Recent Cases: Victoria
Department of Education v Wilson (Review and Regulation) [2025] VCAT 1006 (12 November 2025)
Facts
Ms Wilson (“applicant”) request access to the Department of Education (“Department”) document that outlined the individual condition score of every government school in Victoria, sourced from the most recent Condition Assessment Report under the Rolling Facilities Evaluation Program, with the school name, suburb and condition of the school.
The Department produced a document containing the relevant information under s 19 and made its decision refusing access, claiming it was exempt under s 28(1)(ba). The applicant applied to the Office of the Victorian Information Commissioner (“Commissioner”) for review. The Department made a fresh decision under s 49M of the FOI Act to refuse access to the document under ss 30 and 28(1)(c). The review continued and the Commissioner’s decision was that the document was not exempt and was to be released in full. While the Commissioner was satisfied s 30(1)(a) applied to the document, they were not satisfied that disclosure would be contrary to the public interest.
The Department sought review of the Commissioner’s decision to the Victorian Civil and Administrative Tribunal (“Tribunal”).
Held
The Tribunal affirmed the Commissioner’s decision.
Reasoning
Internal working documents contrary to the public interest: s 30(1)(b)
The Tribunal found that the document was not ‘misleading or meaningless’. It had clear purpose and was used internally for decision-making. The Tribunal accepted that the score may provide little useful or valuable information, but did not accept that it was meaningless, as if that was the case there would be no need to generate the scores. While the Department had concerns about mischievous interpretation of the document, the Tribunal held that these were unsupported and speculative. It found that there was no evidence that a parent would alter enrolment behaviour based on the scores, and that the Department could provide context to counter any potential mischief such as explaining the factors going into the figures within the documents and their purpose. Therefore, disclosure was not contrary to the public interest.
Gill v Bupa Aged Care Australia Pty Ltd (Human Rights) [2025] VCAT 994 (14 November 2025)
Facts
This complaint relates to the operation of a will and probate of that will under the HR Act. The late Clarice Gill, who had two sons and three daughters and had resided in a residence of Bupa Aged Care Australia Pty Ltd (“respondent”) had made a will. Her will named two of her children as executors, a son (“FG”) and a daughter, but neither of her 2 sons benefitted from the will. Upon finding this out after her death, FG made a request to the respondent for access to his mother’s health records, seeking her health information and records to understand why he and the complainant had not benefitted under the will. He made this request as a co-executor of the will. Approximately 6 weeks after commencing communication with the respondent, probate was granted to the daughter nominated by the will as executor, with a note that “the non-proving executor does not wish to apply at this time (leave reserved)”. FG claimed that probate had been obtained without his active participation and that he had not renounced his executorship. The respondent had refused to provide FG the health records on the basis that he was not his mother’s ‘legal representative’ because he was not named in the grant of probate.
The Health Complaints Commissioner (“Commissioner”) accepted a complaint by FG, represented by the complainant, but then referred the matter to the Victorian Civil and Administrative Tribunal (“Tribunal”) under s 57(2) of the HR Act.
Held
The Tribunal held that the complaint had been proven and ordered that the respondent provide the complainant with access to the health information.
Reasoning
Access to health records and information – HPP 6.1
The complainant argued that it was Clarice Gill’s intention for the complainant to be able to access the information on her behalf and she had trusted him to be her executor and utilise any executor powers. The Tribunal reasoned that an executor will ‘hold office’ as executor even if not named in the grant of probate as, for the purposes of ss 95 and 3 of the HR Act, an executor derives title and authority from the will, not from the grant of probate, the grant of probate will not supersede a will. As FG holds office as an executor of the proven will, he was a ‘legal representative’ for the purpose of the HR act and able to access the health information.
The respondent did not raise any exemptions to the application of HPP 6.1. Therefore, the consideration was whether FG was the correct person to receive the information and whether he was acting in accordance with his mother’s wishes that she expressed in her lifetime.