Chopra v Department of Education and Training

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0029

MANU CHOPRA	Applicant
v
DEPARTMENT OF EDUCATION AND TRAINING	Respondent

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JUDGES:	TATE, WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2019
DATE OF JUDGMENT:	13 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 298

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FREEDOM OF INFORMATION – Request for access to nine categories of documents – Whether request sufficiently identified documents in one of the categories – Whether invalidity of part of request dealing with that category invalidated entire request – Freedom of Information Act1982 (Vic) s 17(2).

TRIBUNALS – Summary judgment – Whether proper to use summary judgment procedure to determine issue of invalidity of a request for access to documents due to non-compliance with s 17(2) of Freedom of Information Act1982 (Vic) – Victorian Civil and Administrative Tribunal Act 1998 s 75(1).

PRACTICE AND PROCEDURE – Referral of questions of law by Victorian Civil and Administrative Tribunal to Court of Appeal under s 96(1) of Victorian Civil and Administrative Tribunal Act 1998 – Whether President of Tribunal must consent to the final form of referred questions – Whether failure to so consent invalidates referral and deprives Court of Appeal of jurisdiction to determine referred questions – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms R Walsh	Maddocks Lawyers

TATE JA
WHELAN JA
KYROU JA:

Introduction and summary

On 20 February 2018, Dr Chopra submitted to the Department of Education and Training a request for access to documents under the Freedom of Information Act 1982 (Vic) (‘FOI Act’). The request listed nine categories of documents in nine numbered paragraphs. Paragraph 4 was in the following terms:

All documents to and from Grovedale College mentioning me or concerning me since 1 October 2015 till the date of the search which should be specified.

By letter dated 14 March 2018, the Department informed Dr Chopra that it was of the opinion that the request was invalid because it did not comply with s 17(2) of the FOI Act. That section requires that a request ‘provide such information concerning the [requested] document as is reasonably necessary to enable [the Department] to identify the document’. The letter invited Dr Chopra to consult with the Department for the purpose of making a request in a form that complied with s 17(2).

In his subsequent communications with the Department, Dr Chopra insisted that his request complied with s 17(2) of the FOI Act and declined to amend it. On 10 April 2018 he applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of what he described as a decision by the Department ‘refusing to grant access to a document in accordance with a request’ (VCAT proceeding number Z274 of 2018). He relied on s 53 of the FOI Act which provides that if an agency does not make a decision on a request for access to a document within the period of 30 days set out in s 21(1) of that Act, the agency is deemed to have made a decision to refuse the request.

On 13 September 2018, the Department applied to VCAT for an order under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) that Dr Chopra’s application for review be summarily dismissed on the ground that VCAT lacked jurisdiction. The basis for the application was that: para 4 of the request did not comply with s 17(2) of the FOI Act; the non-compliance of para 4 rendered the whole request invalid; there was no deemed decision to refuse to grant access in respect of the invalid request; and in the absence of a decision which was capable of being the subject of an application for review to VCAT, VCAT lacked jurisdiction.

VCAT held a number of directions hearings in relation to Dr Chopra’s application for review, including a directions hearing conducted by the Vice President, Judge Hampel, on 22 October 2018. On that day, her Honour made an order which set out directions for a referral of questions of law to the Court of Appeal pursuant to s 96(1) of the VCAT Act. As appears from [26] below, that section relevantly provides that ‘[VCAT], with the consent of the President, may refer any question of law arising in a proceeding to the … Court of Appeal for decision’.

Judge Hampel’s order of 22 October 2018 relevantly provided as follows:

[VCAT] NOTES THAT:
1The applicant has requested [VCAT] and [VCAT] considers it appropriate to refer a question of law to the Court of Appeal under s 96 of the [VCAT Act], in relation to the correct interpretation of s 17 of the [FOI Act].
(The proposed question or questions.)

[VCAT] ORDERS THAT:
1The applicant shall prepare a draft special case in accordance with r 5.03 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (including the form of the proposed question or questions) and deliver it to the respondent by 29 January 2019.
2The respondent shall provide any comments on the draft special case by 12 February 2019.
3If the applicant and the respondent cannot agree on the form of the draft special case by 19 February 2019 then the applicant shall send the draft special case, and any comments, to [VCAT] without delay.
4If the applicant and the respondent can agree on the form of the draft special case by 19 February 2019, the applicant shall return the agreed special case to [VCAT] without delay.
5Upon receiving the draft or agreed special case in accordance with orders 3 or 4, [VCAT] will settle the special case in accordance with r 5.05(2) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 and on receiving the consent of the President, make orders referring the proposed question or questions to the Court of Appeal, and such further orders as [VCAT] considers appropriate.[1]

[1]Emphasis in original. VCAT’s order of 22 October 2018 described the referral of the questions of law as a ‘special case’. This is not strictly correct. It is likely that the mistake was made because O 6 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, which deals with referrals of questions of law, states that such referrals must be made in accordance with O 5, which deals with questions of law being reserved in the form of a special case or case stated. Rule 6.02 provides that O 5 applies to a referral of a question of law to the Court as if ‘the special case’ meant the reference. The mistake is not material.

On 2 November 2018, the President of VCAT, Quigley J, wrote to Judge Hampel in the following terms:

I refer to your Orders dated 22 October 2018 in proceeding Z274/2018 (the Orders).
I note the following:
a)the applicant in proceeding Z274/2018 has requested that [VCAT], and [VCAT] considers it appropriate, to refer a question of law to the Court of Appeal under s 96 of the [VCAT Act] in relation to the correct interpretation of s 17 of the [FOI Act] (the proposed question or questions);
b)in the Orders, [VCAT] ordered that the applicant prepare a draft special case in accordance with r 5.03 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (including the form of the proposed question or questions) and deliver it to the respondent by 29 January 2019; and
c)the Orders set out the procedure for settling the draft special case and referring the proposed question or questions to the Court of Appeal.

In my capacity as President of [VCAT], I formally give my consent pursuant to s 96 of the VCAT Act for [VCAT] to refer the proposed question or questions of law arising in proceeding Z274/2018 in relation to the correct interpretation of s 17 of the [FOI Act] to the Court of Appeal, the final form of which are to be settled in accordance with the Orders.[2]

[2]Emphasis in original.

Dr Chopra and the Department were not able to agree on the form of the questions of law to be referred to the Court of Appeal or on a statement of agreed facts that was to form part of the referral. Ultimately, on 18 March 2019, Judge Hampel settled two questions and a statement of agreed facts. Those questions are as follows:

1Does a request in terms of paragraph 4 of the Applicant’s Request provide such information concerning the document as is reasonably necessary to enable a responsible officer of the Respondent to identify the document, and so, conform with s 17(2) of the FOI Act?
2If paragraph 4 of the Request does not conform with s 17(2) of the FOI Act, is the whole of the request invalid?

The questions were referred to this Court on 2 April 2019. Quigley J was not asked to consent to the referral of the questions as settled by Judge Hampel.

In its written case, the Department raised two threshold jurisdictional issues under s 96(1) of the VCAT Act. It submitted that this Court did not have jurisdiction to decide the referred questions because: firstly, question 1 was not a question of law and question 2 was contingent on question 1; and secondly, the questions had not yet arisen in the VCAT proceeding. Prior to the hearing before us, we requested the parties to make submissions on a third jurisdictional issue, namely, whether the requirement for consent on the part of the President in s 96(1) was satisfied in relation to the two referred questions.

For the reasons that follow, we have reached the following conclusions:

(a)The consent requirement in s 96(1) of the VCAT Act was not satisfied, resulting in the referral of the two questions being invalid and the Court lacking jurisdiction to determine them.
(b)If we are wrong in our conclusion regarding jurisdiction:
(i)nevertheless we would be unable to answer question 1;
(ii)we would reformulate question 2 as follows: if an item of a request for access to documents that contains multiple items does not comply with s 17(2) of the FOI Act when the request is made, will the whole request necessarily be permanently invalid?; and
(iii)we would answer the reformulated question 2 ‘No, because the severance principle may in certain circumstances apply to overcome an initial invalidity’.

In the course of the hearing before us we heard submissions about whether it was appropriate for the Department to invoke the summary judgment procedure in s 75(1) of the VCAT Act to determine the validity of Dr Chopra’s application for review. Although this matter was not the subject of a separate referred question of law, it is a key issue in the VCAT proceeding, was the catalyst for the two referred questions and raises an important matter of principle. Accordingly, we have addressed it and have concluded that it will usually be inappropriate to adopt the summary judgment procedure in respect of an application for review of an actual or deemed decision refusing access to documents on the basis of non-compliance with s 17(2) of the FOI Act.

Relevant statutory provisions

Sections 3, 5, 13, 16, 17, 21, 25A, 50, 53 and 55 of the FOI Act and ss 51, 51A, 75, 96 and 159 of the VCAT Act are relevant to the referred questions of law.

Section 3 of the FOI Act sets out the object of the Act. It relevantly provides as follows:

3 Object of Act
(1)The object of this 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 and other bodies constituted under the law of Victoria for certain public purposes by—
…
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2)It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Section 13 of the FOI Act provides that, subject to the Act, ‘every person has a legally enforceable right to obtain access in accordance with [the] Act to … a document of an agency, other than an exempt document’.[3] It is common ground that the Department is an agency. Section 5(1) contains a wide, inclusive definition of ‘document’. The definition extends to ‘any … device in which … data … are embodied so as to be capable … of being reproduced therefrom’. Section 5(1) defines ‘exempt document’ as ‘a document which, by virtue of a provision of Part IV, is an exempt document’. The provisions of pt IV are not presently relevant.
[3]Section 13 of the FOI Act also confers a right of access to an official document of a Minister, other than an exempt document. As the referred questions relate to a request for access to documents of an agency, we will disregard the provisions of the Act that refer to official documents of a Minister.

Section 16(1) of the FOI Act provides that ‘agencies shall administer [the] Act with a view to making the maximum amount of government information promptly and inexpensively available to the public’.

Section 17 of the FOI Act sets out the requirements for a valid request for access to documents. It provides as follows:

17 Requests for access
(1)A person who wishes to obtain access to a document of an agency … shall make a request in writing to the agency … for access to the document.
(2)A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency … to identify the document.

(2A) A request must be accompanied by a fee of 2 fee units.
(2B)An application fee may be waived or reduced, whether or not the fee has been paid, if the payment of the fee would cause hardship to the applicant.
(3)It is the duty of an agency … to assist a person who … has made a request that does not comply with this section …, to make a request in a manner that complies with this section …
(4)Where a request in writing is made to an agency … for access to a document, the agency …, shall not refuse to comply with the request on the ground that the request does not comply with subsection (2), without first giving the applicant a reasonable opportunity of consultation with the agency with a view to the making of a request in a form that does comply with that subsection.

Section 5(1) defines ‘request’ as ‘a request made in accordance with section 17’.

Section 21(1) of the FOI Act relevantly provides that an agency must take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but not later than 30 days after the day on which the request is received by or on behalf of the agency.

Section 25A of the FOI Act empowers agencies to refuse to process ‘voluminous’ requests. Sections 25A(1) and 25A(2) relevantly provide:

25A Requests may be refused in certain cases
(1)The agency … dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency … is satisfied that the work in processing the request —
(a)… would substantially and unreasonably divert the resources of the agency from its other operations; or
…

(2)Subject to subsection (3) but without limiting the matters to which the agency … may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency … is to have regard to the resources that would have to be used—
(a)in identifying, locating or collating the documents within the filing system of the agency …; or
(b)in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used—
(i) in examining the documents; or
(ii)in consulting with any person or body in relation to the request; or

(c)in making a copy, or an edited copy, of the documents; or

(d) in notifying any interim or final decision on the request.

Section 25A(6) of the FOI Act provides that an agency must not refuse to grant access to a document under s 25A(1) without first giving the applicant a reasonable opportunity to consult with the agency ‘with a view to making the request in a form that would remove the ground for refusal’. The agency must also ‘so far as is reasonably practicable, [provide] the applicant with any information that would assist the making of the request in such a form’. Section 25A(7) specifically contemplates that an applicant may either confirm or alter ‘the request following the consultation referred to in subsection (6)’.

Section 50 of the FOI Act provides for review by VCAT of decisions made under that Act. Section 53 provides that if an agency does not make a decision on a request within the time specified in s 21, the agency is deemed to have made a decision refusing to grant access. The applicant can apply to VCAT for a review of that deemed decision pursuant to s 50(1)(ea). Section 50(4) provides as follows:

50 Applications for review by [VCAT]
…
(4)On the hearing of an application for review [VCAT] shall have, in addition to any other power, the same powers as an agency … in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33) where [VCAT] is of opinion that the public interest requires that access to the document should be granted under this Act.

Section 55(2) of the FOI Act provides that in proceedings before VCAT, the agency has the onus of establishing that a decision given in respect of a request was justified.

Section 51(1)(a) of the VCAT Act provides that, in exercising its review jurisdiction in respect of a decision, VCAT ‘has all the functions of the decision-maker’. Under s 51(2), VCAT may ‘vary the decision under review’ or set it aside and ‘make another decision in substitution for it’ or ‘remit the matter for re-consideration by the [agency] in accordance with any directions or recommendations of [VCAT]’. Sections 51A(1) and 51A(2) provide that VCAT may at any time in a proceeding for review invite the decision-maker to ‘reconsider the decision’ and that the decision-maker may ‘vary the decision’ or set it aside and ‘substitute a new decision for it’. Section 51A(3) stipulates that if the decision-maker varies the decision or substitutes a new decision and the proceeding continues, ‘it is taken to be a proceeding for review of the decision as varied or the new decision’.

Sections 75 and 159 of the VCAT Act are set out at [127] and [128] below, respectively.

Section 96 of the VCAT Act deals with referral of questions of law by VCAT to the Supreme Court. It provides as follows:

96 Referral of questions of law to Court
(1)[VCAT], with the consent of the President, may refer any question of law arising in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal for decision.
(2)A referral may be made under subsection (1) on the application of a party or on [VCAT’s] own initiative.
(3)If a question of law has been referred to the Trial Division or the Court of Appeal, [VCAT] must not—
(a)make a determination to which the question is relevant while the referral is pending; or

(b)proceed in a manner or make a determination that is inconsistent with the opinion of the Trial Division or Court of Appeal on the question.

Statement of agreed facts

VCAT approved a statement of agreed facts in respect of the referred questions. That statement is in the following terms:

1By email dated 20 February 2018 …, the Applicant applied to the Respondent for access to documents under the [FOI Act] (The Request). Paragraph 4 of the Request was in these terms:
all documents to and from Grovedale College mentioning me or concerning me from 1 October 2015 until the date of the search.

2By letter dated 14 March 2018 …, the Respondent informed the Applicant it considered the Request did not comply with s 17(2) of the [FOI Act] and was invalid. It offered him an opportunity to consult with it with a view to making a request in a form that complied with s 17(2).
3Between 13 and 15 March 2018, there was an exchange of emails passing between the Applicant and the acting FOI manager of the Respondent … In the final email of that exchange, the Applicant advised he had consulted with the FOI officer allocated to his file, and that they had ended the conversation ‘agreeing to disagree’. He concluded ‘the consultation is at an end. I consider the request is valid.’
4There was no further communication between the Applicant and the Respondent before 10 April [2018] when the Applicant applied to [VCAT] under s 50 of the FOI Act for review, on the basis that his Request had been deemed to have been refused by the operation of s 53 of the FOI Act.
5By Orders made on 22 October 2018, [VCAT] granted the Applicant’s application to refer questions of law to the Court of Appeal under s 96 of the [VCAT Act] in relation to the correct interpretation of s 17 of the [FOI Act].
6On 2 November 2018, the President of [VCAT] consented to the referral of questions of law concerning the interpretation of s 17(2) of the FOI Act, in accordance with s 96(1), to the Court of Appeal.[4]

[4]Emphasis in original.

Paragraph 6 of the statement of agreed facts erroneously states that the President consented to the referral of questions of law concerning the interpretation of s 17(2) of the FOI Act. As appears from [7] above, the President’s letter of consent referred to s 17 of the FOI Act rather than any specific subsection.

Dr Chopra’s FOI request and correspondence relating to it

Dr Chopra’s FOI request sought access to the following nine categories of documents:

1All documents that are responsive to the following search string in the Google Vault app at Grovedale College, in the time period since 1 October 2015 till the date of the search which should be specified.
Manu OR Chopra OR Manu Chopra OR Mr Chopra OR Dr Chopra OR Mr Manu Chopra OR Dr Manu Chopra OR ‘brown skin’ OR ‘brownskin’ OR ‘brown skins’ OR ‘brownskins’ OR ‘Angelina Jolie’ OR ‘Jolie’ OR ‘Angelina Jolie’s family’.

To find documents under the above search, the search should be done in Grovedale College’s internal email system using the Google Vault application. Note that the entire database of all accounts created at Grovedale since Google Vault was initiated must be used for this search. If any accounts have been deleted or not included in the search, please indicate which ones and why these are not included. The IT Manager at Grovedale will know how to do this search.
2All documents to and from Janet Matthews mentioning me or concerning me since 1 October 2015 till the date of the search which should be specified.
3All documents to and from Davin Reid mentioning me or concerning me since 1 October 2015 till the date of the search which should be specified.
4All documents to and from Grovedale College mentioning me or concerning me since 1 October 2015 till the date of the search which should be specified.
5All documents between Janet Matthews and the Department of Education and Training concerning my request to hire facilities at Grovedale College since 1 October 2015 till the date of the search which should be specified.
6All documents to and from Davin Reid concerning my request to hire facilities at Grovedale College since 1 October 2015 till the date of the search which should be specified.
7All documents regarding the School Council meetings of Grovedale College held since October 2015, including Minutes of all School Council Meetings held since 1 October 2015 where my request to hire facilities was discussed, and the summary of the minutes of that meeting till the date of the search which should be specified.
8All documents and communication between Grovedale College and the President of the School Council, Ms Brenda Nelson concerning me till the date of the search which should be specified, including all the documents which were sent to her concerning my request to hire facilities.
9All documents and communication between Grovedale College and the members of the School Council other than Ms Brenda Nelson concerning me till the date of the search which should be specified, including all the documents which were sent to each School Council member concerning my request to hire facilities.[5]

[5]Underlining omitted.

Accompanying Dr Chopra’s request was a statement explaining some aspects of the request and stipulating the steps the Department should take in processing it. It is not necessary for us to set out that statement.

The Department responded to the FOI request by letter dated 14 March 2018. The letter stated that Dr Chopra’s request was invalid because it did not comply with s 17(2) of the FOI Act and invited him to consult with the Department ‘for the purpose of making a request that is valid under section 17’.

Dr Chopra responded to the Department’s letter by an email dated 14 March 2018 in which he asserted that the request complied with s 17(2) of the FOI Act and complained that the Department had not provided him with assistance to make a request that complied with that section, as required by s 17(3). He said:

This is why I cannot narrow the scope of my request. You need to inform me which particular item is too broad to do a search on and why. I will be glad to help and narrow the scope of the search. But I need you to fulfil your positive duty and explain why … a particular item is too broad such that a document cannot be identified.

The Department responded by an email of the same date in which it stated that it was happy to assist Dr Chopra to make a valid request and encouraged him to contact the Department.

Following the Department’s email, Dr Chopra spoke to the FOI officer in the Department who was responsible for his request. This discussion did not result in any modification of the request. Following the discussion, Dr Chopra sent a further email dated 14 March 2018 to the Department in which he stated that his request did not require modification because it was valid in its original form. He said that ‘the consultation is at an end’.

As noted in the statement of agreed facts, there were no further communications between the parties prior to 10 April 2018 when Dr Chopra made his application to VCAT.

VCAT’s decision to refer the questions of law to the Court of Appeal

As we have already stated, Dr Chopra’s request for review was the subject of a number of directions hearings prior to the two questions of law being referred to this Court.[6]
[6]Dr Chopra sought leave to rely on an audio recording of the directions hearing before Judge Hampel on 16 October 2018 and other material. In the course of the hearing, we refused leave. Subsequent to the hearing, in two separate communications with the Registry of the Court of Appeal, Dr Chopra requested that we direct the parties to provide for the Court’s consideration transcripts of several directions hearings in the current VCAT proceeding and the transcript of a directions hearing in VCAT proceeding number Z45 of 2018. The Court did not give such directions. In our opinion, the recording, transcripts and other material could not assist our consideration of the referred questions. The Court also declined to consider further submissions Dr Chopra made without leave.

On 18 March 2019, Judge Hampel published reasons for her decision to refer the questions of law to this Court.[7] In her reasons, Judge Hampel described the proper interpretation of s 17(2) of the FOI Act as a ‘vexed issue’ and stated that referral of a question of law to this Court on that issue ‘seemed … to be a simple and clear path to settling the law in a manner that binds [VCAT] (and the litigants appearing before it)’.[8]
[7]Chopra v Department of Education and Training [No 2] [2019] VCAT 362 (‘Reasons’).
[8]Reasons [31].

It is apparent from Judge Hampel’s reasons and the material before us that Dr Chopra has made a number of previous requests to the Department for access to documents under the FOI Act. There is some overlap between those requests and the request that is the subject of the present proceeding. The Department had refused some of Dr Chopra’s previous requests on the basis of non-compliance with s 17(2) of the FOI Act. Dr Chopra made applications for review to VCAT in respect of those refusals.

One of Dr Chopra’s applications for review (VCAT proceeding number Z45 of 2018) involved a request for access which encompassed multiple categories of documents, including a category that was almost identical to para 4 of the request that is the subject of the present proceeding.[9] On 25 May 2018, in Chopra v Department of Education and Training,[10] Senior Member Proctor dismissed the application for review. That decision is discussed further below.
[9]See [103] below.
[10][2018] VCAT 808 (‘Chopra Z45’).

Threshold jurisdictional issues
Parties’ submissions on jurisdictional issues

As stated at [10] above, the Department raised two jurisdictional issues and the Court invited the parties to make submissions on a further jurisdictional issue.

At the hearing, the Bench suggested that the nature of the consent required by s 96(1) of the VCAT Act is unclear and that at least three interpretations are open. The first interpretation is that the President may provide prospective consent to VCAT referring any question of law whatsoever that arises in the proceeding. The second interpretation is that the President may provide prospective consent to VCAT referring any question of law on a particular legal issue that arises in the proceeding. The third interpretation is that the President must provide consent in respect of the final settled questions which VCAT proposes to refer.

Dr Chopra submitted that the first interpretation of the consent requirement in s 96(1) of the VCAT Act is correct. According to Dr Chopra, on the plain words of s 96(1), the President’s consent to the specific question is not required. There were two bases for that submission.

The first basis was s 54(2) of the Civil and Administrative Tribunal Act 2013 (NSW), which provides that the Civil and Administrative Tribunal of New South Wales ‘may refer a question of law … only if the President has consented in writing to the question being referred’. Dr Chopra contended that this provision indicates that where a Parliament intends that the head of a tribunal must consent to the specific question being referred, it can expressly state this in the relevant Act.

The second basis was that the requirement for consent in s 96(1) of the VCAT Act must be interpreted consistently with the requirement for consent in s 54(3) of that Act. That section provides that where the Attorney-General certifies in writing that disclosure of certain information or documents would be contrary to the public interest, ‘[VCAT], with the consent of the President, may allow a party … to have access to … information or a document to which [the] certificate … applies, on any conditions [VCAT] thinks fit’. Dr Chopra stated that ‘[s]urely, the President is not expected to look through each and every document, or information’ before giving consent under s 54(3).

Dr Chopra submitted that there was nothing in the legislative history or in the case history of s 96(1) of the VCAT Act ‘which even remotely suggests that the Victorian Parliament intended the President to micromanage the referral of questions of law’ under that section. He contended that power to consent is administrative rather than judicial.

Dr Chopra argued that if the second interpretation is correct, the consent provided by the President in the present case satisfied s 96(1) of the VCAT Act.

According to Dr Chopra, even if the third interpretation is adopted, it is arguable that the President delegated the power of consent to Judge Hampel under s 33(1) of the VCAT Act. That section provides that the President ‘may delegate to any member or class of members … any function of the President under this Act … other than this power of delegation’.

Dr Chopra contended that question 1 is a question of law or, at the very least, a mixed question of law and fact.

Dr Chopra submitted that insofar as this Court has a discretion whether to accept the referral of the questions, a refusal to do so would be contrary to the overarching purpose in s 7(1) of the Civil Procedure Act 2010 (‘CPA’). That purpose is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Dr Chopra also submitted that the Court should exercise any available discretion in a manner that furthers the object of the FOI Act.

The Department submitted that this Court did not have jurisdiction to determine the referred questions for the following three reasons:

(a)The consent provided by the President to the referral of the two questions did not satisfy the requirements of s 96(1) of the VCAT Act.
(b)Question 1 was not a question of law and question 2 did not arise because it is contingent on question 1.[11]
(c)The referred questions had not yet arisen in the VCAT proceeding.

[11]See [80], [84]–[86], [92] below in relation to a concession made by Dr Chopra in his written submissions in reply.

The Department also submitted that even if the Court decides that it has jurisdiction to determine the referred questions, it should exercise its discretion to refuse to determine them.

In relation to the President’s consent, the Department submitted that the third interpretation is correct because:

(a)The Courts have always treated referral powers as exceptional and have construed the scope of such powers narrowly because of the adverse ramifications of ill-considered or premature referrals.[12] Those ramifications include fragmentation of a proceeding, delays and additional costs.
(b)In deciding whether to provide consent under s 96(1) of the VCAT Act, the President exercises a supervisory judicial function and, in making that decision, the President must take into account considerations that are relevant to its exercise. Those considerations include the appropriateness of the scope of the questions, any adverse ramifications that might arise from the referral and the availability of any alternative mechanisms for resolution of the questions.[13]
(c)The consent of the President is a precondition to a valid referral under s 96(1) and its purpose is to ensure that the President is able to perform the supervisory judicial function described at (b) above prior to a question being referred.

[12]The Department relied on C E Heath Underwriting and Insurance (Australia) Pty Ltd v Transport Accident Commission (Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989) 4–5 (‘C E Heath’); Collins v Black [1995] 1 VR 409, 410–11, 419 (‘Collins’); Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 [16]–[18] (‘Urban Consolidation’).

[13]The Department relied on De Simone v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 200, 208–9 [35]–[38] (‘De Simone’); Collins (1995) 1 VR 409, 410–11, 419; Urban Consolidation [2010] VCAT 2124 [16]–[18].

The Department contended that, as the President had not consented to the final form of the referred questions, the referral is invalid because the precondition for its validity has not been satisfied.

The Department argued that, even if the second interpretation of the consent requirement in s 96(1) of the VCAT Act is correct, it has not been satisfied in the present case. That was said to be because the legal issue set out in the President’s letter of consent was expressed too widely in that it referred to the interpretation of s 17 rather than being confined to s 17(2). According to the Department, s 17 contains various requirements — including in relation to the payment of fees — and therefore a general reference to the section is insufficient to identify the nature of the questions of interpretation to be referred.

The Department submitted that the first interpretation of the consent requirement must be rejected because its width would not ensure the effective performance of the President’s supervisory judicial function.

In relation to whether question 1 is a question of law, the Department contended that question 1 is a mixed question of law and fact. It was said not to be a pure question of law because s 17(2) does not bear a special meaning. The Department argued that question 1 involves questions of fact including matters such as identifying the relevant entities or persons associated with Grovedale College. According to the Department, the factual nature of question 1 is underscored by the long-standing principle that whether a description of requested documents is sufficiently precise depends on the circumstances of the particular case.

As mentioned, according to the Department, if the Court is not able to answer question 1 then question 2 does not arise because it is contingent on a negative answer to question 1.

In relation to whether the referred questions have arisen in the proceeding, the Department submitted that the referral was premature and speculative because, as the parties have not yet adduced any evidence or filed any submissions, the questions had not yet crystallised as questions that required determination by VCAT. The Department also submitted that question 1 cannot arise until VCAT first decides whether the Department has complied with the consultation requirement in s 17(4) of the FOI Act.

The Department contended that if, contrary to its submissions, the Court decides that it has jurisdiction to determine the referred questions, it should exercise its discretion to refuse to do so for the following reasons:

(a)The questions will not resolve all issues between the parties.
(b)In Chopra Z45, VCAT determined the questions being referred with respect to an almost identical request made by Dr Chopra, save for the timeframe of the request as set out at [103] below. According to the Department, Dr Chopra has raised the same arguments in the referral as were considered by VCAT in Chopra Z45. The issues raised by the referred questions are relatively settled rather than ‘vexed’.[14] As comity, uniformity and consistency between decisions is desirable, the referral offends against these principles.
(c)As Dr Chopra did not seek leave to appeal against the decision in Chopra Z45, there is a risk that the referral will operate as a de facto appeal from that decision.
(d)There are more suitable options to resolve the questions, such as a judicial member of VCAT determining the issues in the proceeding and leaving it up to the unsuccessful party to appeal to the Court.
[14]Cf the views expressed by Judge Hampel in Reasons [31]. See [37] above.

Decision on jurisdictional issues

We agree with the Department’s submission that s 96(1) of the VCAT Act requires the President to consent to the final version of the questions to be referred to this Court and that, as the President’s consent in the present case did not satisfy this requirement, the Court lacks jurisdiction to determine the referred questions.

It is not necessary for us to decide whether the President performs a judicial function in deciding whether to consent. That is because, irrespective of whether the function is judicial or administrative, the language of s 96(1) of the VCAT Act supports the view that VCAT must not refer a question of law unless the President consents to that specific question. What requires the consent of the President is the ‘refer[ral] [of] any question of law’. The subject of the consent must be the question of law to be referred. It is clear from the context of the VCAT Act as a whole and the purpose of s 96(1) that the President must review the question to be referred and satisfy herself or himself that it is appropriate in all of the circumstances to refer that specific question to the Court.

A critical contextual matter is that the VCAT Act makes provision for the appointment of VCAT members with a variety of professional backgrounds and qualifications, including non-legal qualifications, and that the President must be a judge of the Supreme Court.[15] In these circumstances, it can be readily inferred that the VCAT Act intends that proposals by VCAT members to refer questions of law to the Court must be directly considered by the President before giving consent. The President must be furnished with the specific questions to be referred to be able to give proper scrutiny to their precise nature and scope. In the absence of the opportunity by the President to provide the necessary scrutiny of the final formulation of the questions, ill-conceived questions may be referred. Referrals of such questions would undermine the proper administration of justice because they would waste scarce judicial resources and adversely affect the parties in terms of additional costs and delays.
[15]See ss 8–14 of the VCAT Act.

We reject Dr Chopra’s submission that s 54(3) of the VCAT Act provides contextual support for the proposition that s 96(1) does not require the President to consent to the specific question being referred. The two sections deal with entirely different subject matters. It is both unnecessary and undesirable for us to express any opinion on the nature of the consent that is required under s 54(3). Further, the fact that the Parliament of New South Wales chose particular language to describe the nature of the consent to be provided under legislation that is similar to the VCAT Act cannot assist in ascertaining the intention of the Victorian Parliament in relation to s 96(1).

We also reject Dr Chopra’s suggestion that it is arguable that the President delegated the power to consent to Judge Hampel in the present case. The President’s letter of consent, which is set out at [7] above, is expressed in terms of giving consent rather than delegating the power of consent.[16]
[16]The Department submitted that the power to consent cannot be delegated under s 33(1) of the VCAT Act. It is not necessary for us to express a view on this submission.

The issue that then arises is whether a failure by the President to give consent to the specific question the subject of a referral invalidates the referral.

In Project Blue Sky Inc v Australian Broadcasting Authority,[17] the majority of the High Court held that whether a breach of a statutory requirement results in invalidity depends on whether a legislative purpose can be identified to that effect. The majority stated the relevant principles as follows:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied, there is not even a ranking of relevant factors or categories to give guidance on the issue.[18]

[17](1998) 194 CLR 355 (‘Project Blue Sky’).

[18]Project Blue Sky (1998) 194 CLR 355, 388–9 [91] (citations omitted).

In the present case, for the reasons we have already discussed, the language of s 96(1) of the VCAT Act, its subject matter and purpose indicate a legislative intention that in order for a referral of a question of law to be valid, that question of law must be the subject of specific consent by the President. Such a construction has the effect of safeguarding the integrity of the referral process by requiring the President to approve the wording of the question to be referred in order for the referral to be valid.

We accept that this construction will result in the dismissal of any referrals which are invalid due to a failure by the President to consent to the wording of the questions being referred, and may result in a waste of some resources by VCAT. However, we are confident that our clarification of the nature of the President’s consent will result in the President in future being furnished with the specific questions of law to be referred, bringing with it the opportunity for close scrutiny and thus avoiding the adverse consequences that might arise from invalid referrals.

In the present case, the President did not consent to the referred questions as ultimately settled by Judge Hampel. Accordingly, the referral of the questions is invalid and this Court does not have jurisdiction to determine them.

It follows that it is not necessary for us to decide the other jurisdictional grounds and discretionary issues on which the Department relied. However, we will make some brief observations in relation to them.

We will consider whether question 1 is a question of law in the context of our discussion of question 1 at [86]–[93] below.

We do not accept the Department’s submission that the referred questions have not yet arisen in the VCAT proceeding. It is sufficiently clear from the factual and legal contentions on which the parties relied in the documents they filed with VCAT and the submissions they made in the various directions hearings — particularly when considered in the context of prior litigation between them at VCAT — that the referred questions arose for determination. It is also clear from the Department’s application for summary judgment under s 75(1) of the VCAT Act that it did not regard the absence of a determination of whether it had complied with the consultation requirement in s 17(4) of the FOI Act as an obstacle to obtaining summary judgment.

This case is to be contrasted with the decision of the Full Court in C E Heath Underwriting and Insurance (Australia) Pty Ltd v Transport Accident Commission.[19] In that case, the former Administrative Appeals Tribunal of Victoria decided to refer certain questions of law to the Court at the request of the Transport Accident Commission ‘before anything other than the announcement of appearances had taken place in the Tribunal’.[20] Unsurprisingly, Young CJ, with whom King and Gobbo JJ agreed, held that it was ‘impossible to say that the questions which are asked are questions arising in a proceeding before the Tribunal’.[21] In the present case, the decision to refer the two questions was made after numerous directions hearings were conducted and extensive submissions were made by the parties.
[19]Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989.
[20]C E Heath (Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989) 3.
[21]C E Heath (Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989) 3.

The Department’s contention that the referred questions have not yet arisen in the VCAT proceeding fails to recognise that, whilst the issue of whether a question of law has arisen in a proceeding overlaps with the issue of whether the referring body has found all the facts necessary to enable the Court to answer the question, the two are not co-extensive. It is self-evident that, as the Court does not make factual findings when it answers a referred question of law, the referring body must make such findings of fact as are necessary to enable the Court to determine the question.[22] Such findings may result from either agreement by the parties or a decision of the referring body after it hears the evidence. The Court cannot answer a question of law where it is not provided with all the necessary facts because to do so would be tantamount to answering a hypothetical question.[23]
[22]C E Heath (Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989) 4.
[23]C E Heath (Unreported, Victorian Supreme Court, Young CJ, King and Gobbo JJ, 10 April 1989) 4.

We also do not accept the Department’s submission that if this Court has jurisdiction to determine the referred questions, it should exercise its discretion to refuse to do so.[24] As discussed below, the parties’ submissions on the substantive merits of the referred questions have revealed important errors on the part of VCAT in relation to proceedings involving s 17(2) of the FOI Act which should be corrected in the interests of justice.
[24]The Court has a discretion to decline a reference: Collins [1995] 1 VR 409, 411, 419.

Should the questions be answered despite our conclusion on jurisdiction?

In the light of our conclusion that the Court lacks jurisdiction to determine the referred questions, it is not necessary for us to consider them. However, in the absence of any authority which has involved a finding of lack of jurisdiction on the basis of non-compliance with a statutory precondition regarding consent, the jurisdictional issue is not beyond doubt. Given the importance of the issues raised by the referred questions, as a matter of prudence, we will consider them.

Question 1: Does para 4 of the access request comply with FOI Act s 17(2)?
Parties’ submissions on question 1

In his written case and oral submissions, Dr Chopra contended that question 1 should be answered in the affirmative as para 4 of his request provided enough information for the Department to identify the documents requested. He submitted that if VCAT had permitted him to lead evidence and cross-examine the Department’s witnesses, he would have been able to establish that para 4 contained sufficient information. He said that he had been denied this opportunity by VCAT in the present proceeding and in Chopra Z45 by virtue of the Department’s application for summary dismissal under s 75(1) of the VCAT Act.

Dr Chopra emphasised that the Department has the onus of proof under s 55(2) of the FOI Act to sustain its objection to para 4 of his request under s 17(2). He submitted that the Department’s objection must fail if it does not adduce any evidence to support it. He relied on Penhalluriack v Department of Labour and Industry,[25] in support of this submission.
[25]Unreported, County Court of Victoria, Judge Lazarus, 19 December 1983 (’Penhalluriack’).

Dr Chopra also submitted that the material before this Court contained all the facts the Court required to answer question 1.

In written submissions in reply filed with the Court’s leave after the conclusion of the hearing, Dr Chopra made a concession based on the principle of comity. He stated that, as Senior Member Proctor decided in Chopra Z45 that an item in a previous FOI request which was almost identical to para 4 of the request in the present case did not comply with s 17(2) of the FOI Act, then para 4 did not comply.

In its written case and oral submissions, the Department contended that in the event that the Court accepts that it has jurisdiction to consider the referral, the answer to question 1 should be ‘No’. It argued that para 4 of the request is unclear about matters that are crucial to identifying the documents sought, including which persons or entities send or receive communications as Grovedale College and whether Dr Chopra is seeking all emails or just those on the Department’s eduMail system.

The Department also submitted that the statement of agreed facts does not set out sufficient facts to enable this Court to answer the question.

The Department argued that issues relating to the onus of proof and the evidence that would satisfy VCAT that the request complies with s 17(2) of the FOI Act are not relevant to the referred questions.

In its supplementary written submissions filed with the Court’s leave after the conclusion of the hearing, the Department placed significant reliance on Dr Chopra’s concession in his written submissions in reply that para 4 of his request did not comply with s 17(2) of the FOI Act. The Department contended that the concession removed the entire foundation for the referral of the two questions and rendered it futile. That was said to be because there is currently on foot before VCAT another application for review (VCAT proceeding number Z826 of 2018) of a decision of the Department in respect of an FOI request by Dr Chopra which is identical to the request the subject of the present proceeding, save for a small difference in dates and that it does not contain a paragraph equivalent to para 4. That proceeding was said to be at an advanced stage.

According to the Department, Dr Chopra’s concession has the effect that there is no need for the current VCAT proceeding to continue because the issues he seeks to agitate in that proceeding, other than the issue of severance which arises from question 2, can be addressed in VCAT proceeding number Z826 of 2018. It submitted that even if Dr Chopra were to be permitted by this Court to sever the invalid item from his request, this would simply allow him to proceed with a case that is identical to the much further advanced VCAT proceeding number Z826 of 2018. The Department argued that it would be an abuse of process for Dr Chopra to continue with the current VCAT proceeding as well as proceeding number Z826 of 2018.

Decision on question 1

We do not accept the Department’s submission that Dr Chopra’s concession has the effect of rendering the referral of the two questions futile. First, it is not clear whether in making the concession, Dr Chopra intended to resile from the submissions he made in his written case and orally that para 4 complied with s 17(2) of the FOI Act. Secondly, we are not bound by the concession and cannot accept it as correct unless we are satisfied on the material before us that para 4 is non-compliant. Thirdly, the concession was made by reference to the application of the principle of comity in respect of VCAT decisions. As that principle has no application to this Court’s determination of whether particular VCAT decisions were correctly decided, it would not be a proper basis for us to accept the correctness of the concession.

Before addressing the correctness of the concession, we will consider whether question 1 is a question of law and whether there are sufficient factual findings before us to enable us to answer that question.

The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established.[26] However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law.[27] Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law.[28] However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[29]
[26]See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287–8 (‘Pozzolanic Enterprises’); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394–8; S v Crimes Compensation Tribunal [1998] 1 VR 83, 88–92 (‘S’); Industry Research and Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564, 576–8 [53]–[57]; Bell v Federal Commissioner of Taxation (2012) 88 ATR 923, 934–5 [36]–[41] (‘Bell’).
[27]S [1998] 1 VR 83, 88.
[28]See Pozzolanic Enterprises (1993) 43 FCR 280, 287–8; Bell (2012) 88 ATR 923, 934–5 [37]–[39].
[29]Pozzolanic Enterprises (1993) 43 FCR 280, 287–8; Bell (2012) 88 ATR 923, 935 [38]–[39].

In the present case, the focus of the parties’ submissions was on the meaning of the words in para 4 of Dr Chopra’s request rather than the meaning of the words in s 17(2) of the FOI Act.

The statement of agreed facts does not indicate the basis upon which the Department decided that para 4 did not provide ‘such information concerning the [documents the subject of para 4] as is reasonably necessary to enable [the Department] to identify the [documents]’. It appears from other material that was before us that the Department’s objection related to the meaning of ‘Grovedale College’ and, in particular, whether para 4 extended to the email accounts of all or some of the individuals or entities connected with the College, such as teachers, students, the parents’ association and the school council. The statement of agreed facts does not set out any facts that are necessary for resolution of that objection or indeed any other objection.

In circumstances where the statement of agreed facts does not set out essential facts — and indeed does not identify the nature of any ambiguity in para 4 of Dr Chopra’s request — it is not possible for this Court to answer question 1. The matters that Dr Chopra raised in his submissions do not assist in overcoming this fundamental problem.

As we have concluded that we are unable to answer question 1 due to the absence of findings on necessary facts, we do not accept the correctness of Dr Chopra’s concession. Accordingly, we will disregard the concession not only in relation to question 1, but also question 2.

For the above reasons, if we had jurisdiction to determine question 1, our answer would be ‘Unable to answer’.

Question 2: Is the whole request invalid if para 4 is invalid?
Parties’ submissions on question 2

Dr Chopra submitted that the answer to question 2 is ‘No’. He relied on Penhalluriack[30] and Secretary, Department of Treasury and Finance v Kelly[31] for the proposition that requests under the FOI Act are to be read distributively. He contended that, accordingly, under s 17 of the FOI Act, the agency must assess each item in a request separately and if one item is invalid, the agency can raise an objection to it but it is obliged to process the remaining items which are valid. He further submitted that Penhalluriack is binding on VCAT.
[30]Unreported, County Court of Victoria, Judge Lazarus, 19 December 1983.
[31](2001) 4 VR 595 (‘Kelly’).

Dr Chopra argued that VCAT decisions which have not followed Penhalluriack and have held that the invalidity of one part of a request invalidates the whole request are wrong and that these decisions are lacking in analysis or explanation. According to Dr Chopra, these decisions have slavishly followed earlier VCAT decisions which have held that a request cannot be severed.

As set out at [57] above, the Department submitted that the Court is unable to answer question 2 as it is entirely contingent on question 1. In response to questions from the Bench, the Department agreed that if the question was not contingent on question 1, it could be answered by this Court. On that basis, the Department submitted that the answer to question 2 is ‘Yes’. It argued that there is a long line of VCAT authority which provides support for the principle that, with respect to s 17(2) of the FOI Act, a request that seeks access to multiple items cannot be ‘split’ and that, where one item does not comply with s 17(2), the entire request is invalid.[32]
[32]The Department referred to Wright v State Electricity Commission of Victoria [1998] VCAT 162; Olexander v Department of Premier and Cabinet [2002] VCAT 497 (‘Olexander’); McIntosh v Department of Justice [2009] VCAT 92; Zeqaj v Victoria Police [2010] VCAT 1132 (‘Zeqaj’); Chopra Z45 [2018] VCAT 808; Macdonnell v State Sports Centres Trust [2018] VCAT 1616 (‘Macdonnell’).

The Department argued that, in addition to the authorities referred to, this approach is supported by the terms of the FOI Act. The Department relied on provisions including the definition of ‘request’ in s 5(1) as ‘a request made in accordance with section 17’ and s 17(2A) which requires a request to be accompanied by a prescribed fee. It argued that where a request which contains multiple parts is accompanied by one fee, it comprised a single request.

In response to questions from the Bench, the Department submitted that the non-severance principle that VCAT applies is in accordance with the object of the FOI Act as to do otherwise would lead to a fragmentation of the review process which would in turn lead to inefficiency.[33]
[33]The Department relied on Macdonnell [2018] VCAT 1616 in support of this submission.

Decision on question 2

We consider that question 2 raises an issue of general importance regarding the severability of a request with multiple items for the purposes of determining compliance with s 17(2) of the FOI Act. In our opinion, VCAT has committed an error of principle in relation to this issue. In order to address the issue, it is necessary to reformulate question 2. We do so as follows: If an item of a request for access to documents that contains multiple items does not comply with s 17(2) of the FOI Act when the request is made, will the whole request necessarily be permanently invalid?

The parties were unable to cite any authority of a superior court on this issue and we were not able to find any such authority from our own research. However, the County Court decision in Penhalluriack[34] and several decisions of VCAT have addressed the issue.
[34]Penhalluriack was decided in the early years of the FOI Act during which challenges to decisions under that Act were determined by way of appeal to the County Court.

In Penhalluriack, Judge Lazarus dealt with a request for access to documents which encompassed various categories. Notwithstanding that he concluded that some of the categories did not comply with s 17(2) of the FOI Act, he did not find that the whole request was invalid. Whilst he did not say in terms that the invalidity of a part of a request does not invalidate the whole request, his reasoning is consistent with that proposition. Indeed, the following observations strongly support the proposition:

The one request may properly seek access to any number of documents … [A] request is not made bad by reason of the inclusion of a number of documents in excess of one, but it would be quite absurd to require the one type of response from the agency in respect of each document or class of documents sought. A grant of access to one document could not prevent the withholding of access to another from being a refusal. If it is necessary to refine the matter so far, it could be said that the request is to be read distributively not so as to be other than one request but so as to constitute a request as to each document comprehended in it.
…
It is accordingly held that the response given in paragraph (c) [of the respondent’s decision], … in so far as it relies upon alleged non-compliance with s 17(2), is a decision refusing to grant access to a document … and therefore open to review by the Court upon this appeal.
It becomes necessary, therefore, to consider the validity or otherwise of the several parts of the request and of the [respondent’s] responses thereto.[35]

[35]Penhalluriack (Unreported, County Court of Victoria, Judge Lazarus, 19 December 1983) 5, 12–13.

In Kelly, Ormiston JA stated that s 25A(1) of the FOI Act ‘is intended to operate distributively, that is, it is contended to apply to each request made pursuant to s 17 of the Act’.[36] Contrary to Dr Chopra’s submission, that observation does not assist in the resolution of question 2 because Kelly involved the issue of whether 321 separate requests could be aggregated for the purpose of s 25A(1) rather than the issue of whether separate items in the same request can be processed individually.[37]
[36](2001) 4 VR 595, 597 [2].
[37]Kelly is discussed further at [138]–[139] below.

In the earlier decision of Chopra Z45, Dr Chopra made a request to the Department seeking access to 14 categories of documents. Category 4 was in the same terms as para 4 in the request the subject of the present proceeding, save that it specified the period ‘since November 2015’ rather than ‘since 1 October 2015 till the date of the search which should be specified’.[38] As in the present case, the Department asserted that the request did not comply with s 17(2) of the FOI Act and, following consultation, Dr Chopra applied to VCAT for review under s 50(1)(ea) of the FOI Act of what was said to be a deemed decision refusing his request. The Department applied under s 75(1) of the VCAT Act for an order that the proceeding be summarily dismissed on the basis that VCAT did not have jurisdiction because the request was invalid due to non-compliance with s 17(2).
[38]Paragraph 4 of the request the subject of the present proceeding is set out at [1] above.

Senior Member Proctor decided that all categories other than category 4 of the request complied with s 17(2) of the FOI Act. He held that, as category 4 did not comply with s 17(2), the ‘request does not as a whole comply’ and therefore the proceeding should be dismissed under s 75(1) of the VCAT Act.[39] He referred to his earlier decision in Victoria International Container Terminal Ltd v Port of Melbourne Corporation[40] where he stated that previous VCAT decisions had decided the following:

•Review of a decision cannot proceed from a ‘null application’ and that, where a request is later found to be deficient, it cannot be amended such as to cure the deficiency;
•Where a request is defective on the grounds it does not adequately specify what is sought, the respondent agency has an ‘unanswerable defence’ to the request once it becomes the subject of an application for review; and
•Where a request is made up of a number of parts and it could be said that some of those parts comply with s 17(2) and some do not, the whole request necessarily fails because it fails to comply with s 17(2). Requests may not be split into parts for the purposes of the FOI Act.[41]

[39]Chopra Z45 [2018] VCAT 808 [86], [88]. Section 75(1) of the VCAT Act is set out at [127] below.

[40][2016] VCAT 337 (‘Victoria International’).

[41]Chopra Z45 [2018] VCAT 808 [89] citing Victoria International [2016] VCAT 337 [15].

Senior Member Proctor made the following additional observations:

In my view, the principles that a ‘non-compliant request’ cannot be made compliant and if one part fails to comply the whole request fails to comply are sound. This is consistent with my observation in International Container that one must judge where a request sits on the range. Its position results from the whole, not part of the request. VCAT has no power to amend the FOI request before it. …[42]

[42]Chopra Z45 [2018] VCAT 808 [91].

The principle that where a part of a request fails to comply with s 17(2) of the FOI Act, the whole request is invalid and it is not possible to sever the invalid part in order to ensure the validity of the remaining parts was also applied by VCAT in Macdonnell v State Sport Centres Trust.[43]
[43][2018] VCAT 1616 [183], [197]–[198], [214].

The principle that a request cannot be ‘split’ for the purposes of s 17(2) of the FOI Act has also been applied by VCAT to s 25A. As appears from [20] above, s 25A(1) provides that an agency may refuse to grant access to documents in accordance with a request without processing the request where it is satisfied that the work in processing the request would substantially and unreasonably divert the agency’s resources from its other operations. In Wright v State Electricity Commission of Victoria, VCAT held that the FOI Act ‘does not contemplate the severing of individual items from the body of a main request’ because ‘there is no barrier to an applicant, at any time, making a further and discrete request for particular specified documents.’[44] In Olexander v Department of Premier and Cabinet, VCAT held that a request which seeks multiple classes of documents cannot be treated as a separate request for each class of documents.[45]
[44][1998] VCAT 162, (Appeal No 1997/32673) 11.
[45][2002] VCAT 497 [9]–[15]. See also ReLloyd and Victoria Police (2007) 27 VAR 340, 345 [25]; [2007] VCAT 1686 [25].

In our opinion, there is no absolute principle that, in the case of a multi-item request, the inclusion of an item which does not comply with s 17(2) of the FOI Act when the request was made will necessarily render the whole request permanently invalid.

We accept that a request which seeks access to multiple categories of documents remains a single request rather than a separate request for each of the categories. So much is clear from the definition of ‘request’ in s 5(1) of the FOI Act — namely ‘a request made in accordance with section 17’ — and the requirement in s 17(2A) that a fee be paid for each request. A request which does not comply with the requirements of s 17(2) is not a request within the meaning of the FOI Act.

However, s 17(4) of the FOI Act prohibits an agency from refusing to comply with such a request without first giving the applicant a reasonable opportunity of consultation ‘with a view to the making of a request in a form that does comply with that subsection’. Section 17(3) imposes a duty on the agency to assist an applicant who has made a non-compliant request ‘to make a request in a manner that complies’. The obvious purpose of these provisions is to enable an applicant, with the assistance of the agency, to modify a non-compliant request so that it is compliant.

Although s 17(4) of the FOI Act refers to ‘the making of a request in a form that does comply’ and s 17(3) refers to the making of ‘a request in a manner that complies’, we do not consider that these provisions require an applicant to withdraw the non-compliant request and submit a new request which complies. Such an interpretation would not further the object of the FOI Act because it would require the payment of a new fee and cause delays. It would elevate form over substance and be inconsistent with the duty of agencies under s 16(1) to administer the FOI Act ‘with a view to making the maximum amount of government information promptly and inexpensively available to the public’.

Our conclusion that an existing request can be modified to comply with s 17(2) of the FOI Act is not weakened by the difference in language between ss 17(3) and 17(4) on the one hand and s 25A(6) on the other. As we have seen, ss 17(3) and 17(4) refer to the making of ‘a request’ in a manner or form that complies with s 17(2). Section 25A(6) refers to making ‘the request’ in a form that would remove the ground of objection. Notwithstanding the different language, it is readily apparent that ss 17(3) and 17(4) and s 25A(6) seek to achieve the same purpose: for an agency to assist an applicant to modify a request in order to overcome the agency’s objection to processing the request.

Accordingly, we are of the opinion that ss 17(3) and 17(4) of the FOI Act permit an applicant to modify a non-compliant request so as to convert it into a compliant request. Put another way, under ss 17(3) and 17(4) an applicant and an agency can agree that particular modifications to a non-compliant request render it compliant. Decisions of the County Court and VCAT which have held the contrary should not be followed.[46]
[46]To the extent that observations made by Judge Lazarus in Penhalluriack (Unreported, County Court of Victoria, Judge Lazarus, 19 December 1983) 8, suggest that a non-compliant request cannot be ‘reformed’ in order to comply, those observations do not reflect the law.

A modification of a non-compliant request so as to convert it into a compliant request can take the form of severance of a part of the request. Thus, in the case of a multi-item request where one or more of the items do not comply with s 17(2) of the FOI Act, the applicant may agree to delete the non-compliant items so that the request is to be processed only in respect of the remaining, compliant items.

We accept that whilst severance may be possible where the items sought are set out in discrete paragraphs in a request and are capable of standing alone, it may not be possible in other cases, such as where the items sought are set out in a single sentence and are described in an intertwined manner. Whether severance is possible will depend on the circumstances of each case, including the nature of the documents sought, how the documents are described in the request and the extent of any interdependence.

In the case of a request seeking access to multiple discrete items, an agency that wishes to refuse access on the basis of non-compliance with s 17(2) of the FOI Act must inform the applicant which of the items do not comply with s 17(2) and why they do not comply. The agency must also give the applicant an opportunity to modify the request by amending or severing the items which are said not to be compliant. In the case of such a request, a generalised response which does not address each of the discrete items in the above manner would not satisfy the requirements in ss 17(3) and 17(4).

If an applicant is not prepared to amend or sever any part of a request which an agency asserts does not comply with s 17(2) of the FOI Act then the agency may:

(a)where it is persuaded by the applicant that all parts of the request are compliant, decide to accept the whole request as compliant and process it accordingly; or
(b)where it is not persuaded by the applicant that all parts of the request are compliant, refuse to process all parts of the request on the basis that the non-compliant part invalidates the whole request.[47]

[47]The agency could also decide to grant access to any part of the request under s 16(2) of the FOI Act.

If we are correct in our conclusion that, during the consultation process under s 17(4) of the FOI Act, an applicant who has made a multi-item request can agree to modify it by amendment or severance to overcome non-compliance with s 17(2) by one or more of those items, we see no reason why the same result cannot be achieved during a VCAT proceeding.

In our opinion, such a result can be achieved either under s 50(4) of the FOI Act, whereby VCAT has the same powers as an agency, or ss 51 and 51A of the VCAT Act, whereby VCAT has all of the functions of the agency and may invite it to reconsider its decision.[48] The use of these provisions can be illustrated by reference to a hypothetical case involving a request for 10 discrete, standalone items where it is alleged by the agency in a VCAT proceeding that one of the items is non-compliant. In such a case:

(a)Under s 50(4) of the FOI Act, the applicant could offer to delete the non-compliant item and VCAT, exercising the powers of the agency, could accept the offer and direct that the proceeding continue on the basis that the request no longer contains the offending item.
(b)Under ss 51 and 51A of the VCAT Act, the applicant could offer to delete the non-compliant item, VCAT could invite the agency to reconsider its decision to refuse access under s 17(2) and the agency could agree that the proceeding continue on the basis that the request no longer contains the offending item. (Of course, an agency could always offer to change its decision in a manner that is favourable to an applicant at any stage of a VCAT proceeding even in the absence of an invitation from VCAT to do so.)

[48]Section 50(4) of the FOI Act is set out at [22] above. Sections 51 and 51A of the VCAT Act are summarised at [24] above.

Irrespective of which of the above courses is adopted, the continuation of the proceeding on the basis that the request no longer contains the offending item will inevitably result in VCAT finding that the modified request complies with s 17(2) of the FOI Act and making appropriate orders under s 51(2) of the VCAT Act. Unless the application for review raises other issues which require determination by VCAT, those orders will set aside the agency’s decision, substitute a decision that the request complies with s 17(2) and direct the agency to comply with the request in accordance with the FOI Act.

Where the applicant is offered an opportunity to amend or sever an item which is said not to comply with s 17(2) — in order to ensure that the remaining items are not non-compliant — and the applicant refuses to do so, VCAT must decide the issue of compliance with s 17(2) in respect of the request as a whole.[49]
[49]We consider that VCAT has jurisdiction to determine an application for review of an actual or deemed refusal of a request based on s 17(2) of the FOI Act. See especially [136] below.

It is not necessary for us to decide whether VCAT’s general power to amend ‘any document in a proceeding’ in s 127 of the VCAT Act can be used to amend a non-compliant request so as to make it compliant. Further, we express no view on whether the severance principles we have discussed have any application to s 25A(1) of the FOI Act.[50]
[50]Cf Knight v Corrections Victoria [2010] VSC 338 [41]–[49], [58] in relation to s 25A(5) of the FOI Act. We also decline to consider a third question of law on the relationship between s 17(2) and s 25A(1) of the FOI Act which Dr Chopra included in his written case as it was not a question that VCAT sought to refer to the Court.

For the above reasons, had we had jurisdiction to do so, we would answer question 2, as reformulated at [99] above, ‘No, because the severance principle may in certain circumstances apply to overcome an initial invalidity’.

Use of summary judgment procedure to resolve issues under FOI Act s 17(2)

In a number of cases, VCAT has made orders for summary dismissal under s 75(1) of the VCAT Act on the basis that non-compliance with s 17(2) of the FOI Act meant that a request was invalid and VCAT therefore did not have jurisdiction to determine an application for review based on an actual or deemed refusal of the request.[51] For example, in Chopra Z45, Senior Member Proctor said the following:

Where an applicant seeks review at VCAT of an FOI request ‘taken to be refused’ and the FOI request does not comply with s 17(2), no valid FOI request exists because of the non-compliance. Therefore, the request is never taken to be refused. Therefore, VCAT does not have jurisdiction. The proceeding should be dismissed [under s 75(1) of the VCAT Act] as misconceived.[52]

[51]See, eg, Zeqaj [2010] VCAT 1132 [39]–[40]; Victoria International [2016] VCAT 337 [18]; Chopra Z45 [2018] 808 [15]; Macdonnell [2018] VCAT 1616 [214]–[217].

[52][2018] VCAT 808 [15] (citations omitted).

As appears from [4] above, the Department has filed an application under s 75(1) of the VCAT Act for an order that Dr Chopra’s current VCAT proceeding be dismissed on the basis of the above reasoning.

VCAT did not refer to this Court any question of law concerning the appropriateness of orders being made under s 75(1) of the VCAT Act in relation to applications involving alleged non-compliance with s 17(2) of the FOI Act. However, that is a key issue in the VCAT proceeding and was the catalyst for the referral of questions 1 and 2. The parties made detailed submissions on the issue, which raises an important matter of principle regarding the proper exercise by VCAT of its power under s 75(1). In these circumstances, consistent with the overarching purpose in s 7 of the CPA, we will consider it.

Section 75 of the VCAT Act provides as follows:

75 Summary dismissal of unjustified proceedings
(1)At any time, [VCAT] may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a)is frivolous, vexatious, misconceived or lacking in substance; or

(b)       is otherwise an abuse of process.
(2)If [VCAT] makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(3)[VCAT’s] power to make an order under subsection (1) or (2) is exercisable by—
(a)       [VCAT] as constituted for the proceeding; or
(b)       a presidential member; or
(c)       a member who is an Australian lawyer.
(4)An order under subsection (1) or (2) may be made on the application of a party or on [VCAT’s] own initiative.
(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

Section 159 of the VCAT Act provides that if a provision of that Act is inconsistent with a provision of an Act conferring jurisdiction on VCAT, the provision of the latter Act prevails to the extent of the inconsistency.

Dr Chopra submitted that it is inappropriate for an agency to apply for an order under s 75(1) of the VCAT Act in respect of an application for review of an actual or deemed decision refusing access to documents due to alleged non-compliance with s 17(2) of the FOI Act. He contended that such an application for review should be dealt with on its merits after the parties have had an opportunity to adduce evidence and make submissions in accordance with the general provisions of the VCAT Act dealing with the conduct of hearings. He argued that if an agency succeeds in establishing that a request did not comply with s 17(2), VCAT should dismiss it under s 51 of the VCAT Act after a hearing and should apply the costs provisions in s 109 of that Act. That section limits the circumstances in which VCAT can order a party to pay the costs of another party.

According to Dr Chopra, determination of an application for review under s 75(1) of the VCAT Act rather than s 51 of that Act is prejudicial to an applicant because hearings under s 75(1) proceed without full evidence and the applicant is exposed to costs and compensation orders under s 75(2). He submitted that s 75 is inconsistent with the provisions of the FOI Act and that, in accordance with s 159 of the VCAT Act, the provisions of the FOI Act should prevail.

Dr Chopra contended that a number of VCAT decisions are wrong insofar as they have held that VCAT does not have jurisdiction in respect of an application for review of an actual or deemed decision involving a request which does not comply with s 17(2) of the FOI Act. He argued that VCAT does have jurisdiction in respect of such an application for review in that if VCAT finds that the request is non-compliant, it can affirm the agency’s decision to refuse access and dismiss the application under s 51 of the VCAT Act.

According to Dr Chopra, the reasoning in Penhalluriack[53] and Kelly[54] is inconsistent with the proposition that VCAT does not have jurisdiction to review such an application. That was said to be because Judge Lazarus and the Court of Appeal, respectively, in those cases proceeded to make substantive decisions notwithstanding assertions on the part of the relevant agency that there was non-compliance with s 17(2) of the FOI Act. Dr Chopra contended that if this Court in Kelly considered that non-compliance with s 17(2) had the effect of depriving VCAT of jurisdiction to review a decision to refuse access under that section, it would have said so.
[53]Unreported, County Court of Victoria, Judge Lazarus, 19 December 1983.
[54](2001) 4 VR 595.

The Department submitted that it was open to an agency to invoke s 75(1) of the VCAT Act not only in patently hopeless cases but also in circumstances where VCAT may need to hear evidence and embark on a consideration of the merits of the refusal of access under s 17(2) of the FOI Act. The Department contended that, where a request does not comply with s 17(2), it is not a request for the purposes of the Act and therefore any actual or deemed decision in relation to it cannot be the subject of a valid application for review to VCAT. It must follow, so it was said, that VCAT does not have jurisdiction in respect of an invalid application for review.

In our opinion, the key to resolving the issues raised by the parties is the nature and scope of s 75 of the VCAT Act. A provision similar to s 75 is typically found in the enabling Acts of most courts and tribunals. Its purpose is to enable the court or tribunal to protect the integrity of its processes by expeditiously disposing of a proceeding without a full hearing on the merits where the proceeding is frivolous, vexatious, an abuse of process, misconceived or lacking in substance. The expressions ‘frivolous’, ‘vexatious’ and ‘abuse of process’ have well established meanings which do not require exposition in the present case. The expressions ‘misconceived’ and ‘lacking in substance’, in essence, refer to proceedings in respect of which it is readily apparent that they are hopeless and bound to fail.

We do not agree with prior decisions of VCAT which have held that, where an application for review is based on an actual or deemed refusal of access in respect of a request which does not comply with s 17(2) of the FOI Act, VCAT lacks jurisdiction.[55] Those decisions should not be followed.
[55]See n 51 above.

The correct analysis is that the filing of an application for review confers jurisdiction on VCAT to review an actual or deemed refusal of a request for access on the basis of non-compliance with s 17(2) and decide for itself whether the request complies with s 17(2). As discussed at [118]–[120] above, s 50(4) of the FOI Act and ss 51 and 51A of the VCAT Act have the effect that a request can be modified to overcome any non-compliance and that the VCAT proceeding can be conducted on the basis of the modified request. If a request is not modified and VCAT finds that it does not comply with s 17(2), VCAT has jurisdiction to affirm the agency’s decision under s 51(2) of the VCAT Act and make a consequential order dismissing the application.

It follows that it would usually be inappropriate for an agency to seek an order under s 75(1) of the VCAT Act in respect of an application for review of an actual or deemed decision refusing access to documents on the basis of non-compliance with s 17(2) of the FOI Act. An order under s 75(1) can only be made, and should only be sought, where the application is frivolous, vexatious or an abuse of process; or where it is misconceived or lacking in substance in the sense that it is readily apparent that it is hopeless and bound to fail.

Contrary to Dr Chopra’s submission, this Court’s decision in Kelly does not provide any assistance. In that case, the applicant made an application to VCAT for review of a deemed decision refusing access under s 17(2) of the FOI Act (‘s 17(2) application’) as well as an application for review of an actual decision refusing access under s 25A(1) (‘s 25A(1) application’). VCAT decided to hear and determine the s 25A(1) application prior to dealing with the s 17(2) application. As the applicant sought leave to appeal to this Court in respect of VCAT’s decision on the s 25A(1) application prior to VCAT making a decision on the s 17(2) application, this Court dealt only with s 25A(1).

In our opinion, no inference can be drawn from the fact that, in Kelly, this Court did not make any observations in relation to VCAT’s deferral of the s 17(2) application. In particular, we do not accept Dr Chopra’s contention that the absence of such observations indicates that the Court was satisfied that non-compliance with s 17(2) does not deprive VCAT of jurisdiction to review the merits of an agency’s decision to rely on s 17(2). The Court made no observations on that issue because it was not before it. Further, VCAT’s subsequent decision in respect of the s 17(2) application[56] does not contain any observations that are of any assistance in the present case.
[56]Re Kelly and Department of Treasury and Finance [No 2] (2002) 19 VAR 330; [2002] VCAT 1019.

Conclusion

As our primary conclusion is that the referral of the two questions is invalid and the Court does not have jurisdiction to answer them, we will make an order dismissing the referral proceeding.

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[2019] VSCA 298

13 December 2019