1. Under s 75 of the Victorian Civil And Administrative Tribunal Act 1998, the proceeding is dismissed with respect to all aspects of this proceeding, as detailed in the reasons below, except for applications to VCAT for review of the following applications for review to the Freedom of Information Commissioner which are taken to have been refused by the Commissioner:

1. Application dated 9 October 2014 (FOIC Ref No. 14/1492); 2. Application dated 9 October 2014 (FOIC Ref No. 14/1494);

1. Application dated 14 November 2014 (FOIC Ref No. 14/1553); and

1. Application dated 24 December 2014 (FOIC Ref No. 14/1624).
2. The principal registrar is to separate these matters into four VCAT proceedings and resolve any application fee issues (see paragraph 41 of following reasons).
3. Once any fee issues are resolved the four proceedings are to be scheduled for compulsory conferences at VCAT all at the same time and date, to be fixed by the principal registrar, allow half a day.

1. Mr Petrus den Brinker and Ms Ruth den Brinker are joint plenary guardians for their disabled son, Johan (John) den Brinker, appointed by VCAT under the Guardianship and Administration Act 1986 since 2003.
2. They are dissatisfied with the standard of services provided to him by the Department of Health and Human Services.
3. This led them to making multiple requests to the Department, then multiple complaints and some applications for review to the Freedom of Information Commissioner (the Commissioner),[1] followed by an application to VCAT under the Freedom of Information Act 1982 (Vic) (the FOI Act) in the name of their son, on the basis that their requests were "deemed refused".
4. On 17 November 2015, I heard the Department's application that VCAT dismiss the proceeding because VCAT lacks jurisdiction. The parties provided written submissions and some documentation. The Commissioner helpfully provided a complete set of the complaints and applications for review received by the Commissioner. I heard submissions and reserved my decision.
5. With the den Brinkers representing themselves, I approached the question of jurisdiction on the basis of both claimed deemed refusal by the Department and the Commissioner being taken to have refused requests.
6. Under s 75 the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), I dismissed the proceeding as it relates to the majority of issues raised.
7. I have not dismissed the proceeding as it relates to four applications to the Commissioner, on the basis that the Commissioner was taken to have refused four applications for review and it was appropriate to extend the time in which the VCAT applications may be made, under s 126 of the VCAT Act.
8. I first discuss the applicable principles.

Complaints to the Commissioner - VCAT does not have jurisdiction

1. The FOI Act enables complaints to be made to the Commissioner under Part VIA. This is a separate right to the right to seek review by the Commissioner of an agency's initial decision in response to a request for access to documents, under Part VI, Division 1.

1. VCAT's jurisdiction under the Act is defined at s 50 of the Act. Concerning the Commissioner and applications by a person other than an agency, VCAT has jurisdiction to review:
   1. A decision of the Commissioner refusing to grant access to a document (50(1)(b)) or deferring the provision of access to a document (50(1)(c)); and
   2. A decision by the Commissioner not to amend a document pursuant to a request under s 39 of the Act (50(3B)).
2. The references to grant access to documents refers to granting access under the Commissioner's review jurisdiction. It is not a reference to any function following the making of a complaint.
3. S 50 does not confer jurisdiction on VCAT to review the Commissioner's decisions in respect of complaints made under s 61A of the Act, within Part VIA.
4. Neither does VCAT have jurisdiction where an applicant is dissatisfied with the time taken by the Commissioner to respond to a complaint. While such jurisdiction does arise under s 53 (delay following FOI request to an agency or Minister) and s 49J(2) (delay by the Commissioner in relation to requests to the Commissioner for review), the FOI Act confers no equivalent jurisdiction concerning complaints to the Commissioner under s 61A.

Deemed refusals - VCAT does not have jurisdiction where a VCAT application is made after the applicant received a decision

1. VCAT does not have jurisdiction to accept an application on the basis that a decision is deemed to be refused, under s 53, if the applicant has received the agency's decision before making the VCAT application, even if the decision was made after the relevant deadline. The deadlines are 45 days concerning requests for access to documents under s 17 (see s 21) and 30 days concerning request for amendment of records under s 39 (see s 43).
2. This is because, under s 53, a decision can only be deemed refused until it is received. S 53(1) creates a situation where three criteria must first be met and continue to be met for a decision to be deemed refused, being:

1. A request was made to an agency or Minister - (53(1)(a)); 2. The relevant time period has elapsed - (53(1)(b)); and

1. Notice of a decision on the request has not been received by the person who made the request - (53(1)(c)).
2. The decision being received ends the period during which the request was deemed refused and the basis for an application under s 53, because the criteria at (c) above is no longer met.
3. For completeness, I add if while a decision is deemed refused a VCAT application is made, receipt of the decision does not displace VCAT's jurisdiction, which by then has already been invoked.

Single VCAT application concerning multiple decisions

1. In most cases, VCAT will only accept an application for review if the application concerns a single administrative decision. Here, the single application seeks review of multiple decisions.
2. It appears in the interest of efficiency, the directions hearing was scheduled concerning jurisdiction, presumably with the concept that concerning any issues surviving jurisdictional challenge, the applicant may well be required to amend this proceeding to concern only one decision and to lodge separate applications for each of the other decisions.

1. The bulk of the decisions the den Brinkers wish VCAT to review concern complaints made to the Commissioner under s 61A of the FOI Act.
2. It is convenient to refer to the documents the Commissioner provided:

1. Complaint dated 8 April 2014 (FOIC Ref No.14/1087); 2. Complaint dated 22 April 2014 (14/1339);

1. Complaint dated 27 June 2014 (14/1261); 2. Complaint dated 28 June 2014 (14/1262); 3. Complaint dated 10 July 2014 (14/1279); 4. Complaint dated 22 August 2014 (14/1386); 5. Complaint dated 9 October 2014 (14/1493) 6. Complaint dated 9 October 2014 (14/1495); 7. Complaint dated 14 November 2014 (14/1554); 8. Complaint dated 23 December 2014 (14/1621); and

1. Complaint dated 24 December 2014 (14/1625).
2. As discussed above VCAT does not have jurisdiction to review the Commissioner's decisions concerning complaints, no matter how long the Commissioner takes to respond to them.
3. Therefore, this proceeding is dismissed with respect to those complaints under s 75 of the VCAT Act on the basis that the application is in this respect misconceived.

Applications for review based on deemed refusal by the Department

1. VCAT has no jurisdiction concerning the following applications for review to the Department on the basis of deemed refusal under s 53 because the Department made decisions, which the den Brinkers received, before the August 2015 VCAT application. Here, it is convenient to refer to a table provided by the Department.
2. Requests were made under s 39 of the Act for correction to documents which resulted in complaints to the Commissioner. The requests were received by the Department in 2014 on 9 April (DHHS Ref No. EC14/0020), 19 April (EC14/0019), 21 April (EC14/0021) and 25 April (EC14/0022), 20 May (EC14/0024) and 25 May (EC14/0023).
3. On 24 June 2014, the Department decided each of the requests were not validly made under the Act.
4. Requests were made under s 17 of the Act for access to documents which resulted in complaints to the Commissioner. The requests were received in 2014 on 10 February (DHHS Ref No. F14/0096), 14 April (F14/0292), 29 May (F14/0418), 4 July (F14/0531), 21 July (F14/0581), 14 August (F14/0654), 15 September (F14/0741), 20 October (F14/0840) and 10 November (F14/0911).
5. Between 7 April 2014 and 16 December 2014 the Department decided with respect to all but one of the requests to grant access in part, exempting some information under s 33(1) of the Act. The request dated 20 October 2014 (F14/0840) was on 5 February 2015 refused as not being a valid request under the Act.
6. The den Brinkers made their VCAT application on 27 August 2015. By 5 February 2015, the Department had notified them of the decision with respect to each of the requests. By that date all the requests were no longer deemed refused and it was not possible to make a valid application to VCAT on the basis of deemed refusal.
7. Therefore, this proceeding is dismissed with respect to those complaints under s 75 of the VCAT Act on the basis that the application is in this respect misconceived.

1. The VCAT application also referred to four applications for review to the Commissioner;

1. Application dated 9 October 2014 (FOIC Ref No. 14/1492); 2. Application dated 9 October 2014 (14/1494);

1. Application dated 14 November 2014 (14/1553); and

1. There can be no issue of the Department being deemed to have refused the original requests under s 53. With the VCAT application having been made on 15 August 2015, the Department had made its decisions well beforehand, between 9 September 2014 and 16 December 2014 inclusive, and had notified the den Brinkers shortly after the date of each decision.
2. This only left the potential for VCAT to have jurisdiction as the Commissioner was taken to have made a reviewable decision under s 49J(2) of the FOI Act.
3. While the Department agreed at some dates before the den Brinkers made their VCAT application, the Commissioner was taken to have refused each of the requests, the Department submitted the 60 day time limit, (under s 52(5) of the FOI Act), for the den Brinkers to apply to VCAT had well and truly expired by 27 August 2015, when they made that application.
4. The Commissioner's letter to VCAT referred to above, shed no light on this issue. The den Brinkers' evidence on this point was not concise. However, I accept their evidence, from the bar table before me, that since making requests to the Commissioner, they dealt with a variety of Commissioner staff. They recalled along the way agreeing to various time extensions for the Commissioner to make decisions. They provided an email from a Commissioner staff member in April 2015, related to time extensions and their complaint to the Commissioner about the time being taken to deal with the issues raised. According to the den Brinkers, on 6 August, 2015 they "gave up" trying to deal with the Commissioner and later that month made their VCAT application.
5. As Mr Batskos for the Department and I discussed in the course of submissions in this proceeding, complex issues arise when comparing the 'deemed refusal process' under s 53 and the 'decision taken to be refused process' under s 49J of the FOI Act. As yet, VCAT has not ruled on various questions and there is no need to do so in this proceeding.
6. It is enough to say that whatever date the Commissioner was taken to have refused the relevant requests under s 49J, it is appropriate under s 126 of the VCAT Act to extend the time for the making of these applications to the date the application was made.
7. I accept the den Brinkers understood until early August 2015 that the Commissioner was intending to respond to their requests. In that circumstance, it would be unfair to deny them the opportunity to seek review at VCAT a couple of weeks after they had given up in frustration.

1. As the Department submitted, it is not appropriate that these four matters remain combined on the one VCAT proceeding file. Generally, VCAT requires a separate application to be made for each decision under review, particularly in the FOI jurisdiction. That is appropriate here.
2. I have directed the principal registrar to separate the remaining four matters into four VCAT proceeding files. That will give rise to the question of application fees.
3. I leave it to VCAT's principal registrar to decide if application fees are payable and if so, to enquire of Mr and Mrs den Brinker whether they seek the principal registrar to waive the application fees in each of the proceedings on the basis of their son's financial hardship. They made a fee waiver application in lodging the application that gave rise to this proceeding.
4. Once fee issues are resolved, the principal registrar is to schedule a compulsory conference in this proceeding to see whether, with the assistance of a VCAT member, the issues between the parties may be resolved by negotiation. If that attempt fails, directions will then be made leading to a hearing on the issues that remain at VCAT between the parties.

[1] The position established under the Freedom of Information Act 1982 (Vic).