1. in May 2011, it received Mr Gordon's FOI request; 2. in June 2011 it wrote advising of the requirement to pay a $23.90 application fee under section 17(2A) of the FOI Act and invited him to make application for fee waiver on the grounds of financial hardship, if applicable;

1. in July 2011 Council received a letter from Mr Gordon which he described as his application for an internal review; 2. in August 2011, Council sent a letter referring to the June 2011 letter concerning the fee issue; 3. Mr Gordon applied to VCAT.
2. At the directions hearing, Mr Gordon submitted I should not make decisions until I gave him the opportunity to prepare and make a submission. Given he was self represented, I allowed him to make a written submission saying that if after I had considered them I accepted Council's submissions I intended to dismiss his application without further hearing.
3. VCAT received Mr Gordon's submission on 17 November 2011. He:

1. Details his concerns about the Ranelaugh Estate and Council's actions; 2. Describes me as being focused on the application for costs made against him submitting I have denied him natural justice;

1. On the issue of fees, submits his application is under section 16 of the FOI Act, which does not require a fee be paid or waived, given the section says Council shall administer the Act with a view to making the maximum amount of information promptly and inexpensively available to the public;

1. Discusses his right to access (section 13) and the objects of the FOI Act (section 3); 2. Critiques VCAT's 2005 decision to dismiss his application. He refers to "High Court conventions on mandatory/discretionary interpretations", saying, "any mandatory instruction in an act that countermands or invalidates another section of the legislation must be interpreted as discretionary." He submits section 17(2A) cannot supersede or invalidates sections 17(3), (4), section 16 or any other section; and 3. Submits why, if his application is dismissed he should not pay Council's legal costs.

1. I reject the submission that I have denied Mr Gordon natural justice. It was my concerns on that issue that led me to invite him to make written submissions.
2. Having considered Mr Gordon's submissions, I adopt DP Coghlan's reasoning in Gordon v Mornington SC (General) [2005] VCAT 1710 (18 August 2005) and dismiss his application. The facts leading up to DP Coghlan's decision are strikingly similar to the facts here. The law has not changed.
3. I reject his submission that his application is made under section 16 of the FOI Act. The section concerns a principle (the making of maximum information promptly and in inexpensively available to the public) under which Council is to administer the Act. This section does not override section 17. Council observed this principle in its helpful letters to Mr Gordon asking him to either pay the fee or request fee waiver.
4. Also, at the directions hearing, Mr Gordon focused on the issue of the distinction between mandatory and discretionary provisions in the legislation.
5. I turn to Statutory Interpretation in Australia (7th ed), D C Pearce and R S Geddes[1]. The authors discuss Obligatory and Discretionary Provisions at Chapter 11. They summarise the position in 2011as (page 372),

In summary, the only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to procedure that is set out in it; (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no such consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation or an action can be brought independently of the statute). ...

1. Applying those principles, I regard it as well settled that Parliament intended that if an application fee with respect to an FOI application was neither paid nor waved the application is invalid. This is quite different to the situation where the applicant has mistakenly paid the fee which applied in the previous year and so underpaid by a small amount, where I have previously ruled that such a shortcoming did not invalidate the application (Keating v La Trobe University (General) [2011] VCAT 1564 (16 August 2011)).
2. I dismiss Council's application that Mr Gordon pay its legal costs. The general rule as set out in section 109 is that parties bear their own costs.
3. J. Pizer in his commentary on the Victorian Civil and Administrative Tribunal Act 1998 on section 109, addresses costs in the General List. He observes it is very unusual for VCAT to make cost orders in the Freedom of Information List. Pizer cites Hoskin v Department of Education and Training (General Costs) [2005] VCAT 2255 (21 October 2005), where DP Steele considered costs applications by both parties. The Department's strike-out application was partly successful. DP Steele considered sections 75 (strike out applications) and 109. In dismissing the costs applications, she observed there must come a point when a body spending public funds can expect to be reimbursed by an applicant for unreasonable expense.
4. Council submitted this is one of the unusual situations where costs should be awarded. Mr Gordon is aware of the issues having seen his 2005 application dismissed. Council attempted to assist him to make a valid FOI application, writing to him on two occasions. Council's solicitors wrote to Mr Gordon clearly putting to him the situation, inviting him to withdraw his application and saying if he did not council would seek to have his application dismissed and seek costs.
5. I agree with DP Steele that there must come a point when a body spending public funds can expect to be reimbursed by an applicant for unreasonable expense.
6. I do not agree the point is reached in this case. Mr Gordon sees himself as a "community advocate". While I have no view on the merits of his views, they appear sincerely held. However, Mr Gordon should consider that any application to VCAT in similar circumstances would certainly carry significant risk that costs being awarded against him.