The Tribunal affirms the decision of the Principal Registrar to reject the application in this proceeding on the grounds that the Applicant was not entitled to make this application.

The issue - review under section 71(2) of the VCAT Act 1998

1. On 2 March 2016, the VCAT registry wrote to the applicant rejecting his application in this proceeding. The rejection was made pursuant to the powers of the principal registrar under section 71(1) of the VCAT Act 1998. It informed the applicant that he could seek a review of the registry decision under section 71(2) of the same Act. The applicant sought a review.
2. I heard his application for review on 5 April 2016 and made orders confirming the registry rejection of his application. The applicant sought written reasons for my decision.
3. Section 71 of the VCAT Act 1998 provides:

(1) Unless otherwise provided for in the rules, the principal registrar may reject an application that -

(a) is made by a person not entitled to make it; or

1. is lodged after the expiry of the period specified in the enabling enactment; or

(c) does not otherwise comply with this Act, the regulations or the rules.

(2) If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.

(3) If the principal registrar rejects an application, he or she must inform the applicant of the right of referral under subsection (2).

(4) No fee is payable for a referral under subsection (2).

(5) On a referral under subsection (2), the Tribunal must review the rejection and may -

(b) order the principal registrar to accept the application.

(6) Instead of rejecting an application under subsection (1), the principal registrar may refer it to the Tribunal.

(7) On a referral under subsection (6), the Tribunal may order that the application be rejected if it is an application referred to in subsection (1)(a), (b) or (c).

(8) Nothing in Division 3 of Part 3 applies to a review under subsection (2).

1. Mr Marke applied on 30 September 2015, directing his application to the Regulation and Review List of VCAT, seeking review of a decision. On the application form, in the section where the applicant is asked to outline the decision for which he seeks review, the applicant said:

"The Commissioner for Privacy and Data Protection declined to entertain a complaint I made to them that Victoria Police had breached my privacy by unlawfully passing on to another Government Department, personal and private information concerning myself, which was in fact false and misleading. (Please refer to attached report provided by the commissioner for Privacy and Data Protection".

1. Mr Marke's application was not within the jurisdiction of the Regulation and Review List of VCAT. Functions are allocated to VCAT's lists in Schedule 1 of the VCAT Rules 2008 and no functions are allocated to the Regulation and Review List concerning the Privacy and Data Collection Act 2014.
2. Attached to Mr Marke's application was a copy of a letter to him dated 28 September 2015 from the Commissioner for Privacy and Data Protection which said the Commissioner had decided to decline Mr Marke's complaint and gave reasons for the decision. On the second page of the letter, under the heading "Future action" the letter said:

"Now that we have decided to decline your complaint you have the right to ask us in writing to refer your complaint to the Victorian Civil and Administrative Tribunal for hearing. You have 60 days to do this from the date of this letter.

If you do not exercise your right to have your complaint referred within 60 days, then we may dismiss your complaint. If we do this, you will not be able to take any further action in regards to this complaint. We enclose a Guide to the Handling of Complaints under the Privacy and Data Protection Act 2014 by Victorian Civil and Administrative Tribunal which outlines VCAT's procedure for hearing privacy complaints."

1. The letter then provided contact details for a person the applicant could contact at the Commissioner's office to discuss this option.
2. The VCAT Rules 2008, in Schedule 1, allocate applications under the Privacy and Data Protection Act 2014 to the Human Rights List of VCAT. VCAT's only jurisdiction to review decisions made under that Act is set out in section 73, which says:
   • (1) VCAT may hear any of the following -

(a) a complaint referred to it by the Commissioner under section 62, 66 or 71;

(b) a complaint referred to it by the Minister under section 65.

(2) VCAT also has the jurisdiction conferred by section 72.

1. Section 72 does not assist the applicant because it concerns only interim orders.
2. On 28 October 2015, Mr Marke's application was transferred under Rule 2.05 of the VCAT Rules 2008 from the Review and Regulation List to the Human Rights List. The transfer was signed by a Tribunal member in charge of each list, as the Rule requires.
3. On 2 December 2015, the registry notified the parties that there would be a directions hearing on 23 November 2015. That was clearly a mistake and on 7 December 2015 a further notification was sent, informing the parties that a directions hearing was fixed for 14 December 2015.
4. On 8 December 2015, by email, the applicant informed the Tribunal that he had received a letter dated 2 December 2015 from the Commissioner dismissing his complaint as he had not requested within the necessary 60 days that it be transferred to VCAT. The directions hearing was then adjourned, to be fixed for early in 2016, at the request of the applicant.
5. On 25 January 2016, the applicant wrote to the Tribunal enclosing a further letter from the Commissioner, dated 19 January 2016, refusing his request for reconsideration of the Commissioner's decision not to refer the matter to VCAT. That letter indicated that the Commissioner was at that time aware that the applicant had applied directly to VCAT on 30 September 2015.
6. Mr Marke has also requested the responsible Minister to refer the matter to the Tribunal under section 65(1) of the Privacy and Data Protection Act 2014 and he enclosed with his letter of 25 January 2016 the Minister's refusal of that request.
7. The VCAT deputy registrar then wrote to Mr Marke on 2 March 2016, rejecting his application as being outside the Tribunal's jurisdiction.

1. Mr Marke made a written submission and spoke about it at the hearing before me. His written submission was as follows:

The CPDP made a decision on 28.09.2015 which could be a decision under the provisions of Section 4 of the VCAT Act.

The CPDP decision that affects me; is relates to my own personal interest which is under the provisions of Section 5 of the VCAT Act.

A review jurisdiction is available to this Tribunal under the provisions of Section 42 of the VCAT Act.

This Tribunal can exercise its original jurisdiction authority under the provisions of Section 44 of the VCAT Act.

Section 48 of the VCAT Act allows me to invoke a review jurisdiction.

Section 51 of the VCAT Act allows this Tribunal to have all the functions of the decision maker (CPDP) and can exercise any of the determinations provided for.

This Tribunal may invite the decision maker (CPDP) to re-consider its original decision under the provisions of Section 51A of the VCAT Act.

I was certainly permitted to make a review application to VCAT under the provisions of Section 67 of the VCAT Act.

Importantly, may I suggest with respect, that this Tribunal can only reject my review application if my review application does not comply with the VCAT Act, the regulations of the rules, [s.71(1)(c)] under the provisions of Section 71(7) of the VCAT Act.

I encourage this Tribunal to act fairly under the provisions of Section 97 of the VCAT Act. This fairness could extend to helping me obtain some reasonable resolution for the injustices I have suffered at the hands of a senior Victoria Police officer who deliberately defamed my good character and reputation and breached the Privacy and Human Rights provisions.

I request that this Tribunal provide written reasons for any orders or decisions it may make under the provisions of Section 117 of the VCAT Act.

1. Section 42 and 43 of the VCAT Act relevantly provide:

42 (1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker.

1. The original jurisdiction of the Tribunal is invoked -

(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

(b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

(c) in any other way permitted or provided for by the enabling enactment.

1. As I said at the hearing, these sections clearly indicate that VCAT has only the jurisdiction given to it under an enabling enactment. A referral could be made to the Tribunal under section 73 of the Privacy and Data Protection Act 2014, as set out above. As required by section 43 (b) the referral would be required to comply with section 69 of the VCAT Act. That section provides:
   1. If an enabling enactment provides for a matter to be referred to the Tribunal, the referral is to be made in accordance with the enabling enactment and the rules.
2. Accordingly, Mr Marke's analysis of the meaning of the relevant provisions was incorrect. VCAT's jurisdiction under the Privacy and Data Protection Act 2014 is in VCAT's original jurisdiction, as indicated by section 43. VCAT has no power to exercise original jurisdiction in this matter as the function conferred on VCAT by section 73 depends on a referral having been made to VCAT by the Commissioner or the relevant Minister and there has been no such referral. VCAT has no review jurisdiction in this matter because there is no enabling enactment which confers review jurisdiction on the Tribunal.

Further detail about the applicant's submissions

1. The following remarks provide more detail about the reasons I gave at the hearing, so as to be specific about Mr Marke's submissions.
2. Sections 4 and 5 of the VCAT Act 1998 are of no assistance to him as they merely define terms. His application was not rejected for any reason related to the meaning of the word "decision" or for any reason related to whether his interests are affected by a decision. Section 42 and section 48 of the VCAT Act 1998 are not relevant as VCAT has no review jurisdiction concerning the decisions of the Commissioner. Section 44 does not assist Mr Marke because VCAT's original jurisdiction depends on there being a referral from the Commissioner.
3. Section 71(7) of the VCAT Act is not directly relevant to this proceeding as there was no referral to the Tribunal under section 71(6). However, if there had been such a referral, the Tribunal would be required to decide whether the application should be rejected under section 71(1) (a) (b) or (c). That is the same function as I was performing in considering Mr Marke's application for review of the registry decision. I was considering whether his application should be rejected under section 71(a) (b) or (c).
4. I decided that the application should be rejected under section 71(1) (a). As I said at the hearing, this is a straightforward matter. The Tribunal cannot accept Mr Marke's application because he is not entitled to make it. The reason for his lack of entitlement is that under the Privacy and Data Protection Act 2014, VCAT only has jurisdiction to deal with matters referred to it by the Commissioner, not with direct applications.
5. Since conducting the hearing, I have recalled that before the VCAT deputy registrar rejected Mr Marke's application in the letter of 2 March 2016, the registry sought clarification from me, noting that there had been no referral from the Commissioner and I confirmed that the registry could reject such an application under section 71(1). I have considered whether I should offer the parties any further hearing about my involvement in that decision.
6. However, since section 71 provides for a referral to a Member under section 71(6) as an alternative, I consider that my advice to the registry before 2 March 2016 could be seen as such a referral. In that case Mr Marke would not have been entitled to a hearing under section 71(2) and would not have been offered one. Section 71 ensures that a rejection is considered either by the principal registrar and then a Tribunal Member or solely by a Tribunal Member. That is what has occurred.
7. If there was any room for doubt or for a different conclusion to be drawn about the Tribunal's jurisdiction, I would offer the parties an opportunity to make further submissions, in order to ensure that there is no appearance of bias in my having advised the registry and then conducted a hearing about the same matter. However, I consider there is no room for doubt about the Tribunal's lack of jurisdiction and any further hearing would be a waste of time for the parties.
8. Mr Marke also relied on section 97 of the VCAT Act 1998. Section 97 provides:
   1. The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
9. He pointed out that the procedure under the Privacy and Data Protection Act 2014 is different from other areas of VCAT. He said he made the mistake of applying directly to VCAT because that is the usual way of starting a proceeding in this Tribunal. He was correct about that. Most lists at VCAT do allow for direct applications.
10. Mr Marke also submitted that section 97 of the VCAT Act 1998 indicated I should not reject his application because if it is rejected he is prevented from having his concern addressed according to the substantial merits of the case. I understood him to mean that his mistake in filing an application directly instead of asking the Commissioner to refer his complaint to the Tribunal was merely procedural and he should not be prevented because of that mistake from having the substantial merits of his case considered.
11. Much has been said and written about section 97. It is not appropriate here to set out the many aspects of this provision and the need on the one hand to decide questions on the substantial merits rather than the procedural niceties and on the other to decide each case according to law and not according to some subjective notion of 'fairness'. In the present case, the law about VCAT's jurisdiction is very clear. As Senior Member Vassie so succinctly put it in Golden IT Pty Ltd v Territory Resources Ltd 2014 VCAT 1412, referring to VCAT's obligations under section 97: "Indeed the Tribunal does have those obligations, but their existence does not mean that it is entitled to ignore the law".
12. Mr Marke also pointed out that "someone" from the Tribunal should have realised that he had made a mistake, firstly in applying directly to VCAT and secondly in lodging his application in the Regulation and Review List. The matter was referred within a month to the correct List of the Tribunal, but Mr Marke submitted that if the Tribunal had pointed out to him that he needed a referral from the Commissioner, he would have had time to request the Commissioner to refer his complaint to the Tribunal under section 62 of the Privacy and Data Protection Act 2014. Had Mr Marke filed his application in the correct List, that might have occurred. However, the combination of filing a direct application and filing it in the wrong List meant that the mistake was not identified by anyone at VCAT before the 60 days allowed by section 64 had elapsed.
13. For all these reasons, the decision of the principal registrar to reject the application was affirmed.
14. I note that there is a typographical error in the order made on 5 April 2016. Pursuant to section 119 of the VCAT Act 1998, I have made the following order,

1. The order dated 5 April 2016 is amended by the insertion of the word "Tribunal" as the second word of the order. An earlier version of these reasons referred to the Applicant as "Complainant" and in the circumstances that is incorrect. The order now reads as follows: "The Tribunal affirms the decision of the Principal Registrar to reject the application in this proceeding on the grounds that the Applicant was not entitled to make this application."