Recent Cases: Victoria

Avalon Airport Australia Pty Ltd v Environment Protection Authority [2026] VCAT 95

Facts

Ms. Tracey Ferrier applied to the Environmental Protection Authority (“Authority”) for access to correspondence between the Authority and Avalon Airport Australia Pty Ltd (“VCAT applicant”) related to a specific contamination incident which was first publicly reported in late October 2022.  The Authority consulted with the VCAT applicant, which objected to disclosure of all documents under ss 29(1), 32, 34(1) and 35(1) of the FOI Act. 

The Authority decision differed from the VCAT applicant’s views, granting access to all but one document in full (excluding irrelevant information) but refusing access to the remaining document under s 32(1). The VCAT applicant subsequently applied to the Victorian Civil and Administrative Tribunal (“Tribunal”) for review of the Authority’s decision. 

Held 

The Tribunal affirmed the Authority’s decision.  

Reasoning

Legal professional privilege: s 32

The Tribunal determined that the documents were not subject to legal professional privilege under s 32. The letters and reports considered by the Tribunal were not plainly presented as legal advice. Including a broad statement that reports enclosed within were subject to legal advice, was not sufficient to satisfy the common law test for legal professional privilege.  Including labels on documents such as ‘Urgent and Strictly Confidential’ and ‘Strictly Confidential’ also did not render the information privileged. 

The dominant purpose of the reports was for the purpose of providing legal advice to the VCAT applicant. Although the Tribunal acknowledged that engaging consultants through legal representatives could demonstrate that one of the purposes for the communications may have been to assist in the provision of potential future legal advice regarding contamination, the dominant purpose could have equally been to conduct an investigation and manage a third party’s claim.  Given that the VCAT applicant had not established that the dominant purpose of the information contained in the reports was for the provision of legal advice, privilege was not established under s 32. 

If an agency is claiming a document is derived from another that was clearly subject to legal professional privilege, then it must identify where the privileged information was taken from. 

Waiver

Legal professional privilege can be waived either expressly or impliedly, impacting on the exemption claim. The Tribunal considered the documents voluntarily provided in order to positively assist dealings, they were not produced in response to a statutory requirement or requisition.  There was no evidence that disclosure of the documents was restricted to particular employees or officers of the Authority.  The Tribunal highlighted that the act of providing documents to a regulatory authority that could commence proceedings or issue statutory notices against the VCAT applicant was entirely inconsistent with the maintenance of confidentiality for the purposes of protection by privilege from disclosure in proceedings or regulatory investigations. 

Documents containing information of a commercial nature: s 34(1)(b)

The Tribunal outlined the test for this exemption.  The documents here contained information that indirectly related to matters of a business or commercial nature that was provided to an agency, as the information was relevant to the premises on which the VCAT applicant conducted its operations. 

In considering the likely unreasonable disadvantage and whether exposure to such disadvantage would in all the circumstances, be unreasonable, the Tribunal was not satisfied. There was little evidence before the Tribunal to support the VCAT applicant’s claim.  Even if it were accepted that disclosure would have resulted in disadvantage to the VCAT applicant, there was nothing to support the finding that such disadvantage would have been unreasonable. 

Documents containing material obtained in confidence: s 35(1)(b)

The Tribunal considered the labels ‘Urgent and Strictly Confidential’ and ‘Strictly Confidential’ and viewed this as non-determinative as there was nothing on the face documents to support these labels.  The Tribunal considered whether all correspondence from the VCAT applicant to the Authority was provided in confidence.  However, there was no supporting evidence or agreement between the VCAT applicant and the VCAT Authority to show that all communications were confidential.  Rather, the Tribunal was satisfied that the Authority accepted the VCAT applicant’s voluntary offer to engage in an unqualified open and transparent manner, other than the documents with the labels. 

The VCAT applicant’s assertion that it would be extremely reluctant to be open and transparent with the Authority was insufficient for the Tribunal to conclude that disclosure of the documents would be reasonably likely to impair the ability of the Authority to obtain similar information in the future. The Tribunal viewed the requirement of s 35(1)(b) as needing to show that the relevant information will not be forthcoming at all, not merely in a reluctant manner.