1. Under section 71(5) of the VCAT Act, on review, the Tribunal may either confirm the rejection of an application or order the Principal Registrar to accept the application. The Tribunal undertakes a fresh review having regard to the evidence before it, with a view to making the correct or preferable decision in the circumstances.
2. Under section 71(1), an application to the Tribunal may be rejected in various circumstances, including where the application 'is made by a person not entitled to make it'.
3. The issue for determination in this proceeding is whether Mr Myers is entitled to make an application to VCAT in respect of the decision identified in his application, namely the Decision of the Department of 1 September 2022 that no documents could be located within the terms of his FOI request.
4. It is important to observe, at the outset, that, unlike the Supreme Court of Victoria, the Tribunal does not have any inherent jurisdiction to hear matters or undertake judicial review. Rather, applications for review of decisions are made in the Tribunal's 'review jurisdiction' under sections 42 and 48 of the VCAT Act. Relevantly, that section refers to jurisdiction being conferred on the Tribunal 'under an enabling enactment' and requires that jurisdiction be invoked by 'a person who is entitled to do so by or under an enabling enactment'.
5. As then Deputy President Lambrick observed in Helmer v The Secretary to the Department of Health and Human Services (Helmer),[1] 'unless and until the application is accepted by the Tribunal, there is no proceeding on foot'. Further, she described the question of the Tribunal's jurisdiction as 'most certainly a threshold decision'.[2]

1. In Mr Myer's submissions,[3] the Tribunal has always had and maintains jurisdiction to consider whether a decision that there are no documents conforming to a FOI request is valid and to order further searches, suggesting that a person who has made a FOI request and is confronted by such a decision has a choice whether to make a complaint to the Information Commissioner or to seek review by VCAT. Much of his written submission, which he indicated was drafted by Dr Manu Chopra,[4] is devoted to analysing and rejecting a previous line of VCAT decisions[5] to the effect that the Tribunal does not have jurisdiction to undertake a review of such a decision, nor the power to order further searches, except (perhaps) where a decision is taken to have been made refusing access to documents by reason of an agency's failure to process a FOI request within the legislatively mandated period.
2. The Department's submissions[6] contend that, to the extent that Mr Myers seeks review of the Information Commissioner's decision to dismiss his complaint, that decision cannot be reviewed because the outcome of a complaint is not listed in section 50 of the FOI Act as a decision which is reviewable by the Tribunal.[7] The Department also submits that, to the extent Mr Myers seeks review of the Department's decision of 1 September 2022, there is no reviewable decision because the Department did not refuse access to documents in accordance with the request and, in any event, there was no application to the Information Commissioner for review that was dismissed under section 49G of the FOI Act.[8]

1. I consider that the Tribunal lacks jurisdiction to review the Department's decision of 1 September 2022.
2. Section 50 of the FOI Act sets out a range of freedom of information decisions in respect of which a person may apply to the Tribunal for review. The only decisions of an agency, such as the Department, which can be reviewed are those set out in sections 50(1)(d) to (ea).
3. It is not contended, and could not be contended, that the Decision made by the Department on 1 September 2022 falls within any of those provisions. As the Department observes, the Information Commissioner did not make any determination under section 49G(1) in respect of Mr Myer's FOI request:[9] rather, the Information Commissioner dismissed the complaint under section 61B(1)(b).
4. For completeness, I have considered whether the position would differ had Mr Myers made an application to review the Information Commissioner's decision of 29 September 2022, or now made application to amend his Tribunal application to apply to that decision (or a failure to make a decision if Mr Myers made a valid application to the Information Commissioner for review of the Department's Decision).
5. The first point to note is that he has not made any such application and the Tribunal's discretion in section 127 of the VCAT Act to allow a document to be amended only applies to 'any document in a proceeding'. For the same reasons as the Tribunal lacked power to make any declaration under section 124 of the VCAT Act in Helmer, because there is no proceeding at the present time, there may also be no power to allow the application to be amended in this manner.
6. The second point to note is that, even if the power to allow the application to be amended was enlivened, it is discretionary. In determining the exercise of any such discretion, the futility of doing so will be extremely relevant. In this regard, it is clear that section 50 of the FOI Act does not give a person a right to seek review of a decision of the Information Commissioner to dismiss a complaint under section 61B(1)(b).[10]
7. Further, contrary to the submissions of Mr Myers, section 27(1)(d) of the FOI Act[11] - which is found within a section dealing with provision of reasons by an agency for a decision made by the agency in respect of a FOI request - does not establish any separate right for a person to apply to VCAT for review of such a decision and, hence, does not confer jurisdiction for the Tribunal to entertain such an application.
8. I would add that it would be curious reading of the legislation to find that there was an implied right to apply directly to the Tribunal for review of such a decision in circumstances where a person has already pursued an unsuccessful complaint about the decision, and the Parliament has not thought it appropriate to include, within section 50, the right for an applicant to apply for review of the Information Commissioner's decision to reject the complaint.
9. Similarly, contrary to the submissions of Mr Myers, section 50(4) of the FOI Act[12] does not create any right of review, but rather defines the Tribunal's powers in the course of a review application properly commenced.
10. Lastly, while it is unnecessary to address Mr Myer's submissions regarding the line of Tribunal decisions regarding the lack of jurisdiction to review a decision that no documents exist that conform with a FOI request, I observe that issues of comity and consistency suggest that I should follow that line of decisions unless it is obviously wrong. Having regard to my previous and detailed analysis of that line of decisions in Davis v Department of Health,[13] nothing contained in the applicant's submissions convinces me that this is the case.

1. At the commencement of the hearing, Mr Myers made an application to be permitted to record the hearing. Under section 4A of the Court Security Act 1980 (Vic), it is an offence to make a recording of a proceeding (including in VCAT), except for certain situations, including where 'express written permission is given by a judicial officer' (which includes a non-judicial member of VCAT). I granted that permission on the basis of an undertaking, given by Mr Myers during the hearing, that he would only use any recording for the purposes of pursuing any appeal and would not provide the recording to any other person, other than a legal representative.

[1] [2020] VCAT 1309 at [6].

[3] Outline of Submissions by Applicant regarding the Tribunal's jurisdiction and power to order further searches in a freedom of information merits review application where adequacy of a search has been put into issue by an applicant dated 6 January 2023.

[4] Dr Manu Chopra is unrelated to Mr Myers, but attended the first hearing of this application as a member of the public and offered to assist Mr Myers in preparing his submissions, presumably because Dr Chopra has made a number of his own applications for review of freedom of information decisions in the Tribunal. During the hearing Mr Myers applied for leave for Dr Chopra to represent him, under section 62 of the VCAT Act, which I refused for reasons given orally.

[5] The line of authorities is Smeaton v Transport Accident Commission [2014] VCAT 341, O'Brien v Jennings [2017] VCAT 1395, Smeaton v Department of Premier and Cabinet [2018] VCAT 1672, AOZ v JLV [2019] VCAT 31, Chopra v Department of Education and Training [2019] VCAT 986 and Davis v Department of Health [2021] VCAT 1490.

[6] Notice of wish to be heard and outline of submissions dated 16 January 2023.

[9] This is a precondition to the right of a person to apply for a review of a decision of an agency refusing to grant access to a document in accordance with a request: FOI Act, s 50(1)(d).

[10] Compare section 50(1)(b), which provides a right to seek review of a decision of the Information Commissioner refusing to grant access to a document in accordance with a request, and section 50(1)(c), which provides a right to seek review of a decision of the Information Commissioner to defer access to documents.

[11] This section provides that an agency must inform an applicant of his right to apply for a review of the decision and the chapeau to that provision references a range of decisions including a decision that 'no such document exists'.

[12] Section 50(4) enables the Tribunal, on review, to grant access to a document which would otherwise be exempt if the Tribunal 'is of [the] opinion that the public interest requires that access'.

[13] [2021] VCAT 1490.