Kyriazis v Department of Justice (General) [2010] VCAT 1788

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, this proceeding is dismissed.

Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, this proceeding is dismissed.

1. The proceedings are dismissed under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) on the grounds that they are misconceived because the Tribunal lacks jurisdiction to hear them. I first say something about s75 of the VCAT Act. I then say something about the Freedom of Information Act 1982 (the FOI Act). Finally, I deal with each of these applications for review in turn.

1. Section 75 of the VCAT Act permits the Tribunal to strike out or dismiss all or part of a proceeding on a number of grounds. The grounds include that the proceeding is misconceived or lacking in substance. The cases about s75 say that the Tribunal must be very cautious before striking out or dismissing a proceeding on any of the grounds mentioned in the section, because to do this deprives the litigant (the applicant) of the chance to have the case heard in the ordinary course. But the cases say that the Tribunal can dismiss a proceeding where for one of the reasons mentioned in the section it is of the view that the proceeding is manifestly hopeless, undoubtedly untenable or doomed to fail.
2. The Respondent (the Department) says that these proceedings are manifestly hopeless because VCAT has no jurisdiction to hear them.

1. I mention provisions here insofar as they relate to an agency like the Department. Under s13, and subject to the Act, a person has a legally enforceable right to access to documents of an agency in accordance with the Act. I only speak here of access to documents of an agency. Section 17 enables a person to request an agency for access to a document. There are some exceptions which I do not need to deal with here. Section 5(1) defines 'request' as a request in accordance with s17.
2. Section 17 requires the request to be in writing and to be accompanied by a fee unless that fee is waived or reduced. The person who makes the request must provide sufficient information about the requested document as is reasonably necessary to enable the agency to identify the document.
3. The importance of a compliant request is emphasised by other provisions of the FOI Act. Section 20, for example, speaks of a request duly made. Among other things, s17(3) places a duty on an agency to assist a person who has made a request which does not comply with the section to make a request in a manner which complies with the section. Section 17(4) requires an agency to give an applicant who has made a non-compliant request a reasonable opportunity for consultation with the agency with a view to the making of a compliant request.
4. In my view, an agency only has to act on a request (that is, to decide whether or not to give access to the relevant document) where the request complies with the section. There are requirements with which the request must comply. They are that it be in writing, that it be sufficiently clear in the terms of s17(2) and that it be accompanied by the relevant fee unless that fee is waived or reduced. This does not mean that an agency has no duties with respect to what I might call a non-compliant request. It has the duties I have already mentioned under ss17(3) and (4) to assist and consult in the terms mentioned in those subsections. However, in my view it is otherwise entitled to treat a non-compliant request as, in effect, not a request at all, and as if it had not been made.
5. Under s21, an agency shall take all reasonable steps to enable an applicant to be notified of its decision on the request as soon as practicable but not later than 45 days after the day on which the request is received by or on behalf of the agency. One might first have thought that 'received' has its ordinary meaning, that is, when it comes into the hands of the agency. This was Mr Kyriazis's submission. But it is clear from the case law, and I think from the way in which the Act is meant to work, that when s21 refers to a request being received, it means a compliant request being received. In other words, if a non-compliant request is made, and later it becomes compliant, then the date of receipt of the request is the date when the request becomes compliant. To hold otherwise would, in my view, place on an agency an obligation which parliament did not intend. I take an extreme example. Assume that a request is made that simply specifies no documents whatever. If the interpretation which Mr Kyriazis argued for is right, then such a request would have to be processed, even though it was totally unclear in its terms. I do not think this is the meaning of the section.
6. Under s50(2), among other things, a person may apply to VCAT for a review of a decision to refuse to provide access to a document in accordance with the request. Under s53(1), where a request has been made to an agency and the time prescribed by s21 has elapsed and notice of a decision on the request has not been received by the applicant, the principal officer of the agency is, for the purposes of enabling an application to be made to VCAT under s50, deemed to have made on the last day of relevant period under s21 a decision refusing to grant access to the relevant document.

1. I now come to the two applications which Mr Kyriazis has made to VCAT. Both seek to have reviewed what is said to be a deemed refusal (that is, to grant access to a document) by the Department.

1. I deal with the application for review under proceeding G543/2010 first. That application was dated 2 August 2010, and was received by VCAT on 4 August 2010. On 9 July 2010, Mr Kyriazis required the Department to grant him access to certain documents. He also requested that the application and access fees be waived on the ground of financial hardship. It appeared that he included supporting material concerning that application for fee waiver.
2. On 16 July 2010, the Department wrote to Mr Kyriazis requesting clarification under s17(2) of the FOI Act. The Department refused to waive the fee on the ground that where, as in this request, access to some non-personal documents were sought, it was the Department's practice not to waive the application fee. It required him, therefore, to pay the fee and pointed out that unless that occurred, the request would not be considered a valid request.
3. On 19 July 2010, Mr Kyriazis wrote to the Department explaining his request. On 30 July 2010, the Department wrote to Mr Kyriazis agreeing that the request had been properly clarified, but continuing to refuse to waive the application fee and requiring that it be paid. Mr Kyriazis now applies to VCAT to review what he says is a deemed refusal to grant access to requested documents. He says that the decision was dated 30 July 2010. It is, I think, clear from the material before me that at the time of the application to VCAT, the application fee had not been paid.
4. The Department says that I should dismiss this application for review under s75 of the VCAT Act because the Tribunal has no jurisdiction to hear it. It does this on two bases. First, it says that because the application fee was not paid, Mr Kyriazis had not made a valid request. Because of this, the Department had not made, and in fact did not have to make, a decision on the request, and it had not made one at the time of the application for review. It says that at the time of the application for review, the Tribunal had no jurisdiction because there was no decision or deemed decision for it to review. In this case, as far as the validity of the request was concerned, it says that there was no waiver of the fee and no application fee paid, and therefore no valid request. This is why there was no actual decision to review. There was no deemed decision to review, and I will deal with that now, in dealing with the second basis of the Department's submission.
5. The Department says that irrespective of whether or not there was a valid request. The application for review is made on the basis of a deemed refusal to grant access to requested documents under s53(1) of the FOI Act. But that deemed decision only happens on the last day of the 45 day period after the day on which the request was received by the agency. I have said that that means a compliant request, and the relevant date is when the request actually comes to comply. Even if one assumes for the moment that the request was compliant on the day it was lodged (9 July 2010), the 45 day period would expire (on my calculation) on 23 August 2010. The application for review was dated 2 August 2010, and received on 4 August 2010. The relevant time period has not expired and so there can be no deemed decision. In this sense, there is no decision, deemed or actual, to be reviewed. I agree with the Respondent that the application is doomed to fail and ought be dismissed under s75. It seems to me that what I have said in relation to the receipt of request is in accordance with the various cases that have been cited to me and my conclusion is supported by them.
6. I would add one comment. I make it in the light of the fact that it now appears that the fee here has been waived, but that at the time of the application for review it was not waived. It is difficult for me to understand how with the same applicant, requests made at the same time and presumably with similar material asking for waiver, different decisions could have been reached on these applications for waiver. Fee waiver on the ground of hardship was declined in matter G543/2010, but appears to have been accepted in relation to G571/2010. I also find it difficult to understand why the fact that a request for review contains a request for some non-personal documents can be relevant to a claim for fee waiver on the ground of hardship. I strongly recommend that the Department consider changing its practice in the light of these comments. I nevertheless recognise that VCAT has no jurisdiction to review the way in which the Department treats fee waiver applications.

1. I now come to proceeding G571/2010. Mr Kyriazis applied to have what he said was a 'deemed refusal' decision on his request reviewed by VCAT by application dated 10 August 2010 and received by VCAT on 12 August 2010. By letter dated 24 June 2010, apparently faxed to the Department on 26 June 2010, Mr Kyriazis requested access to what I call for the moment certain material from the Department, and also requested that the application fee and access charges be waived. The Department did in fact waive that fee.
2. On 15 July 2010, the Department wrote to Mr Kyriazis referring to a phone call which apparently had occurred on 29 June 2010 in which Mr Kyriazis had clarified his request, and the Department confirmed that the request had been properly clarified. The Department said that it would respond to the request as soon as practicable, but no later than the 45 day period. This is in fact what s21 of the FOI Act obliges.
3. The Department submits that I should dismiss this proceeding on the second basis that I mentioned earlier when discussing proceeding G543/2010. At the time of the review application, no actual decision had been made on the request. A deemed refusal of access to the requested documents can under s21 only occur on the last day of the 45 day period mentioned in s21. Assuming that the request became compliant when clarified in the phone conversation on 29 June, and that this was the relevant time when the period under s21 began to run, the last day of the 45 day period would on my calculation be 13 August 2010. But Mr Kyriazis argues that the request was always clear, and that the 45 day period should begin to run on the date of the request, or at least on the date it was faxed to the Department.
4. I agree with the Department's submission that, at least in part, the request was not sufficiently clear to identify what documents were sought. I give point one of the request as an example. Mr Kyriazis requested the identity of two court registrars. It is not clear whether this is a request for a document, or for information. The FOI Act, of course, concerns only documents, and not other kinds of information. It is clear from the Department's later correspondence that this part of the request was clarified after the request was received as a request for a document. In my view, the Department's calculation of the 45 day period was correct. The application, therefore, has been made before the period of 45 days has expired and before there has been a deemed decision. There is no actual reviewable decision, and there is no deemed decision which can form the subject of this application for review. This proceeding, too, should be dismissed because the Tribunal has no jurisdiction to entertain it.
5. I make some final comments. I note that the Department's solicitor explained to me at hearing that the Department has now made decisions on both of Mr Kyriazis's requests. Although this does not affect the outcome of this hearing, of course an applicant is able to pursue rights under the FOI Act in respect of decisions made. I have also, as the parties requested me to do, looked at file G4/2010, in which this applicant was also an applicant. He said that was a similar case to these cases, but with a different outcome. In truth, that case was not similar. It was withdrawn by leave before any final hearing and, it appears, even before a compulsory conference was conducted.