Appellant v Respondent

ADMINISTRATIVE LAW - Whether error in Tribunal's management of proceeding - No error - Not appropriate to refer questions of law to Supreme Court - Fairness did not require further directions hearing - Tribunal did not mislead appellant - Tribunal dealt fairly with appellant as self-represented litigant - Whether Tribunal gave inadequate reasons - Tribunal not obliged to give reasons for interim orders - Reasons were given and were adequate - Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 96, 100, 117.

1 Dr Manu Chopra seeks leave to appeal against procedural orders made by the Victorian Civil and Administrative Tribunal on 1 June 2018. The orders were made by Senior Member Proctor in Tribunal proceeding Z1013/2017, brought by Dr Chopra against the Department of Education and Training. In that proceeding, Dr Chopra seeks review of the Department's decision to refuse to grant access to documents requested by him under the Freedom of Information Act 1982 (Vic) (FOI Act).

2 Proceeding Z1013/2017 concerns one of a number of requests made by Dr Chopra under the FOI Act for access to documents held by the Department. The background to Dr Chopra's freedom of information requests is that, from January 2012 to January 2015, he worked for the Department as a maths and science teacher at McKinnon Secondary College. In 2014, Dr Chopra made allegations of bullying and harassment against staff at McKinnon Secondary College. Dr Chopra felt that his employer did not adequately address those allegations. He took leave from July 2014 and left the school at the beginning of 2015. There were also allegations made against Dr Chopra, which were under investigation at the time he resigned. He is aggrieved that the Department has placed a limitation on employing him again in the future.

3 In his notice of appeal, Dr Chopra identified 24 questions of law in respect of which he sought leave to appeal. I have distilled those questions into the following issues for determination:

(a) Should leave to appeal be granted?

(b) Could the Tribunal invite the Department to reconsider its deemed refusal of Dr Chopra's request for access under s 51A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), in circumstances where Dr Chopra did not request the Tribunal, under s 53(5) of the FOI Act, to treat his application as extending to a review of the Department's decision to refuse access under s 25A(1) of the FOI Act?

(c) Can the Tribunal, in reviewing the Department's deemed refusal of Dr Chopra's request for access, consider whether his request should be refused under s 25A(1) of the FOI Act, in circumstances where the Department:

(i) did not give notice under s 25A(6) within 30 days of receiving his request or before he commenced his application for review; and

(ii) did not make a decision on his request until after he had commenced his application for review?

(d) Is the adequacy of the Department's compliance with s 25A(6) of the FOI Act a question arising from the Tribunal's orders, or is it a matter for the Tribunal to determine when it reviews the Department's decision to refuse Dr Chopra's request for access?

(e) Did the Tribunal commit any vitiating error in its management of the proceeding?

(f) Did the Tribunal give adequate reasons for its orders?

4 For the reasons that follow, I have decided not to grant leave to appeal, both because there is no real prospect that an appeal would succeed, and because it would be a pointless appeal against procedural directions. In relation to whether there was a real prospect of success on any of the grounds raised, I have concluded that:

(a) The Tribunal could invite the Department to reconsider its deemed decision to refuse Dr Chopra's request for access under s 51A of the VCAT Act in the circumstances of this case. After reconsideration, the Department affirmed its decision to refuse access, and also gave reasons for that decision which relied on s 25A(1) of the FOI Act. Because the Department did not vary the decision, or set it aside and substitute a new decision for it, the decision under review remains a decision to refuse access to the documents requested.

(b) In reviewing the Department's deemed decision to refuse Dr Chopra's request for access, the Tribunal can consider whether the request should be refused under s 25A(1) of the FOI Act. It may do so even though the Department did not take any action on Dr Chopra's request within the 30 day time limit prescribed by s 21(1) of the FOI Act.

(c) The adequacy of the Department's compliance with s 25A(6) of the FOI Act is not a question arising from the Tribunal's orders. It is a matter for the Tribunal to determine when it reviews the Department's decision to refuse Dr Chopra's request for access.

(d) The Tribunal did not commit any error in its management of the proceeding.

(e) The Tribunal was not obliged to give reasons for its orders of 1 June 2018. However, it gave written reasons and those reasons were adequate.

5 On 17 November 2017, Dr Chopra made a request to the Department for access to documents under s 17 of the FOI Act. The request sought access to eight categories of documents. The Department does not dispute that the request was valid.

6 Under s 21 of the FOI Act, the Department had 30 days from the day it received the request to make a decision on Dr Chopra's request. It took no action on the request within that period - it did not consult with Dr Chopra about the scope of his request, and did not make a decision on the request.

7 In these circumstances, s 53(1) of the FOI Act deemed the Department to have made a decision refusing to grant access to the documents in accordance with the request. On 22 December 2017, Dr Chopra filed an application for review with the Tribunal, on the basis of the Department's deemed refusal of his request for access. The application became proceeding Z1013/2017.

8 On the same day, the Department wrote to Dr Chopra giving notice of its intention to refuse his request under s 25A(1) of the FOI Act on the basis that processing the request would amount to an unreasonable diversion of resources. The Department invited Dr Chopra to consult in order to narrow his request by 22 January 2018, but he did not respond. Dr Chopra says, and the Department does not dispute, that he received this letter after he had filed his application for review with the Tribunal.

9 Senior Member Proctor of the Tribunal conducted a directions hearing on 12 February 2018, in relation to proceeding Z1013/2017 and another proceeding brought by Dr Chopra against the Department. At the time of this directions hearing, the Department still had not made a decision on Dr Chopra's request. There was discussion as to how the proceeding should be progressed, during which the Tribunal member pressed the Department's representative to make a decision. The Tribunal member appears to have assumed, initially, that the proceeding would take the usual course for a review of a deemed refusal under the FOI Act - namely, that the respondent agency makes an actual decision, which then becomes the decision under review. When it became apparent that Dr Chopra opposed that course, the Tribunal member made an order allowing him to file and serve submissions as to further orders in the proceeding, including whether a further directions hearing was required.

10 Dr Chopra filed detailed submissions with the Tribunal on 19 February 2018, in which he sought answers to various questions of law or the referral of those questions to this Court under s 96(2) of the VCAT Act. In response, the Department submitted that the Tribunal should instead invite it, under s 51A of the VCAT Act, to make an actual decision on Dr Chopra's request. It foreshadowed a likely refusal under s 25A(1) of the FOI Act, and anticipated that its refusal under s 25A(1) would become the decision under review.

11 On 27 February 2018, the Department decided to refuse Dr Chopra's request under s 25A(1) of the FOI Act. It advised him of that decision by letter.

12 In March and April 2018, Dr Chopra and the Department filed further written submissions in the proceeding. Senior Member Proctor had already indicated, via an email from the registry, his intention to decide the issues raised by the parties on the basis of their written submissions.

13 On 1 June 2018, Senior Member Proctor made the following orders:

1. Under s 51A(1) of the Victorian Civil and Administrative Tribunal Act 1998, the respondent is invited to reconsider the decision under review.
2. In order to, as far as possible, ensure that this proceeding's priority is not affected by the making of the above invitation, the respondent is directed to, on or before 22 June 2018, file and serve:

1. Its response to the above invitation; and 2. If its response is a refusal under s 25A(1) of the Freedom of Information Act 1982, the evidence and submissions on which it intends to rely in this proceeding in support of its decision; or

1. If it makes another decision or makes no decision, the evidence and submissions on which it intends to rely in this proceeding.
2. The Tribunal has scheduled a directions hearing commencing at 9:30 am on 27 June 2018 at 55 King Street Melbourne before me if available, allow one hour.

14 Written reasons were provided to the parties together with the orders.[1]

15 Dr Chopra seeks leave to appeal against orders 1 and 2 of the Tribunal's orders made on 1 June 2018.

16 In response to the invitation made in order 1, the Department reconsidered its decision. On 20 June 2018, it made a further decision to refuse Dr Chopra's request, under s 25A(1) of the FOI Act. It wrote to Dr Chopra advising him of its further decision and providing reasons for the decision.

17 In compliance with order 2, on 20 June 2018 the Department filed and served the evidence and submissions on which it intends to rely in support of its decision.

18 A further directions hearing took place on 27 June 2018 as scheduled. On Dr Chopra's application, the Tribunal stayed proceeding Z1013/2017 pending this appeal.

19 Section 148(1) of the VCAT Act provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding. An appeal against an order of the Tribunal constituted by a senior member requires leave of the Trial Division of this Court.[2]

20 Since 1 May 2018, leave to appeal has been governed by s 148(2A) of the VCAT Act, which provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

21 Formerly, the 'real prospect of success' test applied only to appeals from the Tribunal constituted by the President or a Vice President, which lie to the Court of Appeal.[3] The effect of s 148(2A) is that leave to appeal from an order of the Tribunal may only be granted if the appeal has a real prospect of success, regardless of which Tribunal member made the order. Section 148(2A) imposes an 'additional safeguard' on the requirement for leave to appeal.[4]

22 Leave to appeal may be granted only if there is a real, as opposed to fanciful, prospect of success on appeal. The applicant for leave to appeal need not demonstrate that it is likely that the appeal will succeed, only that its prospects are not fanciful.[5]

23 However, leave to appeal may be refused even if the Court is satisfied that an appeal has a real prospect of success. Satisfaction that there is a real prospect of success is the threshold that enlivens the discretion to grant leave; it does not dictate that leave must be granted.[6] Other considerations that may bear on whether leave to appeal should be granted in a particular case include:

(a) the importance of the question of law in respect of which leave is sought;[7]

(b) whether the proposed appeal would be futile or of limited practical impact in the circumstances of that case;[8]

(c) whether the claimed error of law made any difference to the order made by the Tribunal;[9] and

(d) whether the order in question is a final order or is merely procedural.[10]

24 The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave. [11]

25 Because I have formed the view that Dr Chopra has no real prospect of success on any of the questions of law identified in his notice of appeal, I must refuse leave to appeal. However, even if I had been satisfied that Dr Chopra had a real prospect of succeeding on a question of law of some importance, I would have refused leave to appeal for two other reasons.

26 First, the proposed appeal is against procedural orders made by the Tribunal that did not finally determine Dr Chopra's application for review. Ordinarily, a proceeding before the Tribunal should not be fragmented by appeals against procedural directions or interlocutory orders. There would be no injustice to either party in refusing leave to appeal from the procedural orders made by Senior Member Proctor, in circumstances where the Tribunal is yet to hear the merits of Dr Chopra's application for review.

27 Second, the proposed appeal is pointless. By the time Dr Chopra applied for leave to appeal, the Department had complied with both orders. In response to the invitation made in the Tribunal's first order, the Department affirmed its decision to refuse access, and belatedly provided reasons for that decision. It is only if a decision-maker varies a decision, or sets it aside and substitutes a new decision, that the proceeding is taken to be a proceeding for review of the new decision.[12] The Department did neither of those things, and so the legal effect of the decision remained the same as it had been - a decision to refuse access to documents in accordance with the request. In compliance with the second order, the Department filed its submissions and evidence on 20 June 2018.

28 A further reason why the proposed appeal is pointless is that, as I explain below,[13] the Department was already able to rely on s 25A as a basis on which the Tribunal should affirm its decision to refuse Dr Chopra's request for access.[14] The Tribunal's invitation to the Department under s 51A did not alter that position.

Could the Tribunal invite reconsideration under s 51A of the VCAT Act?

29 The first question of law raised in Dr Chopra's notice of appeal is whether the Tribunal could invite the Department to reconsider its deemed refusal of Dr Chopra's request for access under s 51A of the VCAT Act, in circumstances where Dr Chopra did not request the Tribunal, under s 53(5) of the FOI Act, to treat his application as extending to a review of the Department's decision to refuse access under s 25A(1) of the FOI Act.

30 Dr Chopra argues that s 51A of the VCAT Act is inconsistent with, and must give way to, s 53(5) of the FOI Act. He contends that, in circumstances where he made it very clear to the Tribunal that he did not want it to treat his application for review as extending to the Department's actual decision to refuse access, the Tribunal could not use s 51A of the VCAT Act to substitute the Department's actual decision for its deemed refusal.

31 Section 53 of the FOI Act provides for reviews where a decision on a request is not made within the time prescribed:

(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.

32 Relevantly here, the time period prescribed by s 21(1) is 30 days after the day on which the request is received by the agency.[15] Section 50(1)(ea) enables an applicant to apply to the Tribunal for review of:

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;

An application for review under s 50(1)(ea) is often referred to as an application for review of a 'deemed refusal'.

33 Section 53(5) of the FOI Act provides for the situation where an agency makes a decision on a request after the applicant has applied to the Tribunal for review of the deemed refusal, but before the Tribunal has finally heard the application. In that event, at the applicant's request, the Tribunal may treat the application as extending to an application for review of the actual decision made. The Tribunal has taken the view that s 53(5) does not enable the Tribunal to substitute the actual decision for the deemed refusal, unless the applicant requests it to do so.[16]

(1) At any time in a proceeding for review of a decision, the Tribunal may invite the decision-maker to reconsider the decision.

(2) On being invited by the Tribunal to reconsider a decision, the decision-maker may -

(a) affirm the decision; or

(b) vary the decision; or

(c) set aside the decision and substitute a new decision for it.

(3) If the decision-maker varies the decision or sets it aside and substitutes a new decision and the proceeding continues, it is taken to be a proceeding for review of the decision as varied or the new decision.

(4) As far as possible the Tribunal must ensure that a proceeding's priority is not affected by the making of an invitation under this section, unless the parties consent.

...

35 Section 51A was inserted into the VCAT Act by the Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic). The amendment was explained by the Attorney-General in his second reading speech as follows:[17]

The bill enables VCAT, when exercising its review jurisdiction, to invite an original decision-maker to reconsider the decision under review.

This reform is designed to allow the tribunal to bring the decision-maker back into the process, with a view to assisting resolution. The reform is expected to be of particular benefit in proceedings in the planning jurisdiction, where progress towards resolution has been made with the parties, and where the decision-maker may wish to vary its decision or substitute a decision that is acceptable, or more acceptable, to the parties. The power is based on a similar power operating in the State Administrative Tribunal in West Australia. For example, the power would allow VCAT to formally request that a local council reconsider a decision to grant a permit with certain conditions, thus providing the council itself with the opportunity to consider a proposed resolution to the dispute, rather than having to decide whether or not to authorise council planning officers to agree to possible resolutions during negotiations at VCAT.

36 Section 159 of the VCAT Act provides for the resolution of an inconsistency between the VCAT Act and an enabling enactment:

If a provision of this Act, the regulations or the rules is inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency.

Is s 51A of the VCAT Act inconsistent with s 53 of the FOI Act?

37 The VCAT Act and the FOI Act are both laws enacted by the Parliament of Victoria. There is a strong presumption that the legislature did not intend to contradict itself, and intended that both Acts should operate.[18]

38 A provision of the VCAT Act and a provision of an enabling enactment will only be inconsistent where the two provisions are in direct conflict - for example, where it is not possible to obey both provisions or where one provision destroys a right conferred by another. The Tribunal has found such a conflict between s 109 of the VCAT Act, which restricts the Tribunal's power to order costs, with provisions in an enabling enactment that give the Tribunal an unfettered power to award costs.[19] In those cases, the Tribunal has applied s 159 of the VCAT Act to resolve the inconsistency, so that the costs provisions in the enabling enactment prevail over s 109 of the VCAT Act.

39 On the other hand, two provisions that deal with the same subject matter may be able to operate together, in a complementary way, in which case they will not be inconsistent. For example, the Tribunal has power, under ss 123 and 124 of the VCAT Act, to grant injunctions and make declarations, in addition to the powers the Tribunal is given by various enabling enactments. The general powers in ss 123 and 124 operate in aid of the jurisdiction conferred on the Tribunal by the enabling enactment.[20]

40 Dr Chopra argued that s 51A of the VCAT Act is inconsistent with s 53(5) of the FOI Act because s 51A allows an actual decision to be substituted for a deemed refusal in the absence of any request by the applicant. He made the following submission, before the Tribunal and to me:[21]

It is clear that the effect of remitting the proceeding back for a new decision by the Respondent under s.51A of the VCAT Act would achieve exactly what s.53(5) of the FOI does not permit unless the Applicant requests it. Thus, this provision of the VCAT Act (s.51A) would directly undermine a provision of the FOI Act, specifically in s.53(5), and s.159 of the VCAT Act prohibits such an inconsistency.

In fact, this provision of the VCAT Act (s.51A) would undermine several other provisions of the FOI Act such as s.21, s.25A(1), s.25A(6)(c), s.25A(7) and 50(1)(ea). Section 159 of the VCAT Act would gallantly prohibit such an inconsistency in each case.

It would be remiss not to observe that s.53(5) of the FOI Act is designed to achieve exactly the same end result which the Respondent is arguing it wants under s.51A. But it cannot have it. This is because the enabling enactment has one more important criterion: that the applicant must request that a later decision of the agency be substituted for the deemed refusal decision. In fact, even if the applicant requests such a substitution, the Tribunal "may" treat the application for review of the later decision or it "may" not. Here I am not requesting such a substitution. And my consent is essential otherwise and inconsistency will result between s.51A of the VCAT Act and s.53(5) of the enabling enactment which is impermissible under s.159 of the VCAT Act.

41 I cannot accept this argument. In my view, it mischaracterises the purpose and effect of s 53(5) of the FOI Act.

42 Section 53(5) is part of a provision that enables an applicant who has not received a timely response to a request to apply to the Tribunal for a decision. Section 53(1) creates the fiction of a 'deemed refusal' as the decision that may be the subject of an application for review under s 50(1)(ea). Within the scheme of s 53, s 53(5) provides a mechanism for gathering a decision subsequently made by the agency into the application for review. Section 53(5) allows an applicant to request the Tribunal to treat the application as extending to an application for review of the actual decision made by the agency - thus avoiding the need for another application for review. The Tribunal may in its discretion grant or refuse a request made under s 53(5).

43 However, s 53(5) does not permit substitution of the later decision for the deemed refusal.[22] Section 53(5) says nothing about the substitution of one decision for another. Nor does it provide that an applicant's consent is a necessary condition for the substitution of a later decision.

44 Section 51A of the VCAT Act operates in aid of the Tribunal's review jurisdiction,[23] including its review jurisdiction under the FOI Act. It complements the powers of the Tribunal under Pt VI, Div 3 of the FOI Act by providing a mechanism for a decision-maker to reconsider its decision. If the result of that reconsideration is a different decision, the proceeding continues as a proceeding for review of the new decision. In other words, s 51A allows a new decision to be substituted for the original decision.

45 I see no conflict between s 51A of the VCAT Act and s 53(5) of the FOI Act. In my view the two provisions operate together, in a complementary way. The Tribunal was correct to conclude that there is no inconsistency between the two provisions, and that s 51A of the VCAT Act is 'a separate provision which provides another way forward in the proceeding'.[24]

46 Dr Chopra relied on the Attorney-General's second reading speech[25] to argue that s 51A was intended to operate only in the Tribunal's planning jurisdiction. I reject that submission. Section 51A is expressed generally, and applies to any proceeding for review of a decision. Had Parliament wished to confine it to the Tribunal's planning jurisdiction, it would have said so. It could, for example, have included a power to invite reconsideration of a decision in Sch 1, Pt 16 of the VCAT Act, which makes particular provision for the exercise of the Tribunal's jurisdiction under planning enactments. Instead, s 51A appears in Pt 3, Div 3 of the VCAT Act, which deals with the Tribunal's review jurisdiction generally.

No conflict between s 51A, VCAT Act and s 53(5), FOI Act in this case

47 Even if there was some potential for s 51A of the VCAT Act and s 53(5) of the FOI Act to conflict, there could have been no conflict in this case. That is because the Department did not make a different decision upon reconsideration, and there was no substitution of a new decision for its deemed refusal. The decision under review remains a decision to refuse to grant access.

48 Section 51A(2) allows a decision-maker, on being invited by the Tribunal to reconsider a decision, to affirm the decision, vary the decision, or set aside the decision and substitute a new decision for it. It is only if the decision is varied, or set aside and replaced by a new decision, that s 51A(3) substitutes the new decision for the original decision in the review proceeding before the Tribunal.

49 Here, neither of those things occurred. The Department reconsidered its decision and made exactly the same decision that it was taken to have made by operation of s 53(1) - namely, to refuse to grant access to all of the documents requested by Dr Chopra. Section 51A(3) was not activated. The proceeding before the Tribunal is still an application for review of the Department's decision to refuse access.

Can the Tribunal consider whether the request should be refused under s 25A?

50 The next issue for determination is whether the Tribunal, in reviewing the Department's deemed refusal of Dr Chopra's request for access, can consider whether his request should be refused under s 25A(1) of the FOI Act. Dr Chopra submitted that it cannot do so, because the Department did not give notice under s 25A(6) within 30 days of receiving his request or before he commenced his application for review, and did not make a decision on his request until after he had commenced his application for review. Dr Chopra argued that, in those circumstances, the Tribunal does not have power to refuse access under s 25A(1).

51 Section 25A of the FOI Act provides for the refusal of what are known as 'voluminous requests':

(1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or the Minister is satisfied that the work involved in processing the request -

(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or

(b) in the case of a Minister - would substantially and unreasonably interfere with the performance of the Minister's functions.

(2) Subject to subsection (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used -

(a) in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

(b) in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used -

(i) in examining the documents; or

(ii) in consulting with any person or body in relation to the request; or

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

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

...

(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(b) either -

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.

(6) An agency or Minister must not refuse to grant access to a document under subsection (1) unless the agency or Minister has -

(i) stating an intention to refuse access; and

(ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonable practicable, provided the applicant with any information that would assist the making of the request in such a form.

(7) For the purposes of section 21(1), the period commencing on the day an applicant is given a notice under subsection (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the period referred to in section 21(1).

52 Dr Chopra emphasised that s 25A involves a stringent test that is not easily satisfied.[26] The exception applies only in a 'clear case' of substantial and unreasonable diversion of an agency's resources.[27]

53 Dr Chopra correctly pointed out that compliance with s 25A(6) is a necessary precondition to a decision to refuse access under s 25A(1). Before an agency can refuse an application under s 25A(1), it 'must engage in a consultative process with the applicant and provide him or her with certain information'.[28]

54 I do not accept Dr Chopra's submission that an agency can only initiate consultation under s 25A(6) during the 30 days prescribed by s 21(1) as the time for making a decision on a request. The effect of s 25A(7) is that time does not run under s 21(1) while consultation takes place in accordance with s 25A(6). That does not preclude an agency from initiating consultation more than 30 days after receiving a request, whether or not the applicant has applied to the Tribunal for review of a deemed refusal.

The Tribunal can consider whether the request should be refused under s 25A

55 Dr Chopra relied on the Tribunal's decision in Mildenhall v Department of Education[29] to support his argument that the Department cannot, without his consent, rely on s 25A to justify its deemed refusal. In that case, like this one, the Department did not make a decision on the request within the time prescribed by s 21(1), and Mr Mildenhall applied to the Tribunal for review of a deemed refusal to grant access. Before the Tribunal, the Department sought to rely on s 25A. Unlike this case, the Department did not initiate consultation under s 25A(6). It was the FOI Manager's view that the consultation requirement in s 25A(6) did not apply in the context of a deemed refusal.

56 The parties in Mildenhall asked the Tribunal to determine, as a preliminary issue:

... whether where the respondent has given a deemed refusal of access in accordance with Section 53 of the Freedom of Information Act 1982 and relies upon Section 25A(1) as the basis of the deemed refusal it is required to undertake the procedures described in Section 25A(6).

The Tribunal did not expressly answer that question, although it is apparent that it considered the procedures in s 25A(6) to be mandatory. In the circumstances of that case, the Tribunal concluded it could not exercise the Department's powers under s 25A(1).

57 Parts of the reasoning in Mildenhall appear to support Dr Chopra's argument that the Tribunal can never refuse access under s 25A(1) on an application to review a deemed refusal:[30]

The VCAT has broad powers when it conducts reviews of decisions under the Act. These broad powers derive from section 50(4) of the Act and from section 51(1) of the VCAT Act. Do these powers mean, as was submitted by the respondent, that the VCAT can exercise the agency's powers under section 25A following a deemed refusal decision? Given that a deemed refusal decision has come into being by virtue of section 53(1), the answer must be no. A deemed refusal decision exists by virtue of section 53(1) because the agency has not made an actual decision. The deemed refusal decision has a finality to it that does not allow the Tribunal to exercise the agency's powers under section 25A(1).

If the VCAT could exercise the agency's power under section 25A(1) on a deemed refusal decision, this would allow an agency to frustrate the scheme inherent in sections 25A(1) and (6), that is, that section 25A(1) can only be invoked once the steps in section 25A(6) have been implemented.

If the VCAT could exercise the agency's power under section 25A(1) on a deemed refusal decision, this would allow an agency to "string out" the handling of every broad-ranging request for documents that it received, if it so desired. An agency wishing to conduct its affairs in this way (or an inefficient agency with poor document management practices) could:

• take no action to process the requests within the section 21 time-frame;
• be content to have "deemed refusal decisions" made under section 53(1) when applicants sought reviews;
• claim section 25A(1) as the reason for such deemed refusal decisions; and
• seek to persuade the Tribunal to make actual decisions under section 25A(1), which would require the Tribunal to ensure that the agency first complied with section 25A(6).

The respondent contended that section 53(1) is a machinery provision that "opens the door to the VCAT" (and that once the door has been opened and the applicant has gone through it, the VCAT is then required to make a fresh decision). In my view, it is erroneous to view section 53(1) as a machinery provision. In reality, the agency is deemed to have already made a decision. In such circumstances, it is not open to the VCAT to entertain any steps that are a precondition to the making of a further decision.

And since the Tribunal's powers are the same as an agency's powers, if not more ..., therefore, the agency itself cannot exercise its powers anymore under s 25A(1) of the FOI Act in a deemed refusal application. It has lost its opportunity by its inaction. The FOI statutory scheme does not allow it to get a second bite or a third bite at the cherry. This is entirely consistent with the FOI statutory framework articulated by Judge Lazarus in Penhalluriack at pp. 10-11.

59 Dr Chopra submitted that Mildenhall is long standing authority that should be followed or distinguished in later decisions of the Tribunal. He argued that the Tribunal's orders of 1 June 2018 were contrary to Mildenhall and, therefore, wrong.

60 This argument assumed that a later decision of the Tribunal, Lovell v Department of Human Services,[31] was wrongly decided. The facts in Lovell were very similar to those in this case. The agency did not make a decision on the request within the time limit in s 21(1) and the applicant applied to the Tribunal for review of the agency's deemed refusal. The agency then gave notice under s 25A(6) and subsequently made a decision to refuse access under s 25A(1). The applicant argued that the agency could not rely on s 25A(1) to justify its deemed refusal. The Tribunal did not accept this argument:[32]

... The review is a review of a decision refusing access to documents under s 50(2)(a) of the Act. It matters not whether the decision under review is a deemed decision to refuse access or an actual decision to refuse access. On the review, the respondent may call appropriate evidence to justify the decision refusing access to the documents. The tribunal's task is that adumbrated by President Curtis in Re Smedley v The Department of Business, the Arts, Sports and Tourism [41 ALD 779 at para 13].

If the tribunal permitted the respondent to lead evidence in this hearing which justified the actual decision under s 25A(1), the tribunal would have to be satisfied by appropriate evidence that all the provisions contained in s 25A had been complied with. In this case, the tribunal could hear such evidence if it exists. I emphasise, I am not here deciding whether the respondent has discharged the onus it bears. That is for later a hearing.

If the respondent had made a decision under s 25A(1) within the 45 day time limit, that decision could be reviewed by the tribunal. In my view, the tribunal is just as capable of assessing whether a decision under s 25A(1) was justified even if it was made after the 45 day time limit, provided all of the provisions proscribed by the whole of s 25A have been met.

61 The Tribunal went on to explain the basis on which it distinguished Mildenhall:[33]

In Mildenhall there had not been an actual decision within s 25A(1). Here there has been an actual decision. I accept that Mildenhall is distinguishable on that basis. The problems raised by the tribunal exercising the agency's powers envisaged by Senior Member Lyons in paragraph 30 of Mildenhall do not arise in this case because there has been an actual decision made by the agency. Whether or not that decision can be justified by the respondent will depend on the evidence led by the agency in justifying the decision to refuse access to documents.

62 The approach to s 25A taken in Lovell has been applied in at least one subsequent decision of the Tribunal.[34]

63 In my view, the Tribunal's reasoning in Lovell was plainly correct. In reviewing a decision to refuse to grant access in accordance with a request under the FOI Act, the Tribunal does not undertake judicial review.[35] It is not limited to the evidence before the decision-maker, is not confined by the decision-maker's reasons for decision, and is not concerned with whether the original decision was affected by error. Instead, the Tribunal makes a fresh decision. It stands in the shoes of the original decision-maker and makes the correct or preferable decision on the request, on the evidence before it.[36] The Tribunal's decision may be based on different evidence from that before the original decision-maker, and may be made for different reasons.

64 In this case, the Department bears the onus of justifying the decision to refuse access.[37] It can do so by reference to any of the exceptions and exemptions to the general right of access in the FOI Act, whether the Tribunal is reviewing an actual decision to refuse access or a deemed refusal. Where the Department has evidence that might justify refusing the request under s 25A(1), including evidence as to the steps taken to comply with s 25A(6), it may rely on that evidence before the Tribunal. It is then a matter for the Tribunal to make the correct or preferable decision on the evidence before it.

65 To return to Mildenhall, I do not agree that it decided that, in determining an application for review of a deemed refusal under s 53(1) of the FOI Act, the Tribunal can never refuse access under s 25A(1). Read together with subsequent decisions of the Tribunal, in particular Lovell, it stands for the following propositions:

(a) the Tribunal cannot refuse access under s 25A(1) unless the procedures in s 25A(6) have been undertaken;

(b) it is not open to the Tribunal to undertake the procedures in s 25A(6); and

(c) if the respondent agency has not itself complied with s 25A(6), the Tribunal cannot refuse access under s 25A(1).

66 Nor do I consider that Mildenhall decided that an agency cannot initiate consultation under s 25A(6) after expiry of the time prescribed in s 21(1) or after the applicant has applied to the Tribunal for review of a deemed refusal. The Tribunal in Mildenhall was not asked to consider that issue, which did not arise on the facts in that case.

67 It follows that I do not accept that there was any error in the Tribunal contemplating, in its orders of 1 June 2018, that the Department might file evidence and submissions in support of a refusal under s 25A(1).

Did the Tribunal determine the adequacy of the Department's compliance with s 25A(6)?

68 A number of the questions of law set out in the notice of appeal concern the adequacy of the Department's compliance with s 25A(6). Dr Chopra contended, before the Tribunal and in this proceeding, that the Department cannot rely on s 25A(1) on review because its letter of 22 December 2017 did not meet the requirements of s 25A(6). He sought leave to appeal against the Tribunal's rejection of his submission to that effect. The Department submitted that leave should be refused on that issue because it does not arise from the Tribunal's orders of 1 June 2018.

69 In his Reasons, Senior Member Proctor expressed a view about Dr Chopra's submission that the Department had not complied with s 25A(6):[38]

Dr Chopra's submission that the Department had no power to refuse the Request because the Department had failed to consult with him, as s 25A(6) requires, is rejected.

In my view the Department complied with s 25A(6) when on 22 December it wrote to Dr Chopra advising of its intention to refuse access and complying with the requirements of the section.

If I were to agree with Dr Chopra's submission that the Department did not so comply and so had no power to refuse the Request under s 25A(1), it would remain appropriate to invite the Department to reconsider under s 51A, in order to provide for a process leading to a decision which can be reviewed by VCAT.

70 Dr Chopra vehemently disagreed with that view and sought to challenge it on appeal.

71 In my view, the question of the adequacy of the Department's compliance with s 25A(6) of the FOI Act was not determined by the Tribunal's orders. Those orders were purely procedural and did not decide any question of substance in the proceeding.

72 It was appropriate for the Tribunal to form a view about the merits of Dr Chopra's s 25A(6) submission, in order to determine how best to progress the proceeding. But as the Senior Member indicated, he considered it appropriate to invite the Department to reconsider its decision under s 51A, whether or not he accepted Dr Chopra's s 25A(6) submission.

73 The question of whether the Department has fulfilled its procedural obligations under s 25A(6) remains open. It is it a matter for the Tribunal to determine, when it reviews the merits of the Department's decision to refuse Dr Chopra's request for access.

74 Dr Chopra drew to my attention a paragraph in the legal contentions filed by Department in Tribunal proceeding Z1013/2017 on 20 June 2018. It read:

Senior Member Proctor has already expressed the view in this proceeding that the Department has complied with s 25A(6) of the Act when it wrote to Dr Chopra advising of its intention to refuse access.

He suggested that this contention showed that the Department considered that the question was determined by the orders of 1 June 2018.

75 I do not consider that the contention has that effect. It did no more than draw attention, by way of introduction, to the view expressed by Senior Member Proctor in his Reasons of 1 June 2018. It did not submit that the question had been finally determined.

76 The Department accepted, at the hearing of this proceeding, that the question of whether it had complied with s 25A(6) was not determined by the Tribunal's orders.[39] The question remains to be determined by the Tribunal.

77 It follows that the proposed questions of law that relate to this issue simply do not arise from the Tribunal's orders of 1 June 2018.

Was there any error in the Tribunal's management of the proceeding?

78 Dr Chopra made a number of complaints about the procedure adopted by the Tribunal before making its orders of 1 June 2018. His submissions on these procedural issues were lengthy and detailed. Doing the best I can, it appears to me that the procedural issues for determination are:

(a) Should the Tribunal have held a further directions hearing before making the orders of 1 June 2018?

(b) Did the Tribunal mislead Dr Chopra about the effect of s 53(5) of the FOI Act at the directions hearing on 12 February 2018?

(c) Did the Tribunal deal fairly with Dr Chopra as a self-represented litigant?

79 Dr Chopra also sought to agitate, on appeal, the Tribunal's refusal of his applications to have certain questions of law referred to this Court, under s 96 of the VCAT Act. As I have now determined the substance of the questions he sought to refer, there is no need to consider these proposed grounds of appeal any further.

80 I observe, however, that s 96 of the VCAT Act is not a device for posing hypothetical questions of law for consideration by the Supreme Court. It is only in a rare case that it will be appropriate for the Tribunal to refer a question of law to the Supreme Court before having heard the evidence and found the facts.[40] Referring a question of law tends to fragment a proceeding, delay its resolution and cause the parties to incur additional costs. It is generally preferable for the Tribunal to decide all questions of fact and law in the proceeding before it.[41] In my view, that is the appropriate course in this case.

The Tribunal could make the orders on the papers

81 Section 100 of the VCAT Act provides for the method of conducting Tribunal hearings:

(1) If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.

(2) If the parties to a proceeding agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses.

82 Dr Chopra argued that he did not agree that the decision could be made entirely on the basis of written submissions, and that therefore he did not receive a fair hearing before the orders were made on 1 June 2018. I do not accept this argument. The decision was not made only on the basis of documents - it was made after a directions hearing on 12 February 2018 and extensive written submissions. Both parties had every opportunity to be heard, and Dr Chopra availed himself of that opportunity. Further, after 5 March 2018 Dr Chopra accepted, by his conduct, that the procedural issues should be determined on the basis of written submissions and, in mid May 2018, he expressly agreed that this course was more expedient than arranging a further directions hearing.

83 Tribunal proceeding Z1013/2017 was the subject of a first directions hearing on 12 February 2018, which was conducted by Senior Member Proctor. Another of Dr Chopra's proceedings against the Department, proceeding Z45/2018, was listed at the same time. The Department was represented by a solicitor from Maddocks, and Dr Chopra participated by telephone. Dr Chopra had asked to be able to appear by telephone, and the Senior Member had granted that request.

84 During the hearing before me, Dr Chopra tendered an audio recording of the directions hearing, and played parts of that recording. I have since listened to the relevant parts of the recording again.

85 At the time of the directions hearing, the Department had not yet made any decision on Dr Chopra's request. The Senior Member made it clear to the Department's representative that it was obliged to make a decision. He declined the Department's request to list the matter for a compulsory conference, and proposed directions that the Department file and serve all of its material - its s 49 statement, its supporting evidence and its submissions - by 12 March 2018. He then asked Dr Chopra how long he would need to file and serve his material.

86 Dr Chopra responded to this request by insisting that he wished to make a submission that the Department 'could not have a second bite of the apple' and that, as a matter of law, the Department could not now make a decision. He spoke at some length, often interrupting and speaking over the Senior Member. After listening for a while, the Senior Member proposed making a direction for Dr Chopra to make his submission in writing. He said:

Doctor, I no longer understand your position, because there is a fairly standard way of going about this. If you want to take a different position I need to understand your position ...

87 Dr Chopra then interrupted again. By that time the combined directions hearing had taken nearly an hour. The Senior Member politely but firmly brought the hearing to an end. He said that he would take Dr Chopra's submission on board and decide on the way forward. The order made at the conclusion of the directions hearing was:

On or before 19 February 2018 the applicant is to file and serve submissions as to this proceeding to be referred to Acting Deputy President Proctor for consideration, as to further orders in this proceeding including whether a further directions hearing is required.

88 There followed an exchange of submissions as to the future conduct of the proceeding:

(a) On 19 February 2018, Dr Chopra filed a 12 page submission headed 'Application for an order to process the FOI request as a matter of law or to refer the five questions of law under section 96(2)';

(b) On 20 February 2018, Maddocks sent a letter in response, outlining its position that the Tribunal should invite it 'to make an actual decision in accordance with s 51A'; and

(c) Also on 20 February 2018, Dr Chopra sent two emails to the Tribunal objecting to, and opposing, the Department's further submission.

89 On 5 March 2018, the Tribunal registry sent the following email to Dr Chopra:

I refer to submissions received from both parties in this proceeding. Acting Deputy President Proctor has asked me to write you in the following terms.

The Acting Deputy President has considered the submission from both parties, noting your objection to the respondent filing and serving a submission, and intends to decide the issues raised by both parties on the basis of the written submissions. However, he notes in your most recent submissions that you intended to provide further more detailed submissions concerning the issue of whether the Tribunal should invite the respondent to make a further decision under s 51A of the Victorian Civil and Administrative Tribunal Act 1998.

To date, the Tribunal has not received any such further submission. The Acting Deputy President asks that you advise of your intentions concerning any further submission so he can understand when he will be able to decide the matters now before him. ...

90 Dr Chopra responded by email on 7 March 2018, saying that he wished to make further submissions, and planned to do so by early the following week. On 12 March 2018 he filed a 14 page submission headed 'Additional submissions regarding an application for an order to process the FOI request as a matter of law under section 107 or to refer the five questions of law under section 96(2)'.

91 There was more to follow. On 13 March 2018, the Department's solicitors wrote to the Tribunal advising that the Department had now made a decision on the request, and providing a copy of its decision letter for Acting Deputy President Proctor's attention. The same day, Dr Chopra sent a detailed response to the Tribunal by email. The Department filed further written submissions on 12 April 2018. This immediately prompted another email from Dr Chopra to the Tribunal, which was followed by a 43 page written submission dated 30 April 2018.

92 On 30 April 2018, Dr Chopra also filed an application for a directions hearing for referral of Z1013/2017 and Z45/2018 to this Court under s 96(2) of the VCAT Act. On 9 May 2018, Senior Member Proctor declined to decide this application. He provided written reasons for that decision, which succinctly set out the relevant procedural history, and noted that the parties had requested that he decide proceeding Z1013/2017 on the basis of written submissions. He concluded:

I take the view the appropriate way forward is to take into account all of the material now before the tribunal and decide the Department's application in this proceeding (Z45/2018) and then decide the issues between the parties in Z1013/2017; tasks I start today.

At this point I see no reason ..., under s 96 of the VCAT Act, to refer any question of law to the Supreme Court of Victoria, nor to schedule a directions hearing in this proceeding before I decide the issues before me.

That said, if in the course of dealing with the issues in both proceedings I formed the view that it is fair to take a different path to that I describe above, I will contact the parties as appropriate.

93 On 14 May 2018, Dr Chopra wrote a four page letter to the Registrar, for the attention of Senior Member Proctor. Among other things, the letter disputed that the parties had requested that proceeding Z1013/2017 be decided on the basis of written submissions. However, Dr Chopra acknowledged that the Tribunal had informed the parties on 5 March 2018 of its intention to make a decision on that basis. He also acknowledged that, on the basis of an assurance that decisions in Z45/2018 and Z1013/2017 would be made over the next two weeks, he agreed that it would be more expedient not to arrange a further directions hearing for Z1013/2017.

94 I conclude that the Tribunal did not decide to make the orders of 1 June 2018 'entirely on the basis of documents'. It held a directions hearing on 12 February 2018, which Dr Chopra chose not to attend in person. Thereafter, the Tribunal received extensive written submissions from both parties. Section 100(2) of the VCAT Act did not require the parties' agreement in order for the Tribunal to make a decision without holding a further directions hearing.

95 More significantly, the Tribunal was scrupulously fair to Dr Chopra throughout. It gave him several opportunities to make the submissions he wished to make, and considered those submissions before making directions for the future conduct of the proceeding. A fair hearing is not an unlimited hearing.[42] In the circumstances here, fairness did not require a further directions hearing to be held.

96 Dr Chopra submitted that Senior Member Proctor had, during the directions hearing on 12 February 2018, misled him about the effect of s 53(5) of the FOI Act. I have listened carefully to the relevant parts of the recording of that hearing, and have concluded that there is no basis for that submission.

97 After ascertaining that the Department had not made a decision on the request, and noting that it had given notice of its intention to refuse the request under s 25A(6), the Senior Member said:

... I think your expectation is that they will refuse, under s 25A, and that will be the matter at the Tribunal. Am I correct, Dr Chopra? I don't want to put words in your mouth, but I think that's what you're saying.

Dr Chopra responded by saying that the Senior Member was 'absolutely correct'. He went on to submit that the matter should not be listed for a compulsory conference, and outlined in some detail the submissions he intended to make about s 25A. The Senior Member directed that those submissions be made in writing, as outlined at [85] to [87] above.

98 In an application to the Tribunal for review of a deemed refusal of access under the FOI Act, the usual course is for the respondent agency to make a decision and for the applicant to request the Tribunal to review the actual decision. It was reasonable for Senior Member Proctor to assume, initially, that this proceeding would take that course. Appropriately, he tested that assumption with Dr Chopra. It soon became clear that Dr Chopra did not wish to follow the usual course, and intended to argue that the Department could no longer make a decision. The Senior Member said nothing that might have misled Dr Chopra about the status of the Department's decision, when it eventually made one. In any event, Dr Chopra already had well developed views on that subject, which he was able to set out in the written submissions that he subsequently filed.

99 The complaint that the Tribunal misled Dr Chopra lacked any substance.

The Tribunal gave Dr Chopra a fair hearing as a self-represented litigant

100 Dr Chopra complained that Senior Member Proctor did not provide him with the assistance that he required as a self-represented litigant. He referred to the Tribunal's decision in Seachange Management Pty Ltd v Bevnol Constructions Pty Ltd[43] and to the classic statement of a court's obligations to a litigant in person in Tomasevic v Travaglini.[44] He also relied on the right to a fair hearing in s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

101 There is no doubt that a court or tribunal has particular obligations to a self-represented litigant. These obligations were summarised by Bell J in Tomasevic:[45]

A judge has a fundamental duty to ensure a fair trial by giving due assistance to a self-represented litigant, whilst at the same time maintaining the reality and appearance of judicial neutrality. The duty is inherent in the rule of law and the judicial process. The human rights of equality before the law and access to justice specified in the International Covenant on Civil and Political Rights are relevant to its proper performance. The assistance to be given depends on the particular litigant and the nature of the case, but can include information about the relevant legal and procedural issues. Fairness and balance are the touchstones.

102 Here, I am in no doubt that Senior Member Proctor gave Dr Chopra the assistance that was due to him as a self-represented litigant. I have already expressed my conclusions about the complaints of substance made by Dr Chopra: I have found that the Tribunal gave him ample opportunity to make written submissions, did not act unfairly by not holding a second directions hearing, and did not mislead him. I consider that the Senior Member's conduct of the directions hearing on 12 February 2018, and his subsequent correspondence with the parties, was exemplary. During the directions hearing, the Senior Member clearly explained the procedural steps that he proposed and correctly summarised the legal position, although Dr Chopra did not always hear him out. He then gave Dr Chopra more opportunities to put his argument than could reasonably have been expected by a represented party.

Did the Tribunal give adequate reasons for its decision?

103 Dr Chopra submitted that Senior Member Proctor failed to give adequate reasons for his decision. In his written submissions, Dr Chopra submitted that the reasons given by the tribunal are 'woefully deficient'[46] and relied on paragraphs [137] to [189] of his affidavit dated 6 July 2018. In that affidavit he asserted that the Tribunal failed to provide him with reasons on which its orders were based, failed to engage with submissions that were central to his case and failed to engage with the relevant authorities.[47]

104 Section 117 of the VCAT Act requires the Tribunal to give reasons for any order it makes in a proceeding, other than an interim order. Section 3 provides that an interim order means 'an order of an interim or interlocutory nature'. Reasons may be given orally, at a hearing, or in writing.[48]

105 The Tribunal meets its obligation under s 117 by giving reasons that:[49]

... identify the issues in dispute; deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material on which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion.

Section 117 obliges the Tribunal to give reasons that reveal its path of reasoning, in order that the parties and this Court can understand the basis for its decision. [50] If the Tribunal provides reasons for a final order that do not meet this standard, the order is affected by an error of law and may be set aside on appeal.[51]

106 However, s 117 does not require the Tribunal to give reasons for interim or interlocutory orders. The Tribunal's orders of 1 June 2018 were unquestionably interlocutory orders, for which it need not have given any reasons at all. It follows that, here, the Tribunal gave reasons in circumstances where it was not obliged to do so.

107 Where a tribunal is not required to give reasons, the provision of reasons that do not reveal its path of reasoning does not constitute an error of law.[52] For that reason alone, Dr Chopra has no real prospect of success on this ground.

108 Further, I consider that the reasons given by the Tribunal met the standard required by s 117 of the VCAT Act. Senior Member Proctor's reasons were admirably clear and concise. I had no difficulty following the path of reasoning to his decision to make the orders of 1 June 2018, and understood how he had dealt with the substantial points raised by Dr Chopra. And as I have explained, I consider his reasoning and his orders to be free of error.

109 I will therefore dismiss Dr Chopra's application for leave to appeal.

110 As to costs, the usual rule is that costs follow the event. This means that the successful party has a reasonable expectation, absent special circumstances, that the losing party will be ordered to pay its costs. Where an application for leave to appeal from an order of the Tribunal is refused, the usual order as to costs is for the appellant to pay the respondent's costs of the proceeding, including any reserved costs, on a standard basis.

111 If Dr Chopra seeks to persuade me to make a different order, he may file and serve written submissions on the question of costs, limited to four pages, within seven days from today. If he does so, the Department will have seven days to file and serve any written submissions in response, also limited to four pages. I will determine the issue of costs based on those written submissions, if any, and will then make the final orders in the proceeding.

[1] Chopra v Department of Education and Training (Review and Regulation) [2018] VCAT 841 (Reasons). There is some variance between the reasons that were provided to the parties on 1 June 2018 and the version of the Tribunal's reasons that is published by AustLII. References to the Reasons in this judgment are references to the reasons that were provided to the parties, reproduced as Exhibit MC-23 to the affidavit of Manu Chopra dated 6 July 2018 in this proceeding.

[3] VCAT Act, s 148(1)(a), Supreme Court Act 1958 (Vic), ss 14A to 14D; Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746 (Metricon Homes), [67]-[70] (Warren CJ, Tate JA and Robson AJA agreeing).

[4] Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263, [7].

[5] Note Printing Australia Ltd v Leckenby [2015] VSCA 105; (2015) 50 VR 44, [82] (Tate JA, Whelan and Ferguson JJA agreeing), applying Kennedy v Shire of Campaspe [2015] VSCA 47, [11]-[14].

[7] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 (Hulls), [11].

[8] Metricon Homes, [18]; Djime v Kearnes [2019] VSC 117, [14].

[9] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, [137].

[10] Hulls, [14]-[15]; Spaulding v Law Institute of Victoria [2013] VSC 632, [45]; Ikosidekas v Karkanis [2015] VSCA 121, [80] (Kyrou JA).

[13] See [50]-[67].

[14] There is therefore no need to decide whether, as the Department submitted, the invitation was not an 'order' that could be the subject of an appeal under s 148 of the VCAT Act.

[15] Previously, the time period provided in s 21(1) was 45 days. The time period was shortened to 30 days by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic), s 8, with effect from 1 September 2017.

[16] McIntosh v Victoria Police [2010] VCAT 1790, [38].

[17] Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2014, 225-226 (Mr Clark, Attorney-General).

[18] Butler v Attorney-General (Victoria) [1961] HCA 32; (1961) 106 CLR 268, 276 (Fullagar J); Saraswati v R [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J); Masson v Parsons [2019] HCA 21, [42] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[19] Re Halantas and Velos Lawyers [2007] VCAT 1272; (2007) 27 VAR 111, [12]; Leong v JP Sesto & Co [2010] VCAT 367, [13].

[20] Herald & Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146; (2006) 25 VAR 124, [27] (power to grant injunctions under s 123, VCAT Act); Kracke v Mental Health Review Board (2009) 29 VAR 1, [800]-[809] (power to make declarations under s 124, VCAT Act).

[21] Submission on behalf of Appellant in support of appeal, dated 6 March 2019, [105].

[22] Cashman & Partners v Department of Human Services & Health [1995] FCA 1730; (1995) 61 FCR 301, 306.

[23] VCAT Act, s 42(1) provides that review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.

[26] Chief Commissioner of Police v McIntosh (2010) 33 VAR 355, [32].

[27] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246; (2001) 4 VR 595 (Kelly (CA)), [6] (Ormiston JA).

[28] Kelly (CA), [26] (Chernov JA).

[29] Unreported, Victorian Civil and Administrative Tribunal, Senior Member Lyons, 9 April 1999 (Mildenhall), [9].

[31] Lovell v Department of Human Services [2010] VCAT 1965 (Lovell). The Tribunal was constituted by Vice President Judge Lacava.

[34] Smeaton v Victorian Workcover Authority [2012] VCAT 434, [14].

[35] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, [15]-[21] (Warren CJ), [218] (Weinberg JA).

[36] FOI Act, s 50(4); VCAT Act, s 51. As to the nature of the Tribunal's review jurisdiction, see Mond v Perkins Architects Pty Ltd [2013] VSC 455, [10] and Hoskin v Greater Bendigo City Council [2015] VSCA 350; (2015) 48 VR 715, [113].

[39] Transcript, 30 May 2019, 109:29-113:3.

[40] CE Heath Underwriting & Insurance (Aust) Pty Ltd v Transport Accident Commission (unreported, Victorian Supreme Court, Full Court, 10 April 1989).

[41] See De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199; (2009) 25 VR 237, [22]-[23], in relation to a refusal by the Tribunal to refer a question of law under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

[42] Chopra v Department of Education and Training [2019] VCAT 174, [52] (Justice Quigley, President).

[43] [2008] VCAT 1479, [52]-[75].

[44] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 (Tomasevic), [66]-[142], [155].

[46] Appellant's reply submissions dated 22 May 2019, [146].

[47] Affidavit of Manu Chopra dated 6 July 2018 at [185].

[48] VCAT Act, s 117(2) and (3) provide that, if the Tribunal gives oral reasons, a party may within 14 days request written reasons, and the Tribunal must comply with the request within 45 days after receiving it.

[49] Dimatos v Coombe [2011] VSC 619, [20]. See also Tower Australia Ltd v Filippis [2007] VSC 236, [13]; Caruso v Kite [2008] VSC 207, [32]; Burgess v McGarvie [2013] VSCA 142, [65].

[50] Berbers v Transport Accident Commission [2002] VSC 211, [25].

[51] Secretary to the Department of Treasury and Finance v Dalla Riva [2007] VSCA 11; (2007) 26 VAR 96, [23]; State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110, [240].

[52] Supple v Building Appeals Board [2015] VSC 83, [72]; Kheir v Robertson & Ors [2019] VSC 422, [78].