Galea v TAC [2000] VCAT 446

Knight v Corrections Victoria [2010] VSC 338

L and Nurses Board of Victoria (1999) 16 VAR 125

McIntosh v Victoria Police [2008] VCAT 916

McIntosh v Victoria Police [2010] VCAT 403

Maryvell Investments PL v Sigma Constructions PL (Retail Tenancies) [2006] VCAT 1599

Mildenhall v Department of Education (unreported, Dr. G. Lyons, Senior Member, 9 April 1999)

Nason v Royal Institute for the Blind [2002] VCAT 403

Smith v Director of Housing [2005] VSC 46

SRB and SRC and Department of Health, Housing, Local Government and Community Services [1994] AATA 79

Yim v State of Victoria [2000] VCAT 821

1. As is well known to the parties in this case, the Freedom of Information Act 1982 ("the FOI Act") enables a person to request access to the documents of an agency as defined in the Act. An agency must take reasonable steps to enable the person 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: section 21. Section 25A enables the agency to refuse to grant access without processing it if satisfied that the work involved would substantially and unreasonably divert the resources of the agency from its other operations. The agency must have particular regard to matters such as the resources that would have to be used in identifying, locating or collating documents: section 25A(2). The agency must not refuse the request on this ground unless it has notified the person of its intention to do so and invited the person to consult with a view to making the request in a form that would remove the ground for refusal: section 25A(6). If the agency refuses to grant access the person may apply to the Tribunal for review: section 50. In particular circumstances there must first be internal review by the agency: section 51. Where a request has been made but the 45 day period in section 21 has elapsed and notice of a decision on the request has not been received by the applicant, the principal officer of the agency is deemed to have made a decision refusing to grant access: section 53(1). Where a person applies to the Tribunal on such a "deemed refusal" but before the Tribunal has finally heard the application the agency makes a decision, the Tribunal may, at the request of the applicant, treat the application for review as extending to an application for review of that decision: section 53(5).

2. On 20 May 2010 the applicant made a request to the respondent under the FOI Act for access to what I shall call the "police roster", with some information deleted. There have been previous requests of a similar nature that have been dealt with by the Tribunal. This has been after the respondent made a decision to refuse the request: see McIntosh v Victoria Police [2008] VCAT 916 and McIntosh v Victoria Police [2010] VCAT 403. The latter proceeding has been the subject of an appeal to the Supreme Court. Her Honour Emerton J has remitted that case to the Tribunal: see Chief Commissioner of Police v McIntosh [2010] VSC 439.

3. In the present case the respondent did not make a decision within the time specified in the FOI Act and the applicant applied for review of the respondent's deemed refusal to provide the documents. The respondent has since indicated that access should be refused pursuant to section 25A of the Act on the grounds that the work involved in processing the request would substantially and unreasonably divert its resources from its other operations. The applicant now seeks an order under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") striking out a claim by the respondent that the Tribunal has power to refuse to grant access to documents under section 25A. The respondent resists that and asks the Tribunal to substitute for the deemed refusal its actual decision to refuse access pursuant to section 25A. (The applicant submitted that for the purposes of the FOI Act there is no such thing as an "actual decision" and that there are only "decisions". It is convenient however to use the term "actual decision" in these reasons and to contrast that with the deemed refusal).

4. There is more that could be recorded by way of background. It is important to note at least that soon after the respondent acknowledged receipt of the applicant's request, the manager of the respondent's Freedom of Information and Privacy Division wrote to the applicant. Among other things, the manager's letter, dated 28 June 2010, said this:

"Under section 25A(6) of the Act I give you notice of the present intention of the Victoria Police to refuse access to the documents sought by you. This is not a decision to refuse to process your request at this stage.

Victoria Police is satisfied that that work involved in processing your request would divert its resources substantially and unreasonably from its other operations."

The letter invited the applicant to consult with the respondent in accordance with section 25A(6) of the Act by 26 July 2010 with a view to amending the request so as to be in a form that would remove the ground for refusal under section 25A. Alternatively, the letter suggested that the applicant submit an amended request.

That letter dated 28 June 2010, some other correspondence, and the earlier litigation - where the Tribunal reviewed actual decisions to refuse access to the police roster pursuant to section 25A - make it clear that the parties take opposing positions about the amount of work involved in processing requests for police rosters.

On 2 July 2010 the applicant's representative, Mr. Don Coulson, wrote to the respondent seeking a more detailed estimate of the resources that were believed to be required to process the applicant's request, saying that that information was material to any reduction that might be made of the scope of the request. (Mr. Coulson made a witness statement in the proceeding and attended the hearing).

Next, on 9 July 2010, Mr. Coulson wrote again, noting that he had not received the estimate. He said that he acknowledged that the respondent's position was that any request for rosters was "inherently subject to a [section 25A] claim" and said that "in light of [the respondent's] obvious position" he gave notice that the consultation pursuant to section 25A(6) had ceased.

The respondent wrote again on 15 July, the stated purpose being to "assure" the applicant that it was not the case that the request was inherently subject to a section 25A claim and to provide some information to assist in narrowing the scope of the request. The letter invited further consultation by 11 August at which time, if no response was received, the respondent would finalise the request.

The applicant lodged the application for review on 19 July 2010.

On 27 August the respondent wrote once more to the applicant. The respondent referred to the original request and the subsequent correspondence, noting in particular that the applicant did not respond to the invitation contained in the letter of 15 July but had in the letter of 9 July advised that he was ceasing the section 25A(6) consultation without resolution. In light of that the respondent said that it had now determined to refuse access in accordance with section 25A. The letter indicated that the applicant could seek internal review of the decision.

1. There were detailed written submissions filed on behalf of the parties and counsel also made submissions orally. They were in agreement that if the Tribunal substituted the respondent's actual decision for the deemed refusal there could be no basis on which to strike out any part of the proceeding, (no point evidently being taken about the requirement first that there be internal review of the actual decision). Accordingly, counsel for the respondent, Ms. Bennett, began by asking the Tribunal to make that substitution.

Ms. Bennett submitted that the purpose of the "deemed refusal" provision in section 53(1) of the FOI Act was to prevent an agency obfuscating but that in this case the respondent was acting in good faith to try to assist the applicant to frame the request in a way that could be met. She said that the applicant had slammed the door on this in an attempt to avoid the consequences of a decision under section 25A and to circumvent a fair hearing. It would defeat the purpose of section 25A - to protect agencies from "crippling requests" - for the provisions in that section to be so easily overcome. She referred to the Second Reading speech relating to section 25A where the Minister noted that "voluminous requests" caused "severe disruption to agencies" and said that the provisions would "permit agencies to refuse to process a request where to do so would unreasonably and substantially divert the resources of the agency". (Hansard, Legislative Assembly, 7 May 1993, p. 1738).

Ms. Bennett further submitted that the recent decision by Emerton J demonstrated that there were real issues to be determined: see paragraphs 34-36 of the judgment. Substitution of the actual decision for the deemed refusal would permit the real issues to be determined.

The Tribunal's power to substitute the actual decision could be found in the directions power in section 80 of the VCAT Act if not also the power in section 98(1)(d) (requiring the Tribunal to conduct proceedings with minimal technicality and to give matters proper consideration) and section 98(3) (enabling the Tribunal to regulate its own procedure). She referred also to section 97 (requiring the Tribunal to act fairly and according to the substantial merits of the case in all proceedings).

Ms. Bennett referred to another VCAT proceeding (G269/2010) and produced a copy of an order made by a presidential Member dated 18 June 2010. That order substituted for a deemed refusal a decision of a specified date to the extent that the decision related to a request of another specified date. (The actual decision being substituted there was not one under section 25A, it was noted). Ms. Bennett appeared on behalf of the respondent and Mr. Coulson appeared on behalf of the applicant in that case. They were however not in agreement before me about whether Mr. Coulson had conceded that substitution could and should occur.

Ms. Bennett pointed to section 53(5) of the FOI Act which provides that the Tribunal may, at the request of the applicant, treat an application on a deemed refusal as extending to an application for review of a subsequently made actual decision. She described the grant of power to the Tribunal under section 53(5) as a permissive one and not a limitation. In particular, section 80 of the VCAT Act was not limited by section 53(5) of the FOI Act. The fact that it was not the applicant who was seeking to substitute the actual decision in this case was therefore no obstacle to the Tribunal making the substitution. There was no inconsistency between the FOI Act and the VCAT Act that would invoke section 159 of the VCAT Act with the result that the provisions of the enabling Act, the FOI Act, would prevail. It would be different, she said, if the FOI Act expressly stated that there could be no substitution of an actual decision for a deemed refusal. The general structure of the VCAT Act was directed towards ensuring an expeditious and fair hearing of matters in dispute. To narrow the scope of section 80 would be to defeat the purpose of section 25A.

In response Mr. Tracey submitted that the Tribunal had no power to substitute the actual decision. The applicant sought review of the deemed refusal. The actual decision was made after the application for review was lodged. The applicant did not seek review of the actual decision and made no request under section 53(5) for the Tribunal to treat the application for review as extending to the actual decision.

He contrasted section 53(5) of the FOI Act with provisions of the Freedom of Information Act 1982 (Commonwealth). Where there was an application to the Administrative Appeals Tribunal for review of a deemed refusal but, before that was determined, an actual decision was made, the Tribunal could treat the proceeding as extending to a review of the actual decision: section 56(6). Victorian legislation gave VCAT no such power. Under the Victorian Act there had to be a request made by the applicant.

Mr. Tracey submitted that section 80 of the VCAT Act did not permit the Tribunal to assume jurisdiction that it did not have. It permitted giving directions but did not permit substituting one decision for another. It did not permit the Tribunal going back in time and ignoring the fact that by force of the FOI Act there was a deemed refusal.

He said that section 25A contained a special privilege that was conferred on an agency or a Minister. It was designed to prevent abuses by persons who requested access to documents. There was no abuse in this case, however.

Mr. Tracey submitted that if the Tribunal found that it could make the substitution it should exercise its discretion in such a way that the applicant would be allowed to pursue his case as he saw fit.

Applicant's submissions regarding dismissal or striking out of respondent's claim

1. Mr. Tracey clarified that the application to dismiss or strike out the respondent's claim was put on the basis that the claim was misconceived. He did not argue that the claim was lacking in substance, given the decisions the Tribunal had made in the previous two proceedings between the parties mentioned earlier. He said that the respondent's claim was misconceived because on a review of the deemed refusal the Tribunal was simply being asked to decide whether to refuse or grant access to documents. In making the correct or preferable decision the Tribunal must have regard to its powers and functions on review and any practical limitation on exercise of those powers. With a deemed refusal the Tribunal did not have the documents before it. It did not get to see the documents. What the Tribunal needed to do on a review of a deemed refusal was to inquire into grounds why the respondent should refuse the request. Normally that would involve looking at Part 4 of the FOI Act and what the respondent might say were any exemptions, and then decide whether refusal was justified. He submitted that the Tribunal could not go back to section 25A(1) and seek to apply that as if the Tribunal were the agency or Minister. While the Tribunal had all the powers of the decision-maker, it stood in the shoes of the agency. It had the same limitations that the agency had - for example the requirement to fulfil any pre-condition to making its decision. Where it could not fulfil a pre-condition it could not exercise the power. The Tribunal would have to reach the state of satisfaction required in section 25A(1). It would have to have regard to resources required as provided in sub-section (2). Further, the Tribunal was not equipped to comply with requirement for consultation in section 25A(6).

2. The deemed refusal occurred on 17 June by operation of the FOI Act and had a finality to it, he further submitted. That was the decision to be reviewed. There was scope for a subsequent actual decision to be reviewed, but only where an applicant asked for that or where the applicant made a separate application for review of the actual decision.

3. Mr. Tracey referred to Mildenhall v Department of Education (unreported, Dr. G. Lyons, Senior Member, 9 April 1999). He submitted that Mildenhall was clear, longstanding authority for the proposition that the Tribunal could not apply section 25A in circumstances where there had been a deemed refusal. He said that the decision acknowledged the policy that an agency not delay matters or fail to take action. Section 25A(1) granted a privilege to an agency that it had to exercise within 45 days of receiving a request for access. Section 25A gave an agency the ability not to process a request where the agency said, on reasonable grounds, that the request was voluminous. However, once the time for that expired the privilege could not be exercised and the Tribunal could not, months later, artificially stand in the shoes of the agency and make the assessment that the request was voluminous. It was too late for the Tribunal to do anything about it. The Tribunal had other ways of assessing whether documents should be released or not, especially under Part 4 where exemptions were claimed. The agency could make an actual decision later on but that did not mean that the decision somehow supplanted or changed the earlier deemed decision to refuse access.
4. Citing Nason v Royal Institute for the Blind [2002] VCAT 403, Mr. Tracey submitted that the respondent's claim should be dismissed rather than struck out as it was unsustainable in law and was not curable by amendment. The claim had to fail because it had essentially failed in the two similar previous proceedings. Given that there was no other claim by the respondent - for instance a claim that documents were exempt - the appropriate course for the Tribunal would then be to set aside the deemed refusal and grant access to the documents.

Respondent's submissions regarding dismissal or striking out of respondent's claim

1. Ms. Bennett responded saying that section 75 of the VCAT was not a section by which one could have an order made summarily that granted access to documents. Rather it was the basis on which all or part of a proceeding could be struck out. Referring to a decision of Kaye J in Forrester v AIMS Corporation [2004] VSC 506, she said that the applicant had the onus to show that the respondent's claim was "undoubtedly hopeless". The section 75 application was of an interlocutory nature heard without the taking of full evidence. The power under the section could not be invoked where all that was shown was that on the material currently before the Tribunal the respondent may fail to adduce evidence substantiating an essential element of its case, at least where it had not conceded that the material before the Tribunal was the whole of the evidentiary material that it intended to adduce at the hearing: see Forrester at paragraph 25.

2. Ms. Bennett also referred to a decision of Bell J in Knight v Corrections Victoria [2010] VSC 338. That case involved an actual decision by the respondent refusing a request for documents on the basis that the documents were of their nature exempt: FOI Act section 25A(5). At paragraph 21 of the judgment His Honour made some remarks about the functions of the Tribunal. He said:

"the tribunal stands in the shoes of the original decision-maker. In legal character, its jurisdiction is substitutionary not appellate, and administrative not judicial. Its function is to make the correct or preferable decision on the merits. In doing so, the tribunal is not bound by the original decision and (where relevant) it may receive additional evidence. It has full jurisdiction to make all necessary findings of fact and to determine all relevant questions of law."

1. Referring then to Mildenhall, Ms. Bennett submitted that the decision was not binding on me. It was decided on different facts and was distinguishable. At paragraph 28 Senior Member Lyons noted three pre-conditions to an actual decision to refuse a request under section 25A - the agency would identify a request as voluminous; the agency would consult with the applicant to narrow the request and remove the ground of refusal; and the agency would fail in that endeavour. Those pre-conditions were not satisfied in Mildenhall but they had been satisfied in the present case. Further, Bell J made it clear in Knight that the Tribunal may receive additional evidence. The respondent acknowledged that it had the onus of justifying its decision and would adduce evidence to discharge it.

2. In Mildenhall the Tribunal was concerned that if it were to exercise an agency's power under section 25A(1) on a deemed refusal decision that would allow an agency to frustrate the scheme in sections 25A(1) and (6): at paragraph 31. That could not describe the respondent's conduct. On the contrary, Ms. Bennett submitted, it would frustrate the FOI Act for the Tribunal to be denied the opportunity to have regard to the evidence where the pre-conditions to a decision under section 25A(1) had been satisfied.

3. In the alternative Ms. Bennett submitted that Mildenhall was incorrect and should not be followed insofar as it held that a respondent could not raise section 25A after there was a deemed refusal.

4. Only in the most extreme circumstances, which were not present in this case, should the Tribunal at an interlocutory stage finally determine a proceeding, Mr. Bennett submitted.

1. In reply Mr. Tracey emphasised that whether the respondent's claim was misconceived is a question of law. If Mildenhall applied then the result was that the respondent's claim must be dismissed. The Tribunal did not need to embark on considering facts and evidence. It needed to decide whether a claim under section 25A(1) would be available to the respondent if the matter were to proceed to a hearing.

2. While the Tribunal could receive evidence, if there was no power to make decision one way or another about a section 25A(1) claim then the evidence would not have any bearing on the matter. A hearing on the merits in this case could go only to whether the deemed refusal was the correct or preferable decision.

The application to substitute the actual decision

1. I was informed by Ms. Bennett that substitution occurred in proceeding number G269/2010. The proceeding file in that case has not been available to be inspected by me. I would in any event be cautious before following what was ordered in that case. The respondent was not involved in that other proceeding and the nature of the decision being substituted was different. Further, it does not appear that the legal point about substitution was fully argued. And whether or not any concession was made or was reasonably perceived to have been made by Mr. Coulson in that case, there is nothing to indicate a concession for the purpose of other proceedings.

2. It needs to be emphasised that the present case is not one where the applicant himself asks to have the actual decision reviewed (as he might in effect have done under section 53(5) of the FOI Act). Also, the applicant does not seek amendment of his own application under section 127 of the VCAT Act. However, even if he had done so the Tribunal would be careful not to assume jurisdiction that it did not have. (Compare in a different context - an application for an order granting possession of rented premises supported by a notice to vacate under the Residential Tenancies Act 1997 - the decision of Smith v Director of Housing [2005] VSC 46). On the contrary, it is the respondent who seeks substitution, transforming the nature of the application for review.

3. I do not see that the provisions of section 98 of the VCAT Act would permit substitution. I do not see, either, that section 97 really assists, and each party could make claims about what would be fair in all the circumstances. So the question is whether the power exists under section 80 of the VCAT Act.

4. Before I say more about section 80 I say this. Given the express reference in section 53(5) of the FOI to the applicant, it would require clear words in the VCAT Act to enable to substitution on the application of another party or on the Tribunal's own initiative. It is also significant that the Victorian Parliament has in the FOI Act not chosen to follow the Commonwealth Parliament and expressly empower VCAT itself to treat a proceeding as extending to a review of an actual decision. I would say in any event that as a matter of discretion it the power ought not be exercised in the circumstances of this case. The correspondence passing between the parties indicates that the applicant may have acted pre-emptively in making the application for review. He was however entitled to apply to the Tribunal at the time that he did. Now, far from asking that his application be treated as extending to a review of the actual decision, he asks that it not be.

"The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding".

1. I agree that this provision is expressed in the widest possible terms but it is expressed in the context of a proceeding - that is, a proceeding as it exists. A proceeding, defined in section 3 of the VCAT Act as a proceeding in the Tribunal, is something that is commenced by a party. It may sometimes become something that the parties agree it to be. It is not, I think, what a respondent would instead have it be, unless one were speaking of the real nature of a respondent's own defence or counterclaim in a proceeding inter partes. Put another way, one party may obtain substitution by way of amendment - by consent, or if the Tribunal exercised its discretion to enable the party to frame its claim as that party really intended to. It would be another matter to suggest that one party could effectively require the opposite party to make a claim that it did not want to make. If a respondent maintained that an applicant's claim was "the wrong one" the respondent could ask to have that dismissed or struck out under section 75 of the VCAT Act, but in that event the respondent would have to show that the claim was, for instance, misconceived or lacking in substance. The respondent could hardly have made such an application in this case.

2. I add this comment about section 80. In a case cited by Ms. Bennett, Maryvell Investments PL v Sigma Constructions PL (Retail Tenancies) [2006] VCAT 1599, Judge Bowman VP said at paragraph 28 said that he agreed with Deputy President Macnamara who (in Galea v TAC [2000] VCAT 446) described section 80 as being expressed in the widest possible terms. I note, though, that in Galea the question was whether section 80 permitted a direction that a party attend a medical examination. Maryvell itself concerned discovery. Both cases therefore concerned the width of the directions power within the context of a proceeding. I do not think that those cases support a reading of section 80 that would permit making a proceeding something that it is not - especially by substituting at the request of a respondent something that would alter the nature of an applicant's application.

3. For these reasons the application for substitution is refused.

The application to strike out or dismiss the respondent's claim

1. I turn now to the applicant's application to have the relevant part of the respondent's claim dismissed or struck out. Section 75 of the VCAT Act provides:

"75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding ...

(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law."

1. The essential basis for the section 75 application is that the Tribunal's decision in Mildenhall is in point and ought to be followed.

2. I am not inclined to the view that Mildenhall was incorrectly decided, but I do not need to express a final view about that. I agree at least that Mildenhall is distinguishable. In Mildenhall it was not merely that the applicant had not received notice of a decision on the request within 45 days: see the precise wording of section 53(1)(c). The applicant had received no response at all: see paragraph 25 of the decision. The respondent agency in Mildenhall did not embark on any consultation and it did not make an actual decision under section 25A(1). In contrast, in this case the respondent responded at first by at least indicating its intention to refuse the request and inviting consultation. The respondent finally made the actual decision even though that was after 45 days had elapsed and the application for review had been lodged. The respondent did all that SM Lyons noted in Mildenhall that it was required to do before being entitled to rely on section 25A: see paragraph 28 of the decision.

3. The Tribunal must consider whether the deemed refusal is the correct or preferable decision. In this case that has to be considered in a context where section 25A(6) has been complied with; there has been an actual decision; and the Tribunal is informed by counsel that there will be evidence adduced by which the respondent seeks to discharge its onus of establishing that its decision was justified. I mention, incidentally, that Pizer Victorian Administrative Law, Thompson Law Book Company, at paragraph [FOI.25A.180], notes that the decision in Mildenhall is confined to a finding that the Tribunal cannot make a decision under section 25A(1) on a deemed refusal application but that the Tribunal did not decide that an agency could not make an actual decision under section 25A(1) after an application for review of a deemed refusal decision had been lodged. I will return to the matter of the evidence that the respondent proposes to adduce and to the general remarks by Bell J in Knight but those remarks fortify the position in favour of enabling the section 25A claim to be considered at the hearing.

4. A secondary line of argument for dismissing or striking out the claim under section 25A(1) was that the claim had to fail. It was submitted that the claim had to fail because in the two similar previous proceedings between Mr. McIntosh and Victoria Police the Tribunal had made findings to the effect that the time required to process the request was not so great that the section 25A(1) claim should succeed. As pointed out by Ms. Bennett, however, in SRB and SRC and Department of Health, Housing, Local Government and Community Services [1994] AATA 79, the Commonwealth Administrative Appeals Tribunal made this observation:

"The resources of the agency referred to in [the relevant provision] must be the resources which the respondent had at the time the request was lodged or had as at the date of the hearing. It can not mean resources which the respondent might be able to obtain or even resources constituted by the filling of establishment positions. It also can not mean the whole of the resources of a large Department of State. To find this would make the section meaningless. We consider it means the resources reasonably required to deal with an FOI application consistent with attendance to other priorities." (at paragraph 29)

1. The first similar proceeding was decided in 2008 and the second has been remitted with comments by the appeal judge. One should therefore be careful not to assume that all relevant circumstances are entirely unchanged. At the same time, in another decision of the AAT to which Ms. Bennett referred, Filsell and Comcare [2009] AATA 90, at paragraph 56, the Tribunal said this:

"[A]s a general rule, issue estoppel will not arise from decisions of this tribunal, and would only arise where the legislation conferring jurisdiction on the tribunal provides expressly or by implication that its decision in relation to particular issues will be final and binding".

1. In summary, the Tribunal should consider the matter afresh on the basis of the evidence of current circumstances. To do otherwise would be to disregard the legislative purpose underlying section 25A. Where a respondent has indicated that section 25A(1) applies or may apply, there will be competing policies - one of promoting the disclosure of information and the other of not unreasonably and substantially diverting the resources of the agency. While the application in this case is an application for review of a deemed refusal, the Tribunal's task is still, as I have said, to come to the correct or preferable decision. This would not be assisted were the Tribunal to strike out the respondent's claim, especially where Mildenhall may be distinguished and where the respondent indicates that it will seek to adduce relevant up to date evidence so as to discharge its onus. In Knight Bell J was not considering precisely the same point as the one that arises here, but His Honour's remarks underline the capacity of the Tribunal, and the responsibility of the Tribunal, to exercise its functions properly and fully in each individual case.

2. I mention that in Yim v State of Victoria [2000] VCAT 821 the Tribunal expressed the view that section 75 of the VCAT Act applies to any part of a proceeding including the complaint, the particulars of complaint and the particulars of defence. However, particularly in the respondent's written submissions, it was not conceded that section 75 would give the Tribunal power to dismiss or strike out the respondent's claim. It was emphasised there that in this proceeding the Tribunal was required to undertake merits review and make the correct or preferable decision and so, for that purpose, was required to entertain the argument that the respondent sought to make. I mention also that in L and Nurses Board of Victoria (1999) 16 VAR 125 the Tribunal observed that where it exercised power under section 75(1), section 75(2) gave it power to order the applicant (meaning there the applicant who initiated the review proceedings) to pay compensation to any other party. In L's case the Tribunal rejected an argument that it could summarily set aside the decision of the Nurses Board that was under review. I do not see that section 75 gives the Tribunal the power to dismiss or strike out summarily a claim made by a respondent decision-maker to an application for review of the decision. However, if the power does exist, this is one case where that power should not be exercised, in my view.

3. For the above reasons I refuse the application to dismiss or strike out the respondent's claim summarily. The consequence of my decision is that the matter should proceed to hearing of the application for review of the deemed refusal. The Tribunal may then hear evidence and submissions regarding all relevant issues. My decision necessitates a further directions hearing, so there will be one scheduled in the near future.