Luck v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 2211

1 Proceeding dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

2 Applicant's application for various orders dismissed.

1 Ms Luck has a number of proceedings in the Tribunal under the Freedom of Information Act, including a number in which Victoria Police is the respondent agency.

2 For present purposes it is necessary to note, in addition to this proceeding, Nos. G261/2012 and G519/2012 which came on for hearing before me. In a request dated 31 December 2011, Ms Luck sought access to extensive material relative to her dealings with Victoria Police. Her request was lengthy and complex and it is unnecessary to set it out in these reasons.

3 She entered into correspondence with the Freedom of Information Division of Victoria Police as a result of the police's attempt to narrow the scope of her request. As part of that correspondence she wrote a letter dated 13 March 2012. That letter included a number of paragraphs. Paragraphs 3 to 8 were the subject of proceeding G519/2012. Victoria Police took the view that these paragraphs were, if you like, a subset of the larger request which is dealt with in proceeding G261/2012 which stands part heard before me. Ms Luck, however, took the view that the 13 March letter and the relevant paragraphs constituted a separate and distinct request. She commenced proceeding G519/2012, specifically with respect to those paragraphs and seeking, amongst other things, an adjudication to that effect and a finding that this request was not one which Victoria Police could refuse to process as being voluminous in reliance on Section 25A of the Freedom of Information Act 1982.

4 Paragraphs 3 to 8 are central to the present dispute and, whilst they have been quoted in many places in the course of the on-going proceedings between Ms Luck and Victoria Police, I take the liberty of setting them out in these reasons once again. They are as follows:

3. In addition, I make a formal request pursuant to section 8 of the FOI Act (Vic), and section 9 of the _FOI Act (_Cth) for access to the documents that are provided by the agency for the use or guidance of, or are used or may be used by, the agency or its officers -

(a) in making decisions or recommendations, or in providing advice to persons outside the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to or for which persons are or may be entitled, eligible or subject, being -

(i) documents containing interpretations or particulars of Acts or schemes administered by the agency, not being particulars contained in another Act; or

(ii) manuals, rules of procedure, statements of policy, records of decisions; letters of advice to persons outside the agency, or similar documents containing rules, policies, guidelines, practices or precedents; and

(b) In enforcing Acts, or schemes administered by the agency where a member of the public might be directly affected by that enforcement, being documents containing information on the procedures to be employed or the objectives to be pursued in the enforcement of the Acts or schemes

specifically in relation to the Law Enforcement Assistance Program, National Name Index and Police Record and associated databases.

4. In accordance with section 22 (Cth Act) and section 25 (b and c) (Vic Act), I request that in your decision to release documents, that you include copies of all documents, physically or electronically stored which, with deletions, would make the copies not exempt documents.

5. In accordance with sections 29 and 30A (Cth Act) and section 17 (2B) and 22 (Vic Act), I make application for remission of the application fee and a waiver of charges on these requests on the ground of financial hardship. I attach, as evidence, and for your information a copy of my current Disability Pensioner Concession Card.

6. I request that you make an urgent decision in respect of granting me access to inspect the LEAP system, National Name Index and Police Record and associated databases, as per paragraph 4 of my original request of 31 December 2011 and the relevant manuals, guidelines, procedures and policies as sought in paragraph 3 above and access to paper copies of my physical and electronic record relating to my matters with Frankston Police Station and its officers since February 2011 until the date on which I am granted access.

7. I expect that you can grant access to the remainder of my complete record following this initial and extremely important part of my record, which I should not have had to wait for and due to hearings in respect of the false charges against me being listed for hearing very soon, I would be grateful if you would expedite this part of my request promptly.

8. Please refer to the fact that the grant of access made is only to a part of my record and that the remainder will be granted following further information if it is necessary for me to provide it.

5 I published a determination dated 25 October 2012, Luck v Victoria Police FOI Division (General) [2012] VCAT 1617 by which I determined that paragraphs 3 to 8 of Ms Luck's letter of 13 March 2012 is a separate request for access to documents under the Freedom of Information Act which Victoria Police were obliged to process. In making that determination, aside from rejecting the contention that it was merely a subset of the 31 December 2011 letter, I further held that it was not so voluminous as to attract the operation of Section 25A of the Freedom of Information Act such that the police were relieved of the obligation of processing it.

6 I incorporate by reference, for the purposes of this determination, the background narrative to be found in my determination in Luck v Victoria Police FOI Division (General) [2012] VCAT 1617. In relation to her earlier and larger request for access, Ms Luck sought a form of electronic access to documents on the Law Enforcement Assistance LEAP system and potentially other databases operated by Victoria Police. She also sought a similar form of access relative to her request of 13 March 2012. At [37] - [42] I determined, based on Sections 19 and 23 of the Freedom of Information Act that Ms Luck did not have an entitlement to require that access be given electronically rather than in hard copy form. These views were, however, tentative because 'strictly, the issue of form of access is a matter to be considered in the course of processing the request'.

7 Following the publication of this decision, Ms Luck brought proceeding G261/2012, which was part heard, back on for hearing. It had been adjourned part heard to enable her to have the advantage, for the purpose of completing a cross-examination of the police witnesses, of any documents which she might obtain pursuant to her March request. At the hearing in December 2012, Ms Luck sought interlocutory orders in her favour, including a form of electronic access to documents in the LEAP system, this time under the procedural provisions of the Victorian Civil and Administrative Tribunal Act 1998 rather than the Freedom of Information Act itself. I published reasons on 20 December 2012, Luck v Victoria Police FOI Division (General) [2012] VCAT 1946. I dismissed the application, holding that, insofar as the grant of any access under the procedural powers of the Victorian Civil and Administrative Tribunal Act was sought as a substitute for final relief under the Freedom of Information Act, it would be an abuse of process. I accepted that, in the circumstances, valuable evidence relative to Ms Luck's application in G261/2012 could be obtained by electronic access, inter alia to the LEAP system, but concluded, based on evidence which I heard as to the nature of the system and the inclusion within it of sensitive information relative to a large number of persons, that such a form of access could not be allowed to the LEAP system on an interlocutory basis because it would offend the obligation imposed on the Tribunal by Section 56 of the Freedom of Information Act 1982 obliging it, whilst conducting reviews under the Act, to avoid disclosing to applicants documents which were exempt from release under the Act or were claimed to be by respondent agencies.

8 Following the publication of the second determination and later, on 20 December, Ms Luck filed a document initiating the present proceeding seeking a review of the following decision:

Delayed and deemed made, pursuant to Section 53 of the Freedom of Information Act 1982 on 6/12/12, to refuse documents formerly requested in writing [sic] requested in writing pursuant to Section 17 of FOIA by the applicant on 13/3/12 and further ordered in G519/12 by Tribunal on 25/10/12.

RESPONDENT'S APPLICATION AND APPLICANT'S APPLICATIONS

9 Victoria Police filed an application seeking summary dismissal of this proceeding pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it was frivolous, vexatious, lacking in substance or otherwise an abuse of the Tribunal's process.

10 In a letter dated 30 November 2012, Victoria Police gave what they say constitutes the response to Ms Luck's request for access of 13 March 2012. Ms Luck challenges the validity and legal efficacy of that document as a decision.

11 In the afternoon preceding the listing of the respondent's application, Ms Luck filed her own application seeking the following orders:

1. That the Tribunal, constituted by his Honour, Judge Macnamara, give leave to the applicant to re-open and persuade him to change his mind in respect of the published reasons given on 25 October and 20 December 2012 in respect of matters G261/2012 and G519/2012, both of which are elated to this matter? (See Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407 (WA Sup Ct, Anderson J) where it was held, as to whether published reasons must stand, a judge is permitted to change his or her mind and has a discretion to allow the plaintiff to re-open to persuade him or her to do so).

2. That the Tribunal summarily dismiss or strike out the respondents' application for summary dismissal of the applicant's application G5/2013 as it vexatious, misconceived, lacking in substance and is an abuse of processes of the Tribunal.

3. That the Tribunal give leave to amend the date of the "deemed refusal decision", the subject of this application from 6 December 2012 to 10 December 2012.

4. That the Tribunal review the "deemed refusal" decision of the respondent dated 10 December 2012, the subject of this application, and make a decision in lieu of the Principal Officer in respect of paragraphs 3-8 of the applicant's request of 13 March 2012 and order the respondents to grant the applicant access to the documents sought pursuant to section 8 of the Act and to inspect the documents that make up her various personal affairs information, documents and records in the possession of the respondents, as per paragraph 6 of the applicant's separate request of 13 March 2012, and paragraph 1, 2 and 4 of the original request letter of 31 December 2011 and copies of other documents in the possession of the respondents, as per paragraph 6 of the applicant's separate request of 13 March 2012, made according to section 17 of the FOI Act.

5. That the Tribunal give such judgment, or make such order, as, in all the circumstances, the Tribunal thinks fit to effect all such remedies whatsoever as the applicant is entitled to in respect of her applications properly brought forward by her respectively in these matters; so that as far as possible all matters in controversy between the parties regarding the causes of action, or arising out of or connected with the causes of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided.

6. The applicant makes application, generally, for extensions of time pursuant to section 126 of the VCAT Act and Rule 4.20 of the VCAT Rules and to dispense with compliance pursuant to Rule 1.06, if necessary, and as requested by the applicant, as a disabled person, as she seeks to be granted reasonable adjustments pursuant to the Disability Discrimination Act 1992. Medical certificates have been filed and provided to the Tribunal previously.

7. That the respondent pay the applicant's costs in this and any incidental proceeding.

8. That the Tribunal, in accordance with section 61 of the FOI Act (Vic) shall bring to the attention of the relevant and appropriate person, the conduct of the respondent's officers in relation the treatment of the applicant's requests of 31 December 2012 and 13 March 2012 an her subsequent clarifications and proceedings.

12 Ms Ellyard noted that, with effect from 1 December 2012, the pathway to administrative review of freedom of information matters had been modified. Until then, if an applicant were not granted access to a document in accordance with his or her request, the first step was for that applicant to seek internal view from the principal decision-maker in the agency under Section 53 of the Freedom of Information Act 1982. It was only at the completion of that process that a dissatisfied applicant was entitled to seek a review from this Tribunal under Section 50 of the Victorian Civil and Administrative Tribunal Act 1998. Section 53 enabled applicants to come directly to the Tribunal if no response was made to a request for access within 45 days on the basis that there had been a deemed refusal of access by the principal decision-maker in the agency.

13 Ms Ellyard observed that this process as from 1 December had been modified, such that the internal review procedure to be conducted within a respondent agency was replaced with a process whereby the Freedom of Information Commissioner would carry out the initial review. She said, that by virtue of Section 69 of the Freedom of Information Act which created a transitional provision, the question as to whether the old internal review procedure or the new procedure operated by the Commissioner depended on the date on which the primary determination was made. That date, she said, was 30 November. It was not to the point, said Ms Ellyard, that Ms Luck said she did not receive a copy of the determination until 4 December.

14 Ms Ellyard said that neither the old internal review procedure nor the new Commissioner's procedure had been invoked here, and therefore this proceeding was simply incompetent and the Tribunal had no jurisdiction to entertain the proceeding. The completion of these processes, whether by way of internal review or through the Commissioner, constituted, she said, a condition precedent to the Tribunal's jurisdiction. If they had not been complied with within time, the effect was that no review proceeding could be brought with respect to the request in the Tribunal. Since the problem in the present case related to a failure on the part of Ms Luck to meet a jurisdictional pre-condition, the Tribunal's power to enlarge time for the commencement of a review proceeding under Section 126 of the Victorian Civil and Administrative Tribunal 1998 could not be invoked to save the validity either of this review proceeding or at any substitute review proceeding.

15 Ms Ellyard said that, once I determined that Victoria Police were obliged to process Ms Luck's request for access of 13 March 2012 and overruled contentions based on Section 25A of the Freedom of Information Act 1982 that it was voluminous so as to create an unreasonable diversion of resources, the Tribunal was in that proceeding functus officio.

16 She conceded that she could point to no decision of the Court of Appeal, the Supreme Court or even the Tribunal, that distinctly stated such a principle. To hold otherwise, however, would be productive, she said, of uncertainty and confusion. To treat the order which I had made in G519/2012 as interlocutory would, she said, place the Tribunal in the role of a body supervising the processing of the request. This would be inappropriate. The Tribunal's powers are to conduct specific reviews, not to superintend the process of access generally.

17 Insofar as I had reached a tentative conclusion that a hard copy, as distinct from an electronic, form of access was the appropriate one, she said with the Tribunal functus officio, it was not competent for me to revisit that determination. In any event, she said that was the correct view of the law and should be adhered to.

18 Ms Luck said that the document of 30 November, which she said she received on 4 December, should not be countenanced as a determination, hence her request had gone unprocessed for more than 45 days and she was at liberty to bring a review application based on a deemed refusal. The document of 30 November simply was not a decision. She noted, for instance, that it did not deal with the matter raised in paragraph 6. She said that Victoria Police were not at liberty to modify her request into a request for the following:

(a) Documents including procedural manuals and/or written instructions, relating to the Law Enforcement Assistance Program (LEAP) database, National Name Index, Police Record and Interpose Databases, which ought to be publicly available under Section 8 of the FOI Act, but are not and

(b) [her] own LEAP record.

The request stood as she had framed it in paragraphs [3] to [8]. It was not competent to modify or summarise it in the way that Victoria Police had done so. Further, the response, which produced no documents at all under Part (a) of the request as so summarised, was simply unsatisfactory.

19 According to Ms Luck, Victoria Police's treatment of her request was at odds with the objects of the Freedom of Information Act as enunciated at Section 3, in that Victoria Police failed, as far as possible, to extend the applicant's right to access information in its possession. She complained that what was given was a 'partial grant of access to incomplete, inaccurate and non-contemporaneous information'. She complained that the approach adopted by Victoria Police was:

to obfuscate matters and hide from discovery, the unethical and unlawful conduct directed at the applicant over many years, by Victoria Police and its members.

20 Ms Luck said that she 'made several requests requiring separate decisions in paragraphs 3-8 of her letter of 13 March 2012'. She said she had not been given a response to the:

clear and distinct formal request made in paragraph 3 of the 13 March 2012 letter, for documents provided by the respondents for the use or guidance of the agency and its officers in making decisions etc, manuals, rules of procedure, statements of policy etc, pursuant to Section 8 of the Act.

21 She said that Victoria Police had not complied with the order which I made on 25 October 2012 to process her request 'as no notice of decision had been given to the applicant that addresses that request'.

22 She said she relied on Section 26 of the Freedom of Information Act.

did not give notice of the decision to waive charges for anything other than the 42 pages of documents that were released.

24 She said Victoria Police did not give 'notice of a decision in respect of granting only partial access to the applicant's record when it was clearly that'.

25 Ms Luck said that, whilst the document relied on by Victoria Police as a decision was dated 30 November 2012, in fact she did not receive notice of that decision until 4 December 2012. Therefore, under the amendments to the Freedom of Information Act taking effect from 3 December, the initial review process applicable to her request was to the Freedom of Information Commissioner and not under the older internal review process previously provided for by Section 51 of the Act.

26 She said that she was seeking to ensure that necessary amendments were made to her record:

to remove from her record all that is inaccurate, incomplete and not contemporaneous, and to show only probative information that is factual, accurate and contemporaneous.

27 She referred to authorities on the principles governing the Tribunal's power to correct matters of personal information under the Freedom of Information Act.

28 She submitted that, insofar as I have concluded that she is not entitled to access to documents other than in hard copy form, I should reconsider that determination. She referred to a decision of Anderson J in Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407.

29 She said that LEAP was a discrete document and therefore Section 19 of the Freedom of Information Act did not apply in the manner which I had suggested it did. She said this was in accordance with submissions made to Judge Bowman by Victoria Police in Williams v Victoria Police [2007] VCAT 119 and recorded by His Honour at [60].

30 Ms Luck said that on 28 November 2011 she made a complaint to the Ethical Standards Department as to the conduct of the members of Victoria Police stationed at Frankston, failing to take action relative to complaints that she made as a result of 'criminal conduct' by a body corporate management company. In her written submission she described these events, namely the alleged criminal conduct by the body corporate management company as occurring in October 2012. Presumably, this is a typographical error and the events she refers to occurred in October 2011. These documents, she said, were not mentioned in the letter from Victoria Police dated 30 November 2012.

31 Further, Ms Luck complained about what she said was a 'conflict of interest'. She said that in connection with other matters which involved her, a Mr Steven Brnovic, now of Victorian Government Solicitors Office, was acting for the Office of Police Integrity. An analysis of the correspondence passing relative to the matters before me, indicated that Mr Brnovic was being copied in on correspondence between the solicitor acting in-house for Victoria Police in these disputes with Ms Luck. This constituted, she said, a conflict of interest which required the Tribunal's intervention.

32 Ms Luck complained that Victoria Police had not filed a Statement under Section 49 of the Victorian Civil and Administrative Tribunal Act 1998 within 28 days of being given notice of the application. She also said that Victoria Police did not comply with Section 67 of the Victorian Civil and Administrative Tribunal Act 1998 and Order 4 of the Rules:

as they did not lodge and serve an application in its proper form and did not sign the document they lodged and served and that document had neither the applicant's nor the respondent's addresses for service shown on the document, thereby making the application invalid.

33 As at the time Ms Luck made her request in March 2012, the Freedom of Information Act 1982 provided that, where an agency failed to respond to a request for access within 45 days, a 'deemed refusal' in that earlier version of the Act provided inter alia:

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

(b) the time period provided in section 21 or section 43 as the case may be has elapsed; and

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

the principal officer of the agency or the Minister 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.

34 It will be seen that this deemed there to be a decision of the principal officer of the agency 'for the purpose of enabling an application to be made to the Tribunal under section 50'. Section 50(1) provided and continues to provide in paragraph (a) that the Tribunal may review 'a decision of the principal officer of an agency ... refusing to grant access to a document in accordance with a request'.

35 Section 51 provided inter alia as follows:

(1) Where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency (not being a decision on a review under this section), the applicant may, within 28 days (or, in the case of a decision refusing to grant access to a document containing health information on the ground referred to in section 36 of the Health Records Act 2001, within 70 days) after the day on which notice of the decision was given to the applicant in accordance with section 27, apply to the principal officer of the agency for a review of the decision.

(2) Subject to section 51A, a person is not entitled to apply to the Tribunal for review of a decision in relation to which subsection (1) applies unless -

(a) he has made an application under subsection (1) in relation to the decision; and

(b) he has been informed of the result of the review or a period of fourteen days has elapsed since the day on which he made that application.

36 By Act No. 6 of 2012 the Freedom of Information Act was amended so as to establish the Office of the Freedom of Information Commissioner. The Commissioner has been tasked, amongst other things, with the conduct of the process which had previously been designed under the Act as 'internal review'. Section 49A of the current version of the Act provides as follows:

49A Applications to Freedom of Information Commissioner for review

(1) An applicant may apply to the Freedom of Information Commissioner for review of -

(a) a decision of an agency refusing to grant access to a document in accordance with a request; or

(b) a decision under section 24 by an agency deferring the provision of access to a document; or

(c) a decision of an agency not to waive or reduce an application fee under section 17, whether or not the fee has already been paid by the applicant.

(2) A person who is the subject of information in a document referred to in section 39 (or, in the case of a deceased person, that person's next-of-kin) may apply to the Freedom of Information Commissioner for a review of a decision by an agency not to amend the document pursuant to a request under section 39.

(3) An application cannot be made under this section in relation to a decision of a Minister or the principal officer of an agency.

(4) An application cannot be made under this section in relation to a decision of an agency refusing to grant access to a document on the basis that the document is claimed to be exempt under section 28 or 29A.

(5) If the decision of an agency relates to a document that is claimed to be exempt under section 28 or 29A and also to another separate document that is not so exempt, an application can be made under this section in relation to the decision of the agency to the extent that it relates to the other separate document.

37 Section 49B(1) requires a review by the Commissioner to be sought by dissatisfied persons 'within 28 days after the day on which notice in writing of the decision is given to the person'.

38 Section 69 was inserted as a transitional provision which would entitle a person to apply under the new regime to the Freedom of Information Commissioner for review of a decision made after the commencement of the Act in relation to a request made before that commencement. The statute commenced on 1 December.

39 Section 26 of the Freedom of Information Act at all material times provided:

(1) A decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency.

(2) Where a request is made to an agency for a document, and no arrangements in respect of documents of that type have been made and published under the regulations, a decision on that request shall, for the purpose of enabling an application for review to be made to the Tribunal, be deemed to have been made by the principal officer of the agency.

40 I turn first to the various matters raised by Ms Luck.

41 I do not believe in the circumstances of this proceeding I am empowered to grant any relief to Ms Luck with respect to the 'conflict of interest' which she alleges to exist relative to Mr Brnovic. Conflicts of interest or conflicts of duty arise where a legal practitioner owes a duty to one client to do one thing, for instance, to hold a piece of information confidential and a duty to another client to the opposite affect, for instance, to disclose that piece of information to the other client. A legal practitioner can be called to account in these conflict situations, leaving to one side intervention of authorities such as the Legal Services Commissioner, only directly or indirectly at the behest of one of the clients. If the two clients whose interests are alleged to conflict make no objection, there is no ground for taking any action relative to the alleged conflict. Here, there is nothing to suggest that either Victoria Police or the Office of Police Integrity raise any objection to the role Mr Brnovich is playing and has played in the proceedings involving Ms Luck.

42 Ms Luck's complaint seems to be about the dissemination of personal information relative to herself. Such matters conceivably could be raised under the Information Privacy Act 2000. Action under that statute would require Ms Luck to establish that the matters of which she complains violate one or more of the information privacy principles which form Schedule 1 to the statute. This is a matter which I have not considered at all. The present proceedings pertain only to the Freedom of Information Act and the Tribunal has no power in these proceedings to exercise any powers under the Information Privacy Act. Exercise of Tribunal jurisdiction under that statute is elaborately hedged around and broadly occurs only following referral by the Privacy Commissioner or the responsible minister (see Section 39).

43 I put the issues of the alleged conflict of interest to one side.

44 Next, I turn to the complaints as to the form of the respondent's application for summary dismissal under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. The complaint here is that there has been a failure to comply, relative to this application, with Section 67 of the Victorian Civil and Administrative Tribunal Act and related Rules. This criticism is misconceived. A respondent is empowered to make an application under Section 75 for a summary dismissal 'at any time', according to sub-section (1). The section lays down no particular formalities as to the making of the application. It can be made entirely orally. Section 67 deals with the formalities required to institute a proceeding rather than to make an interlocutory application in the course of the proceeding. There is therefore no validity in this criticism.

45 I turn next to the central question for determination now, that is, whether this proceeding no. G5/2013 has been properly commenced in accordance with the Freedom of Information Act 1982. Ms Luck contends that it has been, based upon a 'deemed refusal' of access to the documents sought in her request for access for documents addressed to Victoria Police in March 2012. Victoria Police deny this.

46 An initial question arises as to which version of the Freedom of Information Act should be applied to judge whether this proceeding has been properly commenced: the Act as in force until 30 November 2012 or its amended version in force from 1 December 2012 onwards? Ms Ellyard submitted that, in light of the transitional provision to be found at Section 69 of the Act, the old version of the Act applied because there was a 'decision' made before the commencement of the new provisions, viz. on 30 November, the date borne by the letter which Victoria Police contend constitutes the decision. Ms Luck says that since this letter did not reach her before 4 December, the relevant date is 4 December and therefore the Act in its new or amended form is the relevant one. Section 51, providing for internal review under the old regime, established a time limit based on a number of days 'after the day on which notice of the decision was given to the applicant ...'. Section 52, in both its old and new version, lays down a limit for the bringing of review applications to the Tribunal based on a number of days 'from the day on which notice in writing of the decision on the request is given to the applicant'. Parliament, therefore, knows the language to use when it seeks to fix a date by reference to the receipt of a decision by an applicant as distinct from the date when the determination was made. The date of what Victoria Police contend constitutes the decision, according to the document itself, is 30 November. This is evidence in itself that that is the day on which the decision was made. The fact that it seems to have reached Ms Luck a few days later on 4 December is consistent with that view of things. I accept, therefore, that the decision was made on 30 November and therefore the old version of the Freedom of Information Act applies rather than the new one.

47 Accordingly, can it be said that there has been a deemed decision under Section 53 of the Act? The deemed decision which entitles the bringing of a review application to the Tribunal arises where 45 days has elapsed and 'notice of a decision on the request has not been received by the applicant'. This state of affairs did not exist on 20 December if the document dated 30 November 2012 could be regarded as a 'decision on the request'. The word 'decision' is not defined in the Freedom of Information Act. For the purposes of the Victorian Civil and Administrative Tribunal Act 1998, Section 4(2) states that 'for the purposes of this Act or an enabling enactment' [the definition of enabling enactment includes the Freedom of Information Act]:

A decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision is beyond the power of the decision-maker.

It would seem therefore, that, even if what purported to be a decision, viz. the letter dated 30 November 2012, is void as ultra vires, it is nevertheless to be treated as a decision' for the purposes of the Tribunal's review jurisdiction.

48 Ms Luck contends that, what purported to be a decision, was no decision at all. Having read the letter of 30 November, in my view, it does purport to be a decision on Ms Luck's application. It even concludes with a reference to the internal review procedure under Section 51 of the Freedom of Information Act. If the provision in Section 4 of the Victorian Civil and Administrative Tribunal Act applied, then it would seem that there has been a decision and written notice of it has been given to Ms Luck and therefore there can be no deemed decision.

49 In case I am wrong as to the application of the extension to the definition of 'decision' from the Victorian Civil and Administrative Tribunal Act to the present situation, there is a broad legal principle independently of the definition which would lead to the same conclusion. In Brian Lawlor Automotives Pty Ltd v Collector of Customs (New South Wales) (1978) 1 ALD 167 Brennan J as the inaugural president of the Commonwealth Administrative Appeals Tribunal, had to consider whether the Tribunal had power to review a determination of an administrative decision-maker which was void. The contention which His Honour considered was that, since the determination was a nullity, no decision existed and therefore, there was no basis for the Tribunal's jurisdiction to carry out a review. This is clearly analogous to Ms Luck's contention, here, that a deemed decision arose because, what purported to be a decision by the Victoria Police was of no legal effect, and therefore the requirements of Section 53 for a deemed decision had been met. Rejecting this, Brennan J (as he then was) said:

Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed or otherwise affected by order of a court or an appeal tribunal [and I would add a principal officer or Freedom of Information Commissioner] the denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question. Where 'decision' is used in the provisions of the Administrative Appeals Tribunal Act relating to a right to apply for review it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made.

50 These considerations are sufficient to demonstrate the lack of a proper basis for this proceeding. Since there was a decision ' in fact', whether that was a legally efficacious decision or not, this does not exclude the availability of an internal review procedure under Section 51. This is a condition precedent to the bringing of a review application to the Tribunal which condition precedent has not been satisfied. The Tribunal has no jurisdiction to entertain this proceeding.

51 Since a review by the Freedom of Information Commissioner is likewise a condition precedent to Tribunal review under the newer version of the Freedom of Information Act, the same consequence would flow even if I were wrong in accepting Ms Ellyard's contention, based on Section 69 of the Freedom of Information Act, that it is the old rather than the new version of the Act which governs these matters. Now, the Tribunal's review jurisdiction under Section 50 of the Freedom of Information Act exists only to review a decision denying access to documents by the Commissioner or the principal officer of the agency. Neither of these has made a decision.

52 Does this mean that Ms Luck is, in the events that have now occurred, without any remedy by way of Tribunal review? The 28 day period for seeking internal review under Section 51 has elapsed. The Tribunal under Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 has power to enlarge the time for the commencement of a proceeding in the Tribunal. It has no power by virtue of that Section to enlarge the period of time within which an internal review under Section 51 of the Freedom of Information Act can be obtained.

53 Another possibility which occurred to me would be to 'tack on' a review process to G519/2012 which, it will be recalled, I determined by ordering the respondent, Victoria Police, to process Ms Luck's application for access dated 13 March 2012. Ms Ellyard conceded that there was no authority of the Court of Appeal, the Supreme Court or even of the Tribunal which would preclude this course being followed. I was initially attracted to it. Ultimately however, I accept that Ms Ellyard's contention that this is not permissible is correct. First, it would seem correct that this would appear to put the Tribunal in the position of supervising generally the processing of a request for access. This is a function which neither the Freedom of Information Act nor the Victorian Civil and Administrative Tribunal Act 1998 appears to bestow on the Tribunal. It is trite to say that the Tribunal has no jurisdiction beyond what it is granted by statute. Again, there could be no doubt, as it seems to me, that, had Ms Luck moved within 28 days of her receipt on 4 December of the 30 November decision to seek internal review and, remaining dissatisfied, sought review from this Tribunal under Section 50 of the Freedom of Information Act, that the Tribunal would have had jurisdiction to entertain a review application commenced in that way. The result, then, would be that there would be two distinct pathways to review a denial of access and, once the new proceeding was commenced in these circumstances, there would be two pending proceedings in the Tribunal: one, G519/2012 which could be regarded as incomplete and capable of receiving the additional issues relative to the decision of 30 November and the other, the newly commenced proceeding. It is inherently unlikely that Parliament contemplated such a thing. Therefore, I accept Ms Ellyard's contention that the Tribunal in G519/2012 is functus officio.

54 It is inappropriate for me to reconsider at this stage and in this context the views which I expressed in my determination in G519/2012 as to the mode of access to which Ms Luck might be entitled in light of Section 19 of the Freedom of Information Act. For the reasons which I have given, my determination in G519/2012 should be regarded as a final determination. Ms Luck relied on the decision of Anderson J in Hoad v Nationwide News (1997) 37 IPR 407. In Hoad's case His Honour considered that in the circumstances confronting him, he was entitled to reconsider a decision which he had already pronounced. There could be no question of His Honour having been functus officio in those circumstances, first because the order which His Honour made was on a strike out application and was for that reason interlocutory and secondly, because no orders had been authenticated. Hoad's case is therefore distinguishable from the situation which confronts me where I have authenticated an order and concluded that I am functus officio.

55 In any event, the conclusions that I expressed as to forms of access were tentative, only. The passage in the determination of Judge Bowman relied on by Ms Luck did not constitute an expression of opinion by His Honour but merely recorded a submission made on behalf of Victoria Police to the effect, she said, that the LEAP system was a discrete document (and therefore one to which Section 19 of the Freedom of Information Act would not apply). In any event, a conclusion on this point would depend, at least in part, on evidence. It is not a point of law established by precedent. In any event, since the view that I expressed in my determination was tentative only, should the same issue arise later in the complex of disputes between Victoria Police and Ms Luck, I will be at liberty to reconsider it.

56 The application made by Victoria Police for summary dismissal was made under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. That provision authorises the Tribunal to make summary dismissal of proceedings where they are said to be 'frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process'. Section 75 is the Tribunal's version of Order 23 of the Rules of the Supreme and County Court. The tests for summary dismissal under provisions such as these are well attested. Ms Ellyard, quite reasonably, did not bother taking me to specific authority on the point. Summary dismissals are to be made only in the clearest of cases and certainly not in circumstances where there are any significant disputes as to affect the outcome of a dispute or where there is any significant doubt as to the correctness of the contentions put by the applicant for summary dismissal. In his seminal decision in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 Barwick CJ said:

I do not think that the jurisdiction [to effect a summary dismissal of proceedings] should be reserved for these cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

57 Ms Luck relied on Section 26 of the Freedom of Information Act. Sub-section (1) requires decisions as to access to documents to be made by a Minister, the principal officer of the agency or by an officer of the agency and deems a decision to be made by a principal officer 'where a request is made to an agency for a document, and no arrangements in respect of documents of that type have been made and published under the Regulations'.

58 It is common ground that there are no regulations in force relative to Section 26 of the Freedom of Information Act. Therefore, her argument goes, there are 'no arrangements in respect of documents of that type [viz to which she is seeking access which] have been made and published under the Regulations'. Therefore, if a determination has been made, as Victoria Police says it has been, by the letter dated 30 November, that decision is deemed to have been made 'by the principal officer of the agency'. This deeming is 'for the purpose of enabling an application for review to be made to the Tribunal', therefore it was competent for Ms Luck to file the application commencing this proceeding going directly to the Tribunal on 20 December 2012 without resort either to a review by the Freedom of Information Commissioner or the internal review process under the old Section 51.

59 I raised this issue by e-mail to Ms Ellyard following the conclusion of the hearing, with the communication copied to Ms Luck. Ms Ellyard furnished a copy of an instrument of delegation in favour of Mr Robin Davey which, she said, represented an arrangement approved by the principal officer of the agency. Therefore she said, since there was an arrangement in force with respect to the documents which Ms Luck sought, sub-section (2) did not apply. She said were this otherwise, the entire regime, until last December of internal review and now review by the Freedom of Information Commissioner, could be ignored by persons wishing to take their review applications direct to the Tribunal.

60 I agree that acceptance of Ms Luck's submissions about Section 26 would have that consequence. The instrument of delegation constitutes an arrangement; but for Section 26(2) to be excluded, it is not sufficient that there be an arrangement in force in relation to access to documents. It must be an arrangement 'published under the Regulations'. The arrangement is not in the form of a regulation and is not published in pursuance of any regulation. Therefore, the instrument of delegation cannot be an arrangement of the type which will exclude the operation of sub-section (2). Yet, it seems unlikely that Parliament would have established a process which would effectively side line the first stage of review in freedom of information matters.

61 The present state of Section 26 appears to arise from a drafting error.

62 In its original form Section 26 provided:

(1) A decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, subject to the regulations, by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency, and published in the Government Gazette.

(2) Where a request is made to an agency for a document, and no arrangements in respect of documents of that type have been made and published under the regulations, a decision on that request shall, for the purpose of enabling an appeal to be made to the Court, be deemed to have been made by the principal officer of the agency.

63 It will be seen that sub-section (1) provided for the officers with authority to make decisions as to Freedom of Information matters to be dealt with by regulation and publication in the Government Gazette. When the Freedom of Information Act was first passed by Parliament, regulations known as the Freedom of Information (Authorised Officers) Regulations were made. These Regulations included a schedule identifying various agencies subject to Freedom of Information and authorising the holders of particular offices identified as being empowered to make Freedom of Information decisions. The initial print of the schedule included some 292 items ranging from at No. 1 Albury-Wodonga (Vic) Corporation and ending at Item 292 with the Zoological Board of Victoria. Subsequent amendments to these Regulations extended the number of agencies to no less than 536. The last item in the Anstat, stuck in update, identified Agency No. 536 as Young Farmers' Finance Council.

64 The debate in the Legislative Assembly on the Amending Bill says nothing as to the significance of the amendments to Section 26. However, in the Legislative Council the Second Reading Speech provides an explanation. The Minister for Tertiary Education and Training, Mr Haddon Storey, who introduced the Bill which became the Act into the Legislative Council, in the relevant volume for 20 May 1993, page 1149 Column 1 said relative to these amendments

The FoI Authorised Officer Regulations are complex and voluminous and are consequently costly and difficult to administer. More than 900 agencies are covered by FoI, all of which need to have their authorised and principal officer listed in the regulations. In any period of administrative change it is difficult to keep this list up to date. This creates a danger that the regulations can frequently be out of date.

The Bill's provision relating to principal and authorised officers simplifies procedures. Responsibility for keeping records up to date falls to each agency.

65 A consideration of the regulations made in 1983 bears out the criticisms made by Mr Storey in his speech. The purpose of the amendment was to provide for the arrangements as to the making of Freedom of Information procedures to be more informally established, for instance, by Instruments of Delegation. Unfortunately, the reference to regulations and publication in sub-section (2) was not removed when, as a matter of logic, it should have been.

66 In the face of this obvious drafting error, what is the appropriate response for a court or tribunal? Is it simply to apply the words literally and allow the sidelining of the first level of review in Freedom of Information matters or seek to avoid that absurdity? In Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61, 106 Lord Wensleydale said that it was possible to modify the literal words of a statute to avoid an absurdity, a repugnance or an inconsistency. One could in effect modify the literal meaning of the words that far, but no further. This is sometimes referred to as the 'golden rule' of construction. It is referred to, and accepted as authoritative by, Professors Pearce and Geddes in Statutory Interpretation in Australia (6th Edition 2006) paragraph [2.4 26-27]. The learned authors note that this principle and Lord Wensleydale's formulation was accepted by Higgins J in Australian Boot Trade Employees Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311, 341-2 and referred to with approval by Dixon J (as he then was) in Broken Hill South Limited v Commissioner of Taxation (NSW) (1937) 57 CLR 337, 371. The Professors note that the 'absurdities' which may be corrected, by the use of the golden rule, extended only to obvious errors in the wording of a statute. In my view, given the legislative history which I have explained, there has been such an obvious error here. Again, at [2.24] 46-7 of their work, Professors Pearce and Geddes refer to a large number of instances in which Australian courts have thought it appropriate to correct 'a simple mistake in the form of a printing or a drafting error' in a statute. At page 27 they say that this process of correction and the use of the golden rule should have regard to the 'underlying purpose and context' of relevant provisions. In my view, the legislative history to which I have made reference properly illuminates the underlying purpose and context of Section 26 of the Freedom of Information Act 1982 in its present and previous form and the relationship between its two sub-sections. Applying the golden rule it is appropriate to ignore the words 'and published under the Regulations' to be found in Section 26(2). Once those words are treated as excised, it appears that there is an arrangement 'in respect of documents' of the type sought by Ms Luck and therefore, there is no deemed decision by the principal officer of the agency. It was not competent for Ms Luck in the face of what I have held to be in accordance with the formulation of Brennan J (as he then was) in Lawlor's case to be a decision 'in fact to seek to bring a review application directly to the Tribunal without seeking internal review'.

67 In a written submission in reply Ms Luck contended that Section 26(2):

does not contemplate that there will be regulations setting out how the arrangements will be made and published.

68 For the reasons given, I do not accept that this was the intent of the sub-section when first enacted. Once the drafting error made in 1993 is corrected, that is a correct interpretation of the sub-section as now in force. Ms Luck said that Section 26(2) should be regarded as referring to documents to be publicly made available under Part II of the Act. Section 26 is located in Part III of the Act and relates to access to documents by request under that part, not to public access under Part II. In my decision at [2012] VCAT 1617 I determined that documents which should be publicly available under Part II but were not could be made the subject of a request under Part III. That does not entail Section 26 having any operation under Part II of the Act.

69 For the reasons that I have given, this proceeding was brought without a proper basis. It is, for the purposes of Section 75, 'misconceived'. The Tribunal simply lacks jurisdiction to entertain it. In my view, therefore, the requirements to affect a summary dismissal under Section 75 have been made out.

70 Given that this entire proceeding is to be dismissed, none of the orders sought by Ms Luck in the course of this proceeding should be made.