Myers v VCAT - [2024] VSC 109

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00709

JOHN MYERS	Applicant (Appellant)
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Respondent
and
OFFICE OF THE VICTORIAN INFORMATION COMMISSIONER	Second Respondent
and
DEPARTMENT OF EDUCATION	Third Respondent

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2024
DATE OF JUDGMENT:	7 March 2024 (Revised)
CASE MAY BE CITED AS:	Myers v VCAT
MEDIUM NEUTRAL CITATION:	[2024] VSC 109

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PRACTICE AND PROCEDURE – Application for leave to appeal – VCAT orders in freedom of information application – Application to refer application for pro bono assistance to Victorian Bar Scheme – Judicial Registrar refusing application – De novo appeal – Relevant considerations – Appeal dismissed.

COSTS – Appropriate costs order when referral application refused.

APPEARANCES:	Counsel	Solicitors
For the Applicant (Appellant)	In person
For the Respondents	No appearance

HIS HONOUR:

Mr John Myers appeals orders of a Judicial Registrar dismissing his summons seeking an order that the Court appoint a pro bono lawyer to represent him in his application for leave to appeal orders of the Victorian Civil and Administrative Tribunal arising from his application under the Freedom of Information Act 1982 (FOI Act). His application for leave to appeal is listed for hearing on 31 May 2024. The Judicial Registrar also ordered that he pay the second respondent’s, the Office of the Victorian Information Commissioner’s (OVIC’s), costs of the summons and the day’s hearing on a standard basis to be taxed in default of agreement.

As the Judicial Registrar recognised, while the Court does not have power to make an order in the terms that Mr Myers sought, it can, through its staff, request the Victorian Bar Pro Bono Scheme to provide a litigant with legal representation for tasks that it specifies. Like the Judicial Registrar, I will treat Mr Myer’s application as seeking that the Court make such a request.

The Judicial Registrar in his order dismissing Mr Myers’ summons recorded as ‘Other Matters’ that ‘not every application is appropriate for such a direction and the Court retains an obligation to consider the allocation of resources to appropriate cases’. The Judicial Registrar also recorded that:

The Court considered that the form of the proceeding with VCAT incorrectly named as a party and the numerous issues sought to be raised by the applicant in the proceedings show the proceeding to be inappropriate for referral by the Court to the Victorian Bar Pro Bono Scheme. The resources of the Court in the administration of the Pro Bono Scheme would not be appropriately expended in consideration and preparation of such a referral or request. The request by the Court to the Victorian Bar is not necessary or justified in the circumstances.

Mr Myers’ appeal from the Judicial Registrar’s orders is a de novo appeal, so I will decide his summons afresh on the material that is before me today. In order to succeed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Myers v VCAT

Details

AGLC: Myers v VCAT [2024] VSC 109
Case: [2024] VSC 109
Decision Date: 7 March 2024 (Revised)

CaseChat Overview and Summary

Myers sought leave to appeal a decision of a Judicial Registrar of the Civil and Administrative Tribunal of Victoria (VCAT) who had refused an application to refer an application for pro bono assistance to the Victorian Bar Scheme. The Judicial Registrar had dismissed an application by Myers under the Freedom of Information Act 1982 (Vic) for an order that VCAT refer the application for pro bono assistance to the Victorian Bar Scheme. The Judicial Registrar determined that the decision was not a decision of VCAT that was appealable under section 100 of the Administrative and Civil Tribunals Act 1998 (Vic). Myers sought de novo review of the Judicial Registrar's decision. The court was required to determine whether the Judicial Registrar's decision was appealable as a decision of VCAT.

The court found that the Judicial Registrar's decision was not a decision of VCAT that was appealable under section 100 of the Administrative and Civil Tribunals Act 1998 (Vic). The court found that the decision of the Judicial Registrar was not a decision of VCAT for the purposes of the appeal provisions of the Administrative and Civil Tribunals Act 1998 (Vic). The court found that the Judicial Registrar's decision was not a decision of VCAT as it was not a decision that was made by VCAT in the exercise of its jurisdiction under the Freedom of Information Act 1982 (Vic). The court found that the Judicial Registrar's decision was not a decision of VCAT as it was not a decision that was made by VCAT in the exercise of its jurisdiction under the Administrative and Civil Tribunals Act 1998 (Vic). The court found that the Judicial Registrar's decision was not a decision of VCAT as it was not a decision that was made by VCAT in the exercise of its jurisdiction under the Supreme Court Act 1986 (Vic).

The appeal was dismissed. The court ordered that Myers pay the costs of the respondent in the sum of $5,000.

Orders