1. all documents created between 1 January 2010 and 30 April 2011 held by the faculty of engineering regarding the assessment of his projects to subjects ECE4094 and ECE495 in which he was enrolled in semesters one and two of 2010 respectively; 2. all documents created between 1 January 2011 and 28 February 2011 regarding the investigation of his grievance in relation to the engineering faculty; and

1. all documents created between 1 February 2011 30 April 2011 regarding the investigation of his complaint to the Student Ombudsman.
2. While the University first decided to release the documents in part, to withhold from disclosure three documents in full and to release substantial other documents outside the FOI Act, following internal review it decided to release it all documents except the a part of one document, which Mr Fong does not seek.
3. Mr Fong submits the University has failed to release all relevant documents to him. In May 2012, he applied to VCAT seeking orders that the University conduct a further search. In July 2012, VCAT adjourned the proceeding to September as the applicant was going to ask the Ombudsman to investigate his claim. The Ombudsman did not investigate. The final hearing was listed for November. However, at Mr Fong's request it was adjourned to allow him to further consider the University's written material.
4. On 22 January 2013, I heard the application. Mr Fong represented himself. Mr Batskos, Solicitor represented the University.
5. The hearing itself was complicated by the fact that Mr Fong had only provided attachments to his short written submissions in soft copy by e-mail to VCAT and to the University's solicitors. There was no copy of the attachments on the VCAT proceeding file provided to me. Mr Fong did not bring with him either a hard or soft copy of the attachments. The University solicitors had had trouble printing the attachments sent to them by e-mail. Mr Batskos assisted by providing me a hard copy of what had been printed. The Tribunal made copies for itself and Mr Fong. Mr Fong said they were not a complete set.
6. Also, Mr Fong sought to refer to documents released to him by the University, which he had stored on a computer disk he brought to the hearing. Arrangements were made for a VCAT laptop computer and a projector to be set up at the hearing. Using the projected images was cumbersome. The hearing was also somewhat hampered because neither party brought a hard copy of the documents that have been released to Mr Fong to the hearing.
7. During the hearing Mr Batskos made various objections to issues raised by Mr Fong on the basis that he had not previously raised them, as he had been directed to by VCAT, in order that the University may respond. While acknowledging the fairness of the objections given that Mr Fong's written notice of the issues he wished to raise were less than clear, I largely did not accept the objections on the basis of the most efficient way to conduct a hearing was to give Mr Fong reasonably free reign. Had it been necessary, I could have given the University opportunity to provide a short written submission after the hearing if it had been substantially surprised by an issue. By the end of the hearing that had not happened and I reserved my decision.
8. By the end of the hearing, with reference to a one and a half page document filed by Mr Fong, his cross-examination of Mr Calder and is oral submissions I understood him to be saying that the evidence showing the University had not conducted a thorough and diligent search for the documents he requested was in summary:

1. while he had only been provided with one e-mail from Professor Jean Armstrong of the University, some of the documents he had been provided with indicated it is likely there were other e-mails. He also recalled having other e-mail correspondence with the professor, although he was unable to provide an estimate of how many e-mails that may been; 2. while the University failed to provide him with a copy of a draft report he had provided by e-mail during an assessment process, documents in his possession showed the report had been submitted;

1. in his view, within the terms of the scope of his FOI request the University should have provided to him various policy documents concerning the assessment of student work;

1. Mr Fong had sought a video of him making a final presentation in an assessment process. While the University submitted that due to operator error no video had been made, Mr Fong disputes this on the basis of an e-mail from Associate Professor Linsay Keenan who re-marked his final year who had in correspondence referred to reviewing the final presentation; and 2. University had first decided to withhold three documents in full. On internal review, it decided to release those three documents. However, when it provided the three documents, Mr Fong discovered that he had already been provided with one of those documents. Thus in his view it is likely that in fact he is yet to receive one of the three documents.
2. Mr Anthony Calder, Director, Executive Services, Monash University gave detailed evidence by way of a detailed witness statement about the history of the University receiving Mr Fong's FOI request, which University staff searched where for the documents, the results of those searches and the decisions to release documents to Mr Fong. He gave further evidence about the proceeding at VCAT.
3. In response to Mr Fong's written notice of the issues he wished to raise, while Mr Calder had difficulty understanding it he responded to as follows, having made additional enquiries of the people concerned:

1. Professor Armstrong confirms no further documents exist saying all documents relevant to Mr Fong's request to be identified provided to him. Also, all documents available via the University "blackboard" (an online facility the communication between students and their teachers including the storage of assessment material) have been provided; 2. while Mr Fong seeks documents relating to the internal procedures used by the engineering faculty, there are no such documents relevant to his request;

1. after the first FOI decision which in part decided to exempt three documents in full and five documents in part, those eight documents were sent to a Mr Marshall for internal review. He decided to release the three documents, which were provided to Mr Fong. In the course of the hearing Mr Calder was unable to assist as to why one of the three documents provided after internal review may have already been in Mr Fong's possession. Mr Fong was unable to at the hearing show us a copy of the document in question.

1. Concerning the material relied on by Associate Professor Kleeman in reviewing Mr Fong's final presentation, on further enquiry the Professor confirmed that has stated in his e-mail of 1 February 2011 to Professor Armstrong he had relied on a thesis submitted in October 2010, a review of the final presentation and photographs of equipment used in the project. The Associate Professor confirmed he returned all materials to Professor Armstrong. During cross-examination, Mr Calder explained that there had been confusion as to whether a video of the presentation had existed. It was only fairly late in the searches that it was discovered that no video had ever been made due to operator error on the day. The equipment had not been turned on.
2. Mr Fong cross-examined Mr Calder. Nothing said in cross-examination leads me to doubt Mr Calder's evidence. In fact, he spoke with some passion about the University's commitment at an individual staff level to thoroughly and diligently respond to FOI requests.

1. Section 27(1) of the Act sets out what reasons the University must give in response to an FOI request. It relevantly says,
   1. Reasons etc. to be given

(1) Where, in relation to a request for access to a document of an agency ... a decision is made under this Part that ... no such document exists, the agency ... shall cause the applicant to be given notice in writing of the decision, and the notice shall -

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and the reasons for the decision;

(b) where the decision relates to an agency, state the name and designation of the person giving the decision; ...

(i) his right to apply for a review of the decision;

(ii) the authority to which the application for review should be made; and

(iii) the time within which the application for review must be made;

(e) where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman.

1. This implies that the search must be "thorough and diligent".
2. Section 50(2) of the Act enables an applicant to apply to VCAT for review of a decision by an agency. It relevantly says,

(2) Subject to sections 51 and 51A, an applicant may apply to the Tribunal for review of -

(a) a decision refusing to grant access to a document in accordance with a request;

1. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010) I said in my view, VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999), para 29. Hedigan J said it was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal.
2. Section 51 of the VCAT Act sets out VCAT's functions on review. It relevantly says,
   1. Functions of Tribunal on review

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

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

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

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

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

1. Section 75 of the VCAT Act deals with summary dismissal. It relevantly says,
   1. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance...

1. I dismiss Mr Fong's application.
2. I previous decisions I have said that in such applications, the applicant must do more than speculate that documents have not been provided to him or her.
3. As Mr Batskos submitted, President O'Connor of the New South Wales Administrative Decisions Tribunal has put it more fully in his decision about the comparative or provision in that state in Cainfrano v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195 (27 June 2006) at para 69,

An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

1. In the context of Mr Calder's evidence (which I accepted in full), which included a substantial number of supporting communications between University staff (e-mails and letters), I am not persuaded that there is an arguable case that the University has not met its obligation to conduct a thorough and diligent search.
2. Concerning e-mail communication between Professor Armstrong and Mr Fong, on more than one occasion the Professor confirmed she has provided the e-mails she could find between them. Mr Fong makes a reasonably vague claim as to there being more e-mails.
3. It appears from a printout from the University 'blackboard', which Mr Fong provided at the hearing, that at some point he submitted a draft report. He complains that he has not been provided with a copy of his draft. Mr Calder gave evidence that the University provided all documents available via blackboard. I accept his evidence. Also, is far from clear that the draft document is material to his assessment and so within the scope of the FOI request. During the hearing Mr Fong raised an issue that he had been criticised in his final assessment over a passage in the final version of report. However, he says that passage was in the draft and received no negative comment at that time. That is not an issue relevant to this decision or within VCAT's jurisdiction.
4. While Mr Fong seems to continue to search for a video of his final presentation, Mr Calder's evidence is that it does not exist for the reasons described above. Mr Fong is only able to speculate as to the existence of other material based on correspondence between Professors Armstrong and Associate Professor Kleeman.
5. I will assume Mr Fong is correct in saying that when he was provided with one of the three documents previously withheld from him, he discovered had already been provided with it. However, that does not lead me to conclude that it is arguable that there is a document, which has been withheld. Mr Calder's evidence directly refutes that claim. Assuming Mr Fong is correct, perhaps the University provided one of the three then exempt documents to him by mistake. From time to time such mistakes are observed by VCAT.
6. I am not satisfied that the terms of Mr Fong's FOI request obliged the University to provide him with copies of assessment policies which may have applied with respect to his assessment. I do not accept his submission that the phrase "all documents created between 1 January 2010 and 30 April 2011 held by the faculty of engineering regarding the assessment of his projects" include those documents because they are relevant to the assessment of his projects. On any fair reading, he is asking the documents about the assessment of him, not general documents about assessment. While I note Mr Batskos' submission that another reason by which the policy documents do not fall within the scope of the request is that they are not "held by the faculty of engineering" but rather held by the University, in my view there is not sufficient evidence on this point to make a decision about the submission. However, there is no need given my view expressed above.
7. While the lack of an arguable case is a on its own sufficient reason to dismiss the proceeding, for completeness I deal with the adequacy of University's searches.
8. The University is required to do a thorough and diligent search for requested documents. If it has done so, that is a basis on its own to dismiss an application such as this, even if the applicant presents an arguable case. Of course, evidence as to the searches done provides a context of considering whether the applicant has an arguable case.
9. I note Mr Batskos' submission that the Administrative Appeals Tribunal of Australia in Ware and Secretary, Department of Health and Ageing [2011] AATA 392 (7 June 2011) provides useful guidance on the issue,
10. In Chu v Telstra Corporation [2005] FCA 1730; (2005) 147 FCR 505, Finn J considered the meaning of section 24A and emphasised the significance of the inclusion of the emphatic word "all" in "all reasonable steps". But the word "all" is qualified by the word "reasonable" so that the steps required to be taken do not have to go beyond a limit assigned by reason and do not have to be extravagant or excessive.
11. This decision refers to language of section 24 (later 24A(1)) in the Freedom of Information Act 1982 (Cwlth) that "all reasonable steps" be taken to find a document. However, the logic of not going beyond a limit assigned by reason and not being extravagant or excessive in my view equally applies when considering the scope of a thorough and diligent search.
12. Having accepted Mr Calder's evidence, in my view the University has at least searched thoroughly and diligently. In fact, while meaning no criticism, I regard its searches as exhaustive, repeated and beyond what is required.