Applicant v Respondents

1 Mr John Myers applies for leave to appeal a decision of the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal').

2 The third respondent is the Department of Education and Training ('Department'). Mr Myers' appeal relates to a decision of the Department on 1 September 2022 ('the no documents decision') made under the Freedom of Information Act 1982 (Vic) ('FOI Act').

3 The second respondent is the Office of the Victorian Information Commissioner ('OVIC'). Mr Myers sought a review by OVIC of the no documents decision. OVIC treated it as a complaint and then dismissed the complaint.

4 Mr Myers lodged an application with VCAT seeking a review of the no documents decision. He named the Department as a respondent in his proposed application. He did not name OVIC as a respondent and sought no relief against them.

5 On 21 October 2022 a Deputy Registrar acting as a delegate of the Principal Registrar of VCAT rejected Mr Myers' application under s 71 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') on the grounds that VCAT did not have jurisdiction to review the dismissal of his complaint to OVIC ('the Registrar's decision').

6 Mr Myers sought a review of the Registrar's decision under s 71(2) of the VCAT Act. On 20 January 2023 VCAT confirmed the Registrar's decision ('the decision').

7 Mr Myers seeks leave to appeal the decision. For the reasons which follow, I would grant leave to Mr Myers to bring his appeal but would dismiss the appeal.

8 On 10 June 2021 Mr Myers made a request to the Department under the FOI Act. Mr Myers requested access to documents as follows:

I request the annual school 'year books' that are typically provided to every student on last day of school of each year. I request this for the following schools for the years from 2016 to 2020.

A: Carrum Downs Secondary College

B: McClelland College

C: Monterey Secondary College

D: Patterson River Secondary College

E: Frankston High School

9 In an earlier judgment in this proceeding Justice Ginnane said:[1]

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.[2]

10 Mr Myers says he rang various schools in the area to confirm whether they had annual year books or magazines in June 2021 before making his first FOI request.

11 In a telephone conversation on 10 June 2021 with a departmental employee Mr Myers evidently said that he sought the year books so he could search through photographs in order to identify the 'black persons or Africans' that committed the theft and refer them to the police. He assumed there would not be many Africans in the photos, which may enable him to identify the person or persons he suspects committed the theft.

12 On 22 June 2021 the Department wrote to Mr Myers stating that:

(a) It was the Department's intention to refuse access to the documents sought because preliminary enquiries had found that the work involved in processing the request would substantially and unreasonably divert the resources of the Department from its other operations;

(b) Over 1200 pages had been identified as relevant to his request and that this was not likely to be the full extent of the documents as searches at all relevant schools had not been completed; and

(c) Mr Myers was invited to consult regarding amending his request in a form which would remove the Department's ground for refusal. The Department suggested he might wish to limit the number of schools and reduce the number of years.

13 On 22 June 2021 Mr Myers emailed the Department stating that he would not accept anything less than the 25 annual student year books/magazines.

14 On 24 June 2021 the Department advised Mr Myers that it had decided to refuse access to the documents sought in the first request ('the refusal decision'). That refusal was pursuant to s 25A(1) of the FOI Act which, in essence, relevantly provides that an agency may refuse a request for documents if the agency is satisfied that the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.

15 In the letter which advised him of the refusal decision regarding his first request, Mr Myers was advised of his right to apply for a review to the Information Commissioner within 28 days of receipt of the letter.

16 Mr Myers exercised his right of review ('the 2021 OVIC review').

17 On 26 July 2021 the Information Commissioner decided to make the same decision as the Department. In other words, the Information Commissioner was satisfied that the work involved in the Department processing the first FOI request would substantially and unreasonably divert the resources of the Department from its other operations and, accordingly, it should be refused under s 25A(1) of the FOI Act ('first OVIC decision').

18 Mr Myers was advised of the first OVIC decision by letter on 27 July 2021. In that letter he was advised of his right to apply to VCAT for a review of the decision within 60 days.

19 In the first OVIC decision the Information Commissioner referred to Secretary, Department of Treasury and Finance v Kelly,[3] where Chernov JA (with whom Ormiston and Callaway JJA agreed) said:

Thus, it is plain enough that s.25A was introduced to overcome the mischief

that occurs when an agency's resources are substantially and unreasonably diverted from its core operations by voluminous requests for access to documents. The emphasis of the amendment was on the prevention of improper diversion of the agency's resources from their other operations. The provision was introduced to strike a balance between the object of the Act to which reference has already been made and the need to ensure that the requests under the Act did not cause substantial and unreasonable disruption to the day to day workings of the government through its agencies...[4]

20 The Information Commissioner then noted that the words 'substantially' and 'unreasonably' were not defined in the FOI Act and so were to be given their ordinary meaning.

21 The first OVIC decision considered the resources that would have to have been used in responding to the first FOI request:

In relation to the time and resources required to process the Applicant's request, the Agency submits as follows:

a) Based on preliminary searches, it is estimated there is likely to be in excess of 1200 pages worth of documents relevant to the request.

b) The Agency would be required to conduct further searches of another school to identify further documents relevant to the Applicant's request.

1. The Agency estimated that it would take 3 minutes per page to assess and redact the relevant information as necessary. Given there are more than 1200 pages currently within the scope, the Agency has estimated it would take 60 hours to assess the relevant documents. This estimate does not take into account the documents that may be located from the other school.

d) As at mid-July 2021, the Agency has eight dedicated FOI staff members, including part-time staff, and its workload includes over 75 FOI requests currently being processed and 15 matters before OVIC or the Victorian Civil and Administrative Tribunal (VCAT).

Having considered the terms of the Applicant's request, I accept the Agency's submission in relation to the estimated amount of work that would be involved in processing the Applicant's request.

On the information before me, including the time estimates regarding the documents captured in this request, the amount of internal and external consultation that would be required and the amount of Agency time required to process the request, I am satisfied the request would substantially divert the resources of the Agency from its other operations.

22 The first OVIC decision then turned to the question of whether the first FOI request involved an unreasonable diversion of the department's resources. The Information Commissioner found that it would on the basis that:

(a) the terms of the request were sufficiently precise;

(b) there was no broader public interest served by the disclosure of the documents sought;

(c) the request was not one which was reasonably manageable having regard to the number of pages identified and the time required to assess each page and make redactions;

(d) the department had reasonably tried to narrow the scope of the first request; and

(e) the request would not have been able to be processed in the statutory time frame.

23 Mr Myers sought a review of the first OVIC decision in VCAT ('the first VCAT proceeding'). The first VCAT proceeding was the subject of various directions hearings, conferences and procedural steps.

24 On 2 February 2022 Mr Myers emailed the solicitor for the department attaching one of what he said were 14 recordings of telephone conversations with school principals which he alleged demonstrated that the principals did not require consent of parents or students to upload their school magazines online.

25 In a witness statement prepared 28 February 2022 and served on Mr Myers shortly after Mr Gaven Sturma, a departmental employee, said that preliminary inquiries undertaken before the refusal decision had indicated that one school had 5 year books all in electronic format, one had year books for 3 years in electronic format with 2 in hard copy, one had one year book and one had no year books. Mr Struma then estimated that the request would involve 16 year books totalling 2,161 pages and that assuming a processing time of 3 minutes per page would require 14.4 full work days (excluding any time involved in consultation with individuals affected which was anticipated to be likely to take many weeks or months).

26 On 30 March 2022 Mr Myers sent an email where he sought to include the recorded telephone conversation he had sent to the Department on 2 February 2022 in the Tribunal Book and asked which of the schools was claiming to have no year books because he said every single one of them had acknowledged they had school magazines prior to his making the first request.

27 On 30 June 2022 the solicitor for the Department wrote to Mr Myers regarding an upcoming directions hearing scheduled for 12 July 20222 relevantly stating:

... On 23 April 2022 you sought a directions hearing for the purpose of having answered a question you asked in an email of 30 March 2020 'so I can gather evidence to submit to the Tribunal book'. The question in your earlier email was couched in the following terms after you received our client's witness statement:

Which one of the schools is claiming to have no year books? I ask because every single one of the five schools acknowledged to me they had school magazines prior to me making an FOI request for them.

The Department did not previously answer the question as to which school had no year books as it does not bear on the question of whether processing your request (which must be considered as a whole) would substantially and unreasonably divert the Department's resources. Further, as you correctly describe in your request, year books are typically provided to students on the last day of the school year. That is different from a school magazine which a school might have and might be published separately from a year book. If the schools acknowledge to you that they each had school magazines, that does not necessarily mean that they have year books for any of the years identified in your request.

In light of that information, could you please confirm that you no longer require the directions hearing to take place and that the proceeding is now ready to be scheduled for a final hearing? ...

28 On 12 July 2022 a directions hearing was held in the first VCAT proceeding. On that day, Senior Member J Smithers made the following orders:

1. This matter is listed for an administrative mention on 12 August 2022. There is no hearing on that date, and the parties do not attend the Tribunal. On or before that date, the applicant is to advise the respondent and the Tribunal by email whether he wishes to continue with this VCAT application concerning annual school year books. This is in light of his statement today that he seeks school magazines (which the respondent advised today it distinguished from 'year books' in its response of 30 March 2022 to Mr Myers' query of the same day).

2. If the applicant does wish to proceed with this application, he is to provide any material he seeks be included in the Tribunal Book (relevant to the question of whether processing his FOI request would substantially and unreasonably divert the resources of the respondent) by 12 August 2022.

3. Subject to any further order, if the applicant does not provide a response under order 1, this application will be struck out.

4. The Principal Registrar is to refer the matter to a Tribunal member after 12 August 2022.

Note- The Tribunal notes the respondent's statement that it has no objection to any Tribunal member listening to the recording of a telephone conversation provided by the applicant, being item 1 in the Tribunal Book of 21 April 2022.

29 On 25 July 2022 Mr Myers wrote to the Department advising that he withdrew the first VCAT application and was making a new request for documents under the FOI Act ('the second request').

30 On 10 August 2022 VCAT granted leave to Mr Myers to withdraw the first VCAT proceeding.

I request a PDF copy (or view hard copy at the schools) of the annual school magazine that are typically provided to every student on last day of school each year. I request this for the following schools for the years 2016 to 2020.

A: Carrum Downs Secondary College

B: McClelland College

C: Monterey Secondary College

D: Patterson River Secondary College

E: Frankston High School

32 On 3 August 2022 the Department sent Mr Myers an email regarding his second request. That email referred to the requirement in s 17(2) of the FOI Act that a request should contain such information as is reasonably necessary to be able to identify the documents requested. The Department sought clarification regarding the second request in the following terms:

• The FOI unit does not understand how this current request differs from your previous request in FOI 2021-284.
• In FOI 2021-284 you requested access to 'the annual school "year books" that are typically provided to every student on last day of school each year'.
• In FOI 2022-456 you have requested access to 'the annual school magazine that are typically provided to every student on last day of school of each year'.
• It appears you are requesting access to exactly the same thing that you sought in FOI 2021-284 the only difference is you have changed the term 'year books' to 'annual school magazine'.
• As explained to you as part of the VCAT matter Z609/2021-
  • Year books are provided annually.
  • School magazines occur more frequently, if schools do provide school magazines at all.
  • Can you please clarify:
  • Are you seeking the annual year books for the five named schools above from 2016 to 2020; or
  • Are you seeking all school magazines provided to students for the five named schools above from 2016 to 2020?

33 The email requested that Mr Myers respond by 26 August 2022.

34 Mr Myers responded on 3 August 2022 in the following terms:

At the recent VCAT hearing regarding the 'year books' I requested, they were identified as not magazines and I would have to make a new request all over again requesting 'magazines' instead of 'year books'. In my experience they were commonly referred to by many as one and the same but it was argued at VCAT by your lawyer that they are different. If you refuse my request again you will ultimately spend many more $1000's in repeating the process at VCAT again. It makes no logical sense that if you believe it is one and the same thing as I did, how could your lawyer believe it was something different when they get all their info from you as to what I was requesting.

35 The Department then emailed Mr Myers on 4 August 2022 accepting that his email of 3 August had provided clarity in relation to the terms of his request and indicating that it would now process the request.

36 On 1 September 2022 the Department advised Mr Myers of the no documents decision, stating that there were no documents that met the terms of his second request for an 'annual school magazine' and that the decision-maker had been advised by all five schools that they did not produce an annual school magazine.

37 In subsequent correspondence and in this proceeding Mr Myers has sought to impugn the bona fides of the no documents decision on the basis that there is no distinction between a request for 'annual school magazines' and 'annual school year books'.

38 At this point, it is appropriate to say something about the terms of the second request, how it was interpreted by Mr Myers, the Department and the OVIC.

39 First, it is plain that Mr Myers made his second request in response to his understanding of the letter from the Department's solicitor dated 30 June 2022. That letter is an attempt to explain to Mr Myers an apparent discrepancy between what one of the schools had said to the Department in response to 'preliminary inquiries' and what Mr Myers said had been told to him in telephone conversations. Of course that is not the only possible explanation for the apparent discrepancy. One other possibility is that in response to the preliminary inquiry the school simply got it wrong and they did have a year book, another is that that particular school did not call their annual publication a year book. Whatever the explanation, as the letter correctly identifies, the explanation was irrelevant to the grounds of refusal. If there were further year books that would only increase the time and resources the Department would be required to spend on the first request.

40 For present purposes though, it is important to emphasise that the letter draws a distinction between year books published annually and magazines which might be published separately from a year book. Mr Myers was aware that the Department had located documents which responded to his first request, that is, year books. The letter did not say that there were any documents which would respond to a request for 'magazines'.

41 Secondly, the terms of the Department's letter of 3 August 2022 make clear that they are trying to understand if the second request is any different to the first. In seeking that clarification the Department specifically draws a distinction between year books which are published annually and school magazines which are published more frequently, 'if schools do provide school magazines at all'.

42 Thirdly, Mr Myers, in his email of 4 August 2022, makes plain that, whilst he believes a 'year book' and a 'magazine' are the same, he is drawing a distinction between those two concepts because of what the Department's solicitor said. In fact, for the reasons discussed above, Mr Myers' 4 August 2022 email overreads and misinterprets what is said by the solicitor in the correspondence referred to above.

43 In Fidge v National Health Practitioner Privacy Commissioner[5] I said:

An FOI request is not to be construed with the same rigour as statute or pleadings. There are good reasons for this. FOI requests will often be made by people without legal training and in circumstances where they may not have insight into the document characterisation and terms of art employed by an agency... [6]

Those comments were made in relation to an FOI request under Commonwealth legislation but they apply with equal force to a request under the Victorian FOI Act.

44 Further, in Russell Island Development Association Inc & Department of Primary Industries & Energy[7] the Administrative Appeals Tribunal said:

In determining what is relevant to the request, regard must first be had to the words of the request... The request cannot be considered solely in isolation but must be considered in the context in which it is made. Part of that context is formed by the events leading to the request.

45 In ordinary circumstances an agency or Minister which sought to rely on a distinction between a 'year book' and a 'magazine' might be regarded as approaching the construction of the terms of the request in a way which was impermissibly strict, but once regard is had to the context of Mr Myers' second request it was, in my view, appropriate to draw that distinction. In the context of asking Mr Myers whether his second request was any different to his first, the Department drew that distinction in its email of 3 August 2022. In his response of 4 August 2022, Mr Myers relied on the distinction (albeit he said it was not one he agreed with) to say his second request was different to his first. If there had been no distinction and the two requests were for the same information, the Department would likely have rejected the second request on the same grounds as the first.

46 On 4 September 2022 Mr Myers emailed the OVIC seeking a 'review' of the Department's second decision. The terms of that request, relevantly, are as follows:

I request that the attached decision be reviewed as the basis of the decision is completely and utterly baloney. I recorded my phone calls to the schools when I first enquired if they had annual school magazines. They all acknowledged they did (and without confusion as to precisely what I was after) and when I enquired if they could provide me a pdf copy, they all refused so hence I made a FOI request (but I referred to the annual magazine as annual year books - as also they are commonly referred to as). At the VCAT hearing earlier this year it was claimed that the annual school year books and annual magazines are 2 different things so I withdrew my application as the member suggested and I made a new request with "magazines" instead of "year books". When the FOI unit of EDU first got it, they rejected it because they believed I was just asking for the same thing as last time (and as I just advised - the magazines are commonly referred to as year books). I explained why I had to make a new application and that if they believed the year books and magazines are one and the same, they should have advised the lawyer they hired that represented them at the VCAT hearings of this to avoid going through the whole process again.

They now claim that all the 5 schools I made the requests to, deny having such a thing. Clearly this is a load of baloney as I have indisputable recorded phone calls of them acknowledging they have them but did not want to provide me a digital copy.

...

47 OVIC treated Mr Myers' application for a review of the Department's second decision as a complaint about an agency decision that a document does not exist or cannot be located. On 5 September 2022 OVIC advised Mr Myers that it was able to handle complaints regarding decisions that no documents exist and that it had accepted his complaint.

48 On 14 September 2022 the OVIC advised Mr Myers of the outcome of his complaint. The critical portion of that advice is as follows:

I acknowledge that you have recently discussed the difference between magazines and year books in a VCAT hearing in relation to a previous FOI request. The Agency explained to you in their correspondence of 3 August 2022 that:

1. Year books are provided annually.

1. School magazines occur more frequently, if schools do provide school magazines at all.

Given the specific terms of your FOI request that sought access to 'annual school magazines that are provided to every student on the last day of school each year' and the information provided by the Agency throughout this complaint, our office is satisfied that no documents exist relevant to the terms of your FOI request.

Further we are satisfied the Agency has provided a reasonable explanation as to why no documents exist where the five schools listed [in] your FOI request do not produce an annual school magazine.

49 The OVIC letter sought Mr Myers' agreement that the complaint could be closed but invited him to provide any new or relevant information in the event that he was of the view that his complaint had not been fully addressed.

50 On 15 September 2022 Mr Myers emailed the OVIC attaching two pictures of public school websites which he said proved that annual school magazines are actually annual instead of more frequently and three phone recordings with employees from the Frankston, Carrum Downs and McClelland colleges which he said proved 'without doubt they had the annual magazines'.

51 On 20 September 2022 the OVIC responded that the information provided by Mr Myers had not changed their view that 'no documents exist relevant to the terms of your FOI request and the Agency has provided a reasonable explanation as to why no documents exist'.

52 On 29 September 2022 the OVIC made a formal decision under s 61B(1)(b) of the FOI Act to dismiss Mr Myers' complaint because the decision-maker was satisfied that there was no basis for making further enquiries or taking further action under Part VIA of the FOI Act ('the OVIC no documents decision'). The OVIC decision-maker states their findings as follows:

Based on enquiries made by OVIC staff with you and the Agency during the handling of this complaint, the following are my findings in relation to your complaint:

• I am satisfied no documents exist relevant to the terms of your FOI request and the Agency has provided a reasonable explanation as to why no documents exist, where the five schools listed in the terms of your FOI request do not produce an annual school magazine.

• I accept you have been provided with a reasonable opportunity to provide new relevant information both at the time of submitting your complaint and during the handling of your complaint.

Accordingly, I have determined to dismiss your complaint under section 61B(1)(b) of the FOI Act.

53 On 8 October 2022 Mr Myers lodged an application with VCAT in which he sought a review under s 50 of the FOI Act against the no documents decision of the Department. Mr Myers did not seek any relief against OVIC.

54 On 21 October 2022 a Deputy Registrar of VCAT, as delegate of the Principal Registrar, wrote to Mr Myers setting out the substance of s 71 of the VCAT Act, which allows the Principal Registrar to reject an application if it:

(a) is made by a person not entitled to make it;

(b) is lodged after the expiry period specified in the enabling enactment; or

(c) does not otherwise comply with the Act, the Regulations or the Rules.

55 In that letter Mr Myers was advised that his application had been rejected on the grounds that VCAT did not have jurisdiction to review the dismissal of his complaint to OVIC. Mr Myers was also advised that he could request a review of that decision under s 71(2) of the VCAT Act.

56 On 2 November 2022 Mr Myers requested that the rejection of his application be referred to the Tribunal for review. That application for review came before VCAT Member Tang on 9 December 2022. At that hearing Mr Myers made oral submissions. In the course of the hearing a person, who has subsequently been identified as Dr Chopra, interrupted proceedings and asked if he could make submissions. The VCAT member refused that application. Dr Chopra then suggested to Mr Myers that he make an application for an adjournment so that he and Mr Myers could speak. Ultimately, Mr Myers made such an application and the Tribunal acceded to it but also referred Mr Myers to a number of decisions which he might consider before the resumed hearing.

57 Mr Myers appeared at the resumed hearing on 20 January 2023. Amongst other things on that day, he made an application for permission to have Dr Chopra assist him in making oral submissions. That application was refused.

58 On 20 January 2023 VCAT dismissed Mr Myers' application for review ('the VCAT decision').

59 On 21 February 2023 Mr Myers made an application under s 148 of the VCAT Act seeking leave to appeal the VCAT decision. The Notice of Appeal sets out some nine questions of law and provides grounds of appeal in relation to each question. I will return in detail to those questions and grounds in the reasons below.

60 On 15 November 2023 Mr Myers filed a summons in which he sought an order that 'the Court appoint a pro bono lawyer to represent the appellant'. At a hearing on 29 November 2023 Mr Myers' application was treated as seeking a request or referral by the Court to the Victorian Bar Pro Bono Scheme. Keith JR ordered that the summons of 15 November 2023 be dismissed.

61 Mr Myers then appealed the decision of Keith JR to a single judge of the Trial Division. Mr Myers represented himself in that hearing. Justice Ginnane, who heard the appeal, dismissed it.

62 Mr Myers filed written submissions in support of his appeal against the decision on 11 April 2024. The Department and the OVIC filed their written outline of submissions on 2 May 2024. Mr Myers filed written submissions in reply on 16 May 2024. The matter was listed for a hearing on 31 May 2024.

63 The day before the matter was listed for hearing Mr Myers filed an extensive affidavit which, as well as deposing to some matters of fact, consisted largely of a submission that Dr Chopra be permitted to speak on his behalf at the hearing the following day. In email communication Mr Myers asked each of the Department and the OVIC whether they consented to such a course. Each responded that they did not.

64 On 31 May 2024 at 9.49am Mr Myers emailed my chambers and the Department and the OVIC. Attached to that email was a medical certificate in the following terms:

This is to certify that Mr John Myers is unable to attend court by himself on Friday, 31 May 2024 due to a recent epileptic seizure and postictal psychosis where he can't focus on things and he likes to have someone to speak on his behalf.

65 In his email Mr Myers asserted that he had had an epileptic attack the previous evening and that he was 'very mentally stressed' that the Department and the OVIC had objected to Dr Chopra making submissions on his behalf. Mr Myers indicated that he had asked Dr Chopra to use the video-link provided to him in order to make submissions on his behalf.

66 At the hearing on 31 May 2024 I said the following:

I'm assuming that the respondents have been provided with a copy of the email that was sent shortly before we were due to commence our hearing. In the circumstances, I'm not minded to grant any McKenzie friend application at this time, simply because if one takes the medical certificate at face value, it would indicate that the applicant's not in a state where it would be appropriate for the matter to proceed at all, and, of course, a McKenzie friend is only to provide assistance. They don't stand in the shoes of the applicant.

67 In the result, I adjourned the hearing on that day and relisted the trial for 11 June 2024.

68 Later that day Mr Myers emailed my chambers seeking a relisted hearing date in July 2024 rather than June on the basis that it would take him a few weeks to properly recover from the epileptic attack he had had the previous night. In that email Mr Myers sought a process whereby the parties would file written submissions on the question of whether or not he should be permitted to have Dr Chopra as his McKenzie friend presenting oral submissions on his behalf and proposed a timetable for those submissions. In that email in bold Mr Myers stated:

He respectfully requests that the issue of a McKenzie friend be decided on the papers...

69 On 5 June 2024 the Court made orders relisting the matter for 30 July 2024 and providing a timetable for written submissions on the question of whether Mr Myers should be permitted a McKenzie friend, which were consistent with those Mr Myers had requested in his email of 31 May 2024. The orders of 5 June 2024 noted that I would determine whether the applicant's application for a McKenzie friend should be heard on the papers having considered the submissions filed at the Court.

70 On 15 July 2024 I determined the application for a McKenzie friend on the papers and dismissed Mr Myers' application to have oral submissions made by a McKenzie friend and for those submissions to be made by Dr Chopra ('the McKenzie friend decision').[8] Three minutes after the reasons for that decision were published Mr Myers sent a very long email to chambers in which he formally requested an oral hearing of the issue in relation to a McKenzie friend.

71 The McKenzie friend decision prompted a flurry of activity on the part of Mr Myers. On 15 July 2024 he emailed chambers indicating that he would appeal that decision and sought a stay of his substantive appeal against the decision of VCAT. In addition, he sought that the hearing on 30 July 2024 be vacated. Mr Myers was advised on 16 July 2024 that he would need to provide evidence that an application for leave to appeal the McKenzie friend decision had actually been made before a stay application could be considered. Later the same day Mr Myers sent a further email to chambers indicating that preparation of his appeal would take considerable resources, and as a result, it was unfair to proceed with the hearing on 30 July 2024.

72 On 17 July 2024 Mr Myers was advised that he could make any application to vacate the hearing of his appeal against the VCAT decision at the appointed date of 30 July 2024. Later on 17 July 2024 Mr Myers sent another long email to chambers complaining that he had been placed in a difficult position where he was required, in effect, to prepare for his appeal against the VCAT decision at the same time as he was preparing materials for his appeal against the McKenzie friend decision.

73 On 19 July 2024 I ordered that the date by which Mr Myers was required to file an application for leave to appeal the McKenzie friend ruling was extended to 10 September 2024. The evident purpose of this order was to alleviate the burden which Mr Myers had identified in his emails of 16 and 17 July 2024.

74 On 19 July 2024 Mr Myers again emailed chambers. In a very long email, which it is unnecessary to recount, Mr Myers again sought that the hearing on 30 July 2024 be adjourned. On 19 July 2024 Mr Myers was advised by chambers that if he wished to make an application to vacate the hearing of his appeal against the VCAT decision he could do so on 30 July 2024, but that in the event his application was unsuccessful he would need to be in position to run his appeal on that day.

75 On 23 July 2024 the Court had sent the parties an email indicating that they could apply for a Zoom link for the hearing of 30 July 2024. Notwithstanding that email, Mr Myers filed an affidavit directed to ensuring that there was a capacity for remote attendance at the hearing on 30 July 2024. In that affidavit, Mr Myers referred to a diagnosis of a mental health condition in 2008 and also referred to his suffering from an acquired brain injury and cognitive impairment.

76 On 24 July 2024 Mr Myers was advised that in the event that he wished to rely on the opinion of a medical practitioner at the hearing he should take steps to ensure their availability to give evidence in person or by video-link.

77 On 24 July 2024, later in the day, Mr Myers sent another very long email to chambers complaining again regarding the possibility of the hearing proceeding on 30 July 2024 whilst he was trying to prepare his appeal and asserting that it would not be possible for him to obtain medical evidence by 30 July 2024 and seeking a further adjournment of the matter until 25 August 2024.

78 On 25 July 2024 Mr Myers sent a further very long email to chambers in which he sought my recusal and requested a timetable and programming orders in respect of that recusal application. Mr Myers stated in that email that the hearing on 30 July 2024 should not proceed before his recusal application had been decided and that he should be given further time to arrange for medical evidence in order to make his application for a stay pending his application for leave to appeal the McKenzie friend ruling.

79 On 25 July 2024 Mr Myers sent chambers a further email. In that email he referred to his email in which he had indicated his recusal application and a desire for a timetable for that application. Mr Myers said, based on that, it was his understanding that the hearing on 30 July 2024 would not go ahead.

80 On 26 July 2024 chambers again advised Mr Myers that any application he wished to make could be made on 30 July 2024 at 10.30am. On 26 July 2024 at 11.34am Mr Myers sent chambers another long email in which he asserted he could not appear on 30 July 2024 because he had made a recusal application, in which he also complained regarding aspects of the McKenzie friend decision and requested an adjournment of the 30 July hearing. Later on 26 July 2024 Mr Myers sent another email to chambers in which he stated that he had found a forensic clinical psychiatrist who would be in a position to provide a written assessment of his condition on 2 August 2024 and, based on this, requested that the 30 July 2024 hearing be adjourned. Chambers responded on 26 July 2024 reiterating that Mr Myers could make any application he wished to make on 30 July 2024 and informing him that a recusal application cannot be made by way of email.

81 Mr Myers then responded to this email by requesting information as to how he should make a recusal application. On 29 July 2024 Mr Myers filed a summons which sought the following:

1. Timetabling for the application for Justice Watson to recuse himself (orders in chambers).
2. Application for adjournment for 30 July 2024 hearing.
3. Application to stay the 15 July 2024 orders.

That summons was made returnable before me at 10.30am on 30 July 2024.

82 On 29 July 2024 at 2.24pm Mr Myers sent another lengthy email to chambers which enclosed various documents Mr Myers had prepared in support of his application for leave to appeal the McKenzie friend decision. That email reiterated his request that orders be made in chambers adjourning the hearing scheduled for the following day. This was followed by a further email at 3.45pm attaching the sealed version of the leave to appeal documents and reiterating the request for an adjournment of the hearing the following day. In response to these two emails, my chambers wrote to Mr Myers indicating that he was expected and required to appear at the hearing listed the following day and that any application he wished to raise could be ventilated before me at that time.

83 On 30 July 2024 Mr Myers appeared before me. I indicated to him that as I understood it, he had three applications he wished to make:

(a) Programming a recusal application;

(b) An application for a stay pending the determination of his application for leave to appeal the McKenzie friend ruling; and

(c) In any event, an adjournment in order for him to obtain medical evidence.

84 I invited Mr Myers to make oral submissions in support of those applications. Mr Myers read a statement which essentially repeated the various matters that he had raised in his email communications:

I'm here because Your Honour asked me to be here. I hope this is not a trap for me, because if interests of time resources and justice were to be considered, there seems to be no need to have this hearing today since I've already lodged all those applications, and that is required to admit the procedural fairness and natural justice and timetabling orders. These could have been issued in chambers, as I've repeatedly requested. I'm only here for the timetabling orders to be made, those being the recusal application, for Your Honour not to preside over the appeal from the VCAT decision any longer until a new application I've just made is decided. I need to make proper written submissions on this application first, and provide a reply. Any ‑ an application to stay, the 15 July orders until appeal on these orders is decided, that has been lodged yesterday to the Court of Appeal. An application to adjourn today's hearing, on hearing the appeal of the VCAT decision until the above two applications are decided, and finally, the application to be given an opportunity to provide medical evidence of a forensic medical psychologist. The report will be provided this Friday, 2 August. They've already stated that my medical conditions are very severe, serious, chronic and ongoing and always manifesting in themselves, including currently, such that I'm unable to make oral submissions on my behalf on complex legal issues in this appeal, even though I can speak to simple issues, as on one simple provision in the Residential Tenancy Act hereto, almost lose, you know, every ‑ every matter, except just a couple of times when my lawyers were present at the Supreme Court and I need a reasonable accommodations and adjustments.

Yeah, so the hearing on this appeal from VCAT must not proceed until I have been provided further medical evidence that will contradict Your Honour's raised assumptions in the 15 July orders and will provide real evidence that my medical conditions are indeed chronic and ongoing and currently manifesting themselves such that they preclude me from making oral submissions on my own behalf.

Yeah, everything else I would, yeah, need to say is written in my emails. All these are attached to the affirmed affidavit dated 29 July, which I've just filed in this application, along with the summons. I acknowledge that summons would be ‑ the red seal has not been emailed yet, only because I haven't been given a copy of that yet, but I expect it this morning. It may have already been sent. All parties and Your Honour has been made aware of it. Yeah, and that's all I have to say. I cannot add anything extra to the emails I've already submitted since 15 July. Yeah, and everything ‑ everything's there stated ‑ or, well, the stay is already ‑ youse already have.

85 Having heard from counsel for OVIC and the Department, I determined that the appropriate way to proceed was to:

(a) utilise the 30 July 2024 hearing to hear the oral arguments of the Department and the OVIC;

(b) give Mr Myers an opportunity to provide any response he had to those oral arguments in writing; and

(c) make orders for the filing of written materials by the parties in relation to each of Mr Myers' three applications.

86 I made orders in this form because, it seemed to me, that whilst Mr Myers had expressed considerable disquiet regarding the prospect of making oral submissions on his own behalf he had demonstrated both through his formal written submissions in the appeal and his voluminous email correspondence with chambers that he had no difficulty conveying his arguments in written form.

87 At the hearing on 30 July 2024 I suggested to Mr Myers that it would be sensible for him to stay and hear the oral arguments of the OVIC and the Department. Mr Myers ultimately indicated that he opposed that course and reiterated his view that the matter should be adjourned pending the outcome of his appeal against the McKenzie friend ruling. He reiterated that I should determine his recusal application and the stay pending the appeal before I heard the oral arguments of the Department and the OVIC.

88 I said to Mr Myers that I intended to determine his recusal application and his application for a stay pending the appeal prior to any ultimate consideration of the arguments on the appeal. Mr Myers then left the hearing by disconnecting his Zoom link. I commenced to hear from counsel for OVIC. A short time later Mr Myers rejoined the Zoom link to say that he had been denied natural justice and that he had a right to make oral submissions but that his application to the Court of Appeal had to be determined first. I advised Mr Myers that I had determined to proceed in the way that I had previously indicated and allowed the OVIC to continue its submissions. Mr Myers left the hearing by disconnecting his Zoom link shortly after.

89 On 30 July 2024 I made orders in the following terms:

1. By 4.00pm on 10 September 2024 the applicant file and serve:

(a) any written submissions and any affidavit material in support of:

(ii) any application for a stay of this proceeding pending the determination of an appeal of the orders of 15 July 2024; and

(iii) any other application to adjourn this proceeding.

(collectively 'the Applications').

(b) any written submissions in response to the second and third respondents ('the respondents') oral submissions made at the hearing on 30 July 2024.

1. By 4.00pm on 8 October 2024 the respondents file and serve any written submissions regarding the Applications.
2. By 4.00pm on 6 November 2024 the applicant file and serve any written submissions in reply regarding the Applications.

90 On 2 August 2024 Mr Myers emailed chambers attaching a letter from a Dr Jessica Griffiths, a clinical and forensic psychologist. That letter, also dated 2 August 2024, relevantly states:

Thank you for referring Mr John Myers for assessment and treatment under a Mental Health Care Plan in the context of ongoing psycho-social stressors and chronic schizophrenia. John attended for his first appointment on the 02/08/2024. He presents with significant mood disturbance which meets criteria for a severe major depressive episode. In addition, he exhibits pressured speech, severe preoccupation with persecutory ideation, negative psychotic symptoms including anhedonia, amotivation and severely disorganised thinking which are commensurate with treatment resistant schizophrenia. In addition, John has an acquired brain injury resulting in cognitive impairment.

These conditions are having a significant impact on John's thinking, functioning and behaviour. It is my understanding that he is currently involved in protracted legal proceedings. Given the substantial functional impact of his symptoms and cognitive impairment, it is my clinical opinion that he requires intensive treatment, and additional support. He also requires reasonable accommodations during his legal process, such as a McKenzie friend or legal advisor as he is currently unable to make oral submissions on his own behalf.

I am currently undertaking an in depth investigation into additional mental health conditions to inform treatment planning and will keep you informed of our progress.

91 The email of 2 August 2024 reiterated the arguments Mr Myers made on 30 July 2024 that the matter should not have proceeded on that day and that only timetabling orders should have been made. The email requested that I change what Mr Myers described as my foreshadowed orders of 30 July 2024 in order to allow him to obtain 'a declaration from the Court of Appeal that there were special circumstances to allow [Mr Myers] the assistance of an extended McKenzie friend'. The email of 2 August 2024 concludes with a paragraph which states in summary form Mr Myers' response to the oral submissions made by the Department and the OVIC.

92 On 10 September 2024 Mr Myers sent an email to chambers in the following terms:

My submissions on many things are due today. But been feeling sick and feel very tired and lethargic on and off for about four weeks and have not been able to work on anything. I've been very mentally stressed also because I've received a notice to evict and I'm spending a lot of time dealing with it. Also my McKenzie friend also been sick. He also suffered physical injury to his back. And he's been very busy with his stuff so that he has had no time to help me. I need more time. At least til the end of 31 October 2024.

I did get a medical cert from doctor last week. I'm still not feeling great. But I could not get a appointment today to get a medical cert.

I request time til 31 Oct. Thanks.

93 The enclosed medical certificate dated 6 September 2024 is signed by a Dr Tania Friebel and states:

This is to certify that the above has presented to me suffering from severe fatigue and stress associated with issues related to his housing situation and other legal matters. Please consider giving him extra time to get his documents prepared for court.

94 On 13 September 2024 I listed the matter for mention on 17 September 2024 at 2.15pm in order to deal with Mr Myers' request for an extension of time.

95 On 17 September 2024 at 10.21am Mr Myers sent a further email to chambers which attached an affidavit in support of his request to be given an extension of time until 31 October 2024 to file his written submissions.

96 A short time later the Court of Appeal dismissed Mr Myers' application for leave to appeal the McKenzie friend decision.[9]

97 At the mention held at 2.15pm on 17 September 2024 Mr Myers did not appear but having heard from counsel for the Department and OVIC, I made orders granting the extension of time which Mr Myers had requested and made consequential adjustments to the balance of the timetable for written submissions.

98 On 30 October 2024 Mr Myers emailed chambers requesting a further extension of time until 6 November 2024. On 31 October 2024 Mr Myers was granted an extension of time until 6 November 2024 to file his submissions.

99 On 6 November 2024 Mr Myers filed his written submissions which traverse some 58 pages.

100 On 28 November 2024 the Department and OVIC filed their submissions in reply regarding the Applications as that term was defined in the orders of 30 July 2024.

101 Mr Myers did not avail himself of the opportunity of filing any further submissions regarding his Applications in accordance with the orders made on 30 July 2024.

102 In his written submissions filed 6 November 2024 Mr Myers addresses all three of his Applications together. For clarity though, I will consider the issues arising in relation to each application separately.

103 Self-evidently Mr Myers' application for a stay pending the determination of his application for leave to appeal the McKenzie friend ruling is rendered moot with the dismissal by the Court of Appeal of the application for leave to appeal that ruling.

104 Mr Myers seeks my recusal on the basis that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues before me. That is a correct statement of the legal test.

105 The basis upon which Mr Myers asserts that the fair minded lay observer might reasonably come to the conclusion for which Mr Myers contends is that in the McKenzie friend ruling I disregarded evidence regarding his medical conditions and made an 'egregious error' giving rise to a reasonable apprehension of bias. Further, Mr Myers asserts that the McKenzie friend ruling constituted an act of discrimination against him on the basis of his medical conditions and that in refusing to adjourn the hearing on 30 July 2024 to allow him to provide medical evidence I had 'contrived to keep evidence out which severely disadvantaged (him)'. Mr Myers also asserts that I directly misled him because chambers had told him that if he applied for an appeal and provided a proceeding number, I would stay the matter (an assertion which is factually incorrect). Finally, in this regard Mr Myers asserts without any evidentiary basis that I must have been 'backgrounded' regarding him and Dr Chopra before the McKenzie friend ruling.

106 In its decision on the McKenzie friend appeal, the Court of Appeal said:

In the present case nothing the judge did - whether prior to or after his judgment on 15 July 2024 - could possibly give rise to a reasonable apprehension of bias.[10]

107 In the circumstances, there is no basis upon which Mr Myers can now seek to re-enliven his application for recusal based on matters said to have arisen prior to the 30 July 2024 hearing and dealt with by the Court of Appeal in its decision. Mr Myers' application that I should recuse myself is rejected.

108 Mr Myers ultimately provided evidence in the form of an affidavit exhibiting the report of the clinical forensic psychologist regarding his mental state on 30 July 2024. That evidence was not provided to the Court on 30 July 2024 but, in any event, insofar as the evidence establishes anything, it establishes a particular concern in relation to the applicant's then capacity to make oral submissions. The course adopted by the Court on 30 July 2024 ensured that Mr Myers had ample opportunity to provide written submissions responding to any of the matters raised at the 30 July 2024 hearing. It is apparent that Mr Myers, notwithstanding his medical conditions, was able to properly take up that opportunity and provided extensive submissions going to all issues.

109 In the circumstances, the course which the Court adopted on 30 July 2024 allowed Mr Myers to make submissions in a manner which was consistent with the medical evidence that was ultimately provided to the Court on 2 August 2024. The medical evidence provided to the Court on 2 August 2024 does not provide any basis for establishing that the proposed directions made by the Court on 30 July 2024 and the subsequent extensions of time to the timetable for the provision of submissions granted to Mr Myers caused him any unfairness.

110 In this regard, Mr Myers' argument seems to rest on the proposition that having demonstrated that medical conditions might make it inappropriate for him to provide oral submissions, the only option for a fair hearing was to allow his chosen McKenzie friend to make them. For the reasons discussed in the McKenzie friend ruling (and upheld on appeal), it is not appropriate for Dr Chopra to act as Mr Myers' McKenzie friend making oral submissions on his behalf. In those circumstances, a mechanism which provides Mr Myers an opportunity to make submissions in writing provides him with a fair opportunity to be heard.

(a) Noted that Mr Myers sought to review a decision under s 50 of the FOI Act by the Department that there were no documents which met the terms of the second request;

(b) Noted that Mr Myers had made a complaint to the Information Commissioner (or at least his application to the Information Commissioner in respect of the decision had been treated as a complaint) and that OVIC had dismissed that complaint;

(c) Noted the rejection of Mr Myers' document by the Deputy Registrar of the Tribunal;

(d) Identified the central issue for determination as being whether Mr Myers was entitled to make an application to VCAT in respect of the decision identified in his application;

(e) Observed that the Tribunal's jurisdiction is limited to those matters conferred by statute and that it does not have an inherent jurisdiction to undertake judicial review; and

(f) Concluded that Mr Myers' application did not fall within the terms of any of the relevant paragraphs of s 50 of the FOI Act.

112 The VCAT member then considered whether the position would be different had Mr Myers sought to review the Information Commissioner's decision of 29 September 2022. He concluded that it would not be any different on two basis:

(a) First, that the power in s 127 of the VCAT Act to allow a document to be amended only applies to 'any document in a proceeding' and Mr Myers' document, having been rejected, there was no proceeding and therefore, might not be power to allow the application to be amended; and

(b) Any amendment should be rejected on discretionary grounds because it would be futile; s 50 of the FOI Act not giving a person to seek a review of a decision of OVIC to dismiss a complaint under s 61B(1)(b).

113 Then, the Tribunal considered and rejected an argument by Mr Myers that s 27(1)(d) of the FOI Act established a separate basis on which VCAT had jurisdiction to review the Department's decision.

114 The Tribunal also rejected a submission that s 50(4) of the FOI Act conferred a separate right of review - finding that that section defined VCAT's powers in the course of a review application properly commenced.

115 Finally, the Tribunal held that it was unnecessary in the circumstances to address Mr Myers' submissions regarding the lack of jurisdiction to review a no documents decision but indicated that had it been necessary to do so the Tribunal would have followed a line of decisions within VCAT which held that there was no such jurisdiction.

116 On the basis of all of those findings, the VCAT member dismissed Mr Myers' application for review of the decision of the Deputy Registrar to reject his application to review the Department's decision.

The appellant's questions of law and grounds of appeal

117 In his notice of appeal, Mr Myers sets out nine questions of law and nine corresponding grounds of appeal related to each question. In light of the close correspondence between the articulation of the questions of law and the articulation of the grounds of appeal and the length of each of them, it is appropriate just to reproduce the grounds:

THE GROUNDS RELIED UPON ARE:

Grounds of Appeal for Question of law 1

1. The Tribunal erred by denying the Appellant natural justice and/or made an error of statutory interpretation and/or ignored a relevant consideration when it failed to take into account the primary thrust of the Appellant's written submissions which had been seriously advanced and were worthy of consideration, and instead, the Tribunal assumed the truth of the very premise and the very principle which the Appellant had seriously questioned and put into issue - this premise being that the Tribunal had no jurisdiction to begin with which the Appellant contends is based on an erroneous interpretation of the relevant provisions of the FOI Act, and although the Tribunal had been asked to re-consider the erroneous statutory interpretation on arguments which had not been put to the Tribunal ever before, the Tribunal failed to do so choosing instead to make a conclusory conclusion based on 'comity'. As a result, the Appellant was denied a fair hearing of his legitimate concerns on their merits in circumstances where these concerns undermine the very essence of the FOI Act, not just for him but for all persons making a FOI request to an agency under the FOI Act.

Grounds of Appeal for Question of law 2

2. (a) The Tribunal erred by contravening the doctrine of precedent and effectively overruled the analysis set out in the Supreme Court's judgment in Burton 1999, and concluded that the Tribunal had no jurisdiction to review an agency's decision that no documents exist in circumstances where Hedigan J in the Burton 1999 judgment had clearly ruled that a decision that no documents exist or no further documents could be found is a decision "refusing to grant access" to a document and was "a reviewable decision" and the "argument that there is no jurisdiction under [the current equivalent of s 50(1)(b) of the FOI Act] to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal".

(b) The Tribunal erred by relying upon its analysis in Davis v Department of Health (2021) VCAT 1490 (Davis 2021) where same Tribunal Member as in Myers 2023 had concluded at [52] that a "no-documents-exist" decision is not a decision to refuse access for which the Tribunal is granted jurisdiction to review under s 50(1)(b), which directly contravenes the doctrine of precedent since the Tribunal was bound to follow Burton 1999.

Grounds of Appeal for Question of law 3

3. (a) The Tribunal contravened the doctrine of precedent and agreed with the Smeaton 2014 decision that it was not bound by the Supreme Court's judgment in Burton 1999, and therefore concluded that the Tribunal had no jurisdiction to review an agency's decision that no documents exist in circumstances where Hedigan J in the Burton 1999 judgment had clearly ruled that the right to complain pursuant to s 27(1)(e) to the Ombudsman (at that time and to the OVIC now) was an "overlapping power" and could be exercised by the FOI applicant on a "dual basis".

(b) The Tribunal erred by relying upon its analysis in Davis 2021 where the same Tribunal Member as in Myers 2023 agreed with the erroneous reasoning in Smeaton 2014 that the intent of the Parliament was to "remove any pre-existing jurisdiction of the Tribunal to review such matters given the explicit conferral of power on the Information Commissioner to investigate a complaint about such a response under s 61A(1)(a), without conferring any right of review to the Tribunal in respect of the Information Commissioner's resolution of such a complaint".

(c) The Tribunal in Smeaton 2014 and Davis 2021 and Myers 2023 asked itself the wrong question and/or engaged in erroneous statutory interpretation because the power to investigate a complaint by an external body other than a Tribunal on a "no-documents-found-to-exist" decision had always existed alongside the power to review the same decision by the Tribunal. The Supreme Court of Victoria in Burton 1999 had ruled that it was an "overlapping power" between the Tribunal and the Ombudsman or now between the Tribunal and the Information Commissioner, and the FOI applicant was free to choose between the "dual pathway" of lodging a complaint or lodging a review. Just because a provision had been added to the FOI Act in 2012 merely to make explicit that the newly created office of the Information Commissioner could now investigate a "no-document-exist" decision instead of the Ombudsman did not mean that the Parliament was taking away the Tribunal's power to review a "no-documents-exist" decision. There is nothing in the FOI Act which states this. This was not the intent of the Victorian Parliament. To the contrary, the Explanatory Memorandum states that the intent was to strengthen the Complaint Procedure, but it was not to weaken the Review Regime of the Tribunal.

Grounds of Appeal for Question of law 4

4. The OVIC and then the Tribunal breached the rules of natural justice and/or made an error of statutory interpretation when first the OVIC treated the Appellant's Application lodged for a "Review" of the 1 September 2022 decision of the agency as a "Complaint", and later, the Tribunal treated the Appellant's Application to "Review" the 29 September 2022 decision of the OVIC as a decision made on a Complaint instead of a decision made on a Review.

Grounds of Appeal for Question of law 5

5. The agency made a vitiating error in its decision dated 1 September 2022 pursuant to s 27(1)(d)(1) of the FOI Act when it did not inform the Appellant of his "right to apply for a review of the decision" which was that "no such document exists" in circumstances where this "right" still exists under the FOI Act to apply for a "Review" to the OVIC under s 49A(1)(a) and then to apply for "Review" to the Tribunal under s 50(1)(b) and separately, there is an overlapping right to lodge a complaint to the OVIC under s 61A(1)(a).

Grounds of Appeal for Question of law 6

6. The OVIC acted beyond its powers or made a vitiating error in its decision dated 29 September 2022 pursuant to s 49A(1)(a) of the FOI Act when it unilaterally changed the Appellant Application for a "Review" of the agency's 1 September 2022 decision and substituted the Application for a "Review" with a 'fictional' "Complaint" allegedly made on the agency's decision of the same date, and further, and alternatively, the OVIC failed to exercise its jurisdiction when it failed to make a decision pursuant to either s 49P or s 49G(1) of the FOI Act.

Grounds of Appeal for Question of law 7

7. The OVIC failed to exercise its jurisdiction and powers pursuant to s 49KA of the FOI Act "to require a further search for documents" on the Application made by the Appellant to "Review" the agency decision dated 1 September 2022.

Grounds of Appeal for Question of law 8

8. (a) The Tribunal failed to exercise its jurisdiction pursuant to s 50(1)(b) of the FOI Act when it refused to hear on the merits the Appellant's Application to Review the agency's 1 September 2022 decision that "no-documents-were-found-to-exist" merely because the Appellant's "Review" Application had been mistakenly treated as a Complaint by the OVIC which effectively affirmed the agency's decision on 29 September 2022 under s 61B(1)(b) of the FOI Act by dismissing the 'fictional' Complaint.

(b) The Tribunal failed to exercise it jurisdiction because it should have 'realised' and 'accepted' that it was the OVIC which had committed a 'mistake' because either the OVIC should have affirmed the agency's decision under s 49P of the FOI Act or the OVIC should have under s 49G(1) of the same Act determined not to accept the Appellant's Review application or dismissed the review, and either way, the Tribunal would have had jurisdiction over the Appellant's Merits Review Application; put another way, the Appellant is not to 'blame' for the successive 'mistakes' and jurisdictional errors committed by the OVIC and the Tribunal.

Grounds of Appeal for Question of law 9

9. The agency, the OVIC and the Tribunal contravened ss 7, 8, 15, 32 and/or 38 of the Charter Act by their erroneous statutory interpretations which has in turn resulted in their failure to exercise their jurisdictions and in their denials of natural justice to the Appellant, because these public authorities - the agency, the OVIC and the Tribunal (in its administrative capacity) - did not interpret the relevant provisions in a way that was compatible with human rights or they failed to give proper consideration to a relevant human right in circumstances where they could have reasonably acted differently or made a different decision since less restrictive means were reasonably available, and in so doing, they denied a human being his "right to receive information" which has been found by the Supreme Court of Victoria to be subsumed under s 15 ("Freedom of expression") of the Charter Act.

(emphasis in original)

118 As will be seen, there is a degree of overlap between a number of the grounds. Grounds 2 and 3 essentially contend that a 'no documents decision' is, on the basis of the decision of this Court in Victoria Police v Burton ('Burton')[11] to be treated as a refusal to grant access to a document for the purposes of the FOI Act.

119 Grounds 4, 6 and 8 all raise the question of whether it was appropriate for the OVIC to treat Mr Myers' application to it on 4 September 2022 as a complaint rather than an application for review.

120 Ground 5 and 7 are also predicated on the same proposition as underlies grounds 2, 3, 4, 6 and 8, that is that a 'no documents decision' constitutes a refusal to grant access to a document.

121 Thus, each of grounds 2 to 8 in some way or another rests on the proposition that Mr Myers had a right to apply for a review of the no documents decision.

123 Insofar as this ground asserts a denial of natural justice and a failure to provide a fair hearing, it is completely without merit. Mr Myers was given an opportunity to make submissions. He made extensive submissions in support of his argument. The fact that the Tribunal rejected those submissions does not mean that Mr Myers was denied a fair hearing. There is simply no basis for that assertion.

124 Insofar as this ground asserts that the Tribunal erred in its construction of the relevant provisions of the FOI Act, it advances matters no further than Mr Myers' other specific grounds, which for the reasons below, are rejected.

125 Section 50(1) of the FOI Act is central to the VCAT decision and to the resolution of this appeal, it provides:

(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;

(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.

126 No question arises as to whether the Tribunal had jurisdiction under paragraphs 50(1)(c), (e), (ea) or (g).

127 Grounds 2 and 3 both raise squarely the question of whether a decision under the FOI Act that a document does not exist or cannot after a reasonable search be located is to be treated as a decision 'refusing to grant access to a document'. For the reasons set out below, I am satisfied that it is not.

128 First, the natural construction of the phrase 'refusing to grant access to a document' is that there is a refusal in respect of a document that exists. That this natural construction is to be preferred is emphasised by two provisions in particular.

129 Sections 27(1)(d) and (e) of the FOI Act provide:

(1) Where, in relation to a request for access to a document of an agency or an official document of a Minister, a decision is made under this Part that the applicant is not entitled to access to the document in accordance with the request or that provision of access to the document be deferred or that no such document exists, the agency or Minister shall cause the applicant to be given notice in writing of the decision, and the notice shall -

(i) his right to apply for a review of the decision;

(ii) the authority to which the application for review should be made; and

(iii) the time within which the application for review must be made;

(e) where, in the case of a decision of an agency or a Minister, the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A, 31 or 31A but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Information Commissioner.

130 The chapeau to s 27(1) draws a distinction between three types of decisions:

(a) a decision that a person is not entitled to access to a document;

(b) a decision that access to a document be deferred; and

(c) a decision that no such document exists.

If a decision that no document existed was to be treated as a decision that a person was not entitled to access there would have been no need to include the separate category of a decision that no document exists in the chapeau.

131 Further, s 27(e) provides a separate pathway for dealing with decisions that a document does not exist or cannot, after a thorough and diligent search, be located. Mr Myers contends that the pathways in s 27(d) and (e) can overlap. I am not satisfied this is so.

132 Part VI Division 1 of the FOI Act deals with reviews by the Information Commissioner. Section 49A provides for the kinds of decisions which may be subject to an application to the Information Commissioner for review. Section 49(1)(a) provides that an applicant may apply to the Information Commissioner to review a decision of an agency or a Minister refusing to grant access to a document_._ Section 49(1)(b) deals with a decision deferring access. Section 49(1)(c) is not presently relevant.

133 Part VIA deals with complaints to the Information Commissioner. It provides a comprehensive regime for the Information Commissioner to deal with those 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;

(ba) a decision by a Minister that a document does not exist or cannot be located;

The Information Commissioner must dismiss a complaint if the subject-matter of the complaint has been, or could be, dealt with by an application for review by the Information Commissioner or the Tribunal.

136 If Mr Myers' contention that a no documents decision could always be treated as a refusal to grant access to a document, and as a result, could be always be dealt with by an application for review were accepted, the Information Commissioner would always (subject to possible issues relating to extension of time) be required to dismiss a complaint regarding a no documents decision. That cannot have been Parliament's intention. Rather, the more natural construction of the relevant provisions is that Parliament specified three broad types of decision in s 27, provided for two of them to be subject to review and provided for the third to be dealt with by way of complaint. Mr Myers contends that a dismissal under s 61B(3) is only required if an application for review is made but this gives no weight to the words 'could be' in s 61B(3).

137 Does Burton dictate a different result? In my view, no.

138 The first thing to note regarding the decision in Burton is that it is a decision regarding whether VCAT had appropriately exercised its discretion to award costs against a respondent in circumstances where the applicant had successfully obtained access to documents.[12] Secondly, the discussion of the powers of the Tribunal and the appropriate characterisation of a no documents decision occurred in a context where there was no doubt that the Tribunal otherwise had jurisdiction and where there was an extant review of a decision to deny access.[13] Thirdly, Burton is a case where the Tribunal had formed the view (at least provisionally) that documents did exists and had either been suppressed or diverted out of the possession of the respondent, in other words, that the no documents decision was not genuine.[14] Fourthly, when Burton was decided s 27 of the FOI Act had a superficially similar structure to that which exists now, but the FOI Act now provides an entire regime in Part VIA regarding complaints to the Information Commissioner. In particular, when Burton was decided there was nothing equivalent to the provisions of s 61A and s 61B(3) - those provisions, in my view, are very strong indicators of Parliament's intention that a no documents decision should not be treated as a refusal of access to a document.

139 The result is that Burton is plainly distinguishable from the circumstances of this case. The fourth factor I have identified above, is sufficient on its own to provide a basis for the conclusion that the reasoning in Burton is no longer apposite in relation to the current provisions of the FOI Act.

140 In this respect I am fortified in my views by the views (albeit obiter) expressed by Cavanough J in McKechnie v VCAT & Anor:[15]

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. In any event, the distinction is now recognised in the FOI Act itself, in s 61A(1)(a).[16]

141 To similar effect, though obviously considering a different legislative regime, is the decision of the NSW Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce,[17] where each of Beazley JA and Basten JA held that a statement that a document did not exist did not amount to a refusal to give access to a document.[18]

142 Finally, the approach I favour has been adopted in a number of VCAT decisions.[19]

143 As a result, VCAT was not bound to follow Burton, to the extent it did not do so it made no error of law. Grounds 2 and 3 of the Notice of Appeal fail.

144 I have determined that there is no right to apply for a review by the Information Commissioner of a no documents decision. It follows that:

(a) Mr Myers was not required to be advised of a right of review under s 27(1)(d), as none existed.

(b) OVIC was not in error in treating Mr Myers' purported application for a review of the Department's no documents decision as a complaint. Its other option would have been to not treat the application as a complaint and simply dismiss the purported application under s 49G(1)(a) or (d). Had it exercised either of those powers:

(i) Mr Myers would have been without any independent check on the Department's decision; and

(ii) Mr Myers would still not have had a right of appeal under s 50(1)(d), because the no documents decision is not on the view I hold 'a decision of an agency ... refusing to grant access to a document in accordance with a request'.

(c) Sections 49KA and 49P had no role to play. Those provisions operate when a properly instituted review is on foot.

146 For completeness, I note that I incline to the view that in deciding to treat Mr Myers' application as a complaint OVIC may have, in effect, exercised its power under s 49G(1)(d) of the FOI Act and determined not to accept the application for review on the basis that it was not appropriate in the circumstances. As I have indicated above, that does not however give Mr Myers a right of review under s 50(1)(d) because the Department's decision was not 'a decision of an agency ... refusing to grant access to a document in accordance with a request'.

147 Mr Myers relies on various provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter').

148 Essentially, his argument is that an interpretation of the FOI Act which says that a no documents decision is not subject to review by the FOI Commissioner is one which fails, contrary to s 32 of the Charter, to interpret the FOI Act, so far as is possible to do so, in a way which is compatible with a human right, being the freedom to receive information guaranteed by s 15 of the Charter.

149 In this regard Mr Myers relies on a decision of XYZ v Victoria Police ('XYZ')[20] where Bell J, President said:

In conclusion, the right to freedom of expression in s 15(2) of the Charter implicitly imposes a positive obligation on the government to give access to government-held documents (freedom of information). The obligation I am specifying does not extend to creating documents, collecting data or disseminating information which has not been sought. The right to obtain government-held documents is not absolute and is subject to justifiable exceptions for objective, proportionate and reasonable purposes. The government has a margin of appreciation in this regard.

The scope of the right to freedom of information as part of freedom of expression in s 15(2) of the Charter at least extends to cases in which the individual seeks information on a subject engaging the public interest or in which he or she has as legitimate interest. The arguments in the present case did not enable me to identify the scope of the right in more specific terms.[21]

Although the right to freedom of expression in s 15(2) of the Charter includes a positive right to access government-held documents, and that right is independent of the right to seek access to documents in s 13 of the Freedom of Information Act, it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act. When the government properly processes a request for access to documents under the Freedom of Information Act, it will also be respecting, and acting compatibly with, the applicant's right to freedom of expression under s 15(2) of the Charter. In most cases at least, nothing more or less would be required.[22]

151 The above passages from XYZ do not really assist Mr Myers. First, they make plain that the right to information under the Charter is not absolute and subject to justifiable exceptions, for objective, proportionate and reasonable purposes. Secondly, in the circumstances of that case his Honour held when the government properly processed a request under the FOI Act it would be acting compatibly with s 15(2) of the Charter.

152 I am not persuaded that the interpretation of the provisions of the FOI Act which I favour is in any way incompatible with the right in s 15(2). A no documents decision is subject to an independent complaint process by the OVIC, which has the power to order an agency to conduct further searches.[23] The OVIC is subject to judicial review. A persistent theme in Mr Myers' submissions on this aspect of his argument and more generally, was that the only way to safeguard against arbitrary and capricious no documents decisions was to provide a right of review to the Information Commissioner and then to VCAT. On the interpretation of the FOI Act I favour, Parliament has chosen another way and one which is compatible with s 15(2) of the Charter. Whilst the FOI Act has changed since the decision in XYZ, it remains the case that when the government properly processes a request under the FOI Act it acts compatibly with s 15(2) of the Charter.

155 The consequence of a no documents decision not being a refusal to grant access to a document is that neither of the provisions of ss 50(1)(b) or 50(1)(d) are enlivened. There being no other basis on which the Tribunal could have had jurisdiction in this matter, Mr Myers' appeal must be dismissed.

156 I will order that the parties file any submissions on costs (no more than two pages) within seven days.

158 However, it is appropriate that I record that had I held that the Tribunal erred in its decision regarding the application of s 50, it is by no means clear that the appropriate remedy would be to remit the matter to the Tribunal as Mr Myers seeks.

159 Mr Myers has wasted significant resources of the State and this Court on what might generously be described as a fool's errand. His underlying complaint is about the loss of a mobile phone. He makes an assumption that it was stolen. He makes a further assumption that, if it was stolen, it was stolen by someone on the bus at the time he was on it. He makes a further assumption that out of the people on the bus at the time, it was stolen by a young 'black or African' man. He seeks to peruse photos of students (many of whom would have been children at the time) in order to identify that person and asks that the Department devote time and resources to the provision of the documents he seeks. If he identifies the person he thinks he saw, he then intends to provide that information to the police who have already said they will not investigate because of the value of the phone. If the police do not investigate, he will try to locate the young person himself. Had he been successful in his appeal, in these relatively exceptional circumstances, I would have been disinclined to grant Mr Myers any relief which permitted that fool's errand to continue.

[1] Myers v VCAT [2024] VSC 109.

[3] (2001) 4 VR 595; [2001] VSCA 246.

[5] [2024] VSC 415.

[7] [1994] AATA 2; (1994) 33 ALD 683, 692.

[8] Myers v Victorian Civil and Administrative Tribunal & Ors [2024] VSCA 206.

[10] Ibid [66], see also [26](c), [47] (Walker JA).

[11] [1999] VSC 534.

[15] [2020] VSC 454.

[17] [2008] NSWCA 140.

[18] Ibid [58]-[59] (Beazley JA), [105], [112] (Basten JA).

[19] Davis v Department of Health [2021] VCAT 1490; Smeaton v Transport Accident Commission [2014] VCAT 341; O'Brien v Jennings [2017] VCAT 1395; Smeaton v Department of Premier and Cabinet [2018] VCAT 1672; AOZ v JLV [2019] VCAT 31; Chopra v Department of Education & Training [2019] VCAT 986.

[20] [2010] VCAT 255.