1. As indicated above, this application is only concerned with Item 4 of the FOI request, which included 9 items altogether, together with a set of instructions labelled A to F.
2. Item 4 of the FOI request provides:

All documents to and from Grovedale College mentioning me or concerning me from 1 October 2015 till the date of the search which should be specified.

1. For ease of reference, sections of the FOI Act and the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), referred to in these Reasons, are set out below.
2. It is appropriate at the outset to refer to the objects of the FOI Act which underpin the interpretation of its provisions and its intended administration.
3. Section 3 of the FOI Act provides:

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

(1) Ministers and agencies shall administer this Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.

1. Section 5 of the FOI Act includes the following definitions:

request means a request made in accordance with section 17;

document includes, in addition to a document in writing -

(c) any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; and

(d) any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(e) any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and

(f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and

(g) any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and

(h) any part of a copy, reproduction or duplicate referred to in paragraph (g) -

but does not include such library material as is maintained for reference purposes;

document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency;

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

1. Section 13 of the FOI Act deals with a person's right of access:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

1. Section 17 of the FOI Act deals with the making of an FOI request and the assistance required to be offered and given by an agency:

(1) A person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document.

(2) A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.

(2B) An application fee may be waived or reduced, whether or not the fee has been paid, if the payment of the fee would cause hardship to the applicant.

(3) It is the duty of an agency or Minister, as the case may be, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate agency or Minister, to make a request in a manner that complies with this section or to direct a request to the appropriate agency or Minister.

(4) Where a request in writing is made to an agency or Minister for access to a document, the agency or Minister, as the case may be, shall not refuse to comply with the request on the ground that the request does not comply with subsection (2), without first giving the applicant a reasonable opportunity of consultation with the agency with a view to the making of a request in a form that does comply with that subsection.

1. Under s 50(1)(ea) of the FOI Act, an applicant may apply to the Tribunal to review a decision of an agency refusing to grant access to a document.
2. Section 50(4) of the FOI Act provides that:

50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), section 31A, or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. Section 51(1) and (2) of the VCAT Act provides:

51(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. Section 51A of the VCAT Act gives authority to the Tribunal to invite the decision maker to reconsider its decision:

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

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

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

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

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

1. There are certain principles which have emerged from caselaw which remain relevant to the current application. I draw some of these from a useful summary recently given by Senior Member Dea in Proudfoot v Victoria University[1]:
   • Whether the information in the request concerning the document is adequate depends on the particular case and whether the applicant has provided a sufficiently precise description of the documents sought to permit the respondent, as a matter of practicality, to locate the document;[2]
   • It is not the task of the responsible officer to try to tease out from such a request what the applicant might be getting at;[3]

• In almost all cases, it will be possible to arrive at some type of reasonable interpretation of an FOI request;[4]
• When considering a request, the relevant agency must use the knowledge of its organisation in interpreting the request. That is appropriate given many FOI Act applicants may not know the correct terms in which to frame their requests. That should not mean that their requests are read narrowly. Rather, they should be interpreted fairly with an eye to what the person making a particular request is trying to describe regardless of the terms used; [5]
• It must be borne in mind that an applicant for access to documents under the FOI Act whether they are a politician, a community activist or an ordinary private citizen, is not possessed of full knowledge of what the relevant government agency is or is not doing in a particular field, what it does or does not do. A legitimate purpose for requesting documents under the FOI Act is to gain answers to these kinds of questions. The process of obtaining documents under the FOI Act will be greatly 'hobbled' if to make a valid request an applicant was required to demonstrate the sort of knowledge that only access to the government agencies records would give them. 'This would be to create the proverbial catch 22.[6]

1. To the above list can be added comments to the following effect:
   • Whilst the legislation does not apply "a broad-brush technique" it does not advance "an overly technical or legalistic approach"; [7]
   • The agency must use the knowledge of its organisation in interpreting the request. That should not mean that requests are read narrowly; they should be interpreted fairly with an eye to what the person making a particular request is trying to describe regardless of the terms used;[8] and
   • Requests must be specific documents or groups of documents, not for every document in a broad category.[9]
2. I will return to these principles below.

1. Previously, the Respondent had applied to the Tribunal under s 75 of the VCAT Act to dismiss the application for review on the basis that the Tribunal lacked jurisdiction in circumstances where an FOI request or part of such request was invalid. In part, the Respondent relied upon a previous decision of the Tribunal[10] which found an equivalent item to be invalid in a previous request made by the Applicant (the Z45/2018 request).
2. In the current proceeding, the Tribunal referred two questions of law to the Court of Appeal (COA), which had particular reference to Item 4.
3. In December 2019, the COA dismissed the Tribunal's referral, but chose to make comments obiter dicta, in relation to the use of the summary dismissal procedure under s 75 of the VCAT Act:[11]

[134] ... A provision similar to s 75 is typically found in the enabling Acts of most courts and tribunals. Its purpose is to enable the court or tribunal to protect the integrity of its processes by expeditiously disposing of a proceeding without a full hearing on the merits where the proceeding is frivolous, vexatious, an abuse of process, misconceived or lacking in substance. The expressions "frivolous", "vexatious" and "abuse of process" have well-established meanings which do not require exposition in the present case. The expressions "misconceived" and "lacking in substance", in essence, refer to proceedings in respect of which it is readily apparent that they are hopeless and bound to fail.

1. The above comments are uncontroversial. However, comments which follow potentially constitute a marked departure from previous long held authority:[12]

[135] We do not agree with prior decisions of VCAT which have held that, where an application for review is based on an actual or deemed refusal of access in respect of a request which does not comply with s 17(2) of the FOI Act, VCAT lacks jurisdiction. Those decisions should not be followed.

[136] The correct analysis is that the filing of an application for review confers jurisdiction on VCAT to review an actual or deemed refusal of a request for access on the basis of non-compliance with s 17(2) and decide for itself whether the request complies with s 17(2). As discussed at [118]-[120] above, s 50(4) of the FOI Act and ss 51 and 51A of the VCAT Act have the effect that a request can be modified to overcome any non-compliance and that the VCAT proceeding can be conducted on the basis of the modified request. If a request is not modified and VCAT finds that it does not comply with s 17(2), VCAT has jurisdiction to affirm the agency's decision under s 51(2) of the VCAT Act and make a consequential order dismissing the application.

[137] It follows that it would usually be inappropriate for an agency to seek an order under s 75(1) of the VCAT Act in respect of an application for review of an actual or deemed decision refusing access to documents on the basis of non-compliance with s 17(2) of the FOI Act. An order under s 75(1) can only be made, and should only be sought, where the application is frivolous, vexatious or an abuse of process; or where it is misconceived or lacking in substance in the sense that it is readily apparent that it is hopeless and bound to fail.

1. There are two important qualifications to note from the above comments:
   1. First, the COA was not saying that the s 75 route could never be available, rather, that it was 'usually inappropriate' and an application under s 75(1) should only be sought and an order made 'where the application is frivolous, vexatious or an abuse of process; or where it is misconceived or lacking in substance in the sense that it is readily apparent that it is hopeless and bound to fail;'
   2. Secondly, the COA's rejection of the s 75 route, in cases where an agency had alleged non-compliance with s 17(2) of the FOI Act, did not of itself either overturn such prior decisions or make any comment about the merit of such decisions per se. None of these decisions had been previously appealed and were not the subject of appeal before the COA in this instance.
2. Accordingly, for the purpose of this application, it is appropriate to refer to the findings of SM Proctor in the Chopra Z45/2018 decision which concerned the Z45/2018 request.[13] I will so do below.
3. The Applicant also made certain submissions relying upon the COA's earlier decision in Secretary, Department of Treasury and Finance v Kelly,[14] which the COA rejected as follows:[15]

[138] Contrary to Dr Chopra's submission, this Court's decision in Kelly does not provide any assistance. In that case, the applicant made an application to VCAT for review of a deemed decision refusing access under s 17(2) of the FOI Act ('s 17(2) application') as well as an application for review of an actual decision refusing access under s 25A(1) ('s 25A(1) application'). VCAT decided to hear and determine the s 25A(1) application prior to dealing with the s 17(2) application. As the applicant sought leave to appeal to this Court in respect of VCAT's decision on the s 25A(1) application prior to VCAT making a decision on the s 17(2) application, this Court dealt only with s 25A(1).

[139] In our opinion, no inference can be drawn from the fact that, in Kelly, this Court did not make any observations in relation to VCAT's deferral of the s 17(2) application. In particular, we do not accept Dr Chopra's contention that the absence of such observations indicates that the Court was satisfied that non-compliance with s 17(2) does not deprive VCAT of jurisdiction to review the merits of an agency's decision to rely on s 17(2). The Court made no observations on that issue because it was not before it. Further, VCAT's subsequent decision in respect of the s 17(2) application does not contain any observations that are of any assistance in the present case.

1. The Applicant had relied upon similar submissions in the Z45/2018 case which were similarly rejected by SM Proctor.[16]
2. In McKenzie v VCAT & Anor,[17] Cavanough J makes an incisive analysis of the relevant provisions under the FOI Act and the VCAT Act and the relevance and accuracy of comments made by the COA above.
3. I propose to refer to the decision of Cavanough J in some detail.
4. On 11 June 2020, Cavanough J heard an application by a self-represented prisoner for judicial review of a decision of the Tribunal made in March 2019. Cavanough J made an oral order dismissing the application with costs, giving oral reasons on an ex tempore basis. Cavanough J indicated that he would give written reasons subsequently. Before any order had been reduced to writing or authenticated, Cavanough J became aware of the above judgment of the COA handed down in December 2019. Prior to delivering written reasons, Cavanough J took the opportunity to consider whether the reasoning of the COA warranted a reconsideration of his decision. Cavanough J commented as follows:[18]

[2] ... Like the present case, Chopra [referring to the COA decision above] related to the Freedom of Information Act 1982 (Vic) ('FOI Act'). In both cases, the moving party had made a purported request or requests for access to documents. In both cases, the relevant government agency's response was to the effect that the 'request' was, or that the 'requests' were, invalid for non-compliance with the requirements of s 17 of the FOI Act. In Chopra, the claimed defect was a lack of the clarity required by s 17(2) of the FOI Act. In the present case, the claimed defect was non-payment of the application fee required by s 17(2A) of the FOI Act, in circumstances where the fee had not been waived. In both cases, the dispute found its way to VCAT. In both cases it was said by the respondent agency, among other things, that VCAT had no jurisdiction because of the alleged invalidity or ineffectiveness of the 'request' at the time said to be relevant for the creation of any jurisdiction on the part of VCAT. In the present case, VCAT acceded to an application made by the relevant agency under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') for the summary dismissal of the VCAT proceeding as misconceived, on the basis that VCAT had no jurisdiction. As I have mentioned, VCAT's decision, being the decision which, at least in form, the plaintiff seeks to challenge in this case, was given in March 2019, some nine months before the decision of the Court of Appeal in Chopra. In Chopra, the Court of Appeal made observations, by way of obiter dicta, to the effect that, notwithstanding non-compliance with s 17(2) of the FOI Act as at the relevant time, VCAT does have jurisdiction, pursuant to certain statutory provisions, to proceed, and has power to make a substantive decision by way of administrative review; and that VCAT did have such jurisdiction and power in the case in question. Those observations expressly departed from a long line of earlier VCAT cases in which VCAT had dismissed proceedings for want of jurisdiction on the basis that, at the relevant time, the 'request' had not complied with the requirements of s 17(2) as to form. The Court of Appeal also made observations (again, by way of obiter dicta) to the effect that, generally speaking, an application to terminate a VCAT proceeding relating to the FOI Act on the basis of prior non-compliance with s 17(2) of the FOI Act should not be made by means of an application for summary dismissal under s 75 of the VCAT Act. Those sets of observations raise questions as to whether VCAT was correct to hold that it had no jurisdiction in the present case and, in any event, whether the application under s 75 of the VCAT Act was the correct vehicle for testing the matter. In my view, those questions are raised notwithstanding that the claimed source of invalidity and of absence of jurisdiction in the present case was, principally, s 17(2A), rather than s 17(2), of the FOI Act.

1. Cavanough J then explained why it was appropriate to reconsider his decision in light of the COA's decision, without requiring further input from the parties. Cavanough J then made the following observations:[19]

[4] ... I have ultimately come to the view that, whether or not Chopra represents good law and is applicable to this case, there is no prospect that either of the active parties could, on any basis, achieve a better final result for themselves than the result embodied in my order of 11 June 2020.

[6] Even if the s 75 application was the wrong vehicle to test whether VCAT had jurisdiction in this case, and even if VCAT was wrong to conclude that it did not have (substantive) jurisdiction, nevertheless it would remain appropriate to dismiss this proceeding. The plaintiff would suffer no, or no substantial, injustice on that account. As will be shown, his real or main complaint about VCAT's decision was and remains misconceived in law and in fact. In truth, the plaintiff's purported FOI requests were not required to be processed unless and until the application fees were paid or waived. In addition, as will be seen, there are other matters, including several procedural and discretionary factors, that reinforce the appropriateness of dismissing the present proceeding, with costs.

[8] ... In my oral reasons, I had expressly accepted the Secretary's submission that VCAT was correct to hold, by reference to and in accordance with the prior VCAT cases, that VCAT has no (substantive) jurisdiction where the relevant FOI request was invalid at the time of the putative original decision (or deemed decision) of the Minister or agency claimed to be the foundation of the application to VCAT for review...

[9] ... in my view, with respect, the obiter dicta in Chopra relating to VCAT's jurisdiction are clearly not in conformity with the relevant statutory provisions and should not be followed. A[s] to the s 75 point, in my respectful opinion, the relevant obiter dicta in Chopra also call for further comment.

[10] Chopra came to the Court of Appeal by way of a purported referral of a question of law under s 96 of the VCAT Act. The Court of Appeal dismissed the referral as invalid. It held that it had no jurisdiction to answer the two purported questions of law that had been referred. Nevertheless, it made the observations (that are plainly obiter dicta) to which I have referred relating to the jurisdiction of VCAT and to the s 75 point. Strictly speaking, those observations were made by the Court of Appeal in (what would have been) the exercise of its original jurisdiction, not its appellate jurisdiction. Even if the observations had been made in the exercise of appellate jurisdiction, and even if they should be regarded as 'seriously considered dicta', they would not be binding.

[11] Although I am free to depart from Chopra, there remains a question whether, in all the circumstances, I should do so. As a trial judge, I should give significant weight to any dicta of the Court of Appeal, especially if they amount to 'seriously considered dicta'. However, as I will explain in the relevant sections of this judgment, VCAT's relevant pre-Chopra jurisdictional decisions (including its decision in this case) are not only fully in line with the relevant statutory provisions, they accord with numerous other decisions of Victorian, federal and interstate courts and tribunals, including the High Court, in comparable cases. Further, the issues are important, as the Court of Appeal itself said in Chopra. The obiter dicta on jurisdiction in Chopra have the potential to apply beyond the field of freedom of information, a field which is important enough in itself in the work of VCAT. In those circumstances, I consider that it is appropriate for me to express my view on the jurisdictional point, and that it is desirable that I should explain it in some detail. As to s 75 of the VCAT Act, it will be seen that I would respectfully accept that an application under s 75 may not be the most appropriate vehicle for raising a jurisdictional objection, at least if it is not clear-cut. However, as I will also explain, it seems to me that any serious objection that is truly jurisdictional in nature should be raised and dealt with as a preliminary matter. Generally, there should be some form of separate hearing and final determination of the jurisdictional point. In effect, that is what occurred in the present case.

[12] It has necessarily taken me some time to consider Chopra and its potential implications_,_ and to produce these revised reasons for judgment. ...

1. After dealing with the factual circumstances of the case before him, Cavanough J addressed the COA comments obiter dicta as follows:[20]

VCAT was correct to conclude that it had no relevant jurisdiction

• [106] If not for Chopra, this section of this judgment, relating to VCAT's jurisdiction, would have been quite short. It would have said that VCAT was clearly correct to follow its abovementioned earlier decisions relating to jurisdiction. According to those decisions, it is fatal to VCAT's jurisdiction if the relevant 'request' for access was invalid at the time of any putative decision or deemed decision of the agency or Minister that the requester could otherwise have relied upon to found, directly or indirectly, VCAT's jurisdiction. In the present case, as I have already held, there was no legal error in VCAT's determination that the plaintiff's FOI 'requests' were invalid (for non-compliance with s 17(2A) and (2B) of the FOI Act) when they were made. In due course, I will further hold that there was no legal error by VCAT insofar as it (implicitly) proceeded on the basis that the plaintiff's 'requests' did not become valid and effective (by means of the waiver ultimately granted) until it was too late, in this case, for VCAT to have jurisdiction.
• [107] The correctness of determining the jurisdictional aspect of this case in that way was thrown into question by Chopra, and particularly so if, as I consider, the reasoning in Chopra relating to VCAT's jurisdiction should be seen as potentially applicable to cases arising under s 17(2A) and (2B) of the FOI Act as well as to cases arising under s 17(2), and indeed as having implications for VCAT's jurisdiction generally, well beyond the field of FOI.
• [108] In Chopra, the Court of Appeal said, in substance, that the problem of a 'request' that was or might be invalid because it did not or might not comply with s 17(2) of the FOI Act could be overcome, after the commencement of a VCAT proceeding, by VCAT exercising powers under s 50(4) of the FOI Act and ss 51 and 51A of the VCAT Act to -

(a) give directions to facilitate the requester amending the 'request', if the requester so chose, to a form that may comply with s 17(2); and

(b) whether or not the requester chose to amend, to rule upon whether the original or amended request, as the case may be, did comply with s 17(2) and, if satisfied that it did, to proceed to hear and determine any other outstanding issues between the parties relating to the 'request'.

[109] Chopra surely implies that the same statutory provisions would empower VCAT to -

(a) give directions to facilitate the requester belatedly paying the application fee, or the agency or Minister belatedly waiving the application fee; and

(b) if the fee were belatedly paid or waived, proceed to hear and determine any other outstanding issues between the parties relating to the 'request'.

[110] However, in my opinion, the powers conferred on VCAT by s 50(4) of the FOI Act and by ss 51 and 51A of the VCAT Act cannot be exercised so as to create a jurisdiction for VCAT. They become available only if VCAT already has jurisdiction. To use a phrase sometimes used in this context, a stream cannot rise higher than its source. VCAT only has such jurisdiction as it is given by certain other provisions of the relevant legislation. Further, its only relevant jurisdiction is to review certain specified 'decisions' made or deemed to have been made by others. It is not a 'primary administrator', to use another phrase sometimes employed in this context. It follows, in my view, that the relevant observations in Chopra should not be followed and that, therefore, those observations should not deter me from arriving at the conclusion at which I would otherwise have arrived in this case in relation to VCAT's jurisdiction.

1. Cavanough J then focuses on the 'fundamental features of VCAT's history and role'. The Tribunal is entirely a creature of statute. Upon its establishment, the Tribunal absorbed the functions of many pre-existing tribunals, including the Administrative Appeals Tribunal of Victoria ('the AATV') which had been modelled very closely on the Administrative Appeals Tribunal of the Commonwealth ('the AATC'). Accordingly, the Federal jurisprudence continued to have considerable influence on the Tribunal in relation to issues concerning the jurisdiction, powers and procedures of VCAT, especially in its 'review jurisdiction'.[21] Cavanough J then analyses ss 51 and 51A of the VCAT Act together with s 50(4) of the FOI Act, which underpinned the COA's reasoning. Cavanough J then reaches a different interpretation to that expressed by the COA above, finding support in decisions of the High Court and earlier decisions of the COA:[22]

[116] ... In my view, the provisions of s 51(1) and (2) of the VCAT Act assume jurisdiction. They do not create it...

• [118] The High Court has since made much the same point. In Shi v Migration Agents Registration Authority, Kiefel J (as her Honour the Chief Justice then was) said:

The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review.

As Sheppard J said in Secretary to the Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

In Kozanoglu v Pharmacy Board of Australia, the Court of Appeal cited the judgments in Shi, including that of Kiefel J, for a related proposition concerning the extent of VCAT's ability to have regard to events occurring after the decision under review. In Dawson v Greyhound Racing Victoria, T Forrest J (as Cavanough J then was) referred to another a closely related statement made by Kiefel J in Shi. Cavanough J observed that that statement had 'repeatedly been cited' for the proposition that the AATC must address the same question as the primary decision maker. Cavanough J then applied the same statement to the matter before him, which involved a challenge to a VCAT decision.

• [119] These same considerations apply equally to s 50(4) of the FOI Act, which commences: 'On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request ...'.
• [120] Likewise, s 51A of the VCAT Act applies (only) 'in a proceeding for review of a decision'. Thus Richards J, in another case relating to Dr Chopra, but decided prior to the judgment of the Court of Appeal in Chopra, was surely correct to say:

Section 51A of the VCAT Act operates in aid of the Tribunal's review jurisdiction. It complements the powers of the Tribunal under Pt VI, Div 3 of the FOI Act, by providing a mechanism for a decision-maker to reconsider its decision.

[121] As this statement of Richards J indicates, the relevant 'enabling enactment' for present purposes is Part VI, Division 3 of the FOI Act, in that that Division provides for VCAT to have jurisdiction to review certain decisions made or deemed to have been made under the FOI Act. Not all decisions made or deemed to have been made under the FOI Act are reviewable by VCAT. The FOI Act is carefully drawn so as to distinguish between decisions (or deemed decisions) that are, and decisions (or deemed decisions) that are not, reviewable by VCAT. Some specified decisions (or deemed decisions) are reviewable by, or otherwise challengeable before, some other person or body, such as the Information Commissioner, but not VCAT. An example, pertinent to this case, is 'a decision of an agency or Minister not to waive or reduce an application fee under section 17, whether or not the fee has already been paid by the applicant'. Paragraph 49A(1)(c) of the FOI Act makes such a decision reviewable by the Information Commissioner. But such a decision is not (at least in terms) included in the list of decisions which, under the FOI Act, are reviewable by VCAT.

1. On further analyses, Cavanough J concludes that:[23]

[122] Under the VCAT Act and the FOI Act, jurisdiction at VCAT in FOI matters is available only in relation to a 'decision' or deemed 'decision'...[which] must fall within one or other of the classes specified in s 50(1) of the FOI Act, ... each of them [the classes] is, and each of their predecessors has always been, expressly tied, directly or indirectly, to the composite notion of 'a decision refusing to grant access to a document in accordance with a request'.

• [125] Before Chopra, it was always understood that the word 'request' in these jurisdictional provisions, and in their predecessors, carried the same meaning as the word 'request' does in the abovementioned entitlement provisions of the FOI Act, ie the provisions relating to the right to obtain access and the obligation to grant access. This was consistent with 'the habit of a legal draftsman to eschew synonyms' and to 'use the same words throughout the document to express the same thing or concept'. The relevant meaning was understood to be the defined meaning of 'request' as set out in s 5 of the FOI Act, namely 'a request made in accordance with section 17'.
• [126] Hence, the traditional understanding of the jurisdictional provisions has been that there cannot be an actual or deemed decision 'refusing to grant access to a document in accordance with a request' if there is no 'request', that is to say, no compliant or valid request, in existence at the time of the putative original decision or deemed decision of the agency or Minister.

1. Cavanough J cites further support from the decisions of Vice President Judge IJK Ross (as Justice Ross then was) in McIntosh v Department of Justice (General)[24] and Senior Member McKenzie in Kyriazis v Department of Justice (General).[25] Cavanough J then identifies an inexplicable result:[26]

[129] The abovementioned statement of the Court of Appeal in Chopra that a request which does not comply with the requirements of s 17(2) 'is not a request within the meaning of the FOI Act' seems to be consistent not only with the traditional understanding of the entitlement provisions of the FOI Act, but also with the traditional understanding of the jurisdictional provisions. But that is not how that case went in the end.

• [130] In Chopra, Dr Chopra submitted to the Department of Education and Training a purported FOI request for access to documents in nine categories. The Department responded by letter that the category set out in paragraph 4 of the purported request was not in compliance with s 17(2) of the FOI Act in that it did not 'provide such information concerning the document(s) as is reasonably necessary to enable a responsible officer of the agency ... to identify the document(s)'. The Department also took the position that the fourth category could not be severed from the others and that, therefore, the whole request, as it then stood, was invalid. In its letter, the Department invited Dr Chopra, pursuant to ss 17(3) and (4) of the FOI Act, to consult with it for the purpose of making a request in a form that complied with s 17(2). However, Dr Chopra insisted that his request complied with s 17(2), and he declined to amend it.
• [131] About six weeks after first submitting his 'request', Dr Chopra applied to VCAT, without legal representation, for review of what he described as a decision by the Department 'refusing to grant access to a document in accordance with a request'. He relied on s 53 of the FOI Act. As mentioned above, s 53 provides, so far as presently relevant, that where a 'request' has been made to an agency and the time period provided in s 21(1) of the FOI Act has elapsed and notice of a decision on the 'request' has not been received by the applicant, then, for the purposes of making an application to VCAT under s 50(1)(ea) of the FOI Act, the agency is taken to have made 'a decision refusing to grant access to the document in accordance with the request'.
• [132] Subsequently, the Department applied to VCAT for an order under s 75(1) of the VCAT Act that Dr Chopra's application be summarily dismissed on the ground that VCAT lacked jurisdiction. The Department contended that there was no deemed decision to refuse to grant access in respect of the 'invalid' request; and that, in the absence of a decision which was capable of being the subject of an application for review to VCAT, VCAT lacked jurisdiction.
• [133] At a directions hearing, a Vice President of VCAT made an order for the referral to the Court of Appeal, under s 96 of the VCAT Act, of two questions that were described as questions of law. Under s 96, a referral can only occur with the consent of the President of VCAT. The questions were settled by the Vice President in the following form:

(1) Does a request in 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?

When the matter came before the Court of Appeal, Dr Chopra was still not legally represented. The Court of Appeal decided that the President of VCAT had not consented to the referral of the questions in the form in which they had been settled by the Vice President, and that, as a result, the Court of Appeal had no jurisdiction to determine the questions. The Court also decided that, if it was wrong in its conclusion regarding the Court's jurisdiction, still it would be unable to answer question 1 on the material before the Court, because the agreed statement of facts did not set out essential facts. The Court said it would reformulate question 2 as follows:

If an item of a request for access to documents that contains multiple items does not comply with s 17(2) of the FOI Act when the request is made, will the whole request necessarily be permanently invalid?'.

The Court gave the following answer to the reformulated question 2:

No, because the severance principle may in certain circumstances overcome an initial invalidity.

[134] The Department's use of the s 75 procedure was not the subject of the purported referral to the Court of Appeal. However, the Court described it as a 'key issue' in the VCAT proceeding; as the 'catalyst' for the referral; and as raising an 'important matter of principle'. On that basis, the Court addressed it and concluded that:

It will usually be inappropriate to adopt the summary judgment procedure in respect of an application for review of an actual or deemed decision refusing access to documents on the basis of non-compliance with s 17(2) of the FOI Act.

[135] As just mentioned, even apart from its lack of jurisdiction due to the absence of consent on the part of the President of VCAT, the Court of Appeal declined to answer question 1 of the purported referral on the basis that 'essential facts' were missing. In my respectful opinion, there was a more fundamental reason to decline to answer question 1. The question carried the assumption that, at least ultimately, it is for a court to determine, objectively, whether a purported FOI request complies with s 17(2). The Court of Appeal was apparently prepared to accept the correctness of that assumption, although it did query whether question 1 was a question of law for the purposes of s 96 of the FOI Act. But, in my view, s 17(2) does not involve an objective test. It speaks of such information as is reasonably necessary to enable a responsible officer of the agency or the Minister, as the case may be, to identify the requested document. So the standard procedures, and the state of the files, of the relevant agency or Minister will often be significant. Moreover, s 17(2) must be read in combination with s 13 of the FOI Act, which provides for a (legally enforceable) right to obtain access to documents, but only 'in accordance with this Act', and must also be read in combination with s 26, which provides for a decision in respect of a request made to an agency to be made to an authorised person. Hence, for reasons corresponding with the reasons I gave above in relation to the question of 'hardship' under s 17(2B), the question whether a 'request' complies with s 17(2) falls for decision, at least in the first instance, by the agency or Minister, as the case may be, not by any court (subject, of course, to the supervisory jurisdiction of the Supreme Court). I say 'at least in the first instance' in order to foreshadow the question whether VCAT may have a role under s 17(2). In Chopra, the Court of Appeal held that VCAT did have such a role. In paragraph 121, the Court said that if the requester and the agency cannot agree about whether a 'request' is compliant with s 17(2), VCAT must decide the issue of compliance. In paragraphs 135 to 136 the Court of Appeal said:

[paragraphs 135 and 136 from the COA Chopra decision are set out above]

[136] It is desirable to set out, also, paragraphs 118 to 120 of Chopra, being the paragraphs referred to in paragraph 136 of Chopra as set out immediately above:

[118] If we are correct in our conclusion that, during the consultation process under s 17(4) of the FOI Act, an applicant who has made a multi-item request can agree to modify it by amendment or severance to overcome non-compliance with s 17(2) by one or more of those items, we see no reason why the same result cannot be achieved during a VCAT proceeding.

[119] In our opinion, such a result can be achieved either under s 50(4) of the FOI Act, whereby VCAT has the same powers as an agency, or ss 51 and 51A of the VCAT Act, whereby VCAT has all of the functions of the agency and may invite it to reconsider its decision. The use of these provisions can be illustrated by reference to a hypothetical case involving a request for 10 discrete, standalone items where it is alleged by the agency in a VCAT proceeding that one of the items is non-compliant. In such a case:

(a) Under s 50(4) of the FOI Act, the applicant could offer to delete the non-compliant item and VCAT, exercising the powers of the agency, could accept the offer and direct that the proceeding continue on the basis that the request no longer contains the offending item.

(b) Under ss 51 and 51A of the VCAT Act, the applicant could offer to delete the non-compliant item, VCAT could invite the agency to reconsider its decision to refuse access under s 17(2) and the agency could agree that the proceeding continue on the basis that the request no longer contains the offending item. (Of course, an agency could always offer to change its decision in a manner that is favourable to an applicant at any stage of a VCAT proceeding even in the absence of an invitation from VCAT to do so.)

[120] Irrespective of which of the above courses is adopted, the continuation of the proceeding on the basis that the request no longer contains the offending item will inevitably result in VCAT finding that the modified request complies with s 17(2) of the FOI Act and making appropriate orders under s 51(2) of the VCAT Act. Unless the application for review raises other issues which require determination by VCAT, those orders will set aside the agency's decision, substitute a decision that the request complies with s 17(2) and direct the agency to comply with the request in accordance with the FOI Act.

[137] With respect, the five paragraphs from Chopra just set out seem to me to involve the mistake of assuming the truth of the proposition needing to be proved. The proposition needing to be proved is that VCAT has jurisdiction to review a determination of an authorised FOI officer of an agency, or of a Minister, declining, in good faith, to process a purported FOI request on the ground that, for the purposes of s 17(2) of the FOI Act, the 'request' does not provide such information as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document sought.

[138] In my respectful opinion, nothing in the VCAT Act or the FOI Act gives VCAT jurisdiction to review such a determination. Even apart from any necessity to involve the Information Commissioner, such a determination simply does not fall within any of the classes of 'decision' reviewable by VCAT under s 50 of the FOI Act. For so long as the determination of the agency or Minister under s 17(2) in relation to the original request stands, and for so long as no modification of the request has been advanced to and accepted by the agency or Minister, then, by definition, there is no 'request' (as defined in the FOI Act). If there is no 'request', there cannot be an actual or deemed 'decision ... refusing to grant access to a document in accordance with a request'. Hence paragraphs (b), (d) and (ea) of the FOI Act are all inapplicable. The other paragraphs of s 50 can have no application in any event.

[139] If a determination under s 17(2) were affected by procedural or substantive error in an administrative law sense, this Court, in the exercise of its general supervisory jurisdiction, could order the determination to be reconsidered. However, VCAT has no such general supervisory jurisdiction.

[140] 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).

[141] Likewise, it seems to me that a determination not to process a 'request' on the ground of non-payment of the application fee required by s 17(2A), does not amount to a decision 'refusing' to grant access. In any event, it clearly does not amount to refusing to grant access to a document 'in accordance with a [valid] request'.

[142] Turning back to the obiter dicta of the Court of Appeal in Chopra, with respect, I have no difficulty with the actual answer that the Court of Appeal gave to reformulated question 2. I agree, with respect, that, under the relevant legislation, a purported FOI request that does not comply with s 17(2) when the request is made will not necessarily be permanently invalid. Indeed, the very purpose of s 17(3) and (4) of the FOI Act is to encourage the requester and the agency to consult with each other and to agree upon a form of request that does comply with s 17(2).

[143] No doubt, severance of a particular part of the original request can be one appropriate method of bringing it into compliance with s 17(2), as the Court of Appeal held. And, given the tenor of the FOI Act as a whole, and that of the object section and of s 16 in particular, there is probably no need for a fresh written document to be submitted by the requester as his or her (amended) request. As the Court of Appeal said, a request may be appropriately 'modified'. However, the FOI Act is prescriptive in many ways, particularly as to time limits. Under ss 20, 21 and 53 of the FOI Act, it is important to be able to identify the time at which a 'formal request' is 'duly' made, or, in other words, to identify the time at which a valid request (whether or not modified) is made.

[144] So, in my respectful opinion, the Court of Appeal was in error in Chopra insofar as it observed that jurisdiction for VCAT could be achieved, within an existing VCAT proceeding, by VCAT exercising powers under s 50(4) of the FOI Act and ss 51 and 51A of the VCAT Act with a view to the modification of an otherwise invalid FOI request. In my respectful opinion, those powers do not become available for exercise unless and until a decision that is prescribed to be reviewable by VCAT is actually made by the relevant person or is statutorily deemed to have been so made.

[145] It may be that, where there has been no valid request and no decision or deemed decision reviewable by VCAT, but the requester has nevertheless made a purported application for review to VCAT, VCAT would have power (under s 98 of the VCAT Act) to grant an adjournment of the application in order to enable the applicant to make a modified request and in order to enable the respondent to make a decision whether to grant or to refuse access to documents in accordance with the modified request. VCAT might be prepared to do that with a view to saving the cost of lodging a fresh application at a later stage. If a decision were then made by the relevant agency or Minister to refuse to grant access to a document in accordance with the modified request and if the applicant then sought review by the Information Commissioner but was unsuccessful in that regard, or if sufficient time were to pass after the making of the modified request such that a decision by the agency or Minister was statutorily deemed to have been made, then VCAT might have power to allow the original application for review to be amended (pursuant to s 127 of the VCAT Act) so as to seek review of the ultimate decision made (or of the decision deemed to have been made) in relation to the modified request. Alternatively, and more realistically, a fresh application for review could be lodged. But it seems to me that, in Chopra, the Court of Appeal envisaged that, after an invalid request was modified in a way that rendered it valid in the view of all concerned, if any other issues (such as possible claims for exemption) were left, VCAT could simply proceed, within the same VCAT proceeding, to sit in judgment on the matter without an intermediate decision (or deemed decision) to refuse access being made by the agency or Minister (or the Information Commissioner). In my respectful opinion, VCAT could not lawfully do that.

1. Cavanough J reiterated again his opposition to the interpretation suggested by the COA:[27]

[157] ... I respectfully find myself unable to agree with paragraphs 135 and 136 of the judgment in Chopra. In my opinion, it may be appropriate, at least on some occasions, for VCAT to summarily dismiss, under s 75, an application for review that clearly does not duly invoke VCAT's jurisdiction because the relevant purported request did not, at the relevant time, comply with s 17(2) (or, for that matter, s 17(2A)) of the FOI Act. There may be such cases, in my respectful opinion, in which it may be able to be said that the application for review is 'misconceived'. In my view, Deputy President Proctor, writing before the decision in Chopra, was entitled to say as much in relation to the present case.

[158] However that may be, generally speaking, it is highly desirable, if not essential, that any serious, proper objection to the jurisdiction of a tribunal be heard and determined as a preliminary matter. Of course, like any other court or tribunal, VCAT has jurisdiction and power to consider whether it has jurisdiction. As Kirby J said in Re Boulton; ex parte Construction, Forestry, Mining and Engineering Union:

Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that it has.

[159] In my view, VCAT has ample power - indeed, a duty - to hear and determine proper objections to its jurisdiction, whether or not s 75 may be utilised for that purpose. Appropriately, VCAT does conduct what it calls 'jurisdictional hearings', from time to time.

1. I respectfully agree with the analysis and conclusions made by Cavanough J.
2. In any event, in light of the COA's comments and in the absence of Cavanough J's recent decision, the Respondent withdrew its s 75 application.

CONSULTATION UNDER S 17(3) AND (4) OF THE FOI ACT

1. The Respondent submits that it has complied with its obligation to consult with the Applicant under s 17(4) of the FOI Act.
2. Furthermore, the Respondent submits that it has also complied with the procedure suggested in the COA's reasons. In particular, the Respondent invited the Applicant twice to modify his request. At the Directions Hearing on 4 June 2020, the Tribunal also invited the Applicant to modify his request.[28] At the time of the Respondent filing its Legal Contentions for this application, the Applicant had not modified his request.
3. The Respondent further submits that it complied with its obligation under s 17(4) of the FOI Act to consult with the Applicant by giving him a reasonable opportunity of consultation with the Respondent, with a view to making a request in a form that does comply with s 17(2). To that end the Respondent states as follows in its Legal Contentions:
   1. By email dated 14 March 2018, Gaven Sturma, then Acting FOI Manager for the Respondent, advised the Applicant that:
      1. Under s 17(2) of the FOI Act, an FOI request was required to provide such information concerning the document sought as is necessary for the agency to identify the document. If the request is unclear or does not provide sufficient detail, then it does not comply with s 17(2) and is invalid;
      2. The FOI request sought "fundamentally the same search as previously refused under section 17".[29] Accordingly, the Respondent's objections to the adequacy of the search terms remain unchanged;
      3. The terms of the FOI request were too broad to enable a proper search for documents to be conducted and as a result, in its current form, the request is not valid;
      4. Under s 17(4) of the FOI Act, the Respondent is obliged to offer the Applicant an opportunity to consult with the Respondent with a view to making the request comply. The Applicant is entitled to a reasonable opportunity to consult with the agency in order to make the request in a form that complies with the requirements of the section. The Respondent then made the following invitations:

Accordingly, I invite you to review your request and provide further detail to narrow the scope of your search.

I therefore, formally invite you to consult with this office by 11 April 2018 for the purpose of making a request that is valid under section 17.

1. The following exchange of emails and telephone discussions took place between the parties on 14 March 2018 (omitting formal parts):
   1. By email, the Applicant advised as follows:

I note your email dated 14 March 2018 which I just received. I also note your objections.

However, item 1 of this request is substantially different from the previous one and removes the objections you noted for the previous FOI request.

In addition, the other items are time bound and subject bound, with the subject being "me" and the date range is also specified.

As a result, these requests are valid since this description allows a responsible office to identify the documents as required by s 17(2).

In addition, you have a positive duty under s 17(3), to do the following:

It is the duty of an agency or Minister, as the case may be, to assist the person who wishes to make a request, or has made a request that does not comply with this section...to make a request in a manner that does comply with this section ...

I note that you have not done that. You have not provided assistance as you were required to do so that I can make a request that complies with this section. This is why I cannot narrow the scope of my request. You need to inform me which particular item is too broad to do a search on and why. I will be glad to help and narrow the scope of the search. But I need you to fulfil your positive duty and explain why my particular a item is too broad such that a document cannot be identified.

[the Applicant then makes comments in relation to items 1 and 2 and use of the search string]

Now whatever documents you find are responsive to my request. It's that simple.

1. In response, Mr Sturma, for the Respondent, advised as follows:

I disagree with your below correspondence. The Department clearly invited you to consult with the FOI Unit. You will find this invitation under the heading 'Invitation to consult'.

The applicable FOI officer allocated to your file is happy to assist you to make a valid request. That is the purpose of inviting you to constructively consult with the FOI Unit. I encourage you to contact them on [number].

Further, if you call this afternoon they will make themselves available at anytime between 2:00 pm and 4:30 pm. Alternatively, the FOI officer is happy to book a telephone meeting with you, anytime during business hours until 11 April 2018.

If you choose not to consult with the FOI Unit, that is your prerogative. However, as it stands your request remains invalid.

1. By final email, the Applicant advised as follows:

As per your advice, I have consulted with the FOI officer allocated to my file ...

We ended our conversation agreeing to disagree. He agreed that item number 1 would be relatively easy to execute. He was mistaken that each individual email box of Grovedale College would need to be checked. This is what I mean by either your office is disingenuous or plainly misinformed or inexperienced in how a search is to be conducted. I alerted him to the fact that all email accounts can be searched at one time. Item 1 would take 10 seconds.

Thereupon, we disagreed on item 2 which would be the same issue for items 2 -6. Justin's argument was that the item is too broad, two unclear and therefore falls foul of s 17(2). My argument was that the item is perfectly clear. It relates to any document which mentions my name or any of its variants and is limited by a time window. Therefore, if you had a document in front of you, any person who can read English could identify the document as responsive to this item. If my name or experience was not mentioned, then it is not responsive. Consequently, you can identify the document based upon my description in the request. And that is all that s 17(2) requires. Justin was not able to explain further why the item was too broad or unclear. My sense is that he was saying that the search would require too many documents to be searched. If so, then that is a s 25 issue, not a s 17 issue. How the Department organises its filing system and does the search is its issue. The point is, in items 2-6, you know exactly what you are looking for: any and all documents mentioning my name or any of its variants. Therefore, it is disingenuous to claim that you are unable to identify the documents which I have requested.

Items 7-9 related to documents in the possession of the Department and should be searched for and released to me subject to exemptions.

So, as you can see, I have honestly tried to engage your office. Your office has a certain stance and it does not want to change it. Also, your office does not have any proactive suggestions which would assist me. The issue is that the documents under each of the items can be easily identified. So it is not a s17(2) issue. It's just that you do not wish to go out and do the work to identify the documents.

As a result, the consultation is at an end. I consider the request valid. No time has been lost.

1. The Respondent submits that it identified the issue with Item 4 (including by reference to its earlier response to the Z45/2018 request) and gave the Applicant a reasonable opportunity to consult with it. The Applicant chose to end the consultation, apparently because he disagreed with the Respondent's position. He did not seek to re-enliven the consultation, even after the hearing in Z45/2018. Instead, he issued the current proceeding after the hearing in Z45/2018 but before the Tribunal delivered its findings in that matter.
2. The Respondent detailed the ways in which it submits that Item 4 is deficient as follows:

1. "Grovedale College" is not a term of art. Nor does it describe an identifiable legal entity. It is, by its nature, a vague term in the context of Item 4:[30] 1. It is instructive to have regard to the Education and Training Reform Act 2006 in considering the lack of clarity caused by the Dr Chopra's use of the term "Grovedale College" in this context. See in particular the definition of "government school", "school" and "school council" in s 1.1.3(1) and the manner in which a government school is established under Part 2.2 and a school council is constituted under Part 2.3. 2. In light of the Act, and as a matter of common sense, "Grovedale College" could mean the school or the relevant school council, or a combination of both. 3. Furthermore, without clarification, it could mean the staff employed at the school or the student body enrolled at the school, or a combination of both. 4. If it means the staff employed at the school, it could mean the teaching staff or the administrative staff, or a combination of both. 5. It might also include other groups that are generally considered part of the broader school community but do not fall within the statutory definition of a school or school council - for example the Parents & Friends Association or sporting, music or other clubs affiliated with the school. 6. Note that the use of "Grovedale College" in Item 4 can be contrasted with Item 1, which describes a particular "search string" that is to be used to search for electronic documents. Item 1 does not depend on the meaning of "Grovedale College" in the same way that Item 4 does.

1. Once the term "Grovedale College" is properly explained, The Applicant will also need to clarify what he means by "to and from". For example, is he describing just documents sent from parties outside that entity to the entity (and from the entity to external parties), or also documents sent internally within the entity?

1. The reference to documents "concerning me" is also vague. 1. The plain meaning of "concerning" is broad and vague in this context, being defined as "the subject of or in connection with; about,[31] relating to; regarding; about;"[32] 2. It could mean documents that mention Dr Chopra by name or documents that refer (however indirectly) to matters in which he may have an interest (and that interest has not been defined); 3. It can also mean documents dealing with matters about which Dr Chopra has a concern; 4. Further doubt is cast on the meaning of the phrase by paragraph C of the "Instructions" accompanying the FOI request [which refers to "all variants of my name"].

1. The terms of Item 4, broadly read, seek all documents which may exist that contain the Applicant's name over a 2 ½ year period, in any connection, in communications to or from Grovedale College. It is not a request for specific documents as it does not identify a specific document or group of documents or the nature or category of the documents being sought;[33] and
2. In any event, Dr Chopra was a parent of a student at the College at the time he made his request, had at some time sought to hire facilities from the College and was previously employed by the Department as a teacher (but not at a Grovedale College). We don't know if he is trying to describe documents that concern him in one or all of those contexts, or in some other context. It is also a subjective term that requires us to understand what concerns Dr Chopra might have.[34]

1. The Respondent also relies upon the findings of the Tribunal in the Chopra Z45/2018 Decision referred to below.
2. The Respondent also submits, consistent with the guidelines outlined above, that it:
   • has not been distracted by, or overly focused on, the advice or directions which the Applicant gives in his instructions about how to interrogate the system;[35] and
   • has not expected or assumed that the Applicant has a detailed knowledge of the documents it holds or how to describe them, despite his former employment with it as a teacher, and despite the fact that he was the parent of a child enrolled at Grovedale College.

1. Mr Gavin Sturma Team Leader of the FOI Unit for the Respondent, made a witness statement dated 18 June 2020 which, in summary, confirms:

1. the sequence of events, as outlined above; 2. having prepared the response to the Applicant's FOI request, as contained in the letter dated 14 March 2018; and

1. that the Applicant also spoke to another employee about his request and Mr Sturma's response.
2. Mr Sturma also referred to and annexed the earlier application by the Applicant, comprising the Z45/2018 request, together with the Respondent's response.

There are considerable overlaps between the items listed in the Z45 request and the items listed in the current request. Item 4 in each request is identical save for a slight difference in the timeframe nominated.

The Department refused to process the Z45 request on the grounds that it did not comply with s 17(2) of the FOI Act...

1. Mr Sturma then states that, in light of the COA's judgement on the questions referred in this proceeding, the Respondent instructed its solicitors, Maddocks, to write to the Applicant offering him an opportunity to modify his request. Maddocks sent two emails to the Applicant, to this effect, on 8 January 2020 and again 28 May 2020, but no response was received to either email.
2. Mr Sturma then refers to and annexes a subsequent application made by the Applicant, which is now the subject of proceeding Z826/2018 (the Z826/2018 request).
3. Mr Sturma states that the Z826/2018 request 'included items requesting documents passing between Grovedale College and the College Council or members of the College Council'.[37] The Respondent refused this request under s 25A of the FOI Act.
4. Mr Sturma also sets out the legal difficulties posed by Item 4 in the current FOI request, which are set out above under the Respondent's Legal Contentions.[38]

1. As mentioned above, it is appropriate to have reference to the Chopra Z45/2018 Decision which concerned a request with an equivalent Item 4, namely:

All documents to and from of Grovedale College mentioning me or concerning me since November 2015.

1. SM Proctor summarised the background to the Z45/2018 FOI Request as follows:[39]
   1. In mid-December 2017, the Department of Education & Training (the Respondent) received from The Applicant a letter seeking documents under the Freedom of Information Act 1982 (the FOI Act).
   2. By letter dated 29 December 2017, the Respondent wrote to Dr Chopra saying that, in its view, his request was unclear and did not provide sufficient detail to be a valid request under s 17(2) of the FOI Act. In the same letter, the Respondent, under s 17(3), invited Dr Chopra to consult with a view to making a valid request. The Respondent asked Dr Chopra to, if he decided to amend his request, consider the scope of any amended request given the potential for an FOI request to be refused under s 25A(1)(a) of the FOI Act on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the Respondent from its other operations.
   3. By email dated 2 January 2018, Dr Chopra replied. He said his request was a valid request, described the Respondent as engaging in delaying tactics, debated the potential application of s 25A(1)(a) and declined to amend his request. Dr Chopra said the Respondent was not genuine in seeking consultation. He invited any reasonable proposal from the Respondent to amend his request.
2. At the hearing, SM Proctor noted that:[40]

[29] The Applicant submits the Respondent did not comply with its obligations to consult under s 17(3) and 17(4), as I understand it in the sense that the consultation was not genuine. I reject that submission. The terms of the 29 December letter are clearly a reasonable attempt to consultation, which Dr Chopra rejected.

1. After setting out relevant provisions of the FOI Act, SM Proctor usefully extracted certain Court and Tribunal decisions which have considered the meaning of s 17(2), which I also include below:[41]

... mere breadth is not a fatal objection to a request. ... So, very often the applicant will be a complete stranger to the departmental organisation, its filing, indexing and retrieval systems, and use language which, given greater awareness, he would choose differently. But if the department knows very well what is being sought, and it can find the material, or the better part of it, then it seems to accord with sense and the court should say that a skilful critique of the question is no substitute for a fair answer and criticism of the request no excuse for non-compliance.

[45] In Borthwick v University of Melbourne 1985 1VAR 33, 35, Rowlands J said:

It must depend on the particular case whether or not sufficiently precise description is received to permit the respondent, as a practical matter, to locate the documents sought within a reasonable time and with exercise of reasonable effort.

A responsibility rests on the applicant to strive to define with as much precision as he can precisely what he wants. ...

perverse requests which are maintained in an ill-defined form despite frank and willing assistance by Freedom of Information Officers may not, as a matter of policy, be supported by the Tribunal.

[46] In McIntosh, Ross J discussed what amounts to sufficient information under s 17. He said, at [51]:

The question for determination is whether the request ... provides such information about the documents sought as is reasonably necessary to enable those documents to be identified ... the documents requested may be described in broad terms and need not be expressed with the same eye to detail as a legislative provision or a set of pleadings.

[47] In Bahonko v City of Casey (General) [2010] VCAT 241 Macnamara DP said with respect to a request for all files kept by the Council concerning the applicant, from [27]:

It is also now notorious that records are extensively kept in computerised systems. These systems amongst other things allow for 'key word' searches which enable the full text of particular documents to be identified by reference to the occurrence of a particular word, for instance 'Bahonko '. ...

It seemed implicit in Mr Batskos' submissions that a search which sought a key word, for instance 'Bahonko' or perhaps a key address like 1 Riley Drive, Hampton Park could be processed by a freedom of information officer. In my view the request made by Ms Bahonko could and should have been treated as a request for access to all files relating to Ms Bahonko, a request which could have been processed by searching file titles whether as part of an old style hard copy system or a computerised system by reference to the key word 'Bahonko '.

[48] In Zeqaj v Victoria Police (General) [2010] VCAT 1132, Miso J considered s 17(2):

The reference to "such information" in the section must mean reasonably specific particulars enabling the proper officer to identify the document which is the subject of the request.

The reference to "as is reasonably necessary" qualifies the extent that the information provided is specific enough for the document to be capable of identification.

It is not the task of the responsible officer to try to tease out from such a request what the applicant might be getting at. Firstly, for the responsible officer to do that would be a failure on the part of that responsible officer to undertake the statutory task set by section 17 (2), and secondly, the responsible officer might inadvertently provide documents which are not what the applicant was seeking which would inevitably lead to unnecessary and possibly protracted correspondence between the applicant and the responsible officer in an effort to try to work out what is constituted by the request, and at worst the making of an unnecessary application for review.

That is not to say that the responsible officer is relieved of any obligation to the applicant where some doubt exists as to what documents are sought by the request.

[49] In O'Brien v Department of Justice (General) [2010] VCAT 1379 (23 August 2010) at [23], Macnamara DP said:

It must be borne in mind that an applicant for access to documents under the Freedom of Information Act whether he or she is a politician, a community activist or an ordinary private citizen is not possessed of full knowledge of what the relevant Government agency is or is not doing in a particular field, what it does or does not do. A legitimate purpose for requesting documents under the Freedom of Information Act is to gain answers to these sorts of questions. The process of obtaining documents under the Freedom of Information Act would be greatly hobbled if to make a valid request an applicant were required to demonstrate the sort of knowledge that only access to the Government agency's records would give him. This would be to create the proverbial 'catch 22'. ...

1. I endorse all of the above comments, acknowledging however, that each case must be decided upon its particular circumstances. For instance, a request for access to all files containing the name of the applicant, is a request of an entirely different nature and ambit where the subject applicant has had discrete dealings with an agency and the subject matter of interest has been disclosed or is otherwise well known by the agency concerned. The comments of Misso J extracted above, are particularly apposite in the current context: "such information" ... must mean reasonably specific particulars enabling the proper officer to identify the document which is the subject of the request" and "as is reasonably necessary"... [must mean that] the information provided is specific enough for the document to be capable of identification." Furthermore, it is not the responsibility of the FOI officer to 'tease out' or second guess what an applicant is seeking. Indeed, if the officer provides documents which the applicant is not seeking... "[this] would inevitably lead to unnecessary and possibly protracted correspondence between the applicant and the responsible officer in an effort to try to work out what is constituted by the request, and at worst the making of an unnecessary application for review."
2. I will return to this situation shortly.
3. SM Proctor set out the Respondent's submissions and the Applicant's reply as follows:[42]

Item 4 requests all documents to and from 'Grovedale College' 'mentioning' or 'concerning' the Applicant over a 2 year period. The comments at [para 75] above are also relevant here. In fact, this request is actually broader still as it is not limited to two named individuals. That is, all of the documents responsive to items 2 and 3 would also be captured under this item 4.

Further, it is unclear what is actually meant by 'Grovedale College'. Is this intended to capture documents that any member of staff has provided or received that in some way 'mentioned' or 'concerned' the Applicant, or even that any student has provided or received that in some way 'mentioned' or 'concerned' the Applicant?

The Applicant has not specified particular types of documents that should be searched, such as emails, and so it would cover all types of documents. Again, the question is: where does the Respondent start? The Respondent would be required to look in every record the school holds.

It is submitted that this is a 'broad, fishing and perhaps perverse' request that ought not to be supported by the Tribunal. It is not a request for specific documents but rather for all documents which may exist that simply contain the Applicant's name. This cannot be regarded as a compliant request under s 17 as it does not provide such information concerning the documents sought as is reasonably necessary to enable the Respondent's officers to identify the documents.

[69] In his 18 March 2018 submission, Dr Chopra submits:

I agree with the Respondent that item 4 is broader than items 2 and 3, and yet it will find much fewer documents. Had it done the searches and applied common logic or common sense, with respect, it would have found the answer. But then it would not have been able to protest. Further, it states that its comments in paragraph 34.2 apply here; likewise, my comments in response to paragraph 34.2 with respect to Bahonko also apply here. It is correct that all documents captured in 2 and 3 should be captured here as well, but that is if the search is done properly. Also, a reasonably skilled searcher could eliminate the overlap between this item and items 2 and 3, and so indicate to me. In other words, the duplicates can easily be eliminated in the electronic search. Of course, the hard copy duplicates can be even more easily eliminated. So, what is the issue? It is true that all staff and student electronic accounts need to be searched, but this would be easy because it just requires one check mark! As for hard copy documents, whatever is in the possession of Grovedale should be reasonably searched as it would for any other hard copy search under the FOI Act. All it is looking for is my name and its variants mentioned in these documents.

Once again, the Respondent disingenuously queries for item 4: "where does the respondent start? The respondent would be required to look in every record the school holds". Well, it could. But that would be stupid. With respect, of course. Surely, the Respondent should use its common sense. For starters, the time period is 1 November 2015 and after. Grovedale College was established several decades prior. Second, electronic records are easy as discussed above. Third, for hard copy, it should look only where my name might reasonably have been mentioned in the context of my daughter or my request to hire facilities or whatever other context Grovedale College is aware of. But wait: we are now talking about how to do the search, not how to identify the document. And this is outside the purview of s.17(2).

As the several decisions and binding precedents discussed above, "mere breadth is not a fatal objection to a request" (Penhalluriack) and "it is s.25A of the Act that provides relief for an agency where a request is so broad as to require an unreasonable diversion of resources" (Luck v Victoria Police FOI Division [2012] VCAT 1617). Even Pizer's states it more directly: "It is submitted that this section [s.17(2)] should be invoked only when the request is so ambiguous or uncertain that the agency does not know what documents are sought, and s.25A(1) should be relied upon when the request is so broadly expressed as to be voluminous. It must be remembered that applicants often do not know precisely what documents are in the agency's possession. It would not facilitate the right of access provided by the Act if requests were treated as not complying with s.17(2) simply because they were broadly expressed." See Pizer's Annotated VCAT Act, [at FOI.17.80]. How in the world did the Respondent miss reading this? The only answer is that it was being wilfully blind. In this matter, Judge Lazarus would have stated as he did in Penhalluriack, "[I]f the Respondent knows very well what is being sought, and if it can find that material, or the better part of it, then it seems to accord with sense and the court should say that ... criticism of the request [is] no excuse for non-compliance". This non-compliance by the Respondent may be treated as "a decision refusing to grant access". It goes without saying that Penhalluriack is a County Court decision and is a precedent binding on the VCAT, and therefore on the Respondent. It did not follow it.

Once again, I challenge its submission that item 4 could even remotely be construed as a 'broad, fishing and perhaps perverse' request. It is merely a request for all documents in the possession of the Respondent where my name is mentioned, just like it was ordered in Bahonko.

[70] In his 30 April 2018 submission, Dr Chopra submits:

This was "All documents to and from Grovedale College mentioning me or concerning me since November 2015". This would be identical to Item 2 above, except "all users" would be selected instead of [principal] in the 'accounts' and/or using the 'search method' button depending on how the administrator had set up Google Vault. To avoid duplication with Item 2 and Item 3, in the search terms, after all document(s) have been found, a sub-search could be done with the Boolean Operator "NOT" to eliminate the document(s) already found for the principal and vice principal. It is this simple. Again, like items 1-3 above, the Respondent is stating something which is misleading and/or false and violates section 78 of the VCAT Act.

[71] I agree with the Respondent's submission that Item 4 does not provide such information concerning the document as is reasonably necessary to enable a responsible officed to identify the document.

[72] The concept of emails to and from "Grovedale College" is so uncertain as to not comply with s 17(2). As the Respondent submits, how is one to know what Dr Chopra means by the concept of Grovedale College? For example, on reading Item 4, I certainly did not understand Dr Chopra's position, as evident from his above submission, that all staff and student electronic accounts need to be searched.

1. I agree with SM Proctor's analysis and conclusion. As presently worded, Item 4 is so ambiguous or uncertain that the Respondent cannot know what documents are sought.
2. I further concur with the Respondent's submissions for the reasons given above, namely the findings of fact, and the conclusion drawn from them by SM Proctor, are not disturbed by the COA's judgment. Furthermore, notwithstanding that the COA did not approve the s 75 procedure being invoked in the circumstances, I can find no error in the reasoning of SM Proctor, based on the facts as presented.

1. The Applicant's submissions are replete with misguided criticisms and abuse of all Members of this Tribunal who have dealt with his matters; as well as Counsel for and employees of the Respondent. The Applicant has now been advised repeatedly that such comments are totally unacceptable and will not be tolerated. Accordingly, I do not propose to make any response.
2. In addition, the Applicant's submissions are repetitive in the extreme. Nevertheless, I have endeavoured to make a fair summary of such submissions as follows:

1. He was denied the opportunity to call witnesses: 1. Justin Frank, FOI Officer, necessary to prove that s17(3) & (4) consultation was not complied with; and 2. the IT Manager at Grovedale College; necessary to demonstrate access to the Google Vault app at Grovedale College and ease of identifying documents; 2. He has been denied the opportunity to lead evidence;

1. "Consultation must occur to determine whether if the respondent's claim (that is, objection that the FOI request does not comply) is even correct. ...it is the Applicant who must be convinced that an amendment or severing should occur and provide his final agreement";[43]

1. The Applicant conceded that he did not modify Item 4 in any way because "it does not need to be done". It is perfectly valid under the above-mentioned long-standing authorities;"[44] 2. The Respondent failed: 1. to meet the consultation requirements of ss 17(3 and (4) as set out by the COA;[45] and 2. to give evidence in support of its objection to Item 4; 3. The COA[46] found that the only issue in relation to Item 4 was whether it included emails from staff or from students as well, which the Applicant says he had already clarified in March 2018 that it included both. Accordingly, the Respondent should amend the FOI request: 1. to the Applicant's advantage under s 53(5) of the FOI Act; or 2. by reference to communications with students and communications with staff under s 51A, with the agreement of the Applicant; 4. SM Proctor's decision[47] in regard to Item 4 was 'thrown out' by the COA because no evidence had been led; 5. Judge Lazarus[48] held that the agency should assume the broadest interpretation since 'mere breadth' is not an objection under s 17(2); 6. Consistent with the interpretation of Judge Lazarus, it was incumbent upon the Respondent to assume the broadest interpretation and find whatever documents it could identify for Item 4; 7. Item 4 is no broader than the question considered and approved in previous decisions;[49] 8. The 'identification' of a document and the 'searching' of it are not separate issues;[50]

1. The COA stated the correct test and procedure to be followed when hearing a s 17(2) objection, which the Applicant submits has not been followed by the Respondent:[51]

1. If documents can be retrieved under s 19 of the FOI Act, then they can be identified for the purpose of s 17(2); and 2. The Applicant refused to address matters raised in paragraphs 5-12 of the Respondent's submission on the basis that these were never raised with him in 2018 and are therefore irrelevant to whether the Respondent complied with s 17(3) or (4). The Respondent is obliged to assume the broadest meaning and treat the reference to 'Grovedale College' as including all possibilities.
2. The Applicant made extensive reference to the Directions Hearing held on 4 June 2020. He complained that he was treated like a "common criminal"; asked questions and directed to answer "Yes" or "No"; complained that the Presiding Member "merely reiterated the position of the Respondent" and failed to engage in a proper "consult and assist".[52] In particular he objected to answering the following questions on the basis that they were irrelevant and had already been answered, as indicated:[53]
   1. Did he want hard copy or soft copy documents? The Applicant submitted that he had already defined this in his FOI request made on 20 February 2018;
   2. What did Grovedale College mean? The Applicant submitted that this was not an objection under s 17(2); that the Respondent should have conducted a search on any category it chose and come back to him; and
   3. What does "concerning me" mean? The Applicant submitted that this was defined in his instructions to the FOI request and should have been understood by the Respondent, knowing the context of his request and the step wise manner in which a search is conducted in an electronic database.

1. Contrary to assertions repeatedly made by the Applicant, that he has been denied the opportunity to lead positive evidence, he has never been prevented from filing evidence upon affidavit either from himself or by any other relevant witness. I refer to the Tribunal Orders made on 4 June 2020 and 6 July 2020 in this proceeding, set out above and note that:

1. The Applicant did not file any affidavit material or witness statements in response to the above Orders; 2. At no stage has the Applicant identified any witness which he proposed to call to give evidence on his behalf; and

1. the Respondent was not obliged to file any further material in reply.
2. The Applicant's case appears to rely solely upon the following assertions:

1. Item 4 is valid and therefore requires no amendment or modification; 2. The Respondent has not presented to him any valid objections and therefore has not engaged in any meaningful consultation in accordance with s 17(3) and (4) of the FOI Act; and

1. The Respondent has consistently denied him the opportunity to demonstrate how searches may be conducted for the purpose of processing Item 4.
2. In my view these assertions are simply self-serving and without any basis. In particular, I am satisfied that the factual circumstances detailed above clearly provide a positive answer to each of the following questions, namely:

1. First, the Respondent did have a legitimate basis for asserting that Item 4 did not comply with s 17(2); 2. Secondly, the Respondent did engage in a consultation process, in accordance with s 17 (3 and (4);

1. Thirdly, the Applicant acknowledged that there had been an opportunity to consult; and

1. Fourthly, the Applicant, of his own volition, refused to engage in any further consultation.
2. Item 4 appears in the context of 8 other questions, all of which either mention a named person and/or a specified subject, such as: 'School Council meetings'; or 'hire facilities.' In marked contrast, Item 4 seeks:

All documents to and from Grovedale College mentioning me or concerning me from 1 October 2015 until the date of the search.

1. I concur with the Respondent's submission that Item 4, broadly read, seeks all documents which may exist that contain the Applicant's name over a 2½ year period, in any connection, in communications to or from Grovedale College. It is not a request for specific documents as it does not identify a specific document or group of documents or the nature or category of the documents being sought.[54] In particular, the Respondent identified the following objections:
2. First, the term 'Grovedale College' is not a discretely defined term. The Respondent has identified that such term could encompass any or all of the following:

1. The School known as Grovedale College; 2. The relevant School Council;

1. Staff employed, either teaching and/or administrative staff, at the School;

1. The student body enrolled at the school; and 2. Other groups generally considered to be part of the broader School community, such as the Parents & Friends Association or sporting, music or other clubs affiliated with the school.
2. Secondly, the Respondent queried to whom the expression 'to and from' was directed, that is, was it intended to encompass only documents sent from parties outside that entity to the entity (and from the entity to external parties), or also documents sent internally within the entity?
3. Thirdly, the Respondent requested clarity of the terms 'mentioning me or concerning me' in relation to documents sought. Both 'mentioning' and 'concerning' could have very broad reach: encompassing documents that mention the Applicant by name or documents that refer (however indirectly) to matters in which he may have an interest (and that interest has not been defined); or documents dealing with matters about which the Applicant has a concern. This interpretation is further complicated by the fact that the Applicant was a parent of a student at the College; had sought to hire facilities from the College; and was previously employed by the Department as a teacher (but not at a Grovedale College). It is unclear whether the Applicant is seeking to describe documents that concern him in one or all of those contexts. Also 'concerning me' is intrinsically subjective.[55]
4. The Applicant's response to the above queries and concerns appears to be that the Respondent has a duty to interpret and process his request in the broadest possible terms. Once a search is conducted, the Respondent should revert to the Applicant so that he can then indicate whether the results are adequate for his purposes; or whether the search parameters should be broadened or refined in some manner.
5. In my view, the Applicant's position itself condemns the FOI request as invalid. It is a fishing exercise in the extreme. Support for this interpretation also comes from the Applicant's own submissions in the Z45/2018 case as extracted above. The Applicant also refused to answer my question at the Directions hearing on 4 June 2020, when asked, what is Item 4 intended to capture which is not already encompassed by the other items in the request?
6. I note that the Applicant places significant weight upon the decision of Lazarus J in the Penhalluriark case referred to above. In my view, a careful reading of that case reveals markedly different factual circumstances. In particular, the applicant in that case engaged in extensive and constructive consultation with the agency and particularized in some detail the nature and categories of documents sought. There is no support found in that case for a question similar to Item 4.
7. I also reject the Applicant's contention to the effect that the Respondent persists in failing or refusing to understand how to conduct an adequate computer search. I am satisfied that this is not and has never been the issue in relation to Item 4. The Respondent through its FOI staff have demonstrated a more than adequate competence and familiarity with data bases and string searches. Furthermore, the Respondent has not only proposed a number of areas in which the Applicant could bring Item 4 within s 17(2), it did not terminate the consultation process.
8. The Applicant by contrast, both in the context of the Z45/2018 proceeding and now this proceeding, has defiantly stood his ground, asserting that the Respondent was not genuine in its objections.
9. The essence of the Applicant's flawed understanding of the requirements of s 17(2) lies in the fact that it is not intended to give any applicant the right to ask in effect: give me everything that you can possibly find, I will then tell you whether it is enough. The fact that documents can of course be found by undertaking a search using the broadest parameters, does not satisfy the threshold requirement that the request, in the first instance, must provide such information concerning the document as is reasonably necessary to enable a responsible officer to identify the document.
10. The FOI Request is also markedly different to the 321 questions comprised in the form of request considered by the COA in Secretary Department of Treasury and Finance v Kelly.[56] In that case, Ormiston J found that whilst:

[2] ... Ordinarily, ... each request is to be looked at separately for the purposes of s.25A...

[3] That is not the end of the matter, however, for the issue here is whether the appellant could properly characterise all the requests as effectively a single request. ... there is no real factual problem in treating all the requests as at the least related and directed to a single subject matter, namely the circumstances surrounding the explosion and fire on 25 September 1998 at the Esso/BHP plant at Longford in Gippsland, although some may have been drawn too widely. ... they were all made in the same period, namely from 10 to 24 December 1999, and in most of the later requests reference was made to one group or other of the earlier requests, as a group in each case. ...

The connection between the 321 requests was so obvious that the parties and their solicitors corresponded and consulted, for the purposes of the section, by letters directed to the totality of the requests, not by separate letters relating to the individual requests.

1. In this case there is no such unifying subject matter in the FOI Request. Furthermore, in the case of Item 4, the subject matter or matters are at large.
2. Accordingly, I have no hesitation in finding, consistent with SM Proctor's previous finding in relation to an equivalent item, that Item 4 does not comply with s 17(2).
3. Although the COA has suggested a process whereby it may be available to the Tribunal to sever an invalid part of a request, leaving the remainder of the request intact, this is not such a case. The Applicant has not indicated any approval for such severance and in any event, in view of the separate proceeding Z826/2018, which substantially incorporates the remaining questions in this proceeding, there is no prejudice to the Applicant in disposing of this proceeding at this stage. Indeed, it will avoid any further duplication of efforts by the parties.

1. Accordingly, this proceeding will be dismissed.

[1] (Review and Regulation) [2019] VCAT 106 [33].

[2] Borthwick v University of Melbourne (1985) 1 VAR 33.

[3] Zeqaj v Victoria Police [2010] VCAT 1132.

[4] Dr Chopra v Department of Education and Training [2018] VCAT 808.

[5] See Harbison J's discussion in Macdonnell, paragraphs 40 to 60.

[6] Per DP Macnamara, as he then was, in O'Brien and the Department of Justice [2010] VCAT 1379 at paragraphs 23 and 24.

[7] Penhalluriack v Department of Labour and Industry Unreported County Court 19 December 1982 per Lazarus J, page 52.

[9] Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 [6] per Ormiston J.A.

[10] Chopra v Department of Education and Training [2018] VCAT 808 (Chopra Z45/2018 decision).

[11] Chopra v Department of Education and Training [2019] VSCA 298 [134].

[13] Chopra Z45/2018 Decision [32-33].

[14] [2001] VSCA 246.

[15] Chopra v DET [2019] VSCA 298 [138-139].

[17] [2020] VSC 454.

[24] [2009] VCAT 92.

[25] [2010] VCAT 1788.

[26] McKenzie v VCAT & Anor [2020] VSC 454 [129-145].

[28] I confirm that such invitation was extended to the Applicant.

[29] This earlier request being the subject of proceeding Z45/2018.

[30] Respondent's Legal Contentions [5].

[31] The New Oxford Dictionary of English (5e).

[32] Macquarie Concise Dictionary (5e).

[33] The Respondent relies primarily on, DTF v Kelly [2001] VSCA 246.

[34] Refer [18c] of Mr Sturma's witness statement.

[35] McIntosh v Department of Justice [2009] VCAT 92 per DP Coghlan at [42]; Wooldridge v Department of Human Services [2009] VCAT 1900 per DP Coghlan at [31].

[39] Chopra v Department of Education and Training (Review and Regulation) [2018] VCAT 808. [1-3].

[45] Chopra v DET 2019 VSCA 298 [112].

[46] Chopra v DET 2019 VSCA 298

[47] Chopra v DET 2019 VCAT 808.

[48] Penhalluriark v Department of Labour and Industry 18 December 1983 County Court Unreported.

[49] McNamara DP in Bahonko v City of Casey (General) [2010] VCAT 241 [27-28]; and Wooldridge v DHS (Vic) [2009] VCAT 1900 [14].

[50] Citing Bahonko and Wooldridge v DHS (Vic) (2009) VAR 279; [2009] VCAT 1900.

[51] Chopra v DET 2019 VSCA 298, Applicant refers to [112], [113], [116], [118-120] and [136]

[52] Applicant's submission [314-315].

2. [54] The Respondent relies primarily on, DTF v Kelly [2001] VSCA 246.

[55] Refer [18c] of Mr Sturma's witness statement.

[56] [2001] VSCA 246 [2-3].