When a person makes a request for documents to the Australian Health Practitioner Regulation Agency (AHPRA) under the Freedom of Information Act 1982 (Commonwealth), a labyrinthine legislative path confers review jurisdiction on VCAT, if procedural pre-conditions are met. See McEwan v Australian Health Practitioner Regulation Agency (General) VCAT 1741. Surprisingly, as described in McEwan, it is the Commonwealth FOI Act as in force before 1 November 2010 which applies (These reasons refer to that version of the Act as the 'FOI Act').
On 14 August 2017, VCAT received an application from Dr Ajintha Pathmanathan, seeking review of her FOI request to AHPRA made on 18 July 2017 (the FOI Request). She made her VCAT application on the basis that the FOI request was deemed refused as AHPRA had not made a decision within the requisite timeframe.
After seeking further information from Dr Pathmanathan, under s 71 of the Victorian Civil and Administrative Tribunal Act 1998, a delegate of the principal registrar of VCAT rejected her application on the basis that VCAT did not have jurisdiction. Dr Pathmanathan requested review by VCAT of that rejection.
On 15 November 2017, VCAT reviewed the rejection. Given the form of the orders made, it appears that on the basis of information then available, it appeared VCAT had jurisdiction with the FOI Request deemed refused. VCAT directed the principal registrar to accept the application and to treat AHPRA's 30 August 2017 FOI decision refusing the FOI Request (on the basis that to process and decide it would be an unreasonable diversion of resources) as the application under review.
The above decision was made in the context that s 71 review hearings proceed with only the applicant present, with the potential respondent (here AHPRA) not invited, nor usually aware, of the application to VCAT. This is because with the application at the time rejected, there is in fact no existing respondent.
In that context, if the application is accepted, it is open for a respondent who then becomes aware of the application to submit to VCAT that it does not have jurisdiction in the matter and to provide additional evidence concerning jurisdiction.
On 20 November 2017, VCAT received correspondence from AHPRA submitting that VCAT does not have jurisdiction in this proceeding.
On 7 December 2017, VCAT received more detailed correspondence on behalf of AHPRA to that effect. AHPRA submitted that at the time Dr Pathmanathan made application to VCAT, her only review right of the 30 August 2017 FOI decision was by way of internal review, not to VCAT.
On 11 December, at the directions hearing in this proceeding, I heard submissions from the parties. Dr Pathmanathan rejected AHPRA's offer that it would accept a late internal review request by the following Friday if she agreed to withdraw her application in this proceeding. Dr Pathmanathan asked that VCAT decide the jurisdiction issue. I reserved my decision.

Victorian Civil and Administrative Tribunal|2017-12-22

Dr Pathmanathan v Australian Health Practitioner Regulation Agency (Review and Regulation) [2017] VCAT 2166 (22 December 2017)

Dr Pathmanathan v Australian Health Practitioner Regulation Agency (Review and Regulation) [2017] VCAT 2166

This proceeding is dismissed under section 75 the Victorian Civil and Administrative Tribunal Act 1998 as the applicant is not entitled to make the application as VCAT does not have jurisdiction in this proceeding, for the reasons given below.

When a person makes a request for documents to the Australian Health Practitioner Regulation Agency (AHPRA) under the Freedom of Information Act 1982 (Commonwealth), a labyrinthine legislative path confers review jurisdiction on VCAT, if procedural pre-conditions are met. See McEwan v Australian Health Practitioner Regulation Agency (General) VCAT 1741. Surprisingly, as described in McEwan, it is the Commonwealth FOI Act as in force before 1 November 2010 which applies (These reasons refer to that version of the Act as the 'FOI Act').
On 14 August 2017, VCAT received an application from Dr Ajintha Pathmanathan, seeking review of her FOI request to AHPRA made on 18 July 2017 (the FOI Request). She made her VCAT application on the basis that the FOI request was deemed refused as AHPRA had not made a decision within the requisite timeframe.
After seeking further information from Dr Pathmanathan, under s 71 of the Victorian Civil and Administrative Tribunal Act 1998, a delegate of the principal registrar of VCAT rejected her application on the basis that VCAT did not have jurisdiction. Dr Pathmanathan requested review by VCAT of that rejection.
On 15 November 2017, VCAT reviewed the rejection. Given the form of the orders made, it appears that on the basis of information then available, it appeared VCAT had jurisdiction with the FOI Request deemed refused. VCAT directed the principal registrar to accept the application and to treat AHPRA's 30 August 2017 FOI decision refusing the FOI Request (on the basis that to process and decide it would be an unreasonable diversion of resources) as the application under review.
The above decision was made in the context that s 71 review hearings proceed with only the applicant present, with the potential respondent (here AHPRA) not invited, nor usually aware, of the application to VCAT. This is because with the application at the time rejected, there is in fact no existing respondent.
In that context, if the application is accepted, it is open for a respondent who then becomes aware of the application to submit to VCAT that it does not have jurisdiction in the matter and to provide additional evidence concerning jurisdiction.
On 20 November 2017, VCAT received correspondence from AHPRA submitting that VCAT does not have jurisdiction in this proceeding.
On 7 December 2017, VCAT received more detailed correspondence on behalf of AHPRA to that effect. AHPRA submitted that at the time Dr Pathmanathan made application to VCAT, her only review right of the 30 August 2017 FOI decision was by way of internal review, not to VCAT.
On 11 December, at the directions hearing in this proceeding, I heard submissions from the parties. Dr Pathmanathan rejected AHPRA's offer that it would accept a late internal review request by the following Friday if she agreed to withdraw her application in this proceeding. Dr Pathmanathan asked that VCAT decide the jurisdiction issue. I reserved my decision.

Under the FOI Act, it is clear that if on 14 August 2017, when VCAT received Dr Pathmanathan's application, her request was not deemed refused, then VCAT has no jurisdiction. Her only right of review was via internal review.
Therefore, it is necessary to calculate the passing of the days.
With the FIO request received by AHPRA on 18 July 2017, Day 1 for the purposes of calculating deemed refusal was 19 July 2017.
Under section 56 of the FOI Act, if AHPRA had not decided the FOI Request within 30 days, it may have by operation of s 56 been deemed to be refused, noting that there are circumstances where more days may pass before a request is deemed refused.
I note here that if the Freedom of Information Act 1982 (Cwth) as in force today applied, the same 30 day time limit would also apply.
When VCAT received Dr Pathmanathan's application on 14 August 2017, interpreting the circumstances in the way most favourable to Dr Pathmanathan, that was Day 27. On any scenario, 30 days had not passed and so the FOI Request was not deemed refused when VCAT received the application.
Therefore, VCAT has no jurisdiction in this proceeding. Therefore, there is no option but to dismiss the proceeding under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that the application is "misconceived", in the sense that VCAT does not have jurisdiction. The use of "misconceived" is in no way meant to imply any criticism of Dr Pathmanathan.

Civil and Administrative Tribunal Act 1998

Information Act 1982

Dr Pathmanathan v Australian Health Practitioner Regulation Agency

At a glance

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Judgment (5 paragraphs)

Dr Pathmanathan v Australian Health Practitioner Regulation Agency (Review and Regulation) [2017] VCAT 2166 (22 December 2017)

Parties

Legislation Cited (2)