Farrar v Northeast Health Wangaratta (Review and Regulation) [2018] VCAT 900

Under section 75 of the Victorian Civil and Administrative Tribunal Act 1998, these proceedings are dismissed as misconceived on the basis that the Tribunal does not have jurisdiction.

1. These reasons are provided at the request of Mr Douglas Farrar. They follow oral reasons given at the conclusion of the Section 75 Hearing in this case on 31 May 2018.
2. On 23 March 2018, VCAT received two applications under the Freedom of Information Act 1982 (FOI Act) made by Mr Douglas Farrar on behalf of Ms Audrey Farrar.
3. Mr Farrar made the VCAT applications on the basis that on 21 December 2017 he hand delivered to Northeast Health Wangaratta (NHW) two requests under the FOI Act, which, at the time the applications were made to VCAT, were said to be taken to be refused under section 53 of the FOI Act.
4. VCAT served copies of the applications on NHW, which NHW received on 4 April 2018.
5. NHW then advised that the first it knew of the two FOI requests was when it received them from VCAT. It applied for the proceedings to be dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that requests never received cannot be taken to be refused. Section 75 empowers the Tribunal to dismiss a proceeding as misconceived if VCAT does not have jurisdiction.
6. NHW provided a witness statement by Dr John Elcock, Director of Medical Services. His evidence was NHW has no record of receiving the two requests and no record of payment of application fees, or waiver of fees, related to such requests. He gave evidence that NHW had conducted a thorough and diligent searches for the requests. As NHW closed circuit television footage is only kept for seven days, there was no footage to investigate which may have shown Mr Farrar making the delivery.
7. Being challenged on this issue, Mr Farrar provided written statements as to his recollection of delivering the requests to NHW. His evidence was persuasive.
8. Independent of the s 75 application, on 19 April 2018 NHW decided the two requests. In a letter addressed to Mr Farrar, it refused the requests, advising Mr Farrar that he may seek review of the decisions by the Office of the Victorian Information Commissioner, and that such requests must be made within 28 days of receiving NHW's decision.
9. On 31 May 2018, HWS's application that the two proceedings be dismissed came before me for hearing. Mr Douglas and Ms Audrey Farrar attended in person. Mr Marino, solicitor for NHW attended by telephone as did Dr Elcock for the purpose of cross-examination.

1. After hearing evidence from Dr Elcock and Mr Farrar and submissions from Mr Marino and Mr Farrar, in announcing my orders and giving reasons I advised I was satisfied that Mr Farrar had delivered the two FOI requests to NHW in sealed envelopes. He understood they would then be processed as a previous request from him to NHW had been processed.
2. However, I was equally satisfied that, for reasons unknown, the two requests never travelled from the NHW front counter into NHW's 'FOI system' for consideration.
3. In that situation, the pre-requisite under s 17 of the FOI Act, that the relevant application fee either be paid or waived before a valid FOI request can be made (see Gordon v Mornington Peninsular Shire Council (2005) 23 VAR 394)[1] had not been met.
4. There being no valid FOI request, VCAT does not have jurisdiction. The 30 days following a valid request never started to run.
5. Mr Douglas protested that this was not correct because NHW, by coincidence, has not yet refunded him money he had paid concerning an earlier FOI request, which could be treated as payment for the FOI request in question.
6. That does not alter the situation. NHW never made a decision to either accept payment or waive payment with respect to the two FOI requests in question.
7. In response to a question from me, Mr Farrar advised that with his applications for review being at VCAT, he had not pursued review by the Information Commissioner within the 28 days. NHW offered to support Mr Farrar in a request to the Commissioner for extension of time in which to lodge such an application, if Mr Farrar wished to do so. I leave that matter to Mr Farrar and NHW.

[1] That decision not cited in oral reasons but provided in these written reasons for the information of the parties.