E Further directions made in chambers: 29 August 2018

1. On 29 August 2019, SM Dea made the orders she had foreshadowed on 18 June 2018 on the two procedural matters which had been decided adversely to Dr Chopra before the reconstitution application was made. By further orders, SM Dea fixed a further directions hearing for 16 October 2018. She directed the respondent to file the materials on which it sought to rely in respect of its foreshadowed summary dismissal application by 14 September 2018. She also directed the applicant to file any application for the appointment of a professional advocate under s 62(2), and the materials he wished to rely on in support of the application by 1 October 2018. The orders specified that the application by Dr Chopra for the appointment of a professional advocate was to be heard first, and that consideration as to what further procedural orders were necessary for the future conduct of the proceeding would be considered by the presiding member after that.

1. The second directions hearing: second application for reconstitution

1. At the commencement of the directions hearing, immediately after confirming my identity, Dr Chopra applied for reconstitution under s 108. He submitted the reconstitution application should be heard by the President, as the only presidential member senior to me. He declined to outline the basis on which reconstitution was sought, although he referred to matters which indicated he was aggrieved by the conduct and outcome of the two previous directions hearings over which I had presided in a separate proceeding he had brought against the respondent in the Human Rights Division of the Tribunal.[4] He declined an invitation to make an application for recusal in reliance on those matters, or to consider an application for reconstitution only in the event a recusal application was unsuccessful. When the question of the availability of the President to hear the application that day was canvassed, Dr Chopra said he would not be ready to present his arguments in relation to reconstitution that day.
2. Section 108 is an unusual provision, which has the potential to be misused. It clearly has utility if there is a need to reconstitute because a presiding member becomes ill or unavailable in the course of the hearing, or where a member has recused themselves. However, used in circumstances where an application for recusal on the ground of actual or apprehended bias could be made but has not, or as an attempt to reargue a matter following an outcome other than that desired by the applicant, it significantly disrupts the orderly and timely progress of matters before the Tribunal. It leads to delay, fragmentation, revisiting of matters already argued and decided, unnecessary expense and unnecessary allocation of additional member resources. It should not be used as a means to avoid a hearing before particular members, or as a de facto rehearing or appeal against an unfavourable decision. In another matter involving Dr Chopra where he had applied for reconstitution, Quigley P observed Dr Chopra identified a long list of members he considered unacceptable and inappropriate to hear his matters based on his past dealings with them.[5]

1. Consideration of making a referral of a question of law to the Supreme Court, instead of pursuing the reconstitution application

1. This reconstitution application, like the first one in this proceeding, was made in respect of directions, in advance of any consideration of the merits of the issue in dispute between the parties. I was only too conscious that this second reconstitution application would further delay the resolution of the substantive issue between the parties.
2. At the heart of the substantive dispute between the parties in respect of this application for review was the question of the validity of the request. If there was no valid request, there was a live issue as to whether, as a question of law, there could be a deemed refusal which would enliven the review jurisdiction of the Tribunal.
3. As I have previously noted, Dr Chopra had indicated that he would advance again the argument which he had unsuccessfully advanced before DP Proctor in Chopra v DET. He had earlier foreshadowed an application for referral of a question of law in relation to the interpretation of s 17(2) to a judicial member of the Tribunal under s 107 of the VCAT Act.
4. Those matters, as well as my concern about the additional cost to the Tribunal and the respondent and the inevitable delay in the hearing of the substantive application, led me to request submissions from the parties on whether I should exercise my powers under s 96(2) to refer a question of law to the Court of Appeal in respect of the interpretation of s 17(2) instead of fixing a timetable for filing of materials and the convening of a reconstitution hearing and otherwise adjourning the directions hearing.
5. Dr Chopra indicated his support for a referral to the Court of Appeal. Over his objections, I adjourned the directions hearing to 22 October to allow the respondent to obtain instructions.
6. By the time the directions hearing resumed on 22 October, the respondent had advised the Tribunal, having considered the matter, it did not consent to the proposed referral of a question of law to the Court of Appeal, and wished to pursue its summary dismissal application. Dr Chopra then made application himself for referral under s 96.
7. Although the respondent submitted the state of authority in respect of what constitutes an invalid request for the purposes of s 17(2), and whether the invalidity of one part of a request invalidated the whole request, was in its favour, in my view, it may be better put that the preponderance of authority is in favour of the respondent's contention. The two questions in respect of the interpretation of s 17(2) arising here have not been squarely determined by an appellate court. There is a real likelihood time and resources of the Tribunal will be diverted to re-litigating these questions until they are authoritatively resolved one way or the other.
8. A litigant who was unsuccessful at first instance, as Dr Chopra was in DP Proctor's decision in Chopra v DET, is not obliged to appeal if dissatisfied with the decision, or considers it to be legally incorrect. The structure of the FOI Act permits the making of successive applications for documents by an applicant, and successive applications to the Tribunal for review following a refusal. There are good reasons why citizens should not be prevented from making a further FOI application if their original request is deficient. There are good reasons too why the cost of making an application should not be a deterrent to citizens seeking access to information about themselves held by government. But the cost of processing FOI requests, and of responding to applications for review, can be considerable, and are borne by the community as a whole. The impact on the resources of the Tribunal of successive FOI applications by the same applicant, in respect of the same documents which have previously been the subject of an unsuccessful application for review, can be significant.
9. Referral of a question of law in respect of the proper interpretation of s 17(2), seemed to me to be a simple and clear path to settling the law in a manner that binds the Tribunal (and the litigants appearing before it) on this vexed issue once and for all.
10. On 22 October 2018, having further heard the parties, I ruled in favour of Dr Chopra's application under s 96 of the VCAT Act to refer a question of law "in relation to the correct interpretation of s 17 of the Freedom of Information Act 1982 (Vic)" to the Court of Appeal. I made procedural orders in accordance with Orders 5 and 6 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) (Miscellaneous Rules) for the preparation of the special case.
11. Although the referral is one covered by Order 6, the procedure to be followed is that prescribed in Order 5, which uses the terminology special case or case stated. For ease of reference, I have used the terms special case or case stated when I am referring to the Order 5 procedure.
12. At Dr Chopra's request, I fixed a time in excess of three months for the preparation of his draft of the special case, instead of the 15 days stipulated in the rules. Dr Chopra explained he needed that amount of time, by reason of the volume of work involved in preparing for and presenting the other matters he was also litigating before the Tribunal.
13. On 19 February, the respondent wrote to the Tribunal (copying in Dr Chopra), advising that the parties had been unable to agree on the form of the draft special case, and requested its counsel be heard, in accordance with r 5.05(2).
14. Under r 5.05(2), if the parties cannot agree on the draft special case, I, as the presiding member:

"may hear the parties or any of them or the counsel or solicitors as [it] think[s] fit and shall settle the draft and return it to the party who prepared the draft."

1. At my direction, the registry wrote to the parties asking that they provide the Tribunal with a copy of the draft special case and all correspondence passing between the parties in relation to it, so that I could consider it before making any further determination in the matter.
2. The applicant and respondent have both filed with the Tribunal the correspondence passing between them in relation to the draft special case following the delivery of the first draft by Dr Chopra on 28 January 2019. Ms Olynyk, solicitor for the respondent, has sworn an affidavit exhibiting what she has deposed is the entire correspondence passing between the parties. Dr Chopra has presented the materials as attachments to an email dated 21 February 2019.
3. They are the same, save in one respect. The final draft of the special case attached to Dr Chopra's email was different from the final version received by the respondent. I have considered all versions.

The communications between the parties in relation to the draft special case:

1. The first draft of the special case was sent to the respondent on 28 January 2019. It contained eight questions, and 10 sub questions. The questions themselves ran to three pages. They went beyond the interpretation of s 17(2).
2. The respondent replied on Friday, 8 February. It contended the draft was not in the form of a special case and objected to the questions which did not concern the interpretation of s 17(2). It provided a draft statement of agreed facts to be incorporated into the special case. The proposed agreed facts were confined to the original FOI application and the respondent's initial response of 14 March 2018.
3. By email sent after business hours that same day, Dr Chopra sought clarification of the respondent's reply. That was provided by email the following business day. Dr Chopra again replied promptly (the same day). He proposed adding to the draft statement of agreed facts, the additional correspondence passing between himself and the respondent before he filed his application for review, the s 49 material, the respondent's submissions in respect of the strike out application and much of the correspondence passing between himself and the respondent.
4. He put his position in relation to the proposed questions of law in these terms:

"Moving on to the fundamental disagreement between the parties which needs to be resolved as a question of law is as follows:

you say that a s 17(2) objection under the FOI Act can and must be heard under s 75 of the FOI Act. I say that that cannot be right and that a s 17(2) objection must be heard within the appellate processes of the FOI Act

The second important question of law for s 17 interpretation is whether one invalid item makes the entire FOI request invalid. Do you agree?

The rest of the questions of law merely follow from the above. The ones you take exception to, well, the onus is on you to point those out and explain why these are not proper."

1. Dr Chopra wrote again to the respondent two days later. In that email, he addressed at greater length his position on why the referral should include questions concerning whether the Tribunal should consider a s 17(2) argument at a full hearing, and not on a strike out application under s 75.
2. The respondent replied the following day. It maintained its position that the referral should be confined to s 17(2) questions. It provided a further draft agreed statement of facts. It added to the original draft the further correspondence passing between Dr Chopra and the respondent before Dr Chopra filed his application for review. It declined to add the remainder of the documents Dr Chopra wished to include on the basis they were not relevant to the referred questions of law. It also added a paragraph which asserted, as a fact, that the applicant had not provided such information concerning the documents sought in paragraph 4 as was reasonably necessary to enable the respondent to identify those documents. That is what I have identified earlier as the first disputed question of law, namely whether a request phrased in the terms of paragraph 4 contains such information as is reasonably necessary to enable a respondent to identify the documents sought.
3. The respondent also invited Dr Chopra to withdraw this proceeding and await the outcome of another of his FOI Act review applications against the respondent pending before the Tribunal. That proceeding, Z286/2018, the respondent submitted, was in practical terms identical to the request which is the subject of this application, except it did not include a request in terms of paragraph 4. The respondent provided draft consent orders withdrawing this application and indicated that it had instructions, if he did not consent to the withdrawal, to apply to relist the matter for further directions and place the correspondence between the parties before me.
4. Dr Chopra replied the following day. He rejected the respondent's proposal, and put further arguments in favour of his position that both the s 17(2) interpretation issue, and the issue of whether a s 17(2) argument could be dealt with on a summary dismissal application under s 75, should be referred to the Court of Appeal. He provided a draft consent order, extending the time for exchange of materials in relation to the draft special case.
5. Although the turnaround time for reply to correspondence passing between the parties since Dr Chopra provided his first draft of the special case on 28 January was very prompt, the time fixed by my orders of 22 October 2018 for agreeing or agreeing to disagree on the content of the draft special case had expired. Apart from the three months allowed to Dr Chopra for the initial preparation of the draft special case, all other times fixed by me at the directions hearing on 22 October 2018 were in accordance with Orders 5 and 6 of the Miscellaneous Rules.
6. By email of 19 February, the respondent advised it did not consider the parties could, if given more time, agree on the form of the draft special case, and declined the invitation to sign consent orders extending time.
7. That then ended the exchange between the parties in relation to the form of the draft special case.

1. I do not consider there is any utility in giving the parties further time to see if they can agree on the form of the draft. I am satisfied, having regard to the content of the extensive correspondence passing between the parties in relation to the draft special case, that each has had more than adequate opportunity to state their position in relation to the content of the draft special case. I am also satisfied that each party has availed themselves of the opportunity to fully state their position. I am more than comfortably satisfied that the parties will not, if allowed more time, be able to reach agreement on the content of the special case.
2. In her email to the Tribunal of 19 February, Ms Olynyk requested an opportunity for counsel for the respondent to be heard before I proceed to settle the draft special case. Despite that request, I do not consider it necessary, or in the interests of justice, to convene a further directions hearing. Too much time has already been spent by the parties, and the Tribunal on what was, to my mind, a simply stated issue of the interpretation of section 17(2).
3. I have already canvassed at some length the procedural history of the matter from the time of lodging the original request for documents, through to the filing of the application for review with the Tribunal and the interlocutory steps to today's impasse. I have noted the provisions of Orders 5 and 6, and their relationship to the timetable orders made on 22 October 2018. I have also had regard to s 98 of the VCAT Act and my obligation to afford procedural fairness to the parties.
4. Relevantly, s 98 provides:

(1) the tribunal -

• (a) is bound by the rules of natural justice;
• (b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
• (c) may inform itself on any matter as it sees fit;
• (d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this act and the enabling enactment and a proper consideration of the matters before it permit.

(2) ...

(3) subject to this Act the regulations and the rules, the Tribunal may regulate its own procedure.

1. In Roberts v Harkness [2018] VSCA 215 at [46 - 50], the Court of Appeal set out in some detail the fundamental obligation of every court and tribunal to ensure a fair hearing for the parties before it. At the commencement of the hearing on 16 October, I provided a copy of that decision, and the decision of the Court of Appeal in Doughty-Cowell v Kyriazis [2018] VSCA 216, which was handed down at the same time, to Dr Chopra and Ms Olynyk, and stood the hearing down to give them time to read them.
2. My primary purpose at that stage was to ensure Dr Chopra was aware of these decisions, which had been delivered less than two months before the hearing before me and which represented a recent, and binding, restatement of the content of the obligation to afford procedural fairness and assist a self-represented litigant.
3. In Doughty-Cowell v Kyriazis at [63], the Court of Appeal set out a convenient summary of those fundamental principles:

(1) Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(2) The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.

(3) What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:

• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision; and
• the competing demands of the time and resources of the Court.

(4) The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.

(5) The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:

The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant's verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant's case.

1. As can be seen, the Court of Appeal made it clear that the general statement of principle applies to all litigants, whether represented or self-represented. I have applied the principles set out in sub-paragraphs 1 - 4 quoted above in deciding it was not necessary to convene a hearing and allow further oral argument by the respondent as to the content of the special case.
2. I have applied all 5 sub-paragraphs in deciding the obligation to accord procedural fairness to Dr Chopra does not require me to offer him a further opportunity to make oral submissions in respect of the content of the special case. In any event, I note Dr Chopra opposed the convening of a further oral hearing.
3. I have reviewed my notes of the hearings of 16 and 22 October 2018. I am in no doubt, consistently with the terms of the orders I made on 22 October, that the referral then contemplated was in respect of the correct interpretation of s 17(2). That is, whether a request in terms of paragraph 4 is a valid request, and if not, whether it is severable, or renders the whole of the request invalid. Although Dr Chopra had indicated at the hearing his opposition to the respondent's foreshadowed application for summary dismissal, that is a separate question. It was not suggested by either party there was a conflict in authority concerning when a s 75 hearing was appropriate which warranted resolution by referral of a question of law to the Court of Appeal.
4. In the circumstances I propose, pursuant to r 5.05(2),[6] having reviewed the materials passing between the parties in relation to the draft special case, to settle the draft special case and make further procedural orders in chambers.[7]
5. As required by r 5.05(2), the settled draft will be returned to Dr Chopra, who must prepare "a sufficient number" of copies of the settled draft.
6. By r 5.06, one copy of the settled draft must be signed by the parties. All copies of the settled draft, including the copy signed by the parties, must be delivered to the Principal Registrar within seven days after the draft has been settled.
7. By r 5.07, the sufficient number of copies is seven.
8. In the event that Dr Chopra does not provide the seven copies of the draft, as settled by me, including the copy signed by the parties to the Registrar by 4:00pm on 27 March 2019, the application to refer the questions of law will be taken to have been abandoned, and the matter will be relisted for further directions as to the future conduct of the proceeding.
9. Dr Chopra applied for costs for the hearing of 22 October 2018. The application is refused, for the following reasons: it was reasonable to adjourn the matter to permit the respondent to consider my suggestion of a referral of a question of law, before providing instructions to Ms Olynyk. I urged Dr Chopra to take advantage of the time for him, too, to consider his position. And, as it turned out, he put a new position to the Tribunal on 22 October. Instead of acquiescing to the Tribunal, of its own motion, referring questions of law to the Court of Appeal, he made application as the moving party for the referral.

SETTLED BY JUDGE HAMPEL, VICE PRESIDENT ON 18 MARCH 2019**

1. Facts necessary to enable the Court to give proper consideration to the reserved questions of law

1. By email dated 20 February 2018 (Annexure A), the applicant applied to the respondent for access to documents under the Freedom of Information Act 1982 (Vic) (the Request). Paragraph 4 of the Request was in these terms:

"all documents to and from Grovedale College mentioning me or concerning [me] from 1 October 2015 until the date of the search."

1. By letter dated 14 March 2018 (Annexure B), the respondent informed the applicant it considered the Request did not comply with s 17(2) of the FOI Act and was invalid. It offered him an opportunity to consult with it with a view to making a request in a form that complied with s 17(2).
2. Between 13 and 15 March 2018, there was an exchange of emails passing between the applicant and the acting FOI Manager of the respondent (Annexure C). In the final email of that exchange, the applicant advised he had consulted with the FOI officer allocated to his file, and that they had ended the conversation "agreeing to disagree". He concluded "the consultation is at an end. I consider the request is valid."
3. There was no further communication between the applicant and the respondent before 10 April 2014 when the applicant applied to the Tribunal under s 50 of the FOI Act for review, on the basis that his Request had been deemed to have been refused by the operation of s 53 of the FOI Act.
4. By orders made on 22 October 2018, the Tribunal granted the applicant's application to refer questions of law to the Court of Appeal under s 96 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) in relation to the correct interpretation of s 17 of the Freedom of Information Act 1982 (Vic).
5. On 2 November 2018, the President of the Tribunal consented to the referral of questions of law concerning the interpretation of s 17(2) of the FOI Act, in accordance with s 96(1), to the Court of Appeal.

1. Does a request in the terms of paragraph 4 of the applicant's Request provide such information concerning the document as is reasonably necessary to enable a responsible officer of the respondent to identify the document, and so, conform with s 17(2) of the FOI Act?
2. If paragraph 4 of the request does not conform with s 17(2) of the FOI Act, is the whole of the request invalid?

1. Annexure A: email dated 20 February 2018 containing the applicant's request for access to documents under the FOI Act.
2. Annexure B: letter dated 14 March 2018 from the respondent to the applicant.
3. Annexure C: email chain passing between the applicant and the respondent between 13 and 15 March 2018.
4. Annexure D: applicant's application for review made to the Tribunal on 10 April 2018 (Z274/2018).

1. Orders of the Tribunal in Z274/2018 dated 22 October 2018.
2. Reasons and Orders of the Tribunal in Z274/2018 dated 18 March 2019.

1. Consent of the President to the referral under s 96

By Notice dated 2 November 2018, the President consented to the referral of questions of law concerning the interpretation of s 17(2) of the FOI Act.

[1] Primarily, DTF v Kelly [2001] VSCA 246; (2001) 4 VR 595.

[2] Dr Chopra v Department of Education and Training (Review and Regulation) [2018] VCAT 808.

[3] Primarily Penhalluriack v Department of Labour and Industry, unreported decision of His Honour Judge Lazarus, County Court, 19 December 1983.

[4] Chopra v Department of Education and Training [2016] VCAT 1452 (VCAT reference H10 / 2016).

[5] Chopra v Department of Education (Review and Regulation) [2019] VCAT 174.

[6] Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (which has replaced the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008).

[7] Although, as I have noted, Order 6 requires the parties and the Tribunal to follow the special case or case stated procedure in Order 5 when referring a question of law, this is a referral of a question of law, and the heading of the settled document reflects this.