Chopra v Department of Education and Training [2021] VSCA 36

PRACTICE AND PROCEDURE - Application for further six-month adjournment - Five previous adjournments totalling more than 11 months - Applicant suffering from persistent ill-health - Applicant hospitalised and did not appear at hearing of application - Applicant unlikely to be able to appear at hearing within next six months - Whether further adjournment in interests of administration of justice and facilitative of just, efficient, timely and cost-effective resolution of dispute - Comprehensive written submissions already filed - No evidence that applicant had sought legal representation or advanced preparation for hearing during previous adjournments - Application refused - Applicant provided transcript and further time to file written response to respondent's oral submissions - Additional requests for extension of time to file submissions, enlarged bench, audio recording of hearing, further oral hearing, referral to pro bono scheme, and mediation refused - Application for recusal refused - Civil Procedure Act 2010 ss 7-9.

1 On 17 November 2017, Dr Manu Chopra made a request to the Department of Education and Training ('the Department') for access to documents under s 17 of the Freedom of Information Act 1982 ('the FOI Act') in relation to his former work as a teacher at McKinnon Secondary College. Under s 21 of the FOI Act, the Department had 30 days in which to make a decision on the request. It failed to do so.

2 As a result, s 53(1) of the FOI Act deemed the Department to have made a decision refusing to grant access to the documents. As he was entitled to do, on 22 December 2017, Dr Chopra filed an application for review with the Victorian Civil and Administrative Tribunal ('the Tribunal') on the basis of the deemed refusal of access. Section 53(5) of the FOI Act provides that, where an application has been made to the Tribunal under s 53 but the Tribunal has not finally heard it, and a decision is given in relation to the request for documents, 'the Tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision'. Section 53(5) plainly recognises that an agency or Minister may continue to consider a request for documents notwithstanding that an application for a review has been made to the Tribunal as a result of a request having been deemed to have been refused under s 53(1).

3 The Department wrote to Dr Chopra on 22 December 2017 purporting to give notice of its intention to refuse his request under s 25A(1) of the FOI Act on the basis that processing the request would amount to an unreasonable diversion of resources. By that letter, the Department invited Dr Chopra to consult in order to narrow his request by 22 January 2018. The letter was received after Dr Chopra filed his application for review with the Tribunal. Dr Chopra did not respond to the letter. As noted below, the primary judge in the present matter considered that the question whether this letter complied with s 25A was one yet to be determined by the Tribunal.

Requests may be refused in certain cases

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

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

(b) in the case of a Minister - would substantially and unreasonably interfere with the performance of the Minister's functions.

...

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

(a) given the applicant a written notice -

(i) stating an intention to refuse access; and

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

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

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

5 The Tribunal conducted a directions hearing on 12 February 2018. The Tribunal appears to have assumed at first that the proceeding would take the usual course for a review of a deemed refusal under the FOI Act, namely that the respondent agency would make an actual decision which would then become in substance the decision under review. However, Dr Chopra opposed that course and did not make the request contemplated by s 53(5) which would have required it to be adopted. That is, at least in part, because Dr Chopra contends that an agency is unable, in a review of a deemed decision to refuse access to documents, to invoke s 25A of the FOI Act; and a request on his part under s 53(5) would be seen to alter that position. The Tribunal made an order allowing Dr Chopra to file and serve submissions as to further orders, including whether a further directions hearing was required.

6 Dr Chopra filed detailed submissions with the Tribunal on 19 February 2018, in which he sought answers to various questions of law or the referral of those questions to the Court under s 96 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). In response, the Department submitted that, notwithstanding that Dr Chopra had not requested under s 53(5) that the Tribunal extend the review to encompass the Department's actual decision under s 25A, the Tribunal should invite the Department under s 51A of the VCAT Act to make an actual (as distinct from deemed) decision on Dr Chopra's request for documents. The Department foreshadowed that it was likely to refuse the request under s 25A(1) and that its refusal would then become the decision under review, irrespective of the absence of any request under s 53(5). Section 51A of the VCAT Act relevantly provides:

(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 -

(a) affirm the decision; or

(b) vary the decision; or

(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.

7 In the meantime, on 27 February 2018, the Department purportedly decided to refuse Dr Chopra's request for documents under s 25A(1) of the FOI Act.

8 Further written submissions were filed in March and April 2018. The Tribunal had indicated that it would decide the issues raised by the parties on the basis of their written submissions. On 1 June 2018, the Tribunal made the following orders:

1. Under s 51A(1) of the Victorian Civil and Administrative Tribunal Act 1998, the respondent is invited to reconsider the decision under review.
2. In order to, as far as possible, ensure that this proceeding's priority is not affected by the making of the above invitation, the respondent is directed to, on or before 22 June 2018, file and serve:

1. Its response to the above invitation; and 2. If its response is a refusal under s 25A(1) of the Freedom of Information Act 1982, the evidence and submissions on which it intends to rely in this proceeding in support of its decision; or

1. If it makes another decision or makes no decision, the evidence and submissions on which it intends to rely in this proceeding.
2. The Tribunal has scheduled a directions hearing commencing at 9:30 am on 27 June 2018 at 55 King Street Melbourne before me if available, allow one hour.

9 The Tribunal provided written reasons for the orders.[1] In response to the invitation made under order 1, the Department reconsidered its decision and on 20 June 2018, it made a further decision to refuse Dr Chopra's request under s 25A(1) of the FOI Act.

10 Dr Chopra unsuccessfully sought leave to appeal under s 148 of the VCAT Act against orders 1 and 2 of the orders made on 1 June 2018. That leave was refused and Dr Chopra now seeks leave to appeal to this Court. For the reasons that follow, that application must be refused. The bulk of the reasons, however, addresses numerous other applications made by Dr Chopra during the extended period it has taken for this matter to be resolved.

Application for leave to appeal to a judge in the Trial Division

11 On 27 June 2018, on the application of Dr Chopra, the Tribunal stayed the proceeding pending the application for leave to appeal under s 148. The proceeding remains stayed pending the present application for leave to appeal.

12 The primary judge refused the application for leave to appeal. Apart from the question whether leave to appeal should be granted, the judge identified the following five issues for determination:

(b) Could the Tribunal invite the Department to reconsider its deemed refusal of Dr Chopra's request for access under s 51A of the [VCAT Act] in circumstances where Dr Chopra did not request the Tribunal, under s 53(5) of the FOI Act, to treat his application as extending to a review of the Department's decision to refuse access under s 25A(1) of the FOI Act?

(c) Can the Tribunal, in reviewing the Department's deemed refusal of Dr Chopra's request for access, consider whether his request should be refused under s 25A(1) of the FOI Act, in circumstances where the Department:

(i) did not give notice under s 25A(6) within 30 days of receiving his request or before he commenced his application for review; and

(ii) did not make a decision on his request until after he had commenced his application for review?

(d) Is the adequacy of the Department's compliance with s 25A(6) of the FOI Act a question arising from the Tribunal's orders, or is it a matter for the Tribunal to determine when it reviews the Department's decision to refuse Dr Chopra's request for access?

(e) Did the Tribunal commit any vitiating error in its management of the proceeding?

(f) Did the Tribunal give adequate reasons for its orders?[2]

(a) The Tribunal could invite the Department to reconsider its deemed decision to refuse Dr Chopra's request for access under s 51A of the VCAT Act in the circumstances of this case. After reconsideration, the Department affirmed its decision to refuse access, and also gave reasons for that decision which relied on s 25A(1) of the FOI Act. Because the Department did not vary the decision, or set it aside and substitute a new decision for it, the decision under review remains a decision to refuse access to the documents requested.

(b) In reviewing the Department's deemed decision to refuse Dr Chopra's request for access, the Tribunal can consider whether the request should be refused under s 25A(1) of the FOI Act. It may do so even though the Department did not take any action on Dr Chopra's request within the 30 day time limit prescribed by s 21(1) of the FOI Act.

(c) The adequacy of the Department's compliance with s 25A(6) of the FOI Act is not a question arising from the Tribunal's orders. It is a matter for the Tribunal to determine when it reviews the Department's decision to refuse Dr Chopra's request for access.

(d) The Tribunal did not commit any error in its management of the proceeding.

(e) The Tribunal was not obliged to give reasons for its orders of 1 June 2018. However, it gave written reasons and those reasons were adequate.[3]

14 The judge decided that Dr Chopra had no real prospect of success on any of the questions of law identified in his notice of appeal, and refused leave accordingly.[4] She added that she would, in any event, have refused leave to appeal for three other reasons.

15 First, the proposed appeal was against procedural orders made by the Tribunal that did not determine the application for review. Since the matter was yet to be heard on the merits, no injustice would flow from refusing leave to appeal from such orders.

16 Secondly, the proposed appeal was pointless because, after reconsideration under s 51A of the VCAT Act, the Department had affirmed its decision to refuse access. Because the Department did not vary the decision or set it aside, the decision under review remained the decision to refuse access to the documents requested. In other words, the decision under review remained a deemed decision to refuse access. This flows from s 51A(3), which only provides that the proceeding for review continues as a review of the decision as varied, or a new decision, if the decision has been varied or set aside. It follows that the reconsideration under s 51A had no effect on the review proceeding.

17 Thirdly, even without making a fresh decision, the Department could seek to persuade the Tribunal to affirm the deemed refusal to grant access to the documents by reference to s 25A. This is the point made at paragraph (b) of the summary at [13] above. It involves a suggested inconsistency in cases previously decided by the Tribunal, to which Dr Chopra directed many of his submissions. It will be necessary to return to this matter.

18 By application for leave to appeal dated 16 October 2019, supported by a written case, Dr Chopra seeks leave to appeal from the primary judge's decision on the following nine proposed grounds:

1. The Court erred in making a costs order against [Dr Chopra] on interpretations of provisions or on questions of law in matters initiated under the [FOI Act].
2. The Court erred in not removing from the costs order the cost of the directions hearing on 15 May 2018.
3. The Court erred in dismissing the leave to appeal and making the costs order on points not argued at the lower level.
4. The Court erred in that it did not indicate to [Dr Chopra] that it intended to decide the appeal and the matter of costs on grounds which had not been argued by the [Department] or by [Dr Chopra] and it did not invite submissions from [Dr Chopra] on these new grounds.
5. The Court erred in dismissing the appeal and therefore making the costs order when it accepted a brand new issue for its determination which had not been raised by [Dr Chopra], but instead raised by the [Department] which had argued that this issue was not raised at the VCAT, however, this was palpably factually false and the Court erred in making its determination by ignoring this evidence.
6. The Court erred in deciding the appeal and therefore making the costs order when it failed to properly consider evidence of the audio recording of the directions hearing at the Tribunal on 12 February 2019.
7. The Court erred in dismissing the appeal and making the costs order on erroneous interpretations of the provisions of the FOI Act and the [VCAT Act].
8. The Court erred in dismissing the appeal and therefore making the costs order when it failed to properly consider the central submissions made by [Dr Chopra], including supporting the denial of natural justice and procedural fairness by the Tribunal.
9. The Court erred in dismissing the appeal and making costs orders when it found that the Tribunal had given adequate reasons for its orders.

19 The matter in this Court has had a vexed procedural history. Because the hearing ultimately proceeded after a failed adjournment application, it is necessary to set out the main features of that history.

20 On 20 November 2019, the Department filed its written case in response to the application for leave to appeal, along with a notice of contention. On 4 December 2019, the Court notified the parties that the application for leave to appeal was listed for an oral hearing before a single judge on 16 December 2019 and gave directions for the preparation of an application book and folder of authorities. On the same day, Dr Chopra indicated that he could not meet the deadlines.

21 On 6 December 2019, the registry notified the parties that the hearing date had been vacated and that the matter was listed for an oral hearing before a single judge on 21 February 2020. Dr Chopra was asked to provide any comments on draft indexes which the Department had filed, and file any response to the notice of contention, by 31 January 2020.

22 On 24 January 2020, Dr Chopra requested a second adjournment. The Department indicated that it did not object to an adjournment. On 29 January 2020, the Court notified the parties that the hearing on 21 February 2020 was vacated and that the matter was now listed on 1 April 2020. Dr Chopra was asked to provide comments on the draft indexes and any response to the notice of contention by

23 On 27 February 2020, Dr Chopra sent an email to the Court requesting a further adjournment until August or September 2020 and referral to the Victorian Bar pro bono scheme. On 28 February 2020, the Deputy Registrar informed Dr Chopra that the Court declined to make a referral to the pro bono scheme or to adjourn the hearing. The Deputy Registrar advised Dr Chopra that any further application for an adjournment was to be made on the basis of affidavit evidence. In addition, it was confirmed that the application books would be prepared in accordance with the indexes already filed.

24 On 6 March 2020, the registry provided the parties with final indexes for the application book and combined folder of authorities and informed them that electronic copies of those materials were available for collection from the registry.

25 On 13 March 2020, Dr Chopra sought a third adjournment, supported by an affidavit sworn by himself. He asserted that the application book and combined folder of authorities had been prepared without the registry discussing them with him and said that he had not been afforded sufficient time to find legal representation. Dr Chopra said that he was in a weakened condition both mentally and physically. He also stated that he had been at a Coles supermarket on 6 March 2020 which was subsequently listed as a COVID-19 public exposure site and that he had experienced flu-like symptoms. Dr Chopra requested a hearing before three judges and said that the hearing needed at least a full day and preferably one and a half days.

26 On 18 March 2020, the solicitors for the Department indicated that the Department opposed the adjournment and did not consider that sufficient evidence had been provided in support of the claims made by Dr Chopra. The Department filed an affidavit exhibiting correspondence between Dr Chopra and the Department in which Dr Chopra asked to personally attend at the offices of the Department to inspect his employment file and to interview staff. According to the affidavit, Dr Chopra had proposed inspection dates of 13, 16 and 18 March 2020 and at no time had informed the Department that he was in isolation for COVID-19 or other illness.

27 After further correspondence, Dr Chopra filed a second affidavit, sworn on 24 March 2020. In that affidavit, Dr Chopra stated that he planned to submit a response to the Department's affidavit on the following day, 'health permitting'. He repeated his assertion that the initial listing of the hearing on 16 December 2019 was unreasonable and unfair. He stated that the extension that had been granted was impracticable and unreasonable. He had not had the benefit of legal advice or been able to hire a barrister because the extension granted had been 'far too short in duration'. During the Christmas and New Year period, Dr Chopra said that he was travelling to see his ageing father and 'barristers were at a premium'. He asserted that no barrister was available to pick up a matter with only four weeks pending before a hearing and with written submissions still to be made.

28 Dr Chopra stated that he was still 'experiencing flu-like symptoms' and was in quarantine because of those symptoms. He stated that he was in a 'physically-weakened state', which had been exacerbated by mental stress. He stated further that he was 'in a high risk category' if [he] should get the coronavirus' and that he was 'absolutely unable to proceed' with the appeal on the existing timetable. In anticipation of his further affidavit, Dr Chopra contended that there was no reason why he needed to mention his medical condition and vulnerability in previous dealings with the Department. Dr Chopra stated that other courts and tribunals had stayed their hearings until August 2020, except for the most essential matters and that he was requesting the same treatment. He hoped that, given sufficient time, he could retain the services of a pro bono barrister. He added that he should not be asked 'to put [his] physical health even more in jeopardy by trying to get out of my house for extended periods to meet barristers or other lawyers who could help me'. He stated that he needed to amend his written case and draft summary, file a reply to the notice of contention and have input into the content of the application book, none of which he was able to do because of his mental state.

29 Finally, Dr Chopra asserted that, to give him 'reasonable time to access legal advice, at a bare minimum', he needed to be able to inform a barrister that the hearing of the matter is 'say, 4-5 months away and that the written case and reply to notice of contention is say, 3-4 months'. He stated that he was 'unable to attend to a doctor to get any further certificates since the clinics do not want people who have symptoms as I do to attend their clinics in person'. As such, he was 'caught between a rock and a hard place'. Dr Chopra stated:

In my condition, I will not risk going somewhere else for hours. This might also risk passing on my virus to others, corona or otherwise. This is too high a risk in these precarious times.

Needless to say, these are unprecedented times. Even this Respondent might understand that it should not be putting lives at risk merely to get a hearing completed.

30 Among other things, Dr Chopra sought an adjournment to either a mention date or the hearing itself to a date 20 weeks away.

31 On 26 March 2020, Dr Chopra filed a third affidavit, sworn on 25 March 2020. In part, this affidavit repeated matters canvassed in the second affidavit. Dr Chopra also set out at some length submissions as to the background to the underlying dispute with the Department which was the subject of the request for documents. The affidavit also described the history of the matter in this Court at some length.

32 On 27 March 2020, the Deputy Registrar advised the parties that the hearing on 1 April 2020 would not proceed and that further details would be provided in due course. On 30 March 2020, he informed the parties that a USB flash drive containing electronic copies of the application book and the combined folder of authorities would be sent to Dr Chopra by express post that day.

33 On 31 March 2020, the Court ordered that Dr Chopra file any response to the notice of contention by 31 July 2020 and that the application for leave to appeal was listed for hearing on 14 August 2020 at 10:00 am. In its order, the Court referred to Dr Chopra's request in his affidavit sworn 13 March 2020 that the hearing of the application be listed on or around 17 August 2020. The Court decided that the matter should be adjourned because of the difficulties facing a hearing on 1 April 2020, noting that the Department did not contend that it would be prejudiced if the hearing were to be adjourned.

34 This amounted to a third adjournment, of 19 weeks.

35 On 31 July 2020, Dr Chopra filed a fourth affidavit, sworn by him on that date, requesting a fourth adjournment, either until in-person hearings resumed or at least until January 2021. In an affidavit, Dr Chopra stated that he 'was advised that [he had] an appointment to speak with a specialist at the hospital on 14 August starting at 10:15 am', being the time of the hearing. He described this as a 'random occurrence' and said that he had no say in the matter. He did not describe the nature of the appointment or the specialist. He went on to say that he did not have the technical capacity to participate in a Webex hearing. In particular, he said that his 'device does not have a working webcam'. He therefore asked the Court to 'stay this hearing until the virtual hearings period is over'.

36 Dr Chopra asserted that the Court had failed to give leeway to him as a self-represented person with respect to the preparation for the hearing. He stated that, without a barrister to assist him, he did not know why his appeal was being heard by a single judge. He stated that an 'extremely important reason to seek the advice of a barrister is that the real-issue-in-dispute has not been allowed to be articulated or decided either at VCAT or at the appeal in the first instance at the Trial Division'. He said that whatever chance he might have had of finding a law firm or a barrister was 'dashed by the total lockdown due to the coronavirus pandemic'.

37 Dr Chopra mentioned, without specifying what they were, that he suffered from 'high risk factors' and that trying to be in touch with his father, who was very aged and lived outside Australia, to figure out if he was being taken care of was an additional cause of mental stress. He asserted that, without a barrister or legal advice, he was 'mentally unable to make the additional written submissions that have been ordered' as well as ones which he had been asking to make since December 2019 and which he said were necessary to run the appeal.

38 In a further section of the affidavit, Dr Chopra referred to the manner in which the appeal had been handled to date and argued that it should be revisited in the interests of justice. He stated that the appeal had 'never recovered from [the] super-charged scheduling' in December 2019. Dr Chopra stated that his mental health was suffering but that he could not go to any psychiatrists in the prevailing environment due to the risk involved. He said that most doctors were refusing to see patients in person. Dr Chopra stated that the most recent extension granted by the Court 'turned out to be defeated by the coronavirus'.

39 Dr Chopra concluded his fourth affidavit by stating that, if the Court stayed the hearing, 'it can then on its own motion, re-start it when the circumstances change'. In the alternative, he said that the Court could adjourn the hearing to a date early in 2021.

40 On 2 August 2020, the Department's solicitors informed the Court via email that the Department opposed the adjournment and could provide further information if requested to do so.

41 On 4 August 2020, the Court ordered that the hearing for 14 August 2020 be vacated, that Dr Chopra file any response to the notice of contention by 4 November 2020 and that the application for leave to appeal be listed for hearing on 10 November 2020. The Court stated in 'other matters':

1. Given that the practical difficulties arising from a COVID-19 pandemic are continuing longer than previously expected, and that the respondent does not contend it would be prejudiced if the hearing is adjourned, it is appropriate to grant a further adjournment and set a further date by which any response to the notice of contention must be filed.
2. In light of the history of the matter, the Court considers that the hearing should be adjourned to the earliest date by which it may be expected that the practical difficulties referred to above will have diminished sufficiently to conduct the hearing of the application and to give the applicant a reasonable opportunity to obtain any legal or other professional assistance or advice that might be necessary for that purpose.
3. The applicant has, on several previous occasions, requested a referral to the Victorian Bar Pro Bono Scheme. ... [O]n those occasions the Court decided not to make a referral on the basis that it is not necessary or appropriate to facilitate the fair hearing and determination of the application for leave to appeal. For the same reason, the Court will not make a referral on this occasion.

42 This amounted to a fourth adjournment, of more than 12 weeks.

43 On 4 November 2020, Dr Chopra filed a fifth affidavit, sworn by him on that date. Dr Chopra sought a fifth adjournment, until May 2021. He stated that containment of COVID-19 had not been achieved until 'literally now' and that this 'simply did not allow [him] the freedom to act freely to run [his] case'. He stated that the 'practical difficulties and mental health and physical health issues still continue to this day even though there is good news around the corner'. He asserted that the 'ring of steel' put in place in July 2020 denied him access to and from metropolitan Melbourne. Dr Chopra resides in Geelong. He claimed that this was an impediment to him in trying to find pro bono assistance. Dr Chopra stated that his health situation was 'quite dire during the lockdown itself' and that he had been 'a prisoner in my own house since March 2020'. He said that:

Due to my co-morbidities, I was unable to venture out at all during this lockdown period. I literally have not been out of my house other than to go grocery shopping or to the doctors.

All this has had a huge negative impact on my mental health. Therefore, I was simply unable to figure out how to even begin to work on this appeal or leave to appeal and how to approach any law firm or barrister.

44 To a significant extent, the affidavit went on to repeat matters canvassed in the earlier material filed by Dr Chopra. In addition, he made observations about the findings of the trial judge in the present matter. Dr Chopra said that he was 'happy to attend any doctor or psychologist or psychiatrist' to provide evidence as to his mental state. He stated that he was 'swearing under oath to my confused and stressed and vulnerable mental state which makes me unfit to argue this leave to Appeal'.

45 On 5 November 2020, the Department's solicitors wrote to the Court indicating that the application for an adjournment was opposed. It was said that Dr Chopra had failed to explain how the progress of COVID-19 in Victoria had affected his freedom to run his case. It was noted that his place of residence fell outside the areas of Victoria affected by tighter public health controls that had been in effect. Law firms and the Victorian Bar had continued to operate from both within Melbourne and outside that area and a wide range of civil matters had proceeded through courts and tribunals, with and without legal representation. The letter went on to note that there was no independent evidence of the state of Dr Chopra's mental or physical health. It was asserted that Dr Chopra had appeared in a series of matters since March 2020 involving written and oral argument, listing nine matters involving hearings between 4 June 2020 and 11 September 2020. It was also said that Dr Chopra had prepared five lengthy and detailed affidavits since March 2020, in addition to preparing other documents required in the leave application. The Department further asserted that Dr Chopra was involved in a number of legal proceedings involving it and had been observed to be highly proficient in the use of technology. He had appeared remotely in all proceedings in which he had appeared since March 2020, including hearings in June, July and September 2020. He had shown himself to be 'more than capable of representing his own interests in the Tribunal, before the Court below and before this Court'. The Department went on to cite observations made in the Tribunal 'about Dr Chopra's querulous tendency to challenge interlocutory decisions and to cavil with and re-litigate decisions that have already been made'.[5]

46 The Department also contended that it would be prejudiced by a further adjournment, noting that the matter from which the proposed appeal originated remained live and part-heard in the Tribunal and would continue once the leave application and any appeal were determined, regardless of the outcome. The original freedom of information application was made on 17 November 2017. The Tribunal case, once heard, would involve the giving of evidence and cross-examination of witnesses. It was said that the delay would affect the quality of that evidence and the capacity of the Department to defend its decision. Reference was made to six other proceedings brought by Dr Chopra which were currently before the Tribunal concerning the Department's application of s 25A(1), which the Tribunal had ordered be heard and determined at the same time. It was said that, because of the continued delays in resolving the present matter, the Department was losing the opportunity to have the stayed proceeding from which the present application arises heard and determined along with those other matters, which would in turn lead it to incur additional legal costs and inconvenience in making staff and witnesses available for a further hearing. The Department observed that no evidence would be led in the present application and the credibility of witnesses was not in issue. The Victorian community was not currently subject to the previously fluctuating circumstances connected with COVID-19.

47 On 6 November 2020, the registry advised the parties that the Court would not deal with the adjournment application on the papers but at an in-person hearing on 10 November 2020. If the adjournment application was unsuccessful, the hearing of the application for leave to appeal would proceed. Further email communications ensued, in which Dr Chopra asserted that it would be unreasonable to expect the application for leave to appeal to be argued immediately in the event that the adjournment application was refused. On 9 November 2020, at 9:48 am, the registry notified Dr Chopra by email that the adjournment application had not been decided, and that any concerns he had about the matter should be raised at the hearing on the following day. A little under an hour later, Dr Chopra sent an email to advise that he was 'in the hospital' and had 'suffered a serious incident'. He said that he did not want the Department to know any of the medical details, but that there was 'no way' that he would be able to attend any hearing in person on the following day. He reiterated his request for an adjournment and said that he would provide an update later 'if and when I am able to do so after test results could come back'. The registry responded in the following terms:

Dear Dr Chopra,

You have not provided any details of the 'serious incident', why it prevents you from attending the hearing tomorrow and when you would be able to attend. Accordingly, the Court is not prepared to adjourn the hearing on the basis of your email below.

Noting that you have said you are unable to participate in an audio-visual remote hearing, the Court can make arrangements for you to participate by telephone rather than in person. If you wish to take up that offer, please inform the Court as soon as possible and by no later than 3:30 pm today.

Before the Court would consider an adjournment on the basis of the matters referred to in your email below, you would need to either:

1. seek the consent of the respondent; or

1. provide the Court and the respondent with an affidavit from a medical practitioner which addresses:

(a) the nature of your medical condition;

(b) why it is said you cannot attend the hearing tomorrow, either in person or by telephone; and

(c) by when your medical condition is expected to enable you to attend a hearing, either in person or by telephone.

48 Later that day, the Department indicated that, in the absence of evidence in support of the reasons for which an adjournment was requested, it did not consent to an adjournment. By email sent at 4:10 pm, Dr Chopra enquired of the Department how he was to submit evidence while he was 'stuck in the hospital'.

49 A short time later, Dr Chopra sent an email to the Deputy Registrar stating that he had been tested for COVID-19 and was therefore in isolation until the results came back the following day. He said that he did not want to release personal medical information but that his blood pressure was extremely high, 'hovering around 195/130'. He said that he had taken pictures of the monitor. Dr Chopra said that he was 'extremely mentally and physically stressed and in a very vulnerable state' and that there was 'absolutely no way that I can attend any hearing in the near future'. He had been told that he had to be monitored for a 24 hour period once he was released. He was still awaiting the results of tests with 'wires sticking out of [him]'. He stated that he could not send anything to the Court until he was discharged.

50 At 6:16 pm on the same day, the registry advised the parties that an order had been made adjourning the hearing until 26 November 2020. The order stated in 'other matters' that the Court was prepared to adjourn the hearing for a short time to allow Dr Chopra further time to obtain and provide to the Court and the Department an affidavit addressing the nature of his medical condition, why it was said that he could not attend the hearing on 10 November 2020, either in person or by telephone, and by when his medical condition was expected to enable him to attend a hearing, either in person or by telephone.

51 At 4:30 pm on 25 November 2020, Dr Chopra filed a further affidavit, sworn on that day by him, which he described as his seventh affidavit. Under protest at being 'forced to reveal my medical condition' he stated that he suffered from hypertension, caused in no small measure by the prolonged stress caused by the actions of the Department. He said that he had fainted on the morning of 9 November 2020 and been driven to hospital. He described a doctor having provided him with a medical certificate which stated that he was unable to attend employment or a court hearing during the period 9 to 14 November 2020. Dr Chopra referred also to suffering from severe anxiety and depression. He quoted a report of an unnamed clinical psychologist stating that Dr Chopra had 'adjustment disorder with mixed anxiety and depressed mood'. This was said to have to be attributed to incidents of work-related discrimination. The author was said to have made the following recommendations:

It is my belief that if Mr Chopra was self-represented, and appeared against the represented party that there would likely be an exacerbation of anxiety and depressive symptoms which would substantially impact his ability to navigate successfully through a hearing. It is my recommendation that in order to avoid a significant deterioration of his mental health, Mr Chopra be appointed a lawyer by the Court to allow Mr Chopra a fair hearing and to make written submissions to the Court of Appeal, and that Mr Chopra not be required to appear at a hearing at the Court of Appeal by himself to make legal arguments in person or over the telephone for six months until end-May 2021 by when his mental condition is expected to stabilise and improve. It is my understanding that Mr Chopra has a hearing as of tomorrow and given the reasons above believe it would be unreasonable for him to attend at this point in time until his mental and physical health have stabilised.

52 Dr Chopra stated that it was 'too much or a risk for me, and without being over-dramatic to my life, to be in the same confined space with other people for over three hours'. He asserted that he was being forced to risk his life. He said that the hearing should not be held until it becomes safe and/or a vaccine becomes available. Dr Chopra also referred to a medical certificate from a general practitioner stating that he was suffering from severe anxiety as well as hypertension and had an attack of chest pain on 9 November 2020 after which he was admitted to hospital for 10 hours for investigations.

53 Dr Chopra went on to contest several matters raised by the Department in its letter of 5 November 2020. In particular, he stated that the matters that had been dealt with earlier in the year were very simple and involved factual matters he was capable of arguing, or very simple legal matters. It was said that the present case was about complex legal issues.

54 The affidavit went on to state that he would require assistance to be driven to Melbourne and it was over a year since he had driven any substantial distance. He hoped that this would improve as his mental health became better over time.

55 Dr Chopra provided copies of the documents of medical professionals from which he quoted in his affidavit to the registry, but not to the Department. The registry informed the Department that it had received these documents, but the Department was not informed of the identities of the medical professionals concerned.

56 At 6:36 pm on 25 November 2020, the registry advised the parties that, since the Department had not had an opportunity to be heard in relation to the new material, the adjournment application would not be dealt with on the papers but would be the first matter dealt with at the hearing on the following morning. At 7:01 pm, Dr Chopra sent an email to the Court asserting that it was unjust for him to be 'ambushed' at the hearing with the Department's submissions in response to his seventh affidavit.

57 At 9:03 am on 26 November 2020, the morning of the hearing, Dr Chopra sent the registry an email informing them that he was 'at the hospital' and would not be able to attend the hearing. He requested that the Court adjourn the hearing consistently with the affidavits he had submitted and the medical evidence he had provided.

58 The Court found itself in the position that Dr Chopra had been granted five adjournments and now sought a sixth. On both the occasions when the most recent adjournment applications had been listed for hearing, Dr Chopra had been admitted to hospital. He sought an adjournment until the middle of May 2021, even though the case had first been listed for hearing in December 2019. Apart from generalised references to the difficulty of obtaining legal assistance, there was no evidence that he had done anything at all to advance preparation for the hearing in the meantime.

59 In addition, despite being advised that evidence from relevant medical practitioners was required, none was forthcoming. Dr Chopra reproduced the contents of written statements but the authors of those statements were not on oath, nor were they identified to the Department, still less available to be cross-examined. In any event, the high point of the material from the treating practitioners was a 'recommendation' by a clinical psychologist that Dr Chopra not be required to appear to make legal submissions, either in person or by telephone until 'end-May 2021', by which stage his mental condition was expected to stabilise and improve. The author believed it would be unreasonable for Dr Chopra to attend court at this time. This was said to be likely to exacerbate his anxiety and depressive symptoms which would 'substantially impact his ability to navigate successfully through a hearing'.

60 The thrust of this opinion was that appearing at a hearing without a lawyer would exacerbate Dr Chopra's symptoms and detract from his ability to present his case. On one view, that was something which could have been assessed as a hearing proceeded, rather than a reason not to proceed at all. But there was plainly little prospect of Dr Chopra attending court in the near future.

61 Attending at court as a party, and making submissions as a lay person, is undoubtedly stressful for most people. Courts are experienced in dealing with such situations, and do the best they can to alleviate such stress and to assist self-represented litigants understand the issues to be addressed and the governing principles, so far as can be done consistently with an impartial approach to the case. Adjournment of a case, which always depends on all the circumstances and the interests of both parties and the administration of justice more generally, is not an automatic or default response to a litigant's stress or anxiety, even when clinically diagnosed.

62 The Court is bound to seek to give effect to the overarching purpose in the Civil Procedure Act 2010, namely to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[6] In the present case, the hearing had been adjourned for the better part of 11 months without any visible sign of progress in Dr Chopra's preparation for the hearing. Moreover, if anything, it appeared that the prospect of Dr Chopra feeling able to attend a hearing diminished over the period. The Tribunal decision was made in June 2018 and the primary judge decided the leave application in July 2019.

63 In the circumstances, the Court decided to refuse the further adjournment and to proceed to hear the leave application on 26 November 2020, on the basis that Dr Chopra would then have until 22 January 2021 to respond in writing to anything said on the transcript, and to make any submissions which he wished to make additional to those in his written case. It was made clear that, the question being confined to leave to appeal, reference need not be made to the notice of contention. However, the Court raised its doubt about the utility of the proposed appeal on the basis that, because the Department's decision under s 51A had been to refuse access to documents, the making of the invitation to reconsider had no legal effect.

64 The fact that counsel for the Department had prepared an 'aide-memoire' meant that, aside from interventions by the Court, the oral submissions proceeded largely by way of elaboration of a written document. In this way, it was sought to minimise the exacerbation of Dr Chopra's symptoms which the clinical psychologist had predicted if he attended a hearing, while enabling the matter to proceed. The delay in the case to date meant that this course was preferable to the envisaged further adjournment of six months, without any assurance that, even then, Dr Chopra would feel able to attend a hearing.

65 The matter therefore proceeded. As mentioned, in large part, counsel for the Department relied on a 10 page aide-memoire which set out the Department's position on the question of leave to appeal, and this was provided electronically to Dr Chopra after the hearing. In addition, the Department had filed its own written case in November 2019. The Court has therefore had the advantage of written submissions from both sides. Both were very helpful in identifying the issues raised.

Further request for extension of time and other relief

66 Dr Chopra communicated with the Court on the following day, again requesting an oral hearing. On 16 December 2020, he sought an extension of time to file written submissions, on the basis that he did not receive the transcript until

14 December 2020. He also sought an audio recording of the hearing and asked that the order have certain documents annexed to it pursuant to r 60.05(3). The Court informed Dr Chopra, among other things, that audio recordings were not generally provided and asked for a reason why that policy should not be applied in this case.

67 Further correspondence ensued. Dr Chopra's request for the audio recording was refused on 17 December 2020. Dr Chopra maintained that he wanted the recording so that he could see what revisions had been made to the transcript. On 8 January 2021 Dr Chopra again sought an extension of time, based not only on not having the unrevised transcript but also because it was 'not possible' to find a lawyer during the holiday season. He again sought an oral hearing so that he, or his lawyer, could make submissions.

68 On 13 January 2021 the Court provided Dr Chopra with a document showing what revisions had been made to the transcript and again refused to provide the audio recording. The Court also advised Dr Chopra that the order would not have documents annexed to it and that the documents in question were in any event before the Court.[7] The Court informed Dr Chopra that the time for submissions had been calculated taking into account the time it would take to obtain the transcript (referring to the relevant passage in that transcript). It confirmed that the order would not be amended to extend time.

69 On 22 January 2021, the day the submissions were due, Dr Chopra requested an extension of time until the following Monday, 25 January 2021. An order to that effect was made on 25 January 2021.

70 However, Dr Chopra did not file submissions. Instead, he filed an 'eighth affidavit' dated 25 January 2021 sworn by himself, and an affidavit of Jessica Hargreaves, clinical psychologist, affirmed on 20 January 2021.

71 In this affidavit, Dr Chopra recounted his hospitalisation on the day of the hearing and his 'shock' that the hearing had proceeded after he made the Court aware of that fact. He noted that the transcript contained no acknowledgement that he was in hospital. He recounted the events around the hearing of 9 November 2020 and the Court's request that he provide evidence of that hospitalisation.

72 Dr Chopra went on to describe threats of physical harm he had received, and acts of criminal stalking, since October 2019 which had recently 'escalated tremendously'. He said that this had kept him 'entirely busy' for the past month and 'completely shattered' his mental health. He said that there was 'no way' that he could complete written submissions by 22 January 2021. In addition, he again asked the Court to 'appoint [him] a lawyer', stating that even if his written case covered the legal issues, he had prepared that case before the recent events affected his ability to work on further submissions. In reliance on the affidavit of Ms Hargreaves, he sought a further extension of time, until the end of May 2021. The balance of the affidavit concerned open settlement discussions, which it is not necessary to describe.

73 In her affidavit, Ms Hargreaves stated that it was she who provided the report provided to the Court earlier. She suggested that the Court had misinterpreted that report and 'clarified' that she had recommended that Dr Chopra not be asked to appear in person or by telephone at the hearing on 26 November 2020, or before the end of May 2021, without the assistance of a lawyer. She added that 'any further deadline ... for an oral hearing or for any written submissions' should be postponed until the end of May 2021. Ms Hargreaves stated that it was her advice that Dr Chopra would be unable to provide written submissions by 22 January 2021. That advice, it may be inferred, was based on her assessment of Dr Chopra's 'weakened mental health'. Ms Hargreaves repeated her recommendation that Dr Chopra be given time to 'rest and heal mentally', which would involve not providing written submissions before the end of May 2021.

74 Dr Chopra also sent an email on 27 January 2021 referring to these affidavits, continuing open settlement negotiations with the Department's solicitors and again seeking appointment of a barrister to 'expedite a just and fair resolution' of the matter, more time to file written submissions, an oral hearing and an audio recording of the hearing of 26 November 2020.

75 Among other email communications concerned mainly with a possible settlement, on 12 February 2021 Dr Chopra sent the Court and the Department an email over 20 pages in length. The email canvassed settlement and the mental health issues and threats which it was said affected Dr Chopra's ability to complete written submissions. There were extensive submissions as well as to the merits of the case. At the same time, Dr Chopra said that his observations about the substance of the case were merely a 'glimpse' of what he wanted to say, and that a barrister (if engaged) would undertake further necessary work and present the arguments properly. He said:

The Court should note that my Written Case and Notice of Appeal were written and filed on 17 October 2019 before the stalking and threats began later that month and then continued in the background but escalated severely in the past couple of months. As my Clinical Psychologist has also sworn in her Affidavit, a barrister should be appointed for me due to my severe mental health issues and the ongoing threats of physical harm to my family and I, including rape and death. I am not able to run this Appeal on my own.

... With respect, this email should provide more than a glimpse that the Appeal has real prospect of success. This email should not be considered as my partial or even preliminary written submissions. I do want a full opportunity to provide fulsome written submissions ... I would like to discuss the new authorities submitted by the Respondent including some submitted for the first time on 12 November 2020 and on 26 November 2020 in the aide-memoire. I would also like to respond to what was discussed between McLeish J and the Department at the hearing on 26 November 2020 which, with all due respect, showed a misunderstanding of what the proceeding is at the lower level at the Tribunal and therefore, what this Appeal is about. Incorrect facts were stated, perhaps inadvertently by [counsel for the Department], but these are extremely important facts in this Appeal. I would also like an opportunity to present arguments at an oral hearing. After reading this email, I am confident that the Court will understand better why I seek all of the above.

76 The email did not in terms identify the 'misunderstanding' or 'incorrect facts' mentioned. Dr Chopra later wrote that he would 'leave it for my barrister' to do this. However, and bearing in mind that the submissions that were made were said not to be partial or preliminary written submissions, Dr Chopra did recount the procedural history of the matter and wrote extensively about the merits. In particular, he said that it was essential to identify which was the decision under review in the proceeding. He said that the Tribunal's decision in Mildenhall v Department of Education[8] precluded the Department from relying on s 25A of the FOI Act in a deemed refusal case, that this was inconsistent with the decision of a differently constituted Tribunal in Lovell v Department of Human Services,[9] and that a bench of three judges ought to rule on the conflict. This argument was made in the written case and is addressed later in these reasons. In the email, Dr Chopra elaborated on his reasons for saying that the decision in Mildenhall was correct, by reference to amendments made to the FOI Act since that decision, including those providing for the establishment of the Office of the Victorian Information Commissioner.

77 On 17 February 2021 the Department indicated that it regarded the settlement negotiations as 'complete' and asked the Court to determine the matter.

78 Dr Chopra replied on 18 February 2021, asking the Department to engage in good faith to settle all proceedings between the parties, and asking the Court to order a mediation and stay the proceeding until protection orders could be served on those stalking and threatening him, which he hoped could occur by 31 May 2021. Dr Chopra asked the Court to 'confirm via return email' that his various applications would be ruled on before any further orders were made, or a decision.

79 The Court considered the above communications and decided that the timetable for written submissions should not be revisited, nor should there be a further oral hearing. It also decided that the matter ought not be referred to a bench of three and to affirm its decision not to refer the matter to the pro bono scheme, not to provide an audio recording of the hearing on 26 November 2020 and not to refer the matter to mediation. As to these last matters, the reasons can be shortly stated:

(a) The suggested conflict between the decisions in Mildenhall and Lovell does not arise in this case because no decision has yet been made that s 25A has been engaged. The Tribunal is yet to decide whether the procedural requirement in s 25A(6) has been satisfied, and this issue will not arise until that point. This matter is considered further in respect of proposed ground of appeal 7, below. There is therefore no occasion for this Court to decide the issue, either now or on referral to an enlarged bench.

(b) Dr Chopra has consistently engaged with the legal issues in the case in his submissions and communications. This was evident again in his email of

18 February 2021. Doubtless, as he says, a trained lawyer would do a more professional job. But the issues in dispute are clear. The pro bono scheme is not an unlimited resource. The scheme is also not intended to supply lawyers upon request. It depends on the goodwill of the profession, which trusts the Court to refer only cases where it is likely that the client and the Court will materially benefit from legal assistance which would otherwise not be available. That is not this case. Dr Chopra has at no stage suggested that he could not afford to engage a barrister if he wished.[10] I do not accept that the COVID-19 pandemic or the 'holiday season' just passed has prevented him from doing so.

(c) No reason has been given as to why Dr Chopra needs the audio recording. He initially claimed it was to check what had been 'revised' in the transcript, but that was accommodated by providing him with details of the revisions.

(d) Having reviewed the open correspondence between the parties as to settlement, and in the absence of the Department's consent, no useful purpose is likely to be served by referring the matter to mediation.

80 The Court decided that there should not be a further oral hearing. The evidence was that such a hearing could not occur before June 2021 and there was no assurance that Dr Chopra's mental health would permit a hearing at that point in any event. The oral hearing that had been held was comparatively short and Dr Chopra had been provided with the transcript as well as the aide-memoire document upon which the Department relied and to which its oral submissions were overwhelmingly directed. He had been given about two months in which to respond to the Department's case. No injustice would be done, in those circumstances, by proceeding to deal with the case without a further oral hearing. Moreover, to adjourn the matter further to enable another oral hearing to take place would substantially delay resolution of a matter which had already been the subject of inordinate delay, which would be contrary to the Court's obligation to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

81 The Court also did not consider that Dr Chopra should be allowed further time to prepare written submissions. As just observed, the Court is obliged to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. That involves fairness to both parties. In this matter, Dr Chopra's written case was filed in October 2019. I acknowledge that his mental health has declined since that time, including as a result of threats he has been receiving and that it would be better for his mental health to defer again the time for written submissions until the end of May 2021, as Ms Hargreaves has said. However, that cannot be the only consideration. I am not satisfied that, during that period or in the year preceding it, Dr Chopra has made any real effort to engage a barrister. While he has deposed to difficulties caused by the COVID-19 pandemic, in particular, and also various personal matters, he has at no stage given any detail as to why he has not engaged professional assistance. As already observed, he has not pointed to any lack of funds. Moreover, despite his mental health issues, he has, in the period of nearly three months since the oral hearing, been able to engage in writing in a meaningful way with the substance of the case.

82 Further, the history of this matter gives me no confidence that any extension that might now be granted would bring the matter closer to resolution. The fact that one basis for the extension sought is that protection orders first needed to be served on the person or persons responsible for threatening Dr Chopra points to the real chance of ongoing difficulty in resolving the matter.

83 In the circumstances, I am satisfied that Dr Chopra has received a fair opportunity to make submissions in this matter. It is his application. He supported it with a reasoned written case, having appeared in person before the primary judge. For reasons outside his control, he was ultimately unable to appear at the oral hearing. It had become clear that Dr Chopra would be unlikely to be able to attend any oral hearing for the next six months. In the circumstances, and given the long delay that had already taken place, the fairest solution was to conduct the hearing and give Dr Chopra an ample opportunity to address any matter arising out of that hearing in writing. To a limited extent, he has done so. He says that a barrister could do a better job, but apart from asking the Court to provide one, he seems to have done nothing to pursue that option.

84 The Court advised the parties on 26 February 2021 of the substance of the above decisions (without giving reasons) and informed them that judgment would be delivered on 1 March 2021. Late that afternoon, Dr Chopra filed a 'ninth affidavit' sworn on that day which contained 9 pages of submissions directed to the substance of the appeal and especially things said at a Tribunal directions hearing on 12 February 2018 (the transcript of which was provided - the Court already had an audio recording). He said that he had been working on this material but had to cut the work short given the available time. He restated that the submissions were not to be considered as even preliminary to those he wished to make. The submissions are referred to in relation to ground 6, below. To the extent that they address matters of costs, they do not now require consideration. The balance of the affidavit made a recusal application which is addressed at the end of these reasons.

Does the proposed appeal have a real prospect of success?

85 It is convenient finally to turn to the merits of the proposed appeal. Although, as will be seen, the whole appeal is addressed to matters that are moot, it is best to address the grounds sequentially.

86 By virtue of s 14C of the Supreme Court Act 1986, it is a necessary condition for the granting of leave to appeal that the appeal has 'a real prospect of success'. However, the Court retains a residual discretion whether or not to grant leave even when it is so satisfied.[11] For example, appeals against costs orders are regarded as exceptional.[12]

87 Proposed ground 1 asserts that the judge erred in awarding costs against an applicant in a case involving the interpretation of provisions of the FOI Act. The award of costs is a matter of discretion, in the exercise of the Court's power under s 24 of the Supreme Court Act 1986. The test for appellate intervention in these circumstances is that in House v The King:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[13]

88 There is no principle that a court should not award costs against an unsuccessful applicant for leave to appeal in a freedom of information case, whether or not questions of interpretation of the FOI Act are involved. This ground is misconceived and has no prospect of success.

89 Proposed ground 2 challenges the primary judge's costs order on a more confined basis, in so far as it encompassed the reserved costs of a directions hearing on 15 May 2018. The written case seeks to engage with the parties' respective conduct in respect of that hearing. Nothing is said to indicate any kind of House v The King error or any point of wider principle. In any event, as noted, appeals in respect of costs are exceptional. This ground also has no prospect of success.

90 Proposed grounds 3 and 4 are related. Both argue that the primary judge decided the substantive matter on points not argued. The written case, and material to which it refers, makes it plain that this complaint is addressed to the fact that the judge referred in her reasons to case law which had not been raised in argument. It is not suggested that any point of substance, as distinct from particular cases, upon which the judge rested her decision, were not raised with Dr Chopra. The grounds appear to be advanced under the misapprehension that the judge was required to invite submissions on every case she proposed citing in her reasons. That is not the case. In the absence of pointing to any substantive denial of procedural fairness, these grounds have no real prospect of success.

91 In proposed ground 5, Dr Chopra contends that the Department had raised the question whether it had complied with s 25A(6) of the FOI Act and misinformed the judge that the issue had not been raised at the Tribunal. Dr Chopra says that the issue was raised by him in the Tribunal. But it is irrelevant who raised the point in the Tribunal or before the judge. In either case, it cannot have been an error for the judge to address s 25A(6) as an issue. In any event, as explained below, the judge found that the Tribunal had not determined whether s 25A(6) had been complied with, and the judge did not decide that question either.[14]

92 Dr Chopra contends that the judge should have held that the Tribunal was required to address this issue itself. But there is no reason why this needed to be done before deciding whether to issue an invitation to the Department to reconsider its decision under s 51A of the VCAT Act. It had not reached the stage of determining the review application, which was when any issue under s 25A(6) must arise. This ground has no prospect of success.

93 In proposed ground 6, Dr Chopra points to the directions hearing in the Tribunal on 12 February 2018, which is said to show that he objected to the Department making an actual decision under s 25A of the FOI Act. It is irrelevant how Dr Chopra's submissions on that day are interpreted, because it is not in doubt, and was not at any relevant time after that date, that he opposed the Department making a decision under s 25A, including because he contended that s 25A(6) had not been complied with. The transcript is also said to show that the judge was wrong to find that the Tribunal had not misled him about the effect of s 53(5) of the FOI Act. Nothing turns on this point either, because Dr Chopra made it abundantly clear, consistently with the plain terms of s 53(5), that he did not request that the review extend to the Department's actual decision.

94 In his 'ninth affidavit', Dr Chopra submitted that the transcript demonstrates that the Tribunal proceeded on the incorrect basis that it could invite the Department under s 51A of the VCAT Act to review the decision it had made after the review commenced (to which, by reason of there having been no request under s 53(5), the review did not extend), rather than the deemed decision which was the sole subject of the review. Assuming that to be so, however, the invitation which the Tribunal ultimately made under s 51A was, in orthodox terms, that the Department 'reconsider the decision under review'. The proposed appeal could only challenge the order, not what was said at the directions hearing. (Any costs implications are for another day.)

95 Dr Chopra then submitted that the Department had led the Tribunal to consider that it would be open to the Department to respond to the invitation by relying on s 25A of the FOI Act, which he submits was impermissible in a deemed refusal review. It is clear from the Tribunal's order that it contemplated that the Department might invoke s 25A, in which event it ordered that it file and serve the evidence and submissions upon which it relied. The drafting of the order makes it clear that the Tribunal considered that a decision to refuse access under s 25A would not be 'another decision' or 'no decision', because it made separate provision for evidence and submissions in that regard. It is unclear whether the order proceeds on any assumption as to the legal effect of a decision relying on s 25A in response to an invitation. But in any event, that was set down as a matter for submissions. Again, the point goes nowhere, because whatever the Tribunal may have said on 12 February 2018, the issue had not yet been decided.

96 Even if the above conclusions are rightly attributed to the Tribunal as having informed its decision to make the invitation, however, the proposed appeal has a fatal defect, which is explained in respect of proposed ground 7 below.

97 This ground therefore has no prospect of success.

98 Proposed ground 7 is concerned with the merits of the Tribunal's decision under s 51A(1) to invite the Department to reconsider its decision. However, as noted by the primary judge,[15] that invitation led nowhere because the Department did not vary its decision in any way or substitute a new decision. It remained a decision to refuse access to the documents, and s 51A(3) had no operation. Irrespective of the arguments as to whether an invitation under s 51A(1) could have had the effect of enabling the Department to invoke s 25A of the FOI Act, nothing turns on the point and leave to appeal in respect of it must be refused.

99 That is so even if, assuming Dr Chopra's above submissions are accepted, the invitation to reconsider the decision was wholly misconceived because the Tribunal had invited the Department to review a decision other than the decision under review. Whatever may have underlain the decision to make the invitation, and whichever decision the Tribunal had in mind was being reconsidered, the ultimate decision on reconsideration had no legal effect and there is no point in reviewing the decision to invite the Department to make it.

100 Dr Chopra also sought under this ground to agitate the question whether the Department can, in any event, rely on s 25A of the FOI Act in the review of a deemed refusal. He submitted that the Tribunal's decision in Mildenhall established that this was not possible, and that the Tribunal's decision in Lovell was in conflict with that decision and wrongly decided. The judge rejected those arguments, holding that s 25A could be relied on to sustain a deemed refusal decision.[16] This was one of the reasons why she considered Dr Chopra's appeal to be 'pointless'.[17] However, there is no reason to address this issue in the presently proposed appeal, for two reasons.

(a) First, the conclusions in the previous two paragraphs show that the whole proposed appeal has no prospect of success. Dr Chopra seeks to challenge a decision by the Tribunal to undertake the course provided for by s 51A. That course has been followed and the outcome is that it had no legal effect. Nothing would be achieved by setting aside the Tribunal's decision to engage s 51A. In other words, the appeal would fail, irrespective of the position this Court might reach in respect of Mildenhall and Lovell.

(b) Secondly, in any event, the availability of s 25A has not yet been decided upon by the Tribunal, which is yet to decide even that the procedural step in s 25A(6) has been legally satisfied.[18] In those circumstances, for this Court to embark on an analysis of Mildenhall and Lovell would amount to an advisory opinion on an issue that may never arise in the underlying proceeding.[19]

101 In the circumstances, it would be inappropriate and unproductive for this Court to grant leave to explore the correctness of Mildenhall and Lovell.

102 Proposed ground 8 again raises procedural fairness in so far as the judge is said to have failed to address submissions asserting malicious behaviour on the part of the Department and attacking the Tribunal's conduct of the proceeding. By this ground, Dr Chopra seeks in part to agitate matters peripheral to the central issue before the Tribunal, which was whether to make the invitation under s 51A. It is said that the Tribunal did not afford a fair hearing, as revealed by its conduct of the 12 February 2018 directions hearing and its failure to give him an oral hearing. However, since nothing came of the invitation issued by the Tribunal after this hearing, this ground leads nowhere. The submission seems also to rest on the mistaken notion that matters other than whether to make an invitation under s 51A needed to be decided by the Tribunal. This ground has no real prospect of success.

103 Similarly, proposed ground 9, addressing the adequacy of the Tribunal's reasons, proceeds on the incorrect assumption that the Tribunal was required to address matters other than the operation of s 51A. It too has no real prospect of success.

104 In summary therefore, leave to appeal must be refused. In short, because the invitation under s 51A had no substantive effect on the review proceeding, the challenge to the Tribunal's decision to make the invitation is misconceived and could not possibly succeed. No natural justice ground, targeted at other aspects of the case as conducted in the Tribunal or before the judge, could alter that underlying defect in the proposed appeal.

105 For these reasons, the application for leave to appeal is refused. It is 'totally without merit' within the meaning of s 14D(3) of the Supreme Court Act.

106 The Department has stated that it would seek its costs if the application for leave to appeal was unsuccessful. Dr Chopra indicated in his email of

18 February 2021 that such an order should not be made, and made further submissions in his 'ninth affidavit' alleging that the Department lacked 'clean hands' by virtue of having encouraged the Tribunal to invite it to review a decision other than the one under review. He also pointed to passages of transcript said to show that the Tribunal proceeded on a mistaken view of the effect of the Department's decision made after the review commenced. However, he has not had the benefit of the Court's reasons for decision, which may bear on costs.

107 In that regard, the Department may also wish to review its foreshadowed application in light of the Court's reasons. It might be thought that, despite the futility of the proposed appeal, Dr Chopra has had a measure of practical success in that the reason the appeal is futile is that, as Dr Chopra argued in the Tribunal would be the case, the decision made in response to the s 51A application did not have the legal effect which the Department, and perhaps the Tribunal, intended that it would. On the other hand, as noted, the primary judge did already reach that conclusion.

108 In the circumstances, both parties should have an opportunity to be heard as to costs now that the matter has been decided. The Court will receive and consider any written submissions of the Department as to costs, to be filed and served within 14 days, and any responsive submissions Dr Chopra wishes to make, to be filed and served within a further 14 days. The question of costs will then be decided on the papers.

109 In his 'ninth affidavit' sworn 26 February 2021, Dr Chopra sought that I recuse myself from deciding this matter. I will set out his basis for that application and, in brief terms, my reasons for rejecting it.

110 Dr Chopra said that the advice that judgment was to be handed down on 1 March 2021 was 'the last straw' which 'clearly informed' him that he had been denied procedural fairness. He recounted why he felt this had been so throughout the proceeding. He stated that the transcript of the hearing on 26 November 2020 showed that I had 'formed a concluded view on several of the issues on which the appeal turned'. After repeating his objections to the procedures which the Court had adopted, Dr Chopra said 'and then I found out that with respect, McLeish J was a Solicitor General for the State of Victoria'. Dr Chopra alleged that this meant that I had an 'obvious conflict' because the Department was my 'former employer'. It was said that I had 'self-granted' to myself 'the power to be in a position to order costs in the amount of hundreds of thousands of dollars to be paid to the benefit of' that former employer. He recited the familiar test for apprehended bias.

111 The question whether a judge is unable to decide a case by reason of an apprehension of bias is answered by deciding whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[20] The fair-minded lay observer is reasonable, and is taken to know about ordinary judicial practice.[21]

112 In the present case, that means that the fair-minded lay observer appreciates that judges are required to make discretionary decisions about procedural matters by reference to a range of considerations, such as those under the Civil Procedure Act to which reference was made earlier in these reasons. The fact that a party is dissatisfied with some of those decisions is not a reasonable basis for apprehending that the judge might not bring an impartial mind to bear on the case. In this case, in my view, the fair-minded lay observer would take note of the significant adjournments afforded to Dr Chopra through the period until November 2020, and the attempts to accommodate his circumstances over time, recognising that a difficult balancing process is required and that Dr Chopra has sometimes received what he wants and sometimes has not. It is inevitable that decisions unfavourable to a party are made in litigation, but that is no basis for identifying apprehended bias.

113 To the extent that Dr Chopra alleges that the transcript of the hearing on 26 November 2020 shows that I had formed a clear view on issues on which the appeal turned, I do not consider that such a conclusion would be open to the fair-minded observer. There is nothing unusual in judges raising issues of concern to them in the course of a hearing.[22] Dr Chopra was invited to respond by way of written submissions and, at least to some extent and under cover of strenuous objection, did so.

114 Dr Chopra is mistaken in thinking that the Solicitor-General has the power to make appointments to any Court. That matter may be put aside. In so far as he identifies a suggested conflict of interest by virtue of my previous office as Solicitor-General, the following may be observed. First, at no time did I advise the State or its entities in relation to a matter which to my knowledge involved Dr Chopra, nor did I act in any matter to which he is a party. Secondly, it is well-established that a prior relationship between a former legal adviser (now a judge) and a client does not, of itself, disqualify the judge from sitting in proceedings where the former client is a party.[23] If that were not the case, judicial officers who previously served as Solicitor-General, of whom there are a number in this State alone, would be excluded from sitting on a great many cases of a kind which such judges regularly hear and decide. Thirdly, in case it is of any comfort to Dr Chopra, I mention that I was party to deciding a case adversely to the Secretary of the Department, and in favour of a teacher, as recently as November 2020.[24]

115 Dr Chopra sought further time within which to elaborate on his recusal application, and an oral hearing. Since the application is in my opinion entirely without foundation, and because it has been made so belatedly, that should not be permitted.

116 For these reasons, the application that I recuse myself from deciding this matter is refused.

[1] Chopra v Department of Education and Training [2018] VCAT 841 ('Tribunal Reasons').

[2] Chopra v Department of Education and Training [2019] VSC 488, [3] ('Reasons').

[5] Chopra v Department of Education and Training [2017] VCAT 504, [39], [41], [42], [46] (Judge Hampel V‑P); Chopra v Department of Education and Training [2019] VCAT 174, [36] (Quigley P); Chopra v Department of Education and Training (Review and Regulation) [2020] VCAT 748, [14], [32], [33], [43] (Judge Jenkins); Chopra v Department of Education and Training (Review and Regulation) [No 2] [2020] VCAT 932, [70] (Judge Jenkins); Chopra v Department of Education and Training (Review and Regulation) [No 2] [2020] VCAT 1035, [66] (Judge Jenkins).

[7] In response to other matters that Dr Chopra had raised, the Court also indicated that the Rules did not require a judge to sign the order, and that the colour of the Court seal was not relevant.

[8] (Victorian Civil and Administrative Tribunal, Senior Member Lyons, 9 April 1999) ('Mildenhall').

[9] [2010] VCAT 1965 (Judge Lacava VP) ('Lovell').

[10] He has noted several times that it is difficult to engage a barrister directly (without first engaging a solicitor) or that events or lack of opportunity have precluded him from engaging a barrister. By implication, it might be thought that he would have the resources to do so.

[11] Kennedy v Shire of Campaspe [2015] VSCA 47, [14] (Whelan and Ferguson JJA); Northern Health v Kuipers [2015] VSCA 172, [11] (Kyrou and McLeish JJA); Burgoyne Real Estate Pty Ltd v Dutt [2017] VSCA 372, [65]-[68] (Beach and Ashley JJA).

[12] PCCEF Pty Ltd v Geelong Football Club Ltd [No 2] [2019] VSCA 148, [38]-[41] (Whelan, McLeish and Emerton JJA).

[13] (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[14] See [13(c)] above.

[15] See [16] above.

[16] Reasons [55]-[67]; see above at [13(b)].

[17] See above at [17].

[18] The Tribunal referred to Mildenhall and held that it did not address the ability of an agency to make a decision under s 25A after an application for review of a deemed refusal has been lodged (as distinct from the ability of an agency to rely on arguments under s 25A in such a review, without making a fresh decision): Tribunal Reasons [46]-[50]. It did not refer to Lovell.

[19] Although the Tribunal stated in its reasons that, in its view, the Department had complied with s 25A(6) when it wrote to Dr Chopra on 22 December 2017, the judge regarded this as a matter remaining to be determined: Reasons [4(c)], [73], [76]. Counsel for the Department in this case described the Tribunal's statement as made 'in passing'.

[20] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437 [31] (Gummow ACJ, Hayne, Crennan and Bell JJ); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[21] Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[23] Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 87-8 (Brennan, Gaudron and McHugh JJ); Picos v Servcorp Ltd [2015] FCA 344, [40] (Perry J).

[24] Secretary, Department of Education and Training v Paul [2020] VSCA 280.