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Cite as: July 2012 86 (07) LIJ, p.8

Tigers mauled

In Richmond Football Club Ltd (RFC) v Verraty Pty Ltd [2011] VCAT 2104, RFC successfully argued that the Retail Leases Act 2003 applied to a variation of lease and that the provision requiring the tenant to pay land tax was void under s50 of the Act. RFC claimed that the payment of land tax was paid under a mistake because it was unaware that it had no liability to do so.

The Victorian Civil and Administrative Tribunal (VCAT) held that RFC received no consideration for the payments made because it never had an obligation to make those payments.

Counsel for the landlord submitted that the cause of action for recovery of money paid under a mistake of law accrues on the date of payment. He referred to the judgement of Brennan J in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353:

“If under a mistake, money is paid to and unjustly enriches a payee, the payer’s right to recover the money paid accrues at the moment when the payee received the money.”

In the absence of any contrary argument from the tenant, VCAT accepted that submission. RFC received $125,320 but failed to recover the first payment of land tax made on 1 April 2004 in the sum of $18,355 because it was statute barred.

Based on s27(c) of the Limitation of Actions Act (Vic) 1958, it would appear that this is not the law in Victoria and that the payer’s right to recover the money paid accrues from the moment the mistake was discovered.

Norman Mermelstein
Law Ink Pty Ltd

 

Freedom of Information system needs fixing

The object of the Freedom of Information Act 1982 (FOI Act) is to “extend as far as possible the right of the community to access to information in the possession of the Government of Victoria . . .” In a report released on 18 April 2012, the Auditor-General found that this object was being frustrated by the systematic underperformance and non-compliance of Victorian government agencies with their responsibilities under the FOI Act.

The report stated that “apathy and resistance to scrutiny have adversely affected the operation of the Act”.

The findings of the report are entirely consistent with the experience of community legal centres around Victoria dealing with the FOI regime.

When making FOI requests, community legal centres frequently experience unreasonable delays by agencies processing requests, as well as unfair and unjustified withholding of documents.

A lack of independent and effective internal review of FOI officer decisions also means that often the only option to pursue documents is through VCAT.

The failure of the FOI regime to operate effectively has serious implications for people’s rights and accountability in government decision making. For example, police failure to process applications within the 45-day time limit can affect victims of crime, who have to make victims compensation claims within statutory time limits and where police documents are crucial in assisting a claim.

Delayed provision of information about decisions with important public implications, such as decisions that have significant environmental impacts, mean the information is not released until after the decision has been made and the public debate has moved on. Refusal by agencies to provide such information means the bases for government decision making cannot be questioned.

Delays and bad decision making can lead to expensive and frustrating litigation that uses significant community and government resources.

In one matter, a community legal centre was forced to withdraw from a five-year battle in VCAT and the Supreme Court over access to a document, because the costs exposure for the client became too high.

The FOI Act and the way in which agencies deal with requests for documents are in urgent need of reform.

The government has recently passed legislation to create a position of the FOI Commissioner. One of the functions of the commissioner is to recommend reforms to the FOI Act.

It is critical that the government commit to giving the commissioner the resources and mandate to fix Victoria’s broken FOI system.

FELICITY MILLNER
Principal solicitor
Environment Defenders Office

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