McKechnie v Victorian Civil and Administrative Tribunal

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03327

ANDRE McKECHNIE	Plaintiff
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Defendant
– and –
SECRETARY FOR THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Second Defendant

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2020
DATE OF JUDGMENT:	7 August 2020 First Revision: 11 August 2020
CASE MAY BE CITED AS:	McKechnie v VCAT & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 454

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ADMINISTRATIVE LAW – Judicial review – Application for certiorari, mandamus and declaration – VCAT decision – Alleged error of law – Erroneous to apply for judicial review rather than seek leave to appeal – Application out of time – No special circumstances to extend time – No proper factual or legal basis for declaration sought – Academic or hypothetical question – Application for judicial review misconceived – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 56.

ADMINISTRATIVE LAW – Statutory interpretation - Freedom of information – Request for access to document of agency – Statutory fee payable – Provision for fee to be waived or reduced ‘if the payment of the fee would cause hardship to the applicant’ – meaning of ‘hardship’ – Power to decide – Hardship issue not an objective question for a court – Whole question of fee waiver or reduction a discretionary matter to be determined by agency in first instance or by Information Commissioner on review – Not a matter for VCAT - Freedom of Information Act 1982 (Vic) ss 17(2A) and (2B).

ADMINISTRATIVE LAW – Freedom of Information – Application fee on FOI request not paid – Fee waiver not granted – Agency considers request invalid – Request not processed – Whether request invalid – Whether invalid request can found jurisdiction of Information Commissioner or VCAT – Application to VCAT for review – Fee waiver granted by agency and processing of request commenced while VCAT case pending – VCAT summarily dismisses application for review for want of jurisdiction – Applicant seeks judicial review – VCAT correct – Application for judicial review dismissed – Freedom of Information Act 1982 (Vic) ss 3, 5, 13, 16, 17, 20, 21, 22, 26, 49A, 49G, 49J, 49P, 50, 51, 52, 53, 59 and 61A – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 3, 4, 40, 42, 48, 51, 51A, 75, 98, 124, 127.

COURTS AND JUDGES – Precedent – Proceeding in Trial Division – Proceeding dismissed by oral order with ex tempore reasons – Order not authenticated – While preparing written reasons judge finds relevant obiter dicta in uncited Court of Appeal decision – Time needed for consideration – Judge ultimately declining to follow obiter dicta – Dismissal of judicial review proceeding still appropriate in any event – Oral order recalled and fresh order in same terms made to preserve time for seeking leave to appeal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A McKechnie as a self-represented litigant
For the First Defendant	No appearance
For the Second Defendant	Ms S Fitzgerald of counsel	Victorian Government Solicitors Office

HIS HONOUR:

Introduction

On 11 June 2020 I heard an application by the plaintiff, who is a self-represented prisoner, for judicial review of a decision made in March 2019 by the Victorian Civil and Administrative Tribunal (‘VCAT’). I made an oral order dismissing the application with costs. I gave oral reasons on an ex tempore basis. I indicated that I would give written reasons subsequently. My order has not been reduced to writing and has not been authenticated.

In preparing to give written reasons, I became aware of a relevant judgment of the Court of Appeal handed down in December 2019 of which I was not aware at the time of the hearing and which, unfortunately, neither the plaintiff nor the other active party, the Secretary for the Department of Justice and Community Safety, cited to me. The judgment is Chopra v Department of Education and Training (‘Chopra’).[1] Like the present case, Chopra related to the Freedom of Information Act 1982 (Vic) (‘FOI Act’). In both cases, the moving party had made a purported request or requests for access to documents. In both cases, the relevant government agency’s response was to the effect that the ‘request’ was, or that the ‘requests’ were, invalid for non-compliance with the requirements of s 17 of the FOI Act. In Chopra, the claimed defect was a lack of the clarity required by s 17(2) of the FOI Act. In the present case, the claimed defect was non-payment of the application fee required by s 17(2A) of the FOI Act, in circumstances where the fee had not been waived.[2] In both cases, the dispute found its way to VCAT. In both cases it was said by the respondent agency, among other things, that VCAT had no jurisdiction because of the alleged invalidity or ineffectiveness of the ‘request’ at the time said to be relevant for the creation of any jurisdiction on the part of VCAT.[3] In the present case, VCAT acceded to an application made by the relevant agency under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) for the summary dismissal of the VCAT proceeding as misconceived, on the basis that VCAT had no jurisdiction. As I have mentioned, VCAT’s decision, being the decision which, at least in form, the plaintiff seeks to challenge in this case, was given in March 2019, some nine months before the decision of the Court of Appeal in Chopra. In Chopra, the Court of Appeal made observations, by way of obiter dicta, to the effect that, notwithstanding non-compliance with s 17(2) of the FOI Act as at the relevant time, VCAT does have jurisdiction, pursuant to certain statutory provisions, to proceed, and has power to make a substantive decision by way of administrative review; and that VCAT did have such jurisdiction and power in the case in question. Those observations expressly departed from a long line of earlier VCAT cases in which VCAT had dismissed proceedings for want of jurisdiction on the basis that, at the relevant time, the ‘request’ had not complied with the requirements of s 17(2) as to form. The Court of Appeal also made observations (again, by way of obiter dicta) to the effect that, generally speaking, an application to terminate a VCAT proceeding relating to the FOI Act on the basis of prior non-compliance with s 17(2) of the FOI Act should not be made by means of an application for summary dismissal under s 75 of the VCAT Act. Those sets of observations raise questions as to whether VCAT was correct to hold that it had no jurisdiction in the present case and, in any event, whether the application under s 75 of the VCAT Act was the correct vehicle for testing the matter. In my view, those questions are raised notwithstanding that the claimed source of invalidity and of absence of jurisdiction in the present case was, principally, s 17(2A), rather than s 17(2), of the FOI Act.
[1][2019] VSCA 298 (‘Chopra’).
[2]The VCAT proceeding in the present case related principally to two FOI ‘requests’ made by the plaintiff. In connection with one of them, at a late stage, a question about clarity arose as well.
[3]What that relevant point or period of time may be is a topic to which I will need to return in due course.

Because my order of 11 June 2020 has not been authenticated, and because there is a question as to whether it was based on a misapprehension of law, I have power to reconsider my decision and, if appropriate, to withdraw or vary my judgment and order.[4] Although the power to withdraw or vary an order is one to be exercised sparingly, its exercise should at least be considered in this case. A trial judge should not ignore a relevant recent decision of the Court of Appeal that comes to notice after the delivery of judgment (especially the delivery of an oral, ex tempore judgment), but before the authentication of the judgment or order. It is also noteworthy in the present case that the plaintiff is a self-represented prisoner and that the Secretary is expected to act as a model litigant. So I propose to reconsider my decision in this case in the light of Chopra.
[4]See Williams, LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at Service 312) [36.07.35] and cases there cited, especially Arnett v Holloway [1960] VR 22, 28-29 and Permanent Custodians Ltd v Geagea (No 4) [2016] NSWSC 934 [15]-[31] (Rothman J). See also Taxa Australia Pty Ltd v G Wang [2018] NSWSC 1668 [9] (Black J).

The next question is whether I should draw Chopra to the attention of the parties and invite them to make written or oral submissions on it. In the end, I have decided against doing that. To do so would involve delay, inconvenience and additional expense for the parties, exacerbated by the circumstances surrounding the current COVID-19 pandemic. The plaintiff is not legally represented and I consider that he would have real difficulty in addressing the complex questions of law that are involved. Moreover, as I will explain, I have ultimately come to the view that, whether or not Chopra represents good law and is applicable to this case, there is no prospect that either of the active parties could, on any basis, achieve a better final result for themselves than the result embodied in my order of 11 June 2020.

It is true that, in form, as I have mentioned, this is an application for judicial review of a decision of VCAT summarily dismissing, for want of jurisdiction, an application for administrative review commenced by the plaintiff. However, the plaintiff’s real or main aim in bringing the present case in this Court is to establish that, in certain posited circumstances, non-payment of the application fee does not invalidate the request and so does not excuse agencies from complying with the request. Indeed, at one stage, he told me that the impact on VCAT’s jurisdiction was merely conditional and consequential; that what he really wants is a declaration of law; and that he would be prepared to forego the claims he had made for certiorari and mandamus if he could achieve a declaration.[5]
[5]Transcript of Proceedings, McKechnie v VCAT & Ors (Supreme Court of Victoria, S ECI 2019 03327, Cavanough J, 11 June 2020), 42 (‘transcript’). Shortly thereafter, at transcript 43–44, the plaintiff did suggest that he was unhappy about being told that the documents he had sought in his request of 6 April 2018 did not exist and he appeared to suggest that setting aside VCAT’s decision might assist him in that regard. I will return to this under the heading ‘VCAT was correct to conclude that it had no relevant jurisdiction’ at [106].

Even if the s 75 application was the wrong vehicle to test whether VCAT had jurisdiction in this case, and even if VCAT was wrong to conclude that it did not have (substantive) jurisdiction, nevertheless it would remain appropriate to dismiss this proceeding. The plaintiff would suffer no, or no substantial, injustice on that account. As will be shown, his real or main complaint about VCAT’s decision was and remains misconceived in law and in fact. In truth, the plaintiff’s purported FOI requests were not required to be processed unless and until the application fees were paid or waived. In addition, as will be seen, there are other matters, including several procedural and discretionary factors, that reinforce the appropriateness of dismissing the present proceeding, with costs.

In those circumstances, it might be asked, why mention Chopra at all? In any event, why deal with it in any detail?

It was certainly necessary for me, in these written reasons, to mention Chopra, at least. In my oral reasons, I had expressly accepted the Secretary’s submission that VCAT was correct to hold, by reference to and in accordance with the prior VCAT cases, that VCAT has no (substantive) jurisdiction where the relevant FOI request was invalid at the time of the putative original decision (or deemed decision) of the Minister or agency claimed to be the foundation of the application to VCAT for review. So it would not have been right simply to reproduce what I said in my oral reasons without any reference to Chopra.

Nor, in my view, would it have been appropriate merely to mention Chopra with, say, a footnoted comment that it may cast doubt on my acceptance of the Secretary’s position on the jurisdictional point and/or on the s 75 point. That would have been to give a quite misleading impression of my understanding of the true legal position. That is because, in my view, with respect, the obiter dicta in Chopra relating to VCAT’s jurisdiction are clearly not in conformity with the relevant statutory provisions and should not be followed. At to the s 75 point, in my respectful opinion, the relevant obiter dicta in Chopra also call for further comment.

Chopra came to the Court of Appeal by way of a purported referral of a question of law under s 96 of the VCAT Act. The Court of Appeal dismissed the referral as invalid. It held that it had no jurisdiction to answer the two purported questions of law that had been referred. Nevertheless, it made the observations (that are plainly obiter dicta) to which I have referred relating to the jurisdiction of VCAT and to the s 75 point. Strictly speaking, those observations were made by the Court of Appeal in (what would have been) the exercise of its original jurisdiction, not its appellate jurisdiction. Even if the observations had been made in the exercise of appellate jurisdiction, and even if they should be regarded as ‘seriously considered dicta’, they would not be binding.[6]
[6]See DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 [127].

Although I am free to depart from Chopra, there remains a question whether, in all the circumstances, I should do so.[7] As a trial judge, I should give significant weight to any dicta of the Court of Appeal, especially if they amount to ‘seriously considered dicta’.[8] However, as I will explain in the relevant sections of this judgment, VCAT’s relevant pre-Chopra jurisdictional decisions (including its decision in this case) are not only fully in line with the relevant statutory provisions, they accord with numerous other decisions of Victorian, federal and interstate courts and tribunals, including the High Court, in comparable cases. Further, the issues are important, as the Court of Appeal itself said in Chopra.[9] The obiter dicta on jurisdiction in Chopra have the potential to apply beyond the field of freedom of information, a field which is important enough in itself in the work of VCAT. In those circumstances, I consider that it is appropriate for me to express my view on the jurisdictional point, and that it is desirable that I should explain it in some detail. As to s 75 of the VCAT Act, it will be seen that I would respectfully accept that an application under s 75 may not be the most appropriate vehicle for raising a jurisdictional objection, at least if it is not clear-cut. However, as I will also explain, it seems to me that any serious objection that is truly jurisdictional in nature should be raised and dealt with as a preliminary matter. Generally, there should be some form of separate hearing and final determination of the jurisdictional point. In effect, that is what occurred in the present case.
[7]As to the considerations that may be relevant in this regard, see and compare Gett v Tabet (2009) 254 ALR 504, 566–567 [296]-[301]; DPP Reference No 1 of 2019 [2020] VSCA 181 [7]-[17].
[8]Matthew Harding and Ian Malkin ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239, 254-255. See also and compare Ying v Song [2009] NSWSC 1344, [14]-[29], especially at [29] (Ward J, as her Honour the Chief Judge in Equity (NSW) then was).
[9]Chopra (n 1) [76].

It has necessarily taken me some time to consider Chopra and its potential implications, and to produce these revised reasons for judgment. In case the plaintiff may wish to seek leave to appeal from my judgment, he should not be disadvantaged in terms of the time limit (of 42 days) imposed by Rule 64.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). In order to secure that result, I have decided that I should, on my own motion, recall and set aside the oral order I made on 11 June 2020 and make a fresh order in the same terms today. What follows represents my reasons for coming to my conclusions. In the circumstances, my reasons are stated in considerably greater detail than my original oral reasons.

Overview

In 2018 the plaintiff, a prisoner in a Victorian prison, was in dispute with the Freedom of Information (‘FOI’) Unit of the then Department of Justice and Regulation (now the Department of Justice and Community Safety) (‘the Department’) about whether the plaintiff should be granted a waiver by the Department, on hardship grounds under s 17(2B) of the FOI Act, of application fees that would otherwise have been payable by the plaintiff to the Department under that Act on the making of requests for access to documents. Initially, at least, the position of the Department’s FOI Unit was that the plaintiff should provide evidence of hardship (except in relation to a certain kind of request). The plaintiff refused to provide evidence, saying that the Department already knew that he was in hardship.

The dispute crystallised around two particular purported requests that were made by the plaintiff by letters dated 6 and 18 April 2018 respectively. (Hereafter, for convenience, I will often simply refer to a ‘request’ or an ‘FOI request’ made by the plaintiff, intending to convey, but without always repeating, that the same did not necessarily amount to a valid or effective request under the FOI Act). As indicated above, the plaintiff took the dispute about the application fees first to the Office of the Victorian Information Commissioner (‘OVIC’) and then to VCAT. At VCAT the Department applied under s 75 of the VCAT Act for summary dismissal of the proceeding on the ground that VCAT had no relevant jurisdiction. While both the application for review and the application for summary dismissal were pending before VCAT, the FOI Unit of the Department became aware of certain information about the plaintiff’s financial circumstances. On that basis, the FOI Unit actually waived the application fees on the two requests and began to process them. Indeed, the FOI Unit at the same time granted the plaintiff a more general waiver of FOI application fees. That still left on foot the application for review and the summary dismissal application. The Department contended that summary dismissal was all the more appropriate in the circumstances. The plaintiff disagreed. He sought to have the summary dismissal application itself dismissed, with costs, and he asked VCAT to make declarations of law relating to the earlier fee dispute. On 25 March 2019, VCAT granted the Department’s application for summary dismissal, accepting that it had no relevant jurisdiction. VCAT so held for reasons that included a finding that during the period when the application fees on the two requests had been neither paid by the plaintiff nor waived by the Department or by the Information Commissioner, the plaintiff’s FOI requests had not been valid or effective. Implicitly, VCAT held that the relevant FOI requests had not given rise to a decision or deemed decision of a kind reviewable by VCAT.

Undaunted, on 24 July 2019 the plaintiff commenced the present proceeding in this Court as an application under Order 56 of the Rules for judicial review of the decision of VCAT. The plaintiff’s main claim, however, is for a declaratory judgment about the operation of s 17(2B) of the FOI Act. Unfortunately, the plaintiff has not had legal representation at any stage.[10]
[10]The plaintiff remained a prisoner and remained without legal representation throughout the course of the VCAT proceeding and this proceeding. He appears to have no desire to be released from his present custody: see McKechnie v Magistrates’ Court (Wangaratta Victoria) [2020] VSC 358 [27]. Nor does he appear to have any desire to be legally represented. At a directions hearing in this Court on 21 August 2019 (see below), he was advised of avenues by which he might possibly be able to obtain free legal advice or representation, but he has given no indication as to what occurred in that regard. Nevertheless, I have made allowances for the restrictions of prison life and, in accordance with the principles stated in Roberts v Harkness (2018) 57 VR 334, for the absence of legal representation for the plaintiff.

This proceeding is irregular and ill-founded in numerous, overlapping ways. First, insofar as the plaintiff wished to challenge VCAT’s decision that it had no jurisdiction, the challenge should have been brought, if at all, by way of an application for leave to appeal on a question of law pursuant to s 148 of the VCAT Act, not by way of judicial review under Order 56 of the Rules. Second, it should have been brought, if at all, within the 28 day time limit specified in s 148 of the VCAT Act. Third, even as an application for judicial review, it was commenced outside the 60 day time limit specified in r 56.02. Fourth, no proper case has been made by the plaintiff to establish ‘special circumstances’ for an extension of time pursuant to r 56.02(3). Fifth, insofar as a bare declaration about the operation of s 17(2B) of the FOI Act is sought by the plaintiff, this proceeding is an inappropriate vehicle. That is so, in substantial part, because relevant facts are in dispute. Sixth, as a result of the fee waivers being granted, the fee dispute became academic or largely academic. Seventh, and most importantly, the plaintiff is fundamentally in error in his legal contentions about s 17(2B) of the FOI Act. Contrary to the plaintiff’s case, an FOI request is not valid unless and until the application fee is paid or actually waived. There can be no notional or deemed waiver of the application fee. Eighth, for reasons connected with the proposition that the requests were not valid prior to the grant of the fee waivers, VCAT was correct to determine that it did not have any relevant jurisdiction.

The proceeding falls to be dismissed accordingly.

Parties, claims, grounds, procedural steps and evidentiary material in this Court

As mentioned above, this proceeding was commenced on 24 July 2019. It was so commenced by the filing of an originating motion for judicial review, purporting to be in accordance with r 5.02(2) and r 56.01(2) of the Rules. The named defendants were ‘Deputy President Ian Proctor for the Victoria Civil and Administration Tribunal (VCAT)’ as first defendant and ‘Department of Justice and Community Safety’ as second defendant. In accordance with normal practice, the then first defendant advised, through the Acting Principal Registrar of VCAT, that he would merely abide by the decision of the Court, save for any order as to costs.[11] Later, at a directions hearing on 21 August 2019, the plaintiff was given leave to file and serve an amended originating process correcting the name of the first defendant to ‘The Victorian Civil and Administrative Tribunal’, and the name of the second defendant to ‘The Secretary for the Department of Justice and Community Safety’. An amended originating motion for judicial review was filed accordingly on 25 September 2019. There were no other changes to the form of the originating motion. After the formal parts, the originating motion read as follows (emphasis in original):
[11]See letter dated 5 August 2019 from VCAT to the Deputy Registrar, Common Law, of this Court: Court Book (‘CB’) 70. This indication continued to apply in relation to the first defendant as named following the correction referred to below.

THE PLAINTIFF CLAIMS:
DECLARATORY JUDGEMENT
Central to this Judicial Review is the question and the hope for the correct interpretation of what constitutes a valid request as defined by the Freedom of Information Act 1982, primarily with respects to subsection s.17(2B) of the Freedom of Information Act 1982.
s.17(2B) states:
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.

Note that even though s.17(2B) contains the discretionary word may the Object of the Act s.3, in the relevant part states:
…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.

The question for which the declaratory judgement is sought is:
Can a request, as defined by the Freedom of Information Act 1982, which is not accompanied by a fee, be an invalid request, in the sense that it does not satisfy sub-section s.17(2B), when it is without question within the knowledge of agency, to which the request is made and at the time the request is made, that an application fee, as that referred to in s.17(2B), would cause hardship to the applicant?

RELIEF SOUGHT
The plaintiff seeks relief in the nature of certiorari and mandamus, to have the VCAT Order 25^th March 2019 (VCAT case reference: Z798/2018) set aside and that an order be made that the VCAT decision be remade.
THE GROUNDS RELIED UPON ARE:
1.In making the VCAT final order, the defendant Mr Ian Proctor failed to consider the following:
(a)At all relevant times DoJ was aware that the FOI application fee would cause hardship.
(b)The DoJ was at all times prior to, during and after the FOI application April 6^th 2018, in possession of the information that showed the FOI application fee would cause hardship.
(c)There was no time that the documents, which were being requested from the DoJ to prove hardship, were in my possession.
(d)The information to prove hardship held by the DoJ satisfied the FOI Act s 17(2B) requirements.
(e)The information to prove hardship by the DoJ satisfied the DoJ’s own policy regarding the determination of hardship.
(f)The DoJ further exhibited their knowledge of the hardship circumstance by accepting hardship waiver applications made by myself both prior and immediately after the FOI application made to the DoJ April 6^th 2018.
(g)The DoJ exhibited improper purpose for refusing an FOI application to access the hardship information documents held by the DoJ and required by the DoJ for the April 6^th FOI application, by basing the refusal on the applicant not providing the very same documents that were the subject of the FOI application for the hardship information. See Exhibit: FOI Application For Hardship Documents Refusal.
(h)At all relevant times I satisfied the hardship requirements as per s.17(2B).
(i)The records created and held by the DoJ showed that at all times I satisfied the hardship requirements of s.17(2B).
(j)The object of the FOI Act s.3 places clear constraints on discretions within the FOI Act and in particular the correct interpretation of s.17(2B) when the hardship requirement is satisfied.

2.The defendant stated within his reasons that I had refused to provide the hardship documents that the DoJ was requesting. Since the hardship documents were always in the possession of the DoJ and never in my possession, this alleged refusal is not possible. Mr Ian Proctor therefore apart from not considered relevant matters for his decision, made consideration of something that did not exist.
3.The FOI application I (the Plaintiff) made April 6^th 2018 complied with all requirements under the FOI Act to qualify as a request as defined by the Act.
4.As the decision made by the Defendant to dismiss the VCAT application relied completely the request not being a request as defined by the FOI act, the valid request invalidates the decision and the subsequent Order 25^th March 2019 (VCAT case reference Z798/2018) should be set aside and the decision remade.[12]

[12](Emphasis in original.)

As can be seen above, the stated grounds assert, in essence, that the plaintiff was at all relevant times qualified for a fee waiver on hardship grounds under s 17(2B) of the FOI Act or, at least, under the Department’s own hardship policy relating to fee waivers under that sub-section; that the Department was aware of the same at all relevant times; that, therefore, the plaintiff’s FOI requests were valid at all relevant times; and that, as a result, VCAT erred in holding that it had no jurisdiction. As will be seen, this approach represents a considerable departure from the way in which the plaintiff originally put his claims to the Department, OVIC and VCAT. On the other hand, the plaintiff did not rely in the originating motion, and has not otherwise relied in the present proceeding, on the granting of the actual fee waivers as having retrospectively validated or perfected his FOI requests. Rather, the plaintiff has relied entirely on his claim to have been qualified at all relevant times for a fee waiver, to the alleged knowledge of the Department. However, as a result of Chopra, when I come to consider the question of jurisdiction I will say something about the matter of retrospective validation or perfection of FOI requests.

Although each of the Department, OVIC and VCAT considered the position in relation to both the request of 6 April 2018 (‘the 6 April request’) and the request of 18 April 2018 (‘the 18 April request’), the grounds of the originating motion focus exclusively on the 6 April request. So does the plaintiff’s accompanying affidavit in support, to which I am about to come. Nevertheless, in fairness to the plaintiff, and for completeness, I will continue to refer to both of those requests (as well as to certain others made by the plaintiff).

The originating motion was accompanied by an affidavit dated 18 April 2019 sworn or affirmed on 16 July 2019 and filed on 24 July 2019. The affidavit refers exclusively to the 6 April request. In summary, the affidavit asserts that the request was not processed within time; that ‘the matter’ was referred to OVIC as a ‘request for review’; that OVIC did not respond within time; that ‘the matter’ proceeded to VCAT on that basis; that the Department applied to strike it out; and that VCAT dismissed it for want of jurisdiction on the basis that the request was not a valid request under s 17 of the FOI Act. Then, in effect, the affidavit repeats the grounds of review stated in the originating motion. It also contains three paragraphs, under the heading ‘Public Interest’, in which it is argued, in short, that the Court’s intervention, particularly by way of declaration, is required because otherwise the Department will be free to ‘pick and choose which non-exempt documents’ it would like to release and thus the Court would be accepting that it was Parliament’s intention in passing the FOI Act to ‘defraud the public’.

The affidavit was accompanied by various documents that were accepted as exhibits. The ‘exhibits’ comprised a letter from the Department to the plaintiff dated 9 August 2018 responding to a certain FOI request;[13] the Department’s ‘Section 49 Statement’ dated 9 November 2018 filed in VCAT;[14] the related documents[15] that were filed at VCAT by the Department with its Section 49 Statement (including the plaintiff’s written application to VCAT for review dated 3 September 2018[16]); an interlocutory order made by VCAT on 12 November 2018; a written submission to VCAT dated 25 December 2018 filed by the plaintiff in response to the Department’s application for summary dismissal; an interlocutory order made by VCAT on 18 February 2019; and a composite document published by VCAT on 29 March 2019 recording VCAT’s order of 25 March 2019 and VCAT’s written reasons of 29 March 2019.[17]
[13]CB 7–9. The FOI request was neither the request of 6 April 2018 nor the request of 18 April 2018. Nor was it part of the material before VCAT: see further below.
[14]CB 13–19.
[15]CB 21–55.
[16]CB 46–51.
[17]CB 64–68.

As mentioned above, there was a directions hearing in this Court on 21 August 2019. It was conducted by Judicial Registrar Clayton. The plaintiff appeared at the directions hearing by video-link.[18] He was referred to Justice Connect for legal advice and to the Court’s Self-Represented Litigants Coordinator for information about Court processes and forms. The matter was fixed for trial on 11 June 2020, being the same day as had been fixed for the trial of another proceeding in which Mr McKechnie was the plaintiff.[19] By order made on 21 August 2019 (’21 August order’), Judicial Registrar Clayton directed, among other things, that –
[18]Order of Clayton JR in McKechnie v VCAT (Supreme Court of Victoria, S ECI 2019 03327, 21 August 2019) CB 193–195.
[19]I heard both matters on 11 June 2020. My judgment in the other matter is referred to in n 10 above.

·The plaintiff file and serve any further affidavits upon which he intended to rely, including an affidavit exhibiting the transcript of any relevant VCAT hearing, on or before 30 October 2019;
·The second defendant file and serve any affidavits upon which he intended to rely on or before 20 November 2019;
·The plaintiff:

(a) file and serve a written outline of submissions; and
(b) serve a list of authorities,
on or before 22 January 2020.
·The second defendant:

(a) file and serve a written outline of submissions in response; and
(b)serve a list of all authorities not also relied upon by the plaintiff together with electronic copies of any such authorities,
on or before 26 February 2020.
·The plaintiff:

(a) file and serve a written outline of submissions in reply; and
(b) serve any additions to the list of authorities,
on or before 26 March 2020.
·The second defendant file a combined list of authorities on or before 29 April 2020.
·The second defendant file and serve a court book in accordance with practice note SC CL9 on or before 29 April 2020.

The plaintiff did not file or serve any further affidavit material.

On 20 November 2019 the second defendant filed an affidavit of the same date made by a solicitor in the Victorian Government Solicitor’s Office (‘VGSO’) who had the care and conduct of the matter on behalf of the second defendant. The plaintiff has not sought to challenge the solicitor’s affidavit. That affidavit addressed the procedural history, and completed the documentary picture as at the date of VCAT’s final order (25 March 2019). There was some considerable duplication of exhibits. The additional documents were comprised of the second defendant’s written submissions to VCAT dated 26 November 2018 in support of the summary dismissal application and certain correspondence that was before VCAT to which I will come.

Contrary to the 21 August order, the plaintiff did not file or serve any written outline of submissions nor any list of authorities on or before 22 January 2020 or at all.

Nevertheless, the second defendant filed a set of written submissions together with a list of authorities on 26 February 2020, being the date envisaged in the 21 August order for the second defendant to file such documents in response to those which ought to have been filed by the plaintiff. It was acknowledged by the plaintiff at the hearing before me that he had received the second defendant’s submissions and list of authorities on or about 26 February 2020. Despite that, the plaintiff did not file or serve any outline of submissions in reply nor any additions to the list of authorities on or before 25 March 2020 (the date specified in the 21 August order) or at all.

Notwithstanding the lack of input from the plaintiff, the second defendant filed and served a court book as envisaged in the 21 August order.

The matter came on for mention before Judicial Registrar Keith on 21 May 2020. The plaintiff again appeared for himself by video-link. It was noted that the plaintiff had not filed any documents as required by the order of the Court, but had indicated that he was prepared for the hearing on 11 June 2020. Judicial Registrar Keith simply reserved the costs of the hearing of 21 May 2020.

The hearing before me on 11 June 2020 commenced immediately after the completion of Mr McKechnie’s other matter referred to above. Again, he appeared for himself by video-link from prison. Counsel appeared on behalf of the second defendant, also by video-link.

The relevant provisions of the FOI Act

For the purposes of this case, the following provisions of the FOI Act are relevant:

Part I – Preliminary
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—
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(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.

…
5. Definitions
(1)In this Act, except insofar as the context or subject-matter otherwise indicates or requires –
agencymeans a department council or a prescribed authority;
applicant means a person who has made a request in accordance with s 17…;
…
Information Commissioner means the Information Commissioner appointed under s 6C:
request means a request made in accordance with section 17:

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

…
Part III – Access to documents
13. Right of access
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to –
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.

…
16. Access to documents apart from Act
(1)Ministers and agencies shall administer this Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.
(2)Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

17. Requests for access
(1)A person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires 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, or the Minister, as the case may be, 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 or Minister, as the case may be, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate agency or Minister, to make a request in a manner that complies with this section or to direct a request to the appropriate agency or Minister.
(4)Where a request in writing is made to an agency or Minister for access to a document, the agency or Minister, as the case may be, 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.

…
20. Access to documents to be given on request
(1) Subject to this Act, where—
(a)a request is duly made by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and
(b)any charge that, under the regulations, is required to be paid before access is granted has been paid—

the person shall be given access to the document in accordance with this Act.
(2)An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

21. Time within which formal requests to be decided
(1)An agency or Minister 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—
(a)30 days after the day on which the request is received by or on behalf of the agency or Minister; or
(b)if that period is extended or further extended, the day after that period as extended ends.

…

22. Charges for access to documents
(1)Any charge (not being an application fee) that is, in accordance with the regulations, required to be paid by an applicant before access to a document is given, shall be calculated by an agency in accordance with the following principles or, where those principles require, shall be waived—
(a)a charge shall only cover the time that would be spent by the agency in conducting a routine search for the document to which access is requested, and shall not cover additional time, if any, spent by the agency in searching for a document that was lost or misplaced;
(b)the charge in relation to time made under paragraph (a) shall be fixed on an hourly rate basis;
(c)a charge may be made for the identifiable cost incurred in supervising the inspection by the applicant of the material to which access is granted;
(d)a charge may be made for the reasonable costs incurred by an agency in supplying copies of documents, in making arrangements for viewing documents, in providing a written transcript of the words recorded or contained in documents, or in providing a written document in accordance with section 19;
(e)a charge shall not be made for the time spent by an agency in examining a document to determine whether it contains exempt matter, or in deleting exempt matter from a document;
(f)a charge shall not be made for producing for inspection a document referred to in sections 8(1) or 11(1), whether or not that document has been specified in a statement published in accordance with sections 8(2) or 11(2) respectively;
(g)a charge shall be waived if the request is a routine request for access to a document;
(h)a charge, other than a charge for the reasonable costs incurred by an agency in making copies of documents, in making a written transcript of the words recorded or contained in documents or in making a written document in accordance with section 19, shall not be made if—
(i)the applicant's intended use of the document is a use of general public interest or benefit; or
(ii)the applicant is a member of the Legislative Council or of the Legislative Assembly of Victoria; or
(iii)the request is for access to a document containing information relating to the personal affairs of the applicant; and

(i)a charge under paragraph (d) shall be waived if the applicant is impecunious and the request is for access to a document containing information relating to the personal affairs of the applicant.

…
26. Decision to be made by authorized person
(1)A decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.

…
Part VI – Review of decisions
Division 1 – Review by Information Commissioner
49A. Applications to Information Commissioner for review
(1)An applicant may apply to the Information Commissioner for review of—
(a)a decision of an agency or a Minister refusing to grant access to a document in accordance with a request; or
(b)a decision under section 24 by an agency or Minister deferring the provision of access to a document; or
(c)a decision of an agency or Minister not to waive or reduce an application fee under section 17, whether or not the fee has already been paid by the applicant.

…
49G.Information Commissioner may determine not to accept application or may dismiss review
(1)The Information Commissioner may determine not to accept an application for review or dismiss a review at any stage if—
(a)the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; or
(b)the applicant has failed to co-operate with the review without reasonable excuse; or
(c)the Commissioner considers that the review would be more appropriately dealt with by the Tribunal; or
(d)the Commissioner considers that a review is not appropriate in the circumstances; or
(e)the Commissioner is unable to contact the applicant following reasonable attempts to do so.

…
49J. Effect of delay by Information Commissioner in relation to requests
(1) This section applies if the Information Commissioner—
(a)has not, within the required period, completed the review of a decision of an agency or Minister referred to in section 49A(1)(a) or (b) or (2); and
(b)has not, within the required period, made a determination under section 49G with respect to the application for review or the review.

(2)At the end of the required period, the Information Commissioner is taken, for the purposes of an application to the Tribunal for review, to have made a decision—
(a)refusing to grant access to the document in accordance with the request; or
(b)deferring the provision of access to a document; or
(c)not to amend the document pursuant to a request under section 39—
as the case requires.

(3) In this section the required period is—
(a)30 days after the application for review by the Information Commissioner is received; or
(b)if that period is extended or further extended, that period as extended.

…
49P. Decision on review
(1)After conducting a review of a decision of an agency or Minister, the Information Commissioner must make a fresh decision on the original application.
(2)The decision of the Information Commissioner has the same effect as a decision of the agency or Minister.
(3)The Information Commissioner must give the parties notice in writing of the decision setting out—
(a)the reasons for the decision; and
(b)the rights of the parties to apply to the Tribunal for review under section 50.

…

Division 3 – Review by the Tribunal
50. Applications for review by the Tribunal
(1)Subject to this section, an applicant may apply to the Tribunal for review of—
** * * *
(b)a decision of the Information Commissioner refusing to grant access to a document in accordance with a request;
(c)a decision of the Information Commissioner deferring the provision of access to a document;
(d)a decision of an agency or Minister refusing to grant access to a document in accordance with a request, if the Information Commissioner has made a determination under section 49G(1) in respect of that request;
(e)a decision of an agency or a Minister refusing to grant access to a document that is claimed to be exempt under section 29A;[20]
[20]Section 29A confers exemptions for certain documents affecting national security, defence or international relations. The Information Commissioner has no role under the FOI Act in respect of documents claimed to be exempt under s 29A.
(ea)a decision of an agency or a Minister refusing to grant access to a document or refusing to amend a document, or a decision of a principal officer refusing to specify a document in a statement, that is taken to have been made under section 53;
(g)a decision as to the amount of a charge that is required to be paid before access to a document is granted, whether or not the charge has already been paid by the applicant, if the Information Commissioner has certified that the matter is one of sufficient importance for the Tribunal to consider.

…[there follow eleven subsections (2)-(3H) providing for various situations in which an application for review ‘may’ or ‘may not’ or ‘cannot’ be made].
(4)On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister 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 the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.
…

51. Information Commissioner may be called on to assist Tribunal
(1)The Tribunal, on its own motion or on the application of the Information Commissioner, may call on the Commissioner to assist the Tribunal in respect of a review.
…
(2)Despite anything to the contrary in the Victorian Civil and Administrative Tribunal Act 1998, the Information Commissioner is not and cannot be joined as a party to a review under section 50 unless it is a review of a decision of the Information Commissioner as the principal officer of the Office of the Information Commissioner.
…

52. Time for applying for review
…
(5)An application to the Tribunal under section 50(1)(b) or (c) must be made within 60 days from the day on which notice in writing of the decision of the Information Commissioner on the review is given to the applicant under Division 1.
…
(7)An application to the Tribunal under section 50(1)(d) must be made within 60 days from the day on which notice in writing of a decision of the Information Commissioner under section 49G is given to the applicant.
…

53. Reviews where decisions delayed
(1)Subject to this section, where—
(a)a request has been made to an agency or Minister;
(b)the time period provided in section 21(1) or section 43 as the case may be has elapsed;
and
(c)notice of a decision on the request has not been received by the applicant—

for the purposes of making an application to the Tribunal under section 50(1)(ea), the agency or Minister is taken to have made a decision refusing to grant access to the document in accordance with the request or, in the case of a request under section 39, refusing to amend the document in accordance with the request, on the last day of the relevant period.

…
(5)Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally heard the application, a decision is given, subject to subsection (5A), the Tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with this Part.
…
(6)Before further hearing an application made by virtue of this section, the Tribunal, may on the application of the agency or Minister concerned, make an order allowing further time to the agency or Minister to deal with the request.
(7)The Tribunal may make an order under subsection (6) subject to such conditions as the Tribunal thinks fit, including a condition that if a decision is made during the further time to grant access to a document any charge that, under the regulations, is required to be paid before access is granted shall be reduced or waived.

…
59. Tribunal may reduce or waive charges
(1)In a review under this Division, the Tribunal may order that any charge payable under this Act or the regulations in respect of access to a document be reduced or waived.
(2)The Tribunal cannot make an order under sub-section (1) if it confirms the decision the subject of the review.

…
Part VIA – Complaints
Section 61A – Complaints
(1)A complaint may be made to the Information Commissioner in accordance with this Part about any of the following –
(a)an action taken or failed to be taken by an agency in the performance or purported performance of the agency’s functions and obligations under this Act, including a decision by an agency that a document does not exist or cannot be located.
…[there follow seven further paragraphs (ab)-(f) listing various kinds of action or omission, mainly on the part of a Minister as distinct from an agency, about which complaints may be made to the Information Commissioner].

The plaintiff’s FOI requests and subsequent steps taken

At all relevant times, the plaintiff was being held as a prisoner in the custody of the second defendant, or the second defendant’s predecessor, at Hopkins Correctional Centre in Ararat. On or about 6 April 2018 he sent a letter of that date to the Minister for Corrections seeking access to certain documents. (This was the abovementioned 6 April request.) On or about 18 April 2018 he sent a letter of that date to the ‘Department of Justice’ seeking access to certain other documents. (This was the abovementioned 18 April request.) In both letters he referred to and relied on the FOI Act. The 6 April request was transferred to the Department under s 18 of the FOI Act. In due course, both requests came to be dealt with by the FOI Unit of the Department. Neither of the plaintiff’s letters was accompanied by the application fee for an FOI request prescribed by s 17(2A) of the FOI Act. The letter of 6 April 2018 did not expressly seek a waiver. The letter of 18 April 2018 did.

By letter dated 17 April 2018, a designated FOI Officer of the Department, Mr William Ng, responded to the plaintiff’s 6 April request. Mr Ng took the plaintiff’s letter to be an intended request for documents under the FOI Act. He repeated the plaintiff’s description of the documents to which access was sought, namely, in short, documents providing statistical data that would enable an understanding of how much time in total had been granted to Victorian prisoners as time served for all cancellations of parole for certain specified years. Mr Ng’s letter proceeded as follows:

Section 17(2A) of the FOI Act requires that you pay an application fee of $28.40 when you request access to documents. If you are a prisoner and you are asking for your own documents, the department will usually waive the application fee automatically.
You are not asking for your own documents. You are asking for documents of a non-personal nature. This means, until you pay the application fee, your request is not valid under the FOI Act and the department will not process it.
I would appreciate it if you would respond to the issues raised above within 28 days of the date of this letter, otherwise I will assume that you do not wish to continue with your request and no further action will be taken by the department.
If you have any queries, please contact this office by writing to the mailing address shown at the top of this letter.

On 23 April 2018, Mr Ng wrote again to the plaintiff, this time acknowledging his 18 April request and noting that it was a request for access to all documents relating to the ‘issue’ of any prisoner in Victoria wishing to remain in prison (temporarily or permanently) rather than be released at the completion of the prisoner’s sentence, including all documents relevant to the legislative aspects of that ‘issue’. The rest of Mr Ng’s letter was in terms very similar to the four paragraphs quoted above from his letter of 17 April 2018, again making the point that the request was for non-personal documents and that, in accordance with the Department’s policy, the application fee (of $28.40) would not be automatically waived and that, therefore, the request would not be treated as valid until the application fee was paid.

By letter dated 30 April 2018 to Mr Ng, the plaintiff ‘formally’ requested that all fees (including the application fee) be waived for the 6 and 18 April requests on the ground that he was an ‘impecunious person’. He submitted that to raise the money for the application fees would cause him financial hardship.[21]
[21]CB 27.

On the same day, 30 April 2018, the plaintiff wrote again to Mr Ng. The plaintiff referred to certain unidentified replies by Mr Ng to FOI requests that had apparently been made by the plaintiff in addition to the 6 and 18 April requests. The plaintiff asserted in the letter that ‘all’ of his applications had been made notifying the addressees that he was both a prisoner and an impecunious person and ‘as such’ that he had requested that all fees be waived.[22] The letter concluded as follows (emphasis in original):

Your replies vary in their approach to addressing what seems to be your concern regarding the application and processing fees. You have even suggested that I should provide account details of my finances.
I think this course of action is inappropriate and may even constitute in itself a breach of the FOI Act. It certainly appears inconsistent with the purpose of the Act, being that of the support for disclosure.
As the applications and general processing fees would cause significant hardship please fulfil all of my FOI requests to the Department of Justice (including the attached FOI request)[23] in full. Failure to do so within the prescribed time provided by the Act will result in the matter being brought immediately to independent review.

[22]CB 28. Actually, as indicated in [32] above, the letter of 6 April 2018 had not, itself, contained an express request for a waiver.

[23]No such ‘attached’ FOI request is included in the court book.

On or about 10 May 2018, a letter of that date signed by Jeremy Frampton as Acting Manager, FOI, of the Department was sent to the plaintiff.[24] Mr Frampton’s letter addressed the first of the plaintiff’s letters dated 30 April 2018 which, in turn, referred to the 6 and 18 April requests. Mr Frampton’s letter repeated the indications previously given to the plaintiff about the Department’s policy, particularly in relation to non-personal documents. The letter continued:

If you would like to seek a waiver of the application fees for these FOI requests you will need to make out a case of hardship. To make out a case for hardship, you must provide proper evidence. The department accepts as proper evidence a copy of your prison bank account statement, covering the last two months and showing that your average balance remained below $200.00 for this period.

[24]CB 29.

On 13 June 2018 OVIC wrote to the Secretary of the Department to advise that OVIC had received from the plaintiff an application to the Information Commissioner under s 49A of the FOI Act for review of a ‘decision’ made by the Department to ‘refuse to waive the application fee’ on the 6 April request. The letter invited the Department to make contact with OVIC about the matter.[25] On the same day, an otherwise identical letter was sent by OVIC to the Department relating to the 18 April request.[26]
[25]CB 30.
[26]CB 31.

On 14 June 2018 a letter was sent by Lisa Pascolo, as Team Leader, FOI, of the Department to the plaintiff notifying a decision on an FOI request made by the plaintiff[27] (not being either the 6 April or 18 April request). It appears from the letter of 14 June 2018 that the request had been in four parts. The first two parts, at least, related to documents personal to the plaintiff, in that the request was for access to documents relating to the handling by the Department of the plaintiff’s prior FOI requests. A decision on the request was conveyed by the letter. The decision was to release nearly all of the documents requested, including policy documents concerning the waiver of FOI fees and charges, being documents which had also been sought by the plaintiff. The letter included a sentence as follows:

As access charges are waived in this instance, please find enclosed the documents to which you are granted access.

[27]CB 32-34.

The court book contains copies of the policy documents that were released to the plaintiff under cover of the letter of 14 June 2018.[28] They include a guide issued by OVIC to assist agencies in calculating costs for FOI requests. So far as presently relevant, the guide read:
[28]CB 36–41.

Application and fee
At the time of making an FOI request, the request must be accompanied by the application fee (s 17(2A)).
The application fee is set by the FOI Act at two fee units. The value of a fee unit is determined annually by the Treasurer and published in the Government Gazette. The amount usually increases each financial year.
Waiving or reducing the application fee
An agency can waive or reduce the application fee if it would cause hardship to the applicant, whether or not the fee has been paid (s 17(2B)).
Hardship must be determined on a case-by-case basis, although it is good practice for an agency to have a written policy so that its approach is consistent. For example, evidence that the applicant receives social security payments (such as a benefit or concession card) may be sufficient to demonstrate financial hardship. Otherwise, evidence of income, bank balances or other information related to the person’s financial situation might also be considered.
If you decide to not waive or reduce the application fee on a request, the applicant has a right to seek review of that decision by the Information Commissioner (s 49A(1)(c)). When refusing to waive or reduce the application fee, ensure that you inform the applicant of this right of review.[29]

[29]OVIC, Freedom of Information, ‘Fees and Charges, A guide to calculating costs in FOI requests’ (Version 01, September 2017) CB 36-41, 36.

An extract from the Department’s own FOI protocol, insofar as it related to requests from prisoners, was also included, as follows:

Corrections requests – Personal and non-personal documents –
Waiving the application fee for prisoners
Summary
Automatically waive the application fee if the applicant is a prisoner and the request is for personal documents. If the request is for non-personal documents, the applicant must pay the application fee, or make out a case for waiver because of hardship.
Issues
·     The department automatically waives the application fee for current prisoners if the request is for personal documents.
·     However, the prisoner needs to pay the fee or make out a case for the waiver if the request is for non-personal documents (the department informed the Ombudsman Victoria of this policy in 2006).
· Section 17(2B) provides for a waiver of the fee if paying it would cause hardship to the applicant.
·     Victorian Administrative Law discusses ‘hardship’ in the following terms:
The word ‘hardship’ is not defined in the Act and does not appear to have been considered by the VCAT or its predecessor, the AAT. The ordinary meaning of the word ‘hardship’, obtained from the Oxford English Dictionary, suggests that hardship means ‘severe suffering or privation’ (meaning ‘lack of the comforts or necessities of life’. In addition, the word ‘hardship’ has been interpreted in other contexts to ‘comprehend any matter of appreciable detriment whether financial, personal, or otherwise’ and to have the quality of being ‘hard to bear or a substantial detriment’.

·     The mere fact of custody, or status as a prisoner, is not sufficient to make out a case of hardship for non-personal requests, since Corrections Victoria provides those in prisons with the necessities of life, including food, clothing, shelter and health care.
·     A prisoner might provide evidence of financial hardship, such that paying the application fee would ‘have the quality of being ‘hard to bear or a substantial detriment’.
·     The department considers it would cause financial hardship to a prisoner whose average prison bank account balance remains at or below $200.00 across a period of two months.
Approach
·     Waive the application fee if the prisoner requests personal documents.
·     If the request is for non-personal documents, ask the prisoner to pay the application fee or to make out a case for waiver because of hardship.
·     To make a case for waiver because of hardship, the applicant must provide evidence.
·     A prisoner may evidence financial hardship by providing copies of their prison bank account statements for the two months preceding their application.
·     Waive the application fee if the prisoner seeks it on financial hardship and their average prison bank account balance remained at or below $200.00 over the preceding two-month period.
·     If you are not sure whether the prisoner has made a case for waiver, discuss it with a colleague, or manager.
·     A prisoner may seek waiver of the application fee at any time, even if the prisoner has already paid.[30]

[30]CB 40–41 (references to related resources omitted).

By letter dated 19 June 2018, the Department notified OVIC that, in relation to each of the plaintiff’s 6 and 18 April requests, the plaintiff had been advised in writing of what the Department would accept as evidence of hardship, but the plaintiff had not responded and had not provided any such evidence. The Department said that there had been no decision by it not to waive or reduce the application fees; and that the requests remained inactive, awaiting either payment of the application fees or evidence in support of waiver.[31]
[31]CB 42-43.

On 9 July 2018, OVIC sought clarification from the Department about its fee waiver policy, and advised that the plaintiff had ‘communicated that he did not intend providing bank statements on either matter’.[32]
[32]CB 44.

On 13 July 2018, the Department wrote to OVIC explaining the history and rationale of its fee waiver policy for prisoners. It said that the plaintiff’s requests were still regarded by the Department as ‘inactive’.[33]
[33]CB 45.

By a letter to OVIC dated 6 August 2018, the plaintiff sought from OVIC a ‘status review’ of five matters of review or complaint concerning various agencies that he had previously raised with OVIC, including his two applications to OVIC for review in relation to his fee waiver applications on the 6 and 18 April requests. In the letter of 6 August 2018, the plaintiff also added six new FOI matters for review or complaint.[34]
[34]CB 53-54.

By letter dated 9 August 2018, the Department (again through Lisa Pascolo, Team Leader, FOI) responded to a fresh FOI request of the plaintiff stated to have been received by the Department on 6 August 2018. That was apparently a request for access to, among other things:

my prison financial details sufficient for the minimum requirement of DJR FOI policy, to prove hardship with respect to FOI application and processing fees.

The other documents sought were annual reports and other non-personal documents. The Department’s letter of 9 August 2018 gave much the same information about applicable fees and fee waivers as had previously been given to the plaintiff.[35] The letter stated that the plaintiff was required to provide the Department with documents such as prison bank statements to prove financial hardship. It said that the plaintiff might wish to contact his Unit Manager at his prison location for this information. Neither party put the letter of 9 August 2018 (or the request to which it responded) before VCAT. However, the letter was the first of the plaintiff’s exhibits to his affidavit in support of his application to this Court and it was discussed at the hearing before me.

[35]CB 8–9. However, there is an apparent typographical error in the third-last paragraph of the letter of 9 August 2018 insofar as that paragraph linked advice about the need to prove hardship to ‘point one’ of the request, which, as shown above, sought the plaintiff’s own prison financial details. Under departmental policy, hardship evidence was usually required only in respect of requests for non-personal documents.

On 3 September 2018, the plaintiff completed a pro forma application to VCAT for review.[36] He specified s 50(1)(b) of the FOI Act as the statutory provision under which the application was made. (As indicated above, s 50(1)(b) provides for an application for review of ‘a decision of the Information Commissioner refusing to grant access to a document in accordance with a request’.) The plaintiff specified ‘OVIC’ as the title or office of the decision-maker. In the place where a brief statement of his reasons for making the application was requested, the plaintiff wrote:

Several FOI applications to DJR made reviewable, not addressed within time by OVIC.

The plaintiff entered something as the ‘Date of decision’, but what was entered is illegible in the court book. The pro forma indicated that a copy of the reviewable decision was required to be attached, but the plaintiff endorsed this part of the form with the words ‘no document’ and ‘Decision made in default of time requirements. FOI Act s 49J(1)(a)’.

[36]CB 46–51.

On 4 September 2018, the application for review was received by VCAT.[37]
[37]See letter from plaintiff to VCAT dated 11 September 2018: CB 52.

By letter to the Department dated 7 September 2018, OVIC referred to its abovementioned letter of 13 June 2018, and indicated again that the subject matter of the plaintiff’s application to OVIC was what the plaintiff himself had described as ‘a decision to refuse to waive the application fee on his requests’. OVIC advised the Department that it was accepted that the Information Commissioner did not have jurisdiction because a decision had not, to that stage, been made by the Department in relation to the plaintiff’s applications for fee waivers on the two requests in question. From OVIC’s perspective, according to the letter, the matters were considered finalised.[38]
[38]CB 55.

In a letter from the plaintiff to the FOI Unit of the Department dated 30 October 2018[39] (received 5 November 2018[40]), the plaintiff referred to a letter dated 25 October 2018 from the FOI Unit to him which had apparently requested that he provide hardship evidence in support of a fee waiver application for an FOI request lodged on 24 October 2018. In the letter of 30 October 2018, the plaintiff said, by way of response, that what followed was an application under the FOI Act ‘for any document that will satisfy the DJR’s policy for proof of hardship’. He requested that the FOI Unit use the documents obtained by means of the application ‘for the purpose of proof of hardship for all applications (including the one mentioned above) which have come to be processed by the DJR and where proof of hardship is an outstanding requirement’. He then set out in more formal terms a request for access which extended to any documents which might prove his hardship with respect to FOI application and processing fees (’30 October request’). He also sought a fee waiver for this request itself, asserting ‘significant hardship’.
[39]CB 162.
[40]See also CB 163–164.

On 9 November 2018 the Department filed at VCAT its abovementioned statement under s 49 of the VCAT Act and the associated documents.

On 12 November 2018, at a VCAT directions hearing, the Department foreshadowed making an application for the proceeding to be summarily dismissed under s 75 of the VCAT Act on jurisdictional grounds. Timetabling directions were given in that regard.

On 26 November 2018 the Department filed and served its formal application under s 75, together with written submissions in support dated the same day and a list of authorities. Principally, the Department submitted that VCAT had no jurisdiction because, in the absence of payment or waiver of the relevant application fees, there had been no decision or deemed decision that was reviewable by VCAT under the FOI Act. The Department also submitted that, even if the application fee difficulty were to be overcome, it would be necessary for the plaintiff to clarify and/or narrow his FOI requests before they could be considered valid under s 17 of the FOI Act.

By letter dated 30 November 2018,[41] Mr Frampton, as Assistant Manager, FOI, of the Department, formally responded to the plaintiff’s letter and 30 October request. Mr Frampton said (among other things):
[41]CB 163–164.

I understand you have been provided a copy of your Prisoner Money Enquiry report at your prison location. I note that Hopkins Correctional Centre have also forwarded a copy of this report to the FOI Unit. As such, I am now satisfied that you meet the criteria to have the application fee waived.
For your reference I have enclosed a copy of this report.
For future reference, as you are entitled to access a copy of your Prisoner Money Enquiry report at your prison location you should direct your enquiries to your Unit Manager in the first instance. You do not have to lodge an application under the FOI Act to obtain a copy of that particular report.
Prioritisation of requests
I note you have submitted several earlier requests for documents that do not relate to your personal affairs and which, to date, the department has not processed as you had not provided evidence to support a waiver of the application fee.
As the FOI Unit now has this evidence, I seek your advice on what order you would like the remaining requests to be processed. I propose that the two matters currently before the Victorian Civil and Administrative Tribunal (VCAT) be processed first, by date order (our references 58113 and 58313).[42]

Mr Frampton’s letter went on to list the outstanding FOI requests. It then indicated that access charges, as distinct from application fees, would continue to apply except in relation to requests for personal documents.

[42]This was a reference to the FOI requests of 6 April 2018 and 18 April 2018 respectively.

A copy of the computerised ‘Prisoner Money Enquiry’ report that was enclosed by Mr Frampton in his letter is included in the court book. It is dated 14 November 2018. It appears to show a balance to the credit of the plaintiff of $415.36, subject to various endorsements.

On or about 25 December 2018 the plaintiff served the Department with his written submissions of that date in opposition to the Department’s application for summary dismissal. In short, the plaintiff denied that either request was unclear or too broad; submitted that, in any event, the Department had not previously raised such an objection and had not engaged in consultation under s 17(4) of the FOI Act; submitted that he was qualified for a hardship waiver in accordance with Departmental policy; submitted that the Department was at all relevant times aware that he was so qualified; submitted that his FOI requests were therefore valid at all relevant times; and submitted that this meant that VCAT had jurisdiction to proceed. He sought declarations of law accordingly and costs.[43]
[43]CB 57–60.

On 9 January 2019 the VGSO, on behalf of the Department, sent to VCAT a letter regarding the processing of the plaintiff’s 6 and 18 April requests. A copy of the letter was sent to the plaintiff. The letter referred to the Department’s pending application for summary dismissal of the application for review on jurisdictional grounds. It then referred to the plaintiff’s abovementioned 30 October request. The VGSO letter continued:

On 30 November 2018, the Respondent advised the Applicant that the FOI Unit had been provided with a copy of his Prisoner Money Enquiry report and was satisfied that he met the criteria to have his application fees waived (enclosed). The Respondent is accordingly processing the Applicant’s outstanding FOI requests.
The Respondent therefore considers that the Applicant’s Freedom of Information application is now further lacking in substance because the Respondent has agreed to waive the application fees and is processing the FOI requests. This is an additional reason for the application to be summarily dismissed.

On 25 March 2019, the Department’s application for summary dismissal came on for hearing before Deputy President Proctor at VCAT. The plaintiff represented himself, appearing by telephone. During the hearing, the solicitor appearing for the Department handed up a letter from the Department to the plaintiff dated 11 February 2019, informing the plaintiff that the documents sought in his request of 6 April 2018 (reference number 58113) did not exist. The solicitor also handed up a letter from the Department to the plaintiff dated 20 February 2019 inviting the plaintiff to amend or clarify his 18 April request (reference number 58313). Both of those letters were included in the court book in this proceeding. The letter of 11 February 2019 included advice to the plaintiff that he had a right to complain to the Information Commissioner if he was dissatisfied with the advice that the documents sought did not exist. The letter of 20 February 2019 included the following, under the heading ‘Application fee’:

The FOI Act requires you to pay an application fee of $28.90 to make a request for non-personal documents. However, in this instance, I have accepted a copy of your Prisoner Money Enquiry Report provided for an earlier request as evidence and the requirement to pay the fee has been waived.

On the other hand, the letter of 20 February 2019 asserted that the 18 April request remained invalid. It asserted that the request lacked the clarity required by s 17 of the FOI Act. It also asserted that, unless the request was clarified or amended, processing it would involve a substantial and unreasonable diversion of the resources of the agency, within the meaning of s 25A(1) of the FOI Act, and that, accordingly, the request would not be processed unless that was done. The letter invited the plaintiff to consult with the Department with a view to overcoming the objections.

At the conclusion of the VCAT hearing on 25 March 2019, Deputy President Proctor announced his decision to uphold the Department’s application for summary dismissal on the ground of absence of jurisdiction. He made an order accordingly. He gave oral reasons. The plaintiff then sought written reasons. On 29 March 2019 Deputy President Proctor published written reasons.

In his written reasons, Deputy President Proctor concisely summarised the history of events. He noted that the plaintiff had declined to provide the Department with information relevant to his hardship claim (on the asserted basis that the information was already available to the Department) and that, in those circumstances, the Department had not progressed the fee waiver application as at the time (September 2018) when the plaintiff made his application to VCAT concerning the requests. The Deputy President noted that the Department had applied for summary dismissal on jurisdictional grounds based in turn on non-payment of the application fees and an asserted lack of clarity in the requests, but had gone on to waive the application fees and to commence to process the requests. The Deputy President’s summary of the history appears to have been in error in one respect. He said that the Department had ultimately become satisfied that neither request lacked sufficient clarity. It is true that, by processing the 6 April request in accordance with the letter of 11 February 2019, the Department must, ultimately, have arrived at the view that it was sufficiently clear. However, the letter of 20 February 2019 indicates that the Department remained of the view that the 18 April request was not clear enough and was also too broad. On the other hand, if the Deputy President was in error in this respect, the error is of no ultimate consequence. The plaintiff has not complained about it. The plaintiff’s exclusive focus in the present proceeding is on the treatment of the fee waiver claim for the 6 April request, and not on any aspect of the treatment of the 18 April request. In any event, as will be seen, VCAT was correct to conclude that it had no relevant jurisdiction in relation to either request because of the fee problem alone. Whether or not, in the light of Chopra, the issues raised in the letter of 20 February 2019 about clarity and breadth would have supplied a further justification for holding that VCAT had no jurisdiction need not be finally decided.

About six weeks after first submitting his ‘request’, Dr Chopra applied to VCAT, without legal representation, for review of what he described as a decision by the Department ‘refusing to grant access to a document in accordance with a request’. He relied on s 53 of the FOI Act.[148] As mentioned above, s 53 provides, so far as presently relevant, that where a ‘request’ has been made to an agency and the time period provided in s 21(1) of the FOI Act has elapsed and notice of a decision on the ‘request’ has not been received by the applicant, then, for the purposes of making an application to VCAT under s 50(1)(ea) of the FOI Act, the agency is taken to have made ‘a decision refusing to grant access to the document in accordance with the request’.
[148]Ibid [3].

Subsequently, the Department applied to VCAT for an order under s 75(1) of the VCAT Act that Dr Chopra’s application be summarily dismissed on the ground that VCAT lacked jurisdiction. The Department contended that there was no deemed decision to refuse to grant access in respect of the ‘invalid’ request; and that, in the absence of a decision which was capable of being the subject of an application for review to VCAT, VCAT lacked jurisdiction.[149]
[149]Ibid [4].

At a directions hearing, a Vice President of VCAT made an order for the referral to the Court of Appeal, under s 96 of the VCAT Act, of two questions that were described as questions of law. Under s 96, a referral can only occur with the consent of the President of VCAT. The questions were settled by the Vice President in the following form:

(1)Does 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?
(2)If paragraph 4 of the Request does not conform with s 17(2) of the FOI Act, is the whole of the request invalid?

When the matter came before the Court of Appeal, Dr Chopra was still not legally represented. The Court of Appeal decided that the President of VCAT had not consented to the referral of the questions in the form in which they had been settled by the Vice President, and that, as a result, the Court of Appeal had no jurisdiction to determine the questions.[150] The Court also decided that, if it was wrong in its conclusion regarding the Court’s jurisdiction, still it would be unable to answer question 1 on the material before the Court, because the agreed statement of facts did not set out essential facts.[151] The Court said it 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?’.

The Court gave the following answer to the reformulated question 2:
No, because the severance principle may in certain circumstances overcome an initial invalidity.[152]

[150]Ibid [11], [69].

[151]Ibid [11], [91]-[93].

[152]Ibid [11], [123].

The Department’s use of the s 75 procedure was not the subject of the purported referral to the Court of Appeal. However, the Court described it as a ‘key issue’ in the VCAT proceeding; as the ‘catalyst’ for the referral; and as raising an ‘important matter of principle’. On that basis, the Court addressed it and 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.[153]

[153]Ibid [12], [137].

As just mentioned, even apart from its lack of jurisdiction due to the absence of consent on the part of the President of VCAT, the Court of Appeal declined to answer question 1 of the purported referral on the basis that ‘essential facts’ were missing. In my respectful opinion, there was a more fundamental reason to decline to answer question 1. The question carried the assumption that, at least ultimately, it is for a court to determine, objectively, whether a purported FOI request complies with s 17(2). The Court of Appeal was apparently prepared to accept the correctness of that assumption,[154] although it did query whether question 1 was a question of law for the purposes of s 96 of the FOI Act.[155] But, in my view, s 17(2) does not involve an objective test. It speaks of such information as is reasonably necessary to enable a responsible officer of the agency or the Minister, as the case may be, to identify the requested document. So the standard procedures, and the state of the files, of the relevant agency or Minister will often be significant. Moreover, s 17(2) must be read in combination with s 13 of the FOI Act, which provides for a (legally enforceable) right to obtain access to documents, but only ‘in accordance with this Act’, and must also be read in combination with s 26, which provides for a decision in respect of a request made to an agency to be made by an authorised person. Hence, for reasons corresponding with the reasons I gave above in relation to the question of ‘hardship’ under s 17(2B), the question whether a ‘request’ complies with s 17(2) falls for decision, at least in the first instance, by the agency or Minister, as the case may be, not by any court (subject, of course, to the supervisory jurisdiction of the Supreme Court). I say ‘at least in the first instance’ in order to foreshadow the question whether VCAT may have a role under s 17(2). In Chopra, the Court of Appeal held that VCAT did have such a role. In paragraph 121, the Court said that if the requester and the agency cannot agree about whether a ‘request’ is compliant with s 17(2), VCAT must decide the issue of compliance. In paragraphs 135 to 136 the Court of Appeal said:

135.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.[156] Those decisions should not be followed.
136.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.

[154]Ibid [77]-[92], esp [91].

[155]Ibid [87]-[89].

[156]Here, the Court of Appeal cited, by way of example, Zeqaj v Victoria Police [2010] VCAT 1132 [39]-40]; Victoria International Container Terminal Ltd v Port of Melbourne Corporation [2016] VCAT 337 [18]; Chopra 2018 VCAT (n 142) [15]; Macdonnell v State Sports Centres Trust [2018] VCAT 1616 [214]–[217].

It is desirable to set out, also, paragraphs 118 to 120 of Chopra, being the paragraphs referred to in paragraph 136 of Chopra as set out immediately above:

118.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.
119.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.[157] 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.)

120.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.

[157]Footnote omitted.

With respect, the five paragraphs from Chopra just set out seem to me to involve the mistake of assuming the truth of the proposition needing to be proved.[158] The proposition needing to be proved is that VCAT has jurisdiction to review a determination of an authorised FOI officer of an agency, or of a Minister, declining, in good faith, to process a purported FOI request on the ground that, for the purposes of s 17(2) of the FOIAct, the ‘request’ does not provide such information as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document sought.
[158]See and compare ADTAP v Department of Commerce (n 117) [46] (Beazley J), referring to the judgment of Hedigan J in Victoria Police v Burton (n 111).

In my respectful opinion, nothing in the VCAT Act or the FOI Act gives VCAT jurisdiction to review such a determination. Even apart from any necessity to involve the Information Commissioner, such a determination simply does not fall within any of the classes of ‘decision’ reviewable by VCAT under s 50 of the FOI Act. For so long as the determination of the agency or Minister under s 17(2) in relation to the original request stands, and for so long as no modification of the request has been advanced to and accepted by the agency or Minister, then, by definition, there is no ‘request’ (as defined in the FOI Act). If there is no ‘request’, there cannot be an actual or deemed ‘decision … refusing to grant access to a document in accordance with a request’. Hence paragraphs (b), (d) and (ea) of the FOI Act are all inapplicable. The other paragraphs of s 50 can have no application in any event.

If a determination under s 17(2) were affected by procedural or substantive error in an administrative law sense, this Court, in the exercise of its general supervisory jurisdiction, could order the determination to be reconsidered. However, VCAT has no such general supervisory jurisdiction.[159]
[159]Director of Housing v Sudi (n 113) 585 [134].

In addition, a genuine determination that a ‘request’ does not enable a requested document to be identified does not, in my view, amount to a decision ‘refusing to grant access’ to the document for the purposes of any of the relevant provisions of s 50 of the FOI Act. There is an analogy with a response by an agency, to a duly made request, to the effect that the document or documents to which access is requested do not exist or cannot be located. The better view, in my opinion, has always been that such a response does not amount to a decision ‘refusing’ to grant access for the purposes of the FOI Act and its counterparts in other jurisdictions.[160] In any event, the distinction is now recognised in the FOI Act itself, in s 61A(1)(a).[161]
[160]ADTAP v Department of Commerce (n 117) [112], [130] (Basten JA); cf Victoria Police v Burton (n 111); Chopra 2019 VCAT (n 129) [27]-[49].
[161]Set out above.

Likewise, it seems to me that a determination not to process a ‘request’ on the ground of non-payment of the application fee required by s 17(2A), does not amount to a decision ‘refusing’ to grant access.[162] In any event, it clearly does not amount to refusing to grant access to a document ‘in accordance with a [valid] request’.
[162]See and compare Neoen Australia Pty Ltd v Minister for Planning (2019) 58 VR 278, 282 [20] (Ierodiaconou AsJ).

Turning back to the obiter dicta of the Court of Appeal in Chopra, with respect, I have no difficulty with the actual answer that the Court of Appeal gave to reformulated question 2. I agree, with respect, that, under the relevant legislation, a purported FOI request that does not comply with s 17(2) when the request is made will not necessarily be permanently invalid. Indeed, the very purpose of s 17(3) and (4) of the FOI Act is to encourage the requester and the agency to consult with each other and to agree upon a form of request that does comply with s 17(2).[163]
[163]See Ford v Department of Industry, Tourism and Resources [2005] AATA 1032 [15]-[22] (Deputy President Forgie); Kyriazis (n 141) [8]-[15] (Senior Member McKenzie); Keating v Latrobe University (General) [2011] VCAT 1564 [17]-[22] (Member Proctor).

No doubt, severance of a particular part of the original request can be one appropriate method of bringing it into compliance with s 17(2), as the Court of Appeal held. And, given the tenor of the FOI Act as a whole, and that of the object section and of s 16 in particular, there is probably no need for a fresh written document to be submitted by the requester as his or her (amended) request. As the Court of Appeal said, a request may be appropriately ‘modified’.[164] However, the FOI Act is prescriptive in many ways, particularly as to time limits. Under ss 20, 21 and 53 of the FOI Act, it is important to be able to identify the time at which a ‘formal request’ is ‘duly’ made, or, in other words, to identify the time at which a valid request (whether or not modified) is made.[165]
[164]Chopra (n 1) [112].
[165]See cases cited in n 163.

So, in my respectful opinion, the Court of Appeal was in error in Chopra insofar as it observed that jurisdiction for VCAT could be achieved, within an existing VCAT proceeding, by VCAT exercising powers under s 50(4) of the FOI Act and ss 51 and 51A of the VCAT Act with a view to the modification of an otherwise invalid FOI request. In my respectful opinion, those powers do not become available for exercise unless and until a decision that is prescribed to be reviewable by VCAT is actually made by the relevant person or is statutorily deemed to have been so made.

It may be that, where there has been no valid request and no decision or deemed decision reviewable by VCAT, but the requester has nevertheless made a purported application for review to VCAT, VCAT would have power (under s 98 of the VCAT Act) to grant an adjournment of the application in order to enable the applicant to make a modified request and in order to enable the respondent to make a decision whether to grant or to refuse access to documents in accordance with the modified request. VCAT might be prepared to do that with a view to saving the cost of lodging a fresh application at a later stage. If a decision were then made by the relevant agency or Minister to refuse to grant access to a document in accordance with the modified request and if the applicant then sought review by the Information Commissioner but was unsuccessful in that regard, or if sufficient time were to pass after the making of the modified request such that a decision by the agency or Minister was statutorily deemed to have been made, then VCAT might have power to allow the original application for review to be amended (pursuant to s 127 of the VCAT Act) so as to seek review of the ultimate decision made (or of the decision deemed to have been made) in relation to the modified request. Alternatively, and more realistically, a fresh application for review could be lodged. But it seems to me that, in Chopra, the Court of Appeal envisaged that, after an invalid request was modified in a way that rendered it valid in the view of all concerned, if any other issues (such as possible claims for exemption) were left, VCAT could simply proceed, within the same VCAT proceeding, to sit in judgment on the matter without an intermediate decision (or deemed decision) to refuse access being made by the agency or Minister (or the Information Commissioner). In my respectful opinion, VCAT could not lawfully do that.

I turn back now to the specifics of the present case.

It is helpful to summarise the relevant aspects of the chronology of events as set out above. First, the plaintiff sent the letters of 6 and 18 April 2018 to the Department. The letters purported to be requests under s 17 of the FOI Act for access to specified documents. However, they were not accompanied by the fees prescribed by s 17(2A) of the FOI Act. At that stage, at least, the plaintiff apparently accepted that he needed a fee waiver under s 17(2B) of the FOI Act before the ‘requests’ could become valid and operative. In any event, by 30 April 2018 he had expressly asked the FOI Unit of the Department, in writing, for the grant of such fee waivers.[166] At or around the same time, the plaintiff indicated an objection to supplying details of his finances.[167] Nevertheless, on 10 May 2018, the FOI Unit asked him for proof of hardship.[168] The plaintiff made no further reply to the FOI Unit. Instead, he approached OVIC. More precisely, on or before 13 June 2018 (as the matter was reported to the Department), the plaintiff purported to make an application to the Information Commissioner under s 49A of the FOI Act for ‘review’ of a ‘decision’ made by the Department to ‘refuse’ to waive the application fee on the 6 April request, and made a corresponding application in relation to the request of 18 April 2018.[169] It may be seriously doubted whether the Department had in fact made a decision to ‘refuse’ to waive. Indeed, the Information Commissioner later agreed with the Department that it had not done so, but rather had been merely waiting for the plaintiff to supply the financial information which the Department had sought from him. However that may be, it appears that the only applications that the plaintiff had made to the Information Commissioner were applications relating to the fee waiver issue. It seems to me that those applications were, at best, applications under s 49A(1)(c) of the FOI Act for review of a decision of an agency ‘not to waive or reduce an application fee under s 17’. So far as appears, they did not even purport to be applications under s 49A(1)(a) of the FOI Act for review of ‘a decision of an agency or Minister refusing to grant access to a document in accordance with a request’. Clearly, they were not applications under any other provision of s 49A of the FOI Act.
[166]See [32] and [35] above.
[167]See [36] above.
[168]See [37] above.
[169]See [38] above.

The plaintiff did not wait to be advised of the outcome of the applications he had made to the Information Commissioner under (apparently) s 49A(1)(c). On 3 September 2018, he purported to seek review by VCAT, referring to ‘default of time requirements’ on the part of the Information Commissioner and referring also to ss 49J(1)(a) and 50(1)(b) of the FOI Act.

However, the Information Commissioner was not in default of any time requirements. No such requirements applied. Nor was the Information Commissioner deemed to have made any decision. It is true that s 49J(1)(a), in combination with s 49J(2) and (3) and with s 50(1)(b) of the FOI Act, will operate to deem the Information Commissioner to have made a decision refusing to grant access to a document in accordance with a request where the Information Commissioner has not, within 30 days of receiving the application for review, completed a review of a decision of an agency or Minister referred to in s 49A(1)(a) or (b) or (2). That, in turn, will enable the relevant person to apply to VCAT under s 50(1)(b) for review of the deemed decision. However, that is not this case. The Department had not made a decision of a kind referred to in s 49A(1)(a) or (b) or (2). At best, if anything, it had made a fee waiver decision (under s 17(2B)) of a kind referred to in s 49A(1)(c). But there is no provision in the FOI Act or in the VCAT Act or anywhere else for VCAT to review a decision of a kind referred to in s 49A(1)(c). To express this point more fully, there is no provision in the FOI Act or in the VCAT Act or elsewhere for VCAT to review a decision or deemed decision in respect of an application for a fee waiver under s 17(2B) of the FOI Act, whether the decision or deemed decision be that of an agency or Minister or of the Information Commissioner.

Accordingly, it follows that the administrative path taken by the plaintiff, as initially described by him, did not lead to jurisdiction on the part of VCAT.

All this was pointed out to the plaintiff in the Department’s written submissions dated 26 November 2018 filed in VCAT. In his written submissions in response of 25 December 2018, the plaintiff sought to meet the difficulty by taking a quite different tack. He re-characterised or reinterpreted what had occurred to that stage. In the relevant part of his written submission, the plaintiff did not mention non-compliance with time limits or any other form of alleged omission on the part of the Department or on the part of the Information Commissioner. Rather, for the first time, the plaintiff came up with the proposition that, in law, he had not even needed an actual waiver of the application fees. That was so, he submitted, because he had at all times satisfied the Department’s hardship criteria; and because, he said, the Department had at all times held the documentary evidence of his having done so. This, he submitted, amounted to ‘knowledge’ on the part of the Department that he was qualified for a fee waiver. And in combination these things meant, he submitted, that his requests of 6 and 18 April had always been valid and operative FOI requests. As a further consequence, he submitted, VCAT had jurisdiction.

The plaintiff maintained this ‘new’ approach at the VCAT hearing, and he has done so again in the present proceeding.

However, as mentioned above, the plaintiff has not specified any particular provision of the FOI Act (or of any other enactment) under which VCAT had jurisdiction on this newly asserted basis. The only jurisdictional provision ever mentioned by the plaintiff was s 50(1)(b) of the FOI Act. But that provision cannot apply even on the new basis, because there has been no actual ‘decision of the Information Commissioner refusing to grant access to a document in accordance with a request’ within the meaning of s 50(1)(b). Nor has there been any deemed decision of that kind, as demonstrated above.

In the present case, no reviewable decision had been made when the plaintiff purported to commence his application to VCAT for review on 3 September 2018. For the reasons already explained, in my view neither the 6 April request nor the 18 April request was valid as at that date. Taking the same view, the Department had not begun to process either request. Nor had there been any deemed decision that was reviewable by VCAT. Hence at that stage, at least, VCAT had no substantive jurisdiction. The subsequent waiver of the application fees may have perfected the relevant FOI requests, but not before the waivers were actually granted on 30 November 2018. As soon as the waivers were granted, the agency began to process the two requests. In my view, the agency did not make a decision ‘refusing to grant access to a document in accordance with a request’ within the meaning of s 50 of the FOI Act in either case. Even if it did, the plaintiff did not thereafter apply to the Information Commissioner for review of such a decision. Hence neither s 50(1)(b) nor s 50(1)(d) of the FOI Act applied. Nor, in my view, was there, between 30 November 2018 and the date of VCAT’s decision (25 March 2019), a deemed decision refusing to grant access to a request. Rather, the 6 April request was the subject of an actual decision made on 11 February 2019 and the 18 April request was the subject of an invitation issued on 20 February 2019 to engage in consultation under s 17. Even if there was a deemed decision to refuse access after 30 November 2018, the plaintiff did not apply to VCAT to amend his application for review to seek review of any such deemed decision. He persisted with his original purported application for review. But that application could not duly invoke VCAT’s review jurisdiction. Hence, s 50(1)(ea) did not apply.

It follows that VCAT was correct in law to hold that it had no jurisdiction in this case.

Summary dismissal under s 75 of the VCAT Act

As mentioned in the introduction above, I respectfully agree in part with the observations of the Court of Appeal in Chopra relating to s 75 of the VCATAct. In particular, I agree with what the Court of Appeal said in paragraph 134 of its judgment, as follows:[170]

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.

[170]See also Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2020] VSCA 110 [76].

However, as already indicated, I respectfully find myself unable to agree with paragraphs 135 and 136 of the judgment in Chopra. In my opinion, it may be appropriate, at least on some occasions, for VCAT to summarily dismiss, under s 75, an application for review that clearly does not duly invoke VCAT’s jurisdiction because the relevant purported request did not, at the relevant time, comply with s 17(2) (or, for that matter, s 17(2A)) of the FOI Act. There may be such cases, in my respectful opinion, in which it may be able to be said that the application for review is ‘misconceived’. In my view, Deputy President Proctor, writing before the decision in Chopra, was entitled to say as much in relation to the present case.

However that may be, generally speaking, it is highly desirable, if not essential, that any serious, proper objection to the jurisdiction of a tribunal be heard and determined as a preliminary matter. Of course, like any other court or tribunal, VCAT has jurisdiction and power to consider whether it has jurisdiction. As Kirby J said in Re Boulton; ex parte Construction, Forestry, Mining and Engineering Union:[171]

Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that it has.

[171](1998) 73 ALJR 129, 133 [21].

In my view, VCAT has ample power – indeed, a duty – to hear and determine proper objections to its jurisdiction, whether or not s 75 may be utilised for that purpose.[172] Appropriately, VCAT does conduct what it calls ‘jurisdictional hearings’, from time to time.[173]
[172]See Re Buttigieg and Melton Shire (No 1) (2004) 22 VAR 1, 11 [30] (Morris P); Hi Quality Quarry Products Pty Ltd v EPA (Red Dot) [2016] VCAT 1445 [24] (Deputy President Gibson) (‘Hi Quality Quarry Products Pty Ltd’).
[173]See Nekvapil et al (n 45) [VCAT 41.80] and cases there cited.

It has been held by this Court that VCAT’s power to regulate its own procedure under s 98(3) of the VCAT Act does not permit VCAT to dismiss an entire proceeding.[174] On the other hand, VCAT has held, in my opinion correctly, that it can rule on jurisdiction either as a necessary part of its decision-making role or pursuant to s 124 of the VCAT Act, which authorises VCAT to make declarations.[175]
[174]Martin v Fasham Johnson Pty Ltd [2008] VSC 289 [36] (Kyrou J, as his Honour Kyrou JA then was).
[175]Hi Quality Quarry Products Pty Ltd (n 172) [24].

Alternatively, I note that in one of the early decisions of the AATC, Re Carey and Collector of Customs, Queensland,[176] Brennan J, President, as his Honour the former Chief Justice then was, having determined that the AATC had no jurisdiction in the matter, expressed his decision to that effect as follows:

I direct that no further steps be taken to set down for hearing the matter of the application by David I. Carey for the review of the decision made by the Collector of Customs, Queensland, being a demand for the payment of duty of $3,059.41 upon the importation of a BMW motor car entered on 21 September 1977.

An order in comparable terms might be appropriate in a case in which VCAT does not have jurisdiction.[177]

[176](1978) 1 ALD 455.

[177]Compare Luck v Victoria Police (Review and Regulation) [2015] VCAT 71 [8]-[11] (Judge McNamara, Vice President) as to ‘striking out’ a VCAT proceeding.

In any event, the course taken by VCAT in the present case, of utilising s 75 of the VCAT Act, involved no, or no significant, legal error on the part of VCAT. Certainly, it provides no reason to interfere with VCAT’s decision.

Costs

Notwithstanding that the Secretary did not refer me to Chopra, it remains fully appropriate that costs should follow the event, as I directed on 11 June 2020.

Conclusion and orders

For the reasons set out above, I will make an order vacating the order I made on 11 June 2020 and substituting an order, to take effect from today, dismissing the judicial review proceeding with costs.

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[2020] VSC 454

7 August 2020 First Revision: 11 August 2020