Myers v VCAT
[2024] VSC 109
•7 March 2024 (Revised)
| 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 this de novo appeal Mr Myers is not obliged to establish any error in the Judicial Registrar’s orders and decision.
The orders of VCAT from which Mr Myers seeks leave to appeal confirmed the rejection by the Deputy Registrar of VCAT under s 71(5)(a) of the Victorian Civil and Administrative Tribunal Act 1998 of Mr Myers’ application.[1] The Deputy Registrar considered that Mr Myers was not entitled to make the application. The Senior Member who confirmed the Deputy Registrar’s orders concluded that VCAT did not have jurisdiction to hear Mr Myers’ application because it was not an application listed in s 50 of the FOI Act, which he considered set out the applications under that Act which VCAT had jurisdiction to hear.
[1]Myers v Department of Education [2023] VCAT 74.
Mr Myers invoked the FOI Act to obtain access to magazines of schools in the Frankston area to attempt to identify a young man who may have stolen his phone after Mr Myers left it on a bus travelling in that area. He reported the theft to police but apparently no action was taken. He told me that there were only a few people on the bus at the time, including a young man. Mr Myers considers that by looking at the annual magazines from nearby schools, he may be able to identify the young man. If he can, he may report that information to the police and request them to take action, or by his own investigation seek to locate the young man.
Mr Myers sought VCAT’s review of a decision of the Department of Education that, after the conduct of a thorough and diligent search, no documents were found that met the terms of his request for annual school magazines of five identified secondary schools. Mr Myers then complained to OVIC which dismissed his complaint under s 61B(1)(b) of the FOI Act because it was satisfied that there was no basis for the making of further enquiries or taking further action under Part VIA of the FOI Act.
Mr Myers’ proposed notice of appeal against VCAT’s orders raises at least two issues. The first is whether VCAT has jurisdiction to review an agency’s determination that it does not have the documents which the applicant seeks under the FOI Act. Secondly, whether OVIC erred by treating his application as a complaint rather than a review application.
I have considered Mr Myers’ oral submissions which he made for more than an hour this morning. I have also read his submissions and his affidavits.
Mr Myers stated that he is a very busy person ‘with over 1000 hours of legal work for his own personal matters that [he is] backlogged with’. He told me that he had been involved in at least three dozen cases either in this Court or in VCAT. The VCAT cases particularly concerned residential tenancy matters. He told me that yesterday VCAT made an order that evicts him from his residence, an order that he is challenging in this Court. He has also been involved in intervention order proceedings. He states that he does not have the necessary time to do legal research and educate himself. He needs to focus on legal matters, ‘in which almost all [his] belongings and business items have been stolen or damaged by house mates in [the] past few years amounting to losses of $100K’s’. He said that he has invested well over 100 hours in connection with this matter since 2021. He no longer has the assistance that he previously had, and considered that assistance from a barrister with FOI expertise would ensure that the hearing of this proceeding runs more smoothly and use less of the Court’s resources. Mr Myers argued that his erroneous naming of VCAT as a party to this proceeding demonstrates his need for a lawyer. He informed me that he receives a disability support pension and submitted it would be appropriate for the Court to assist him in obtaining representation. He said that he has been unsuccessful in obtaining legal assistance through Justice Connect and the Victorian Legal Aid Commission.
Mr Myers contended that his proposed notice of appeal contains valid arguments and addresses matters of public interest. He submitted that there can be no real freedom of information when decisions are made that the documents to which access is ought do not exist when they clearly do. He will rely on the division of opinion in previous decisions on whether VCAT has jurisdiction to review a decision of an agency that it does not have the documents that a person seeks under the FOI Act. In 1999, in Victoria Police v Burton,[2] this Court considered that VCAT had such jurisdiction. On the other hand, a line of the VCAT decisions made after the FOI Act was amended in 2012, decided that VCAT has no such jurisdiction.[3]
[2][1999] VSC 534.
[3]See Smeaton v Transport Accident Commission [2014] VCAT 341 and Chopra v Department of Education & Training [2019] VCAT 986.
I decide Mr Myers’ application on the basis that this Court has broad power to request its staff to refer a matter to the Bar’s Pro Bono Scheme to assist litigants in accessing justice. However, the Court cannot direct that any such assistance be provided. In New South Wales, the rules give the Court a discretion to make a referral for pro bono representation. The decisions about the appropriate exercise of that discretion emphasise that while a court should not form an opinion as to the merits of a litigant’s case, it should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. It has also been suggested that a court should be conscious of the fact that voluntary services provided by the profession should not be imposed where it may be inferred that legal aid has been sought and refused for lack of merit or that otherwise a referral would be futile.[4]
[4]Young v Director of Public Prosecutions [2022] NSWCA 133.
The Court should consider whether it would be an appropriate use of the Bar’s Pro Bono Scheme to make a referral or request. Not every application is appropriate to be so referred.
Every person is entitled to seek access to documents under the FOI Act and usually does not have to provide a reason for doing so. However, the reason why access is sought may be relevant to whether the Court should request pro bono assistance for an applicant. There are two features of Mr Myers’ reasons for seeking pro bono assistance that I consider to be significant. First, is his reason for seeking access to the documents. It is to investigate and identify the person who he says stole his phone some years ago. This investigation would examine photos of students of that era in school magazines. Secondly, is the fact that Mr Myers has been involved in a substantial number of cases, in which he has represented himself, many of which are still on foot. One of his reasons for seeking pro bono assistance is to ease the burden that these many cases impose on him. He seems likely, at least for the immediate future, to continue to be engaged in many court and tribunal cases.
I do not form any view on the prospects of success of Mr Myers’ application for leave to appeal VCAT’s orders. The legal issues he seeks to raise are clearly identified in his proposed notice of appeal. The judge who hears this case will have the benefit of the Court’s decision in Victoria Police v Burton which Mr Myers says favours his position, as well as the VCAT decisions which do not.
In all the circumstances, I am not persuaded that Mr Myers’ reasons for seeking pro bono assistance justify the Court requesting the Victorian Bar Pro Bono Scheme to provide that assistance to him. Mr Myers is a frequent litigant. The purpose of this litigation is ultimately to assist in his private investigation of the theft of a phone. In my opinion, that purpose does not justify the use of the important, but necessarily limited, assistance that the Victorian Bar can reasonably be expected to provide through its Pro Bono Scheme. While Mr Myers’ investigation is important to him, I do not consider that to be something that would justify this Court requesting pro bono assistance for him through the Victorian Bar Scheme.
I next consider Mr Myers’ appeal against the Judicial Registrar’s costs orders which were that he pay OVIC’s costs of the summons and of that day’s hearing on a standard basis to be taxed in default of agreement.
OVIC appeared by counsel before the Judicial Registrar although it and the Department of Education had notified Mr Myers they did not oppose the Court making a referral of his request for pro bono legal assistance. Because of that lack of opposition, Mr Myers submitted that OVIC had not needed to be legally represented or, that, at most, it could have been represented by a solicitor.
The following matters are relevant in exercising the discretion as to costs:
(a) Mr Myers served a summons on OVIC and it was not unreasonable, that as a party on whom a summons has been served, it decided to appear. It did not have to, but its decision to appear was reasonable. Where one party is self-represented, it can happen that issues relevant to the conduct of the proceeding may arise at any interlocutory hearing even though they have not been foreshadowed in the summons. This could have occurred at the hearing before the Judicial Registrar. OVIC was also entitled to hear how Mr Myers put his application and the Judicial Registrar’s response to it and it also had to be ready to provide such assistance or information to the Court as may have been required for the future conduct of the proceeding. Having made the decision to appear, OVIC had to decide how it would be represented, whether by an in-house lawyer with appropriate experience, if available, or through a firm of solicitors whom it had engaged, or by briefing counsel. OVIC chose the latter option and I do not consider that it acted unreasonably in doing so. The Court does not have any information about the submissions that OVIC’s counsel made to the Judicial Registrar. Mr Myers said that his link to the hearing broke down and that he did not hear what the counsel may have said. Regardless of that, in my opinion, in this case, as Mr Myers’ summons was dismissed and OVIC, whom he summonsed to appear, decided to appear, it is appropriate in the exercise of the costs discretion, that he be ordered to pay its costs of the summons and of the day’s hearing on a standard basis.
(b) I have taken into account that OVIC has not appeared today. But that is not a reason that should affect my exercise of discretion as to the appropriate costs order of the hearing before the Judicial Registrar and of Mr Myers’ summons generally.
For those reasons, I order that the appeal be dismissed. As a result, the Judicial Registrar’s orders of 29 November 2023 continue to operate.
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