the planning applicant for the first letter and later complained about the disclosure of the list of addresses of owners and occupiers of adjoining land in the second letter.  Following the Council’s response, the first complainant proceeded to complain to the Office of the Victorian Information Commissioner, which was then referred to the Victorian Civil and Administrative Tribunal (“Tribunal”). 

Reasoning 

Use and Disclosure: IPP 2.1

An organisation must first assess the primary purpose of collection of the personal information to be able to consider whether the exemptions to the operation of IPP 2.1 apply.

While the Council did not make submissions on the primary purpose for collection, the Tribunal was satisfied that the primary purpose for the Council to collect the complainants’ names and addresses was to ensure that required correspondence from the Council under the PE Act would be received by them.  The Tribunal considered the Council’s rates notice and privacy policy. The rates notices stated that “Personal information included in this notice is used by [the Council] for the primary purpose of issuing and collecting municipal rates or for a lawful secondary purpose”.  The privacy policy explained that the personal information collected typically included names and addresses which may be used by Council on a range of issues in the performance of its functions and the exercise of its powers under various Acts. 

While the privacy policy referred to Council using information such as names and addresses to contact a landowner directly, the Tribunal was satisfied that this did not prevent the Council from indirectly contacting landowners while carrying out its functions and obligations, including (but not limited to) those in relation to the PE Act. 

IPP 2.1(a) – Secondary purpose related to primary purpose 

The Council disclosed the complainants’ names and addresses for the secondary purpose of ensuring that the planning applicants’ properly notified adjacent landowners of their planning permit applications.  Given that this secondary purpose was to meet statutory obligations under the PE Act, the Tribunal was satisfied that the secondary purpose related to the primary purpose.  It held that it was reasonable to expect disclosure of personal information for such a secondary purpose, as the Council’s privacy policy gave sufficient notice that collected information may be disclosed for a secondary purpose directly related to the primary purpose. 

The Tribunal did not accept that disclosure should be limited to Council’s contracted service providers to be consistent with the Council’s privacy policy.  The words “such as” in the policy made it sufficiently clear that personal information could be disclosed to external organisations other than contracted service providers.  This was also supported by the legislative framework in the PE Act, meaning it could include planning applicants required to provide notice of planning permit applications and their agents.  The Tribunal highlighted the importance of applicants notifying adjoining landowners during the planning permit application stage and, therefore, the reasonableness in the Council providing planning applicants with contact details of the adjoining landowners. 

Overall, the Council’s privacy policy made it clear that personal information may be disclosed to third parties.  The statement that the personal information would be used by the Council to contact individuals directly did not override this.  Therefore, the Tribunal was satisfied that IPP 2.1(a) authorised disclosure. 

IPP 2.1(f) – Authorised by law

Section 53 of the PE Act authorised the Council to require a planning applicant to give notice of their planning permit application to persons specified by the Council, as required by s 52 of the PE Act. The Council was also authorised by s 53 of the PE Act to provide information held by the Council to notify neighbouring property owners of planning applications. 

As the use complained of was authorised by s 53 of the PE Act, the Council was authorised to disclose the personal information for a purpose other than the primary purpose of collection and IPP 2.1(f) applied.   

Held

The Tribunal held the complaint was not proven and it was dismissed.