Chopra [2018] VCAT 842 (15 May 2018)

1. Dr Chopra applied to the Department of Education & Training ('the Department') for access to certain documents under the Freedom of Information Act 1982 (Vic) (FOI Act). Under the FOI Act, the Department has 30 days to decide an application.[2] A decision not made within time is taken to be a decision refusing to grant access to the document.[3]
2. On 26 December 2017, Dr Chopra filed an application for review under s 50(1)(ea) of the FOI Act with the Tribunal. By letter dated 11 January 2018, the Deputy Registrar rejected the application on the ground that the application was made prematurely.
3. Dr Chopra sought clarification from the Tribunal registry as to why his application was rejected. By letter dated 16 January 2018, the Principal Registrar said that she calculated the 30 day period as excluding the day of lodgement, and also days that were holidays in accordance with s 44 of the Interpretation of Legislation Act 1984 (Vic). In that section, the term 'holiday' includes Saturdays, Sundays and gazetted public holidays.
4. The Principal Registrar rejected the application under s 71(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act').
5. Dr Chopra was dissatisfied with the decision to reject his application and requested a referral of the application to the Tribunal under s 71(2) of the VCAT Act. The application for review was made ex parte by Dr Chopra.
6. The review came before her Honour Judge Millane on 29 March 2018. Subsequently, Dr Chopra applied for reconstitution of the Tribunal under s 108 of the VCAT Act.
7. The hearing before me consisted of an address by Dr Chopra as to why the Tribunal should be reconstituted. No proceeding has as yet been issued by the Tribunal.

(1) At any time before the conclusion of the hearing of a proceeding

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding

(2) If an application is made under subsection (1)(a)...

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

1. In the course of his address, Dr Chopra referred to the High Court case of Ebner v Official Trustee in Bankruptcy,[4] where the Court adopted as the test of apprehended bias, 'whether a fair-minded lay observer might reasonably apprehend that the [Judge or member] might not bring an impartial mind to the resolution of the question, the [Judge or member] is required to decide.'[5] He then cited the decision of Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd,[6] noting that the assessment required by the Court in Ebner v Official Trustee in Bankruptcy,[7] operates by reference to a double might. He also referred to the decision of Tomasevic v Victoria,[8] and to a number of decisions that I have made under s 108 of the VCAT Act including Chiropractic Board v Hooper,[9] Jinshan Investment Group Pty Ltd v Melbourne CC,[10] and Mackie Pty Ltd v Republic of Turkey & Anor.[11]
2. Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd[12] concerns the reasonable provision of assistance to a litigant in person. Assistance may extend to identifying the issues which are central to the determination of the particular proceeding, and by asking a party questions designed to elicit information in relation to those issues, and drawing attention to the relevant legislative provisions.
3. In Metrospan Developments Pty Ltd v Whitehorse CC,[13] Justice Kellam held that it is important that s 108 is not used to achieve a de facto review or a de facto appeal of what has happened in the proceeding to date. It should not be used to signify the President's disapproval as to the conduct of the hearing by the member concerned. It should not be used to compromise the independence of the Tribunal in question. This decision was followed in Gabrielidis v Hobsons Bay CC,[14] and in Chiropractic Board of Australia v Hooper.[15]

1. Section 102(1) of the VCAT Act, provides that a party should be given a reasonable opportunity to make submissions. Dr Chopra highlighted the fact that he was a litigant in person, and that justice must not only be done, it must be seen to be done. He accepted that there could be interruption, indeed, forceful interruption, by the Tribunal in the course of a proceeding, and said that it was not his case that this had occurred in this instance.
2. Section 126 of the VCAT Act provides that the Tribunal can extend or abridge a time limit fixed in the VCAT Act, the regulations, the rules or an enabling enactment. Dr Chopra said he had not made any application to the Tribunal to extend or abridge time for the issue of the proceeding in this case.
3. Dr Chopra referred to the provisions of the FOI Act, particularly s 3 highlighting that the object of the Act is to extend as far as possible the right of the community to access information in the possession of the Government of Victoria.[16]

1. Dr Chopra seeks an order to reconstitute the Tribunal constituted by Judge Millane. I have reviewed the transcript of the hearing on 29 March 2018. Dr Chopra appeared in person and made submissions. Her Honour asked a number of questions of Dr Chopra. The questions were consistent with the duty of a judge to ask a litigant in person questions designed to identify the central issues.
2. The questions from her Honour were principally directed at encouraging Dr Chopra to address the calculation of time under s 44 of the Interpretation of Legislation Act 1984 (Vic). On the other hand, Dr Chopra sought to argue that the discretion of the Principal Registrar found in s 71(1) of the VCAT Act can be exercised even if the calculation of days showed that the application had been prematurely made. I conclude that nothing surprising, or out of the ordinary occurred at the hearing on 29 March 2018. There is nothing that suggests bias, or any reason to reconstitute.

1. I now turn to the main topics raised by Dr Chopra as I understand them.
2. First, he referred me to the principles of law relating to an administrative officer acting under dictation or pursuant to an inflexible application of policy. If it is to be made, this submission is one for Judge Millane, as the principal decision-maker. She has the responsibility for deciding whether the Principal Registrar's decision is correct or not. This is not an issue to be decided on a reconstitution application.
3. A second topic raised by Dr Chopra was whether the Deputy Registrar should be called as a witness. Again, this is a matter for her Honour to decide. It is not a matter to be decided on a reconstitution application.
4. Dr Chopra then requested that the decision-maker should be called to give evidence. Again, this is an issue for the hearing before her Honour. I should not second-guess any decision that might be made on this aspect.
5. I was next taken to correspondence between Dr Chopra and the Principal Registrar extending over 53 pages of emails. Again, the significance of the chain of emails stands to be considered at the hearing before her Honour.
6. As I understand his submission, the primary concern of Dr Chopra arises out of the hearing of another proceeding - proceeding H10/2016 in the Human Rights List of the Tribunal.
7. Dr Chopra provided me with copies of transcript relating to three (3) days of hearings in proceeding H10/2016. They were hearings conducted by Senior Member Burdon-Smith on 15 November 2016; and hearings conducted by her Honour Judge Millane on 5 and 13 September 2017.
8. I have read and reviewed those transcripts, particularly the passages that were highlighted by Dr Chopra for my assistance. The transcript of proceedings before Senior Member Burdon-Smith is largely irrelevant to the reconstitution application, and does not concern Judge Millane.
9. The hearing on 5 September 2017 was a hearing where Dr Chopra did not appear. Dr Chopra was seeking the adjournment of the application for summary dismissal returnable on 13 September 2017.
10. It is apparent from what was said that the Judge's associate attempted to ring Dr Chopra. The attempt was unsuccessful. A discussion then took place between Counsel for the Department, and the Tribunal as to a medical certificate concerning Dr Chopra received by the Tribunal, and whether the doctor who provided the medical certificate should be called to give evidence.
11. From the discussion, it appears that the Department had instructed counsel that there was doubt as to the accuracy of the medical certificate. This led to a submission by the Department that the doctor concerned should be called.
12. I have also read the transcript relating to the hearing on 13 September 2017. Again, there was an issue as to whether Dr Chopra was able to attend the hearing in person or by phone in view of his state of health.

1. Having read and reviewed the three (3) transcripts, I am of the view that there is nothing in them which would cause me to exercise my powers to reconstitute the Tribunal. There is nothing in them that might lead the fair-minded lay observer to reasonably apprehend that Judge Millane might not bring an impartial mind to the resolution of the question the Tribunal was asked to decide in the present proceeding.
2. My reason for declining to exercise my discretion to reconstitute the Tribunal include:
   • (a) There was the opportunity on 29 March 2018 for Dr Chopra to ask Judge Millane to recuse herself. Dr Chopra did not do so. No application of that character was made to her Honour prior to the matter being raised with me.
   • (b) It is not uncommon for parties or judges periodically to question medical certificates which are provided by non-attending parties before a scheduled hearing. Indeed, some judges take the view that they should require evidence of ill health of the party seeking an adjournment before cost and inconvenience to other parties is permitted to be incurred.
   • (c) The application to reconstitute does not relate to anything said or done in this proceeding but in another proceeding in another list of the Tribunal.
   • (d) The issue in the present proceeding is predominantly around the arithmetic calculation of days. The issue of credit is not obviously involved. It is hard to see how evidence will assist much in the resolution of the disputed time period.
   • (e) Judge Millane is part heard in the review of the Principal Registrar's decision. There is no useful purpose in appointing a substitute decision-maker. There is no reason to do so in the interests of justice.
3. For these reasons Dr Chopra's application to reconstitute fails.

1. The Tribunal orders that the application made by Dr Chopra to reconstitute the Tribunal be dismissed. Judge Millane will continue in this proceeding, and will decide whether Dr Chopra's application is in time.
2. There will be no order in relation to costs.

[1] This is an edited version of reasons given orally on 10 May 2018.

[2] Freedom of Information Act 1982 (Vic) s 30.

[3] Freedom of Information Act 1982 (Vic) s 53.

[4] [2000] HCA 63; (2000) 205 CLR 337; 75 ALJR 277.

[5] Ibid, 344. The quotation is modified to be apposite to the Tribunal.

[6] [2016] VSCA 108.

[7] [2000] HCA 63; (2000) 205 CLR 337; 75 ALJR 277.

[8] [2005] VCAT 423.

[9] [2013] VCAT 417.

[10] [2015] VCAT 635.

[11] [2017] VCAT 620.

[12] [2008] VCAT 1479.

[13] [2000] VCAT 44.

[14] [2004] VCAT 508; [2004] VCAT 614.

[15] [2013] VCAT 417 [24].

[16] Citing, Re SB [2007] VCAT 333; Dr Pathmanathan v Australian Health Practitioner Regulation Agency [2017] VCAT 2166.