1. Under s 51A of the Victorian Civil and Administrative Tribunal Act 1998, the respondent is invited to reconsider the decision under review.
2. In order to, as far as possible, ensure that this proceeding's priority is not affected by the making of the above invitation, the respondent is directed to, on or before 22 June 2018, file and serve:
   1. Its response to the above invitation; and
   2. If its response is a refusal under s 25A(1) of the Freedom of Information Act 1982, the evidence and submissions on which it intends to rely in this proceeding in support of its decision.
3. The Tribunal has scheduled a directions hearing commencing at 9:30 am on 27 June 2018 at 55 King Street Melbourne before me if available, allow one hour.

1. In November 2017, the Department of Education & Training (the Department) received from Dr Chopra a request seeking documents under the Freedom of Information Act 1982 (the FOI Act).
2. On 22 December 2018, VCAT received Dr Chopra's application for review of the above request on the basis that with the Department failing to decide the request within 30 days, the request is taken to be refused. The proceeding continues on that basis.
3. By letter dated 22 December 2017, the Department wrote to Dr Chopra advising it intended to, under s 25A(1) of the FOI Act, refuse his request on the basis that processing his request would be an unreasonable diversion of the Department's resources. It invited consultation to narrow the request. Dr Chopra did not respond to that invitation.
4. On 12 February 2018, at a directions hearing I directed Dr Chopra to file and serve submissions.
5. VCAT received Dr Chopra's submissions dated 19 February 2018. He sought answers to questions of law and/or referral of the questions to the Supreme Court of Victoria under s 96(2) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Dr Chopra proposed answers that would, in his view, lead to VCAT ordering the Department to process his FOI request.
6. In response to Dr Chopra's submissions, the Department submitted[1] that VCAT should, under s 51A of the VCAT Act, invite the Department to reconsider Dr Chopra's FOI request. It foreshadowed again refusing his FOI request under s 25A(1).
7. The Department anticipated that its refusal decision would become the subject matter of this proceeding, to be decided by VCAT on evidence put before the Tribunal at hearing.
8. The same day, by way of two emails, Dr Chopra objected to the Department providing its 22 February submissions and made various submissions.
9. By letter dated 27 February 2018, the Department decided to refuse Dr Chopra's FOI request, under s 25A(1).
10. Dr Chopra provided a detailed 12 March 2018 submission concerning the operation of s 51A of the VCAT Act.
11. Dr Chopra then made a series of submissions in proceeding Z45/2018 between the parties.
12. On 12 April 2018, VCAT received a submission from the Department, responding to Dr Chopra's submissions in this proceeding and in proceeding Z45/2018. Once again, the Department submitted VCAT should use one of various avenues[2] it submitted were open to the Tribunal, to reach the situation where the issue before the Tribunal would be, on evidence before the Tribunal, whether Dr Chopra's request should be refused under s 25A(1).
13. On 30 April 2018, Dr Chopra filed detailed submissions opposing the Department submissions.
14. The parties have requested that I decide this proceeding without further hearing in this proceeding. I agreed to do so under s 100 of the VCAT Act.
15. As Dr Chopra requested,[3] I have decided this proceeding having considered all submissions, Dr Chopra's affidavits, and other material filed in proceedings Z45/2018 and Z1013/2017.

1. This copy of Dr Chopra's FOI request does not show the identities of the people he named in his request, as is appropriate at this stage in a proceeding.

This FOI request is for all documents related to the following with "documents" as defined in the Freedom of Information Act 1982 (Vic).

1. My personal file at McKinnon Secondary Colledge.
2. My weekly classroom schedule during the years 2012, 2013 and 2014.
3. All documents that are responsive to the following search string in the Google Vault app, in the time period since 1 February 2012, except emails to and from Dr Chopra.

Manu OR Chopra OR Manu Chopra OR Mr Chopra OR Dr Chopra OR Mr Manu Chopra OR Dr Manu Chopra OR "brown skin" OR "brownskin" OR "brown skins" OR "Angelina Jolie" OR Jolie OR "Angelina Jolie's family" OR binnion.pitsa.p@edumail.vic.gov.au NOT to:cho@mckinnonsc.vic.edu.au NOT from:cho@mckinnonsc.vic.edu.au

To find documents under the above search, the search should be done in the School's internal email system using the Google Vault application. Note that the entire database of all accounts created at McKinnon since Google Vault was initiated must be used for this search. If any accounts have been deleted or not included in the search, please indicate which ones and why these are not included. [The] IT Manager at McKinnon knows how to do this search.

1. All documents to and from [Person 1] concerning Manu Chopra since 1 February 2012.
2. All documents to and from [Person 2] concerning Manu Chopra since 1 February 2012.
3. All documents to and from [Person 3] concerning Manu Chopra since 1 February 2012 except emails to and from Manu Chopra.

For searched 4-6, other than hard copies etc, the search for documents that are emails should be done in the School's internal email system using the Google Vault application. Note that the entire database of all accounts created at McKinnon since Google Vault was initiated must be used for this search. If any accounts have been deleted or not included in this search, please indicate which ones and why these are not included. [The], IT Manager at McKinnon knows how to do this search.

1. All documents related to the external investigation of any teacher at McKinnon Secondary College for the past 7 years (since 1January 2010) while Person 3 has been the Principal and it was recommended by Person 3 to initiate this investigation. The names and any other identifying information of the teacher and any other persons named in those documents can be redacted out.
2. All documents related to an employment limitation placed on any teacher at McKinnon Secondary College since 1 January 2010. The names and any other identifying information of the teacher and any other persons named in those documents can be redacted out.

1. The appropriate way forward in this proceeding is to, under s 51A of the VCAT Act, invite the Department to reconsider its decision. Presuming, as I do, that the Department will again refuse the FOI request under s 25A(1), I then assume Dr Chopra will seek to have that decision reviewed by VCAT in this proceeding.
2. Section 51A of the VCAT Act says:

51A Tribunal may invite decision-maker to reconsider decision

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

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

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

sets it aside and substitutes a new decision and the proceeding continues, it is taken to be a proceeding for review of the decision as varied or the new decision.

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

(5) The Tribunal cannot make an order for costs under s 74(2)(b) only because an applicant withdraws a proceeding following reconsideration by the decision-maker under this section.

1. As noted in Pizer's Annotated VCAT Act,[4] in the second reading speech related to the Bill before Parliament to insert s 51A into the VCAT, the Attorney-General said:

[Section 51A] enables VCAT, when exercising is review jurisdiction, to invite an original decision maker reconsider the decision under review. This reform is designed to allow the tribunal to bring the decision-maker back into the process, with a view to assisting resolution. The reform is expected to be of particular benefit in proceedings in the planning jurisdiction, where progress towards a resolution has been made with the parties, and where the decision-maker may wish to vary its decision or substitute a decision that is acceptable, or more acceptable, to the parties. ...

1. In this proceeding, acknowledging the delays already experienced, it is important that the substance of the dispute between the parties be addressed as soon as possible. At this time, the substance of the dispute is a disagreement as to whether or not the Department deciding Dr Chopra's FOI request would cause the Department and unreasonable diversion of resources.
2. With Dr Chopra, not agreeing to VCAT reviewing the Department's 27 February 2018 decision to refuse his request under s 51A(1), s 53(5) of the FOI Act cannot operate to enable review of that decision in this proceeding. Section 53(5) only operates to achieve that effect where the applicant, here Dr Chopra, requests that result.
3. As discussed below, it is not appropriate that the Tribunal at this point, in summary fashion, order the Department to process Dr Chopra's FOI request without considering evidence as to the resources that would be required to do so.
4. That said, this matter should be brought to resolution as soon as possible. To that end, the Tribunal directs the Department to by 22 June 2018 file and served its response to the invitation and, if that be to refuse the FOI request under s 25A(1), evidence and submissions in support of its decision on which it wishes to rely in this proceeding. At the directions hearing scheduled on 27 June 2018, it is likely that a date will be set for Dr Chopra to provide any evidence and submissions on which he wishes to rely and a hearing date will be set.
5. In reaching this decision I have considered, and rejected submissions by Dr Chopra, as I now discuss.
6. In its 27 February 2018 decision letter, the Department advised Dr Chopra, without giving reasons, that it had refused his FOI request under s 25A(1) of the FOI Act.
7. Section 25A(1) relevantly says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The following passage from Dr Chopra's 19 February 2018 submissions summarises his view as to the Department's conduct:

... First, it refused to undertake an initial search for documents at all. Second, it did not consult with me as it was required to do under s.25A(6)(c) if it wanted to claim protection of s.25A(1) as it now purports it wants to do. Third, only after the 30 days allowed under s.21 had passed, it contacted me for the first time stating its intention to consult under s.25A(6)(c) which, as a matter of law, was too late. Fourth, without doing a search for documents to find an actual number of documents or a reliable objective estimate, it tried to indulge in a perfunctory consultation which, as a matter of law, cannot meet the requirements of s.25A(6)(c) because it is impossible for it to let me know how to narrow a particular Part of my Request since it has found no documents under any Part. Fifth, it has stated that it is not required to undertake an initial search for the documents at this time - as this is the very thing that s.25A(1) of the FOI Act is designed to avoid. The Respondent is simply wrong on the law on this. It knows this or should have known this. Only under s.25A(5) can an initial search not be undertaken, otherwise it necessarily must be undertaken under s.25A(1) even to come up with a reliable estimate. Sixth, it was unable to answer Acting Deputy President Proctor's query at the directions hearing on 12 February 2018 regarding what is the Department's intention? Subsequently, Acting Deputy President Proctor wanted to allow the Respondent until 22 March 2018 - another 40 days in addition to the 90 days which had already passed - to submit its Section 49 Statement. I felt this was too generous since it was clear that the Respondent had no intention to even begin processing this FOI Request. I was afraid that the Respondent will submit literally nothing on 22 March 2018 taking refuge under s.25A(1) at that time after perhaps doing a bit of a search to try to justify its decision. Based on the law as it stands for s.25A(1) and my past experience with this Respondent and its malicious actions, the Respondent's deemed refusal in this matter based on an intention to refuse under s.25A(1) does not merit any leniency on the part of the Tribunal. Consequently, I made a verbal submission to Acting Deputy President Proctor to decide this proceeding as a matter of law or to refer the questions of law to the Victorian Supreme Court. Acting Deputy President Proctor made an order for me to make written submissions before he decided how to proceed.

1. In my view the Department complied with s 25A(6) when on 22 December it wrote to Dr Chopra advising of its intention to refuse access and complying with the requirements of the section. If I were to agree with Dr Chopra's submission that the Department did not so comply and so had no power to refuse his request under s 25A(1), it would remain appropriate to invite the Department to reconsider under s 51A, in order to provide for a process leading to a decision which can be reviewed by VCAT.
2. I reject Dr Chopra's submissions that given the Department's conduct, at this point the Tribunal should order it to process his FOI request. The only power to do so would be under s 78 of the VCAT Act.
3. Section 78 relevantly says:

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or

(b) failing to comply with this Act, the regulations, the rules or an enabling enactment; or

(c) asking for an adjournment as a result of (a) or (b); or

(e) attempting to deceive another party or the Tribunal; or

(g) failing to attend mediation or the hearing of the proceeding.

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(3) The Tribunal's powers under this section are exercisable by the presiding member.

1. While it is unfortunate that significant time has passed since Dr Chopra made his FOI request, in my view there is no basis to conclude that the Department's conduct is such as to cause the Tribunal to, under s 78(2)(b), order the Department to process the FOI request.
2. Dr Chopra cites cited the decision of the Supreme Court of Victoria Court of Appeal in the Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246. The Court observed that s 25A would only empower agencies to refuse access in the unusual circumstances that the necessary work to process request would substantially and unreasonably divert resources of the agency from its other operations.
3. That observation may or may not apply here, once the issue before VCAT in this proceeding is a review of a s 25A(1) refusal. There is currently no basis to conclude whether or not those 'unusual circumstances' exist.
4. Dr Chopra again cites Kelly, to make the correct submission that where an FOI request is refused under s 25A(1), the decision-maker bears the onus of satisfying this Tribunal that the decision was the correct and preferable decision. However, I reject Dr Chopra's submission that the Department should not have the opportunity to provide evidence to that effect. It is fair that a decision-maker who bears that onus has the opportunity of discharging it.
5. I reject Dr Chopra's submission that the Department does not have power under s25A(1) because it did not, before making its decision, either search for documents nor provided an estimate of the resources it would take to process his FOI request. Section 25A provides no such requirement. If I am wrong on this, inviting the Department to reconsider its decision brings with it the obligation to provide evidence in support of the decision. That will cure any defect.
6. Dr Chopra incorrectly submits that VCAT must not allow the Department to change its reasons or grounds for refusal. It is common and acceptable in proceedings under the FOI Act for a decision-maker, with the passage of time when before VCAT, to change its position concerning a request. It may decide to release documents previously refused. It may provide fresh evidence in support of its refusal.
7. Dr Chopra makes an interesting submission concerning submitted inconsistency between s 51A of the VCAT Act and s 53(5) of the FOI Act, in context of s 159 of the VCAT Act.
8. As stated above, s 51A says at any time in a proceeding for review of a decision, the Tribunal may invite the decisionmaker to reconsider the decision and any new decision becomes the decision under review in the proceeding.
9. However, Dr Chopra submits, s 159 of the VCAT Act says if a provision of the VCAT Act is inconsistent with a provision of an enabling enactment (here the FOI Act), the provision of the FOI Act prevails to the extent of the inconsistency.
10. Dr Chopra submits s 51A, which raises the possibility that a fresh decision to refuse his FOI request under s 25A(1) will become the decision under review in this proceeding, where s 53(5) of the FOI Act prevents the Department's 27 February refusal being the subject of this proceeding, creates such inconsistency. He submits s 159 operates to prevent an invitation being issued under s 25A.
11. I do not accept such inconsistency exists. An invitation being issued under s 51A creates the possibility of the making of a new decision which becomes the decision under review in this proceeding. It does not create the possibility of a previous decision becoming the decision under review. Also, s 25A provides a fresh avenue in the cause of resolving disputes between parties. That potential does not create inconsistency with a separate provision which provides another way forward in a proceeding.
12. I disagree with Dr Chopra's submission that s 51A(4) which says, as far as possible the Tribunal must ensure that a proceeding's priority is not affected by the making of an invitation under this section, unless the parties consent, is, where there is no consent, a bar to issuing an invitation to reconsider under the section. The consent spoken of in s 51A(4), appears to relate to consenting to the proceedings priority in fact being affected.
13. I disagree with Dr Chopra's submission that, with reference to comments by the Attorney General in the second reading speech (see above) and decisions of the State Administrative Tribunal in Western Australia as discussed in the Annotated VCAT Act with reference to s 51A, the intention of the provision is to assist in resolution of disputes only in the realm of planning and environment.
14. While that was apparently the catalyst for the enactment of s 51A, it has found far broader application in VCAT's review jurisdictions, often without controversy, indeed with consent of the parties, and without the need for published reasons.
15. Dr Chopra cited commentary in Victorian Administrative Law concerning the relationship between s 25A(1) and s 53, concerning the power to refuse to process an FOI request, once it is taken to be refused.[5]
16. Concerning VCAT's decision in Mildenhall v Department of Education (unreported, VCAT, Dr Lyons, 9 April 1999) the commentary says in part:

Importantly, the decision in Mildenhall is confined to a finding that the VCAT cannot make a decision under s 25A(1) on a deemed refusal application. The VCAT did not decide that an agency could not make an actual decision under s 25A(1) after a deemed refusal application had been lodged. This issue has not yet been determined. ...

1. All the decisions Dr Chopra cites with respect to this issue and all the decisions cited in Victorian Administrative Law were made before s 51A was enacted.
2. In my view, the broad discretion s 51A applies in a VCAT proceeding under the FOI Act, whether at the time of the invitation the decision is taken to be refused or the decision-maker has in fact made a decision.
3. I reject Dr Chopra's submission that the Department is attempting to tie the Tribunal's hands if not bully VCAT into inviting the making of a fresh decision under s 51A because there is an "absence of evidence" which, Dr Chopra submits, is due to the Departments self-created self-serving malicious capricious behaviour.
4. I disagree with that characterisation of the Department's behaviour, for which I do not see evidence in support.
5. All the above said, the only way forward is to crystallise the issue in dispute in real terms before the Tribunal and decide that issue on the basis of evidence and submissions from both parties.
6. To that end, I have invited the reconsideration under s 51A. However, given the long delays in moving this matter forward, I have also directed the Department to, on or before 22 June 2018, file and serve its response to the invitation, which I anticipate will be a fresh refusal under s 25A(1) - although that might not eventuate - and if it is such a refusal to also file and serve the evidence in support of its decision on which it will rely in this proceeding and accompanying submissions.
7. A directions hearing is scheduled in this proceeding on 27 June 2018 to make directions concerning the filing and serving of evidence and submissions from Dr Chopra and to fix a date for hearing.
8. The Department has this tight timeframe in which to consider the same FOI request which gave rise to its 27 February 2018 refusal. It will presumably have access to the basis on which it made its original refusal; it will not be starting 'from scratch'.
9. I now turn to Dr Chopra's various submissions that if I were to disagree with his submissions as to the law, the question of law should be referred to the Supreme Court of Victoria to be determined as a matter of law under s 96(2) of the VCAT Act. I decline to do so.
10. As Macnamara DP said in Urban Consolidation and Development Pty Ltd & Ors v Commissioner of State Revenue (Taxation) [2010] VCAT 2124 at [18], it is incumbent before exercising a power such as the one under s 96 for VCAT to consider all other options.
11. The more appropriate option, if Dr Chopra chooses to do so, is appeal to the Supreme Court of Victoria question of law under s 148 of the VCAT Act, on the basis of a decision on questions of law decided by this Tribunal in light of the material before the Tribunal.

[2] Including s 51 and s 80 of the VCAT which it has not been necessary to discuss in these reasons.

[3] At a 15 May 2018 directions hearing between the parties in two other proceedings under the FOI Act.

[5] The current language of the discussion concerns requests deemed refused, which will no doubt be updated to reflect legislative change at some point.