Tasker v Fullwood [1978] 1 NSWLR 20

Farnell Electronic Components Pty Ltd v Collector of Customs (1996) FCR 125; 142 ALR 322

Lozevski v Goodman Fielder Consumer Foods Pty Ltd [2004] NSWIR Comm 314; (2004) 144 IR 28

Lloyd v Police 89 SASR 383 [2004] SASC 278

1. On 11 July 2011, I heard a challenge by La Trobe University, the respondent in this proceeding, to VCAT's jurisdiction. Both parties were legally represented and made written and oral submissions. I reserved my decision.

1. By letter dated 12 January 2011, Mr Keating sought access to documents under the Freedom of Information Act 1982 (the FOI Act). He enclosed a cheque for $23.40. On 14 January 2011, La Trobe received the letter and cheque.
2. On 24 January 2011, La Trobe wrote to Mr Keating's solicitors confirming receipt of the request and the payment. It wrote,

I will now commence a search for the relevant files and documents.

I note you included a cheque to $23.40 as the application fee. ... Please note that the correct application fee under the FOI Act is now $23.90, but I have chosen to waive the balance of the fee in this case.

1. On 4 March 2011, 39 days after the 24 January 2011 letter, (I agree with that calculation), La Trobe wrote to Mr Keating's solicitors, setting an estimated access charge and enquiring whether Mr Keating sought to proceed with his request. If he did, a deposit was required.
2. On 11 March 2011, La Trobe received a letter from Mr Keating's solicitors dated 9 March 2011 confirming receipt of La Trobe's letter of 4 March 2011 on 8 March 2011. It also said Mr Keating had lodged an application for review of a deemed refusal at VCAT on 4 March 2011. However, without prejudice, Mr Keating agreed to proceed with the request and a cheque for the deposit was enclosed.
3. In late April 2011, Mr Keating's solicitors became aware of a letter dated 19 April 2011 advising of La Trobe's decision. On 9 May 2011, La Trobe sent to Mr Keating many hundreds of pages of documents and presumably decided some documents were fully or partially exempt. No information about the documents is before me.
4. The essence of La Trobe's submission that VCAT must dismiss Mr Keating's application on the basis it has no jurisdiction is:

1. at the time Mr Keating made his request, the fee required to be paid under section 17 of the FOI Act was $23.90 (the parties agree): 2. Mr Keating's request enclosed payment of $23.40 due to mistakenly paying the fee as it applied in the 2009/2010 financial year (the parties agree);

1. under the FOI Act, La Trobe does not have a valid request before it until the full fee is paid, waived or reduced;

1. La Trobe took the reasonable approach. On 24 January 2011, it waived the requirement for the unpaid 50 cents. In its letter, while not specifically saying it viewed the 45 days as running from 24 January, it did in substance indicate this by writing, "I will now commence a search for the relevant files and documents." The 45 days after which the request is deemed refused ran from and including 25 January 2011 and ended on 10 March 2011 (I agree with calculation between those dates); 2. however, on 4 March 2011 Mr Keating lodged his application based on deemed refusal at VCAT. Mr Keating calculated the 45 days from 14 January 2011 when La Trobe received his request. Calculating from that date, the 45 days expired on 28 February 2011; and 3. La Trobe submits Mr Keating lodged his application, when the jurisdiction potentially conferred under section 53 of the FOI Act was not enlivened and so the application must be dismissed.

1. Mr Keating submitted the jurisdictional objection should be dismissed because;

1. when La Trobe received the FOI request with the 50 cent underpayment, it did not tell him of the shortfall and that, in its opinion, this meant the request did not comply with section 17 of the FOI Act; 2. when La Trobe wrote to Mr Keating's solicitors confirming the fee waiver it did not advise it would rely on that ten-day period to extend the timeframe for it to notify this decision under section 21 of the FOI Act. Nor did it indicate that it did not consider Mr Keating's request to be a valid request until 24 January 2011. To the contrary, La Trobe confirmed its understanding of the request by quoting the 12 January 2011 letter;

1. to subsequently rely on the 50 cent shortfall and this additional period is contrary to La Trobe's obligation to assist Mr Keating to make a request in accordance with section 17. There is a duty to assist the applicant promptly in the formulation and processing of request (Re Birnbauer and Department of Industry, Technology and Resources (Nos 1,2 and 3) (1986) 1 VAR 279;

1. this is also contrary to its obligations under section 21 of the FOI Act which requires it to take all reasonable steps to enable an applicant to be notified of the decision on request as soon as practicable but in any case no later than 45 days after the date on which the request is received by the agency (Mildenhall v Department of Education, unreported, VCAT, Dr Lyons SM 9 April 1999); 2. the 45 days should commence from the day on which the request is received, which complies with the substance of section 17 of the FOI Act in particular, La Trobe's obligation to provide such information is reasonably necessary for the respondent to identify the requested documents (MacIntosh v Department of Justice [2009] VCAT 92); 3. the requirement that the request be in accordance with section 17 of the FOI Act should not be construed narrowly or technically and within the context of the objectives of the FOI Act, expressed in section 3, which includes providing access to information and that, "it is the intention of Parliament that ... any discretions conferred by this Act shall be exercised as far as possible as to facilitate and promote, promptly and that the lowest reasonable cost, the disclosure of information"; 4. when Mr Keating's solicitors lodged the application at VCAT on 4 March 2011, it had already been 49 days since La Trobe received a request on 14 January 2011, which was therefore in excess of the 45 day period. No request for access charges had been made; and 5. therefore, Mr Keating was entitled under section 53 of the FOI Act to seek an application for review, which he did and therefore the jurisdiction of the Tribunal is invoked under section 48 of the VCAT Act.
2. Mr Keating's submissions are potentially complicated by several issues. They are to an extent relevant to the issues before me as I consider the implications of requiring strict compliance with section 17(2A) for Mr Keating. However, given my view I am not required to decide them and in fact they are not before me. The issues in brief are:

1. Mr Keating disputes whether La Trobe has in fact made a decision as in his view the decision is so inadequately described such that it does not constitute a decision; 2. Mr Keating has not sought internal review of La Trobe's 'decision' within the 28 day time limit for such requests set under the FOI act;

1. On 24 June 2011, VCAT received from Mr Keating a further application for review based on La Trobe being deemed not to have made a decision. I understand this was made in an attempt to preserve Mr Keating's rights should La Trobe's application that Mr Keating's application in this proceeding be dismissed for want of jurisdiction succeed. The VCAT registry apparently did not recognise this as a new application requiring new proceeding file and placed it in a proceeding file in this matter.[1] I note Mr Batskos for La Trobe was not aware of the 'latter application'. His initial submission is that it could not proceed as La Trobe has made a decision (but note Mr Keating's submission in the above paragraph).

1. The 45 day time limit, which is central to this application, is grounded in section 21 of the FOI Act.

21 Time within which formal requests to be decided

An agency or Minister shall take all reasonable steps to enable an applicant to be notified of a decision on a request as soon as practicable but in any case not later than 45 days after the day on which the request is received by or on behalf of the agency or Minister.

1. Section 53 deems the request refused once the time limit expires,

(a) a request has been made to an agency or Minister;

(b) the time period provided in section 21 has elapsed; and

(c) notice of a decision on the request has not been received by the

the principal officer of the agency shall, for the purpose of enabling an application to be made to the Tribunal under section 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document.

1. Section 50 (referred to in section 53), 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. Sections 21 and 53 refer to, "after the day on which the request is received" and, "a request has been made". The crux issue in this application is on what day was the request received or made?
2. Section 5 defines, "request", to mean a request made in accordance with section 17.
3. Section 17 of the FOI Act sets out the 'pre-requisites' for an application being received or made. It relevantly says,

(1) A person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document.

(2) A request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document.

(2A) A request must be accompanied by a fee of 2 fee units.

(2B) An application fee may be waived or reduced, whether or not the fee has been paid, if the payment of the fee would cause hardship to the applicant.

(3) It is the duty of an agency or Minister, as the case may be, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate agency or Minister, to make a request in a manner that complies with this section or to direct a request to the appropriate agency or Minister.

1. Section 3 of the FOI Act instructs as to how it is to be interpreted,
   1. Object of Act

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by -

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1. In my view, the critical issue is:
   1. did Mr Keating substantially comply with section 17(2A), which says a request must be accompanied by a fee of 2 fee units, when he paid all but 50 cents of the current fee in January 2011, with the result of 45 days runs from 14 January 2011, when La Trobe received his application?; or
   2. did Mr Keating fail to comply with section 17(2A) as it should be interpreted as requiring the full fee be paid, resulting in the 45 days running from 24 January 2011 when La Trobe 'waived' the requirement that the 50 cents be paid?
2. I understand VCAT has not previously been called on to decide this issue.
3. La Trobe submitted my decision should be guided by principles set out in previous tribunal decisions where an application fee had not been paid.
4. In Gordon v Mornington SC (General) [2005] VCAT 1710 (18 August 2005), DP Coghlan ruled that when the application fee is neither paid at all nor waived, VCAT has no jurisdiction. She said (paragraph 13),

Whilst Mr Gordon's request was in writing, it was not accompanied by the fee and the Council had not waived or reduced that fee and indeed, as I understand it, has refused to do so. Because s17 requires a request to be in writing and accompanied by the fee unless the fee is reduced or waived, which was not the case here, I was satisfied that there had not been a request in the form required by the FOI Act. In those circumstances, there has been no valid request that the Tribunal has power to review. There is no legislative authority for the Tribunal to review the decision Council has made refusing to waive or reduce the fee. That is not a decision that the Tribunal has any power to review, no matter how aggrieved Mr Gordon may feel. For those reasons, I made the order striking out the application.

1. In Ford and Department of Industry, Tourism and Resources [2005] AATA 1032 (19 October 2005), DP Forgie of the Administrative Appeals Tribunal of Australia ruled where an application fee was not paid and then waived at a later date, the time after which a decision is deemed to have been refused runs from the date of waiver. She said in part (from paragraph 15),

The first question I must answer is whether each of the pre-requisites set out in s. 15(1), and particularly that relating to the fee, must be met in order for the request to be valid. In considering that issue, I have first had regard to the principles set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

This is not a case concerned with the invalidity of the exercise of a power but with the efficacy or otherwise of a request. Is a request for access to a document efficacious, and so a request that must be answered, only if it is accompanied by any fee payable under the Regulations or must it be answered even if it is not accompanied by any such fee? It seems to me that the principles expressed by their Honours are equally applicable in this context. They lead me to conclude that the request must be accompanied by the fee payable under the regulations before it has any efficacy and before an agency, or Minister, has a duty to answer it. In reaching this conclusion, I have first taken into account the requirement in s. 15(2)(e) itself. I have next taken into account the power to remit the application fee found in s. 30A(1). If the requirement to pay an application fee were not an essential condition of there being a request, there would be no need to provide for remission of an application fee. More importantly, there would be no need to provide that remission of an application fee means that, for the purpose of s. 15(2), no application fee is payable in respect of the application and yet that is what s. 30A(2) provides.

The time limits prescribed by s. 15(5) of the FOI Act are set by reference to the receipt of a request. Given that I have decided that a request must be accompanied by the application fee, it cannot be regarded as a request that triggers those time limits unless and until it is accompanied by the relevant application fee. That would mean that, if an application fee were to be given to an agency a week after it received the request, the time limit prescribed by s. 15(5) would not begin to run until the application fee had been received. Only then, would the request comply with s. 15(2)(e). The payment of the application fee could not be regarded as perfecting the application in retrospect so that time is taken to have begun to run when the request was first made a week earlier.

Does a request to waive the application fee alter that position? I think not. Certainly, s. 30A(2) provides that a decision to remit a fee means that there is not taken to be an application fee payable in respect of the application. That could be read as effectively operating retrospectively so that a decision to remit has the effect of meaning that no application fee was ever payable in respect of the application. If that were correct, it would mean that the agency would lose all or some of the 30 day period within which to make a decision on the merits of the request. ...

For the reasons I have given, I have decided that the application fee must be paid or it must be remitted before a request complies with s. 15. Until that time, the fact that Mr Ford asked the Department for documents does not mean that he has made a request for those documents under the FOI Act. He has not. Only when he has either paid the application fee or it has been remitted does it become a request. Only when it becomes a request does the 30 day time limit begin to run.

1. I agree with La Trobe's submission that had the fee not be not been paid and not waived, no request would ever have been, in the terms of section 17, received and if the fee had not been paid and then waived, the 45 days runs from the date of waiver.
2. The more vexing issue, in my view, is should Mr Keating's right to apply to VCAT on the basis of deemed failure to make a decision be denied due to his failure to strictly comply with section 17(2A) of the VCAT Act where:

1. he has by mistake paid the fee required under the FOI Act as it applied in the previous financial year; 2. he made an application to VCAT on the understanding the 45 day time limit runs from the date the decision maker received the request and payment;

1. Parliament intends the Act be interpreted so as to further its object and that any discretions conferred by it shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information; and

1. requiring strict compliance may leave him with no alternative (subject to the 'complicating issues' mentioned above) but to once again make the request to La Trobe, occasioning expense and delay.
2. I turn to Statutory Interpretation in Australia (7th ed), D C Pearce and R S Geddes[2]. The learned authors discuss Obligatory and Discretionary Provisions at Chapter 11. They say in part (page 346),

Perhaps an even more complex problem of interpretation that is sometimes faced is whether a failure to comply with a legislative provision that purports to impose an obligation results in action being invalid. This usually arises when there has been a failure to comply with a procedural requirement, so that the issue becomes whether the failure has a fatal effect on the case of one of the protagonists. The issue is a particularly difficult one, because the parliament is most unlikely to have contemplated the consequences of non-compliance. Even if it had contemplated that consequence, it would not enunciated it as to do so could defeat the direction as to the procedure to be followed that is included in the provision. The court must therefore impute an intention to Parliament as to those consequences.

The courts have long recognised that no formula is available to resolve issues of this kind. Lord Penzance in Howard v Bodington (1877) 2 PD 203 at 211 summarise the position:

I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look at the subject matter; consider the importance of the provision that has to be disregarded, and the relation of that provision to the general object intended to be secured by the act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

... Against this background, the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ... In their joint judgement McHugh, Gummow, Kirby and Hayne JJ suggested ... 'A better test determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision should be invalid.

1. The learned authors summarise the position in 2011as (page 371),

In Tasker v Fullwood [1978] 1 NSWLR 20, 23-4, the New South Wales Court of Appeal, comprising Hope, Glass and Samuels JJ A, in a passage that is frequently cited in other cases, enunciated the following propositions:

(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes or any supposed judicial classification of them by reference to the subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: ... (3) The only true guide to statutory intention is to be found in the language of the relevant provision in the scope and object of the whole statute: ... (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in a legislative scheme and the extent of the failure to observe its requirement: ... (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true enquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that if the statue is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: ... A statute which, on its proper construction, does not nullify the act in question, even for a total non-observance of the stipulation, is also described as directory in its terms ...

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). ...

Another way in which variations from a statutory requirement can be viewed is by the application of the de minimis approach - that minor variations from the requirement are not to be taken into account.

1. The authors briefly discuss the de minimis approach at page 133,

De minimis non curat lex: the law does not pay heed to trifling matters

The notion embodied in the maxim de minimis non curat lex is well-known in the criminal law that applies, by implication, also to the interpretation of statutes generally: Farnell Electronic Components Pty Ltd v Collector of Customs (1996) FCR 125; 142 ALR 322. The issue will arise most frequently when words such as 'exclusively', 'solely'and 'only' are used in legislation. Courts will be faced with the question whether these words mean what they say or whether some minor departure from exclusivity can be tolerated. The de minimis approach ameliorates the strictness of the expression. Whether it will apply will depend upon the interpreting court's view of the legislative intent and a value judgement of how trifling the action in question might be. So, for example, a requirement of use of a vehicle exclusively within premises might not be breached if the only use was in the case of an emergency or to take the vehicle for repair; cf AAT Case 10,716 [1996] AATA 511; (1996) 32 ATR 1132 at 1143 ... In some ways this can be viewed as a variant on the obligatory/discretionary issues which are discussed in chapter 11.

1. Farnell Electronic Components Pty Ltd v Collector of Customs, is a decision of the Federal Court of Australia arising from an appeal from the Administrative Appeals Tribunal (Commonwealth). Farnell appealed a decision of the AAT that trade catalogues imported into Australia did not qualify for admission as duty free. The relevant by-law under the Customs Tariff Act 1987 allowed free entry for "Paper catalogues and paper price lists relating exclusively to products or services of a country other than Australia."
2. The issue was whether it related exclusively to products or services of a country other than Australia. The catalogue concerned products. The great majority of those products were sourced outside Australia. Eighty-one of the 40,000 products dealt with were, however, manufactured in Australia. So it was submitted by the Collector that the by-law did not apply because the catalogue did not relate exclusively to products of a country other than Australia.
3. Hill J. quoted Bennion, F.A.R. Statutory Interpretation (2nd ed) at 780 which refers to there being a general rule of statutory interpretation that, "unless the contrary intention appears, an enactment by implication imports the principle of the maxim de minimis non curat lex", and Halsburys Law of England, 4th edition, Vol 44(1), under the title Statutory Interpretation says (at para 1441)

"De Minimis Principle. Unless the contrary intention appears, an enactment by implication imports the principle of legal policy expressed in the maxim de minimis non curat lex (the law does not concern itself with trifling matters); so if an enactment is expressed to apply to matters of a certain description it will not apply where the description is satisfied only to a very small extent.

1. He went on to say, "the principle has been applied, either expressly or by implication in a wide variety of situations where a trivial failure to comply with a specific condition has been ignored." He quoted from Hayes v Lloyd [1985] 1 WLR 714, Otter v Norman [1989] 1 AC 129, Wood v Carwardine [1923] 2 KB 185 , Biga Nominees Pty Ltd v Commissioner of Taxation (1991) 104 FLR 74 and other authorities, including the following,

The most recent example of the application of the de minimis principle in Australia by a superior court is to be found in the decision of Smith J of the Supreme Court of Victoria in Pinho v Andre (unreported, 20 December 1994) where it was held that a debt had been paid for the purposes of s52(3) of the Supreme Court Act 1986 although $7.63 was still owing to the bank.

These examples illustrate two principles. The first is that in an appropriate case the maxim de minimis non curat lex will be applied as a rule of interpretation. ... The second principle which these cases illustrate, however, is that the applicability or otherwise of the maxim depends upon the context in which it falls to be considered. No better example can be given of this than the decision in Case 10,716 referred to above. Clearly, motor vehicles will need to be driven to a repair shop from time to time for repairs. The legislature, in requiring a use of vehicles to be exclusively within certain premises of the taxpayer, could hardly have intended that the very obvious need for vehicles to be driven for service or for that matter to be driven from the dealer's premises to the site of the mining operations before use by the taxpayer in its business could operate to exclude the exemption. Hence the word "exclusively" in the particular context could hardly have its strict meaning of admitting no other application.

1. In the case before him, Hill J concluded the maxim, while applicable, did not operate,

The real question in the present case is whether the context of the by-law permits of a de minimis exception where the paper catalogue or paper price list related substantially to products or services of a country other than Australia, but where there was some, albeit small, relationship as well to products or services of Australia which was capable of being categorised as de minimis or trivial and not worthy of consideration. If that question be answered in the affirmative, the question will then arise whether 81 out of some 40,000 items is, in the relevant sense, trivial.

In my view the context of the by-law does not admit of any exception. The word "exclusively" in the present context means what it says. If a catalogue or paper price list relates to some product or service of Australia, then the by-law is not available, even if the great majority of the products or services have their source in a country other than Australia. The present is not a case where resort to logic or legislative policy requires the word "exclusively" to admit of exceptions.

Even if, contrary to my view, there is room in the present context for the operation of a de minimis principle, in my view the inclusion of 81 items can not be regarded as of such triviality as to be ignored. And this is so whether the 81 items are considered alone or by comparison with the other 40,000 items listed in the catalogue. Accordingly I am of the view that although the Tribunal may be said to have erred in holding that there is no principle of law or construction represented by the de minimis rule, that error did not affect the outcome and thus may be disregarded.

1. For completeness, I understand, Farnell has been cited in a few cases since Hill J. decided it in 1996. In Lozevski v Goodman Fielder Consumer Foods Pty Ltd [2004] NSWIRComm 314; (2004) 144 IR 28, in a case before the NSW Industrial Relations Commission, the respondent unsuccessfully challenged the Commission's jurisdiction claiming the applicant's remuneration package exceeded the maximum salary cap over which the Commission had jurisdiction ($200,000) by 4 cents. In Lloyd v Police 89 SASR 383 [2004] SASC 278, White J of the Supreme Court of South Australia said (at 57);

In my opinion, in determining whether there has been compliance in providing the prescribed oral advice, departures from the text which are trifling may be ignored. This is in keeping with the general principle that, unless the contrary intention appears, an enactment imports by implication the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters: Bennion, Statutory Interpretation (4th ed), p 958; Williams v The Queen [1978] HCA 49; (1978) 140 CLR 591 at 602 per Murphy J; Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125.

1. Turning to the matter before me, the Parliament of Victoria intends the provisions of the FOI Act be interpreted so as to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies, including Latrobe University (FOI Act, section 3).
2. This conclusion is reinforced by section 35 of the Interpretation of Legislation Act 1984.

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;

1. As an aside, section 45 of the Interpretation of Legislation Act, in my view, does not assist. It was passed in 1984 and applies to legislation passed after it comes into effect. The FOI Act predates it by two years. Further, the provision concerns the interpretation of the words, "may" and "shall" used in conferring a power. Section 17(2A) does not confer power.

1. In the context of the above commentary, the authorities and the FOI Act, I impute to Parliament the intention that where a person mistakenly pays the application fee as it applied in the previous financial year, this is to be regarded as substantial compliance with section 17(2A) which will be sufficient to meet the precondition that the fee must be paid, at least where the increase from one year to the next is a small one such as 50 cents.
2. In terms of the test suggested by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky, in my view the purpose of the FOI Act that mistakenly underpaying an application fee by 50 cents is not an act done in breach of section 17(2A) that should lead to invalidity.
3. In terms of the approach suggested by Hope, Glass and Samuels JJ A in Tasker v Fullwood, I determine the legislature intended that validity of Mr Keating's request would be preserved notwithstanding non-compliance in terms of the 50 cent underpayment.
4. In the alternative, and as Pearce and Geddes observe as a variation on the above interpretive approach, in my view the maxim de minimis non curat lex applies as a rule of interpretation with respect to section 17(2A). In the context in which the fact of the 50 cent shortfall has to be considered, the de minimis exception should apply.
5. I take into account that the shortfall is 50 cents out of $23.90 or 2% of the correct fee. I note that Hill J in Farnell decided that the inclusion of 81 out of 40,000 items in a catalogue (0.2%) did not attract the application of the principle. However, the context of interpreting the word, "exclusively" in a taxation act is a world apart from the context of interpretation within the FOI Act. The Customs Tariff Act 1987 does not have a provision exhorting the interpreter to advance the rights of the taxpayer.
6. In reaching the above conclusion, I make no criticism of La Trobe. It did the right thing. It received an application, noted the fee was 50 cents short and promptly (10 days in the January holiday season) took the sensible action of advising Mr Keating that it would not ask the payment of the amount. In my view in reality it was exercising a de minimis approach.
7. I understand why La Trobe, in the context of the principle that unless the fee is paid or waived, took the view the 45 days therefore began to run from 24 January 2011 when it decided to "waive" the fee.
8. With the benefit of hindsight, the issues before me would presumably have been avoided if La Trobe had advised Mr Keating in the 24 January letter of its view that the 45 days ran from then. However, I do not say it should have done so.
9. As an aside, I reject the submission that the words, "I will now commence a search for the relevant files and documents", in substance provided that advice. In the context of the letter, the sentence appears above the paragraph advising the 50 cent payment is not required. It could well be interpreted as meaning that La Trobe regarded the request as a valid request when received on 14 January, the 45 days ran from then and now, within the 45 days, the search is commencing.
10. In my view, it follows that La Trobe's application that Mr Keating's application be dismissed for want of jurisdiction does not succeed. The 45 days time limit ran from 14 January 2011, when La Trobe received the request. Mr Keating's application made to VCAT on 4 March 2011, was made after 45 day time limit expired on 28 February 2011.
11. Finally, I observe that while, in no sense required to under the FOI Act, the matter before me would never have arisen had Mr Keating's solicitors taken the simple step of advising La Trobe that their client intended to make an application to VCAT on the basis of a deemed refusal, within say seven days, unless a decision was made. La Trobe would have presumably advised of its view on the 45 days. I assume Mr Keating would have waited.
12. I need not expand on the benefits to all concerned of offering such a courtesy to the respondent.
13. I make this observation because this is not the first time I have dealt with a jurisdictional challenge on the basis that the deemed refusal application was made to VCAT too early. In the other matter (only oral reasons were given) the applicant lodged the application at VCAT the very next day after 45 days, in his view, expired. His view was in my view mistaken. I dismissed his application.

[1] Given my decision in this proceeding, I assume Mr Keating will not wish to proceed with the latter application. I leave it to him to advise VCAT if my understanding is mistaken. Otherwise that application of 24 June 2011 will not be further actioned and will remain as a document in the proceeding file in this matter.