[37] In my view, the relevant "information" relating to Mr Resch's personal affairs that is contained in the Commission's determination made on 8 April 1982 is the record of the Commission's decision as to the condition accepted by the Commission as attributable to Mr Resch's war service. There is no evidence before me that the determination is other than an accurate record of what the Commission decided. There is no relevant aspect in which that information is incomplete, incorrect, out-of-date or misleading. There is no proper basis therefore for amending that record under Pt V of the FOI Act.

1. At page 390 paragraph [41] the learned Deputy President said:

[41] In conclusion, I wish to return to the observation by Mr Cowan in his letter dated 5 July 1985 that the "more appropriate avenue" for Mr Resch to have pursued in order to have the correct diagnosis of his condition reviewed on the merits was through the review provisions of the Repatriation Act. I wish to add my support to that view. If there is any mechanism available whereby the substantive question as to the true nature of Mr Resch's special disease can be brought before the VRB and ultimately (if need be) before this Tribunal, it would, in my view, be most desirable that Mr Resch should be given the opportunity to initiate such a review.

1. The same line according to Dr French was taken by the Administrative Appeals Tribunal of Victoria, the predecessor of this Tribunal in the Victorian Freedom of Information jurisdiction in Setterfield v Chisholm Institute of Technology (No. 2) by Member Lewis (1986) 1 VAR 202. In that case Mrs Setterfield had been dismissed by the governing body of the Institute or as she saw it, purportedly dismissed. She sought to have the minute of her dismissal recorded correctly because she contended the purported dismissal and the purported record was a nullity for lack of a proper quorum. At page 208, refusing the application Mr Lewis said:

I consider that the result which the applicant is seeking to achieve by her application in this case does not fall within the provisions of s 39 of the Freedom of Information Act nor was it contemplated by those persons who were responsible for the drafting of the original legislation. This is because what the applicant is seeking to do by her application is to challenge the legal competence of the governing body of the respondent Institute in carrying out its task of governing the Institute. In my view these are matters properly to be determined by declaratory proceedings in the Supreme Court.

In my view, s 39 is not concerned with anything more than recalling accurately what occurred and if the resolution to dismiss Mrs Setterfield was recorded accurately, whether it was an unlawful resolution or note, has got nothing to do with s 39 or in turn this Tribunal.

1. Similarly, said Dr French, Mrs Coghlan adopted the same line in Mann v Medical Practitioners Board of Victoria (1997) 12 VAR 142. At page 154 Mrs Coghlan as a member of the Administrative Appeals Tribunal of Victoria said:

Whether or not the Board had jurisdiction is beside the point. Matters of jurisdiction are matters that Mr Mann would need to agitate elsewhere. Part V of the FOI Act cannot be used to decide such questions. I agree with the observations made by Lewis PM in Re Setterfield and Chisholm Institute of Technology (No. 2) (1986) 1 VAR 202, referred to earlier in the submissions made by counsel for the Board. In my view, matters that concern the Board's jurisdiction, its competence or lawfulness of any actions have got nothing to do with the application of s 39 of the FOI Act and cannot form any basis for annotating or deleting material.

1. Finally, I was referred to a decision of the New South Wales Court of Appeal in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345. In Crewdson's case Mr Crewdson had been employed by the Department of Community Services as a care worker and following a medical examination was declared unfit for work and in need of psychiatric assessment. He sought an order under Section 39 of the New South Wales Act to have the report corrected or amended. The application was refused. A member of the Administrative Decisions Tribunal directed the report be amended but the appeal panel set that decision aside. A further appeal by Mr Crewdson to the Court of Appeal was unsuccessful. At paragraph [24] Handley JA with whom the other two members of the Court, namely Ipp JA and Davies AJA concurred said:

The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded I them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 397 (Hall Deputy President) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378.

1. Those authorities in Dr French's submission led to the conclusion that this Tribunal did not under the Freedom of Information Act, Section 39 have jurisdiction to grant Mr Smeaton the relief which he sought. Mr Smeaton clarified the precise purpose which underlay his application. He took me to Section 59 of the Accident Compensation Act 1985 drawing my attention to sub-section (3). The section deals with the conduct of these conciliation conferences and states:

If the Conciliation Officer is satisfied that there is no genuine dispute with respect to the liability to make or continue to make weekly payments, the Conciliation Officer may direct the Authority, employer or self-insurer, as the case may be to pay or continue to pay compensation in accordance with the direction.

If a Conciliation Officer gives a direction or further direction to pay or continue to pay weekly payments, the Conciliation Officer may also give a general direction to the Authority, employer or self-insurer, to pay subject to and in accordance with section 99 the reasonable costs of services specified in that section that were or are to be provided during the period specified in the direction under subsection (5) or (7) as the case may be.

For the purposes of this section a Conciliation Officer is to be taken to be satisfied that -

(b) there is no genuine dispute if the Conciliation Officer is satisfied that there is no arguable case in support of the denial of liability.

1. Mr Smeaton said that had the conciliation officer known the facts as they were ultimately found by Member Proctor, the conciliation officer would have reached the frame of mind described in Section 59(10)(b) and issued a direction in accordance with sub-section (3) or (4) of that section to the effect that the relief sought by Mrs Smeaton, namely the provision of an attendant night carer and the appointment of Mr Smeaton as such attendant night carer would have been granted to her.
2. Mr Smeaton also observed that by virtue of Section 60(1) and (2) directions given by conciliation officers were subject to revocation by the officer who made them or by another officer or by the County Court as the case may be. He referred to Section 52C of the Accident Compensation Act which gave the respondent Service power to 'do all things that are necessary or convenient to enable it to carry out its functions'. This provision he said amply empowered the Service to take the action which he wished taken and Mr Smeaton referred to Section 50(4) of the Freedom of Information Act which gives the Tribunal on review the same powers as the respondent agency has in dealing with a request for access, therefore said Mr Smeaton it was appropriate that the Tribunal regard itself as empowered to revoke or modify the Conciliation Outcome Certificate or nullify it as his original characterisation of the relief would have it. Mr Smeaton drew my attention to an Amended Conciliation Outcome Certificate which has since been issued. It refers to Allianz Australia Workers Compensation Vic Limited as the authorised agent and Allianz Australia was such authorised agent in 2002 at the relevant time. The amended certificate however was issued to him, albeit that it is on the letterhead of the respondent service by CGU which is now the authorised agent dealing with Mrs Smeaton's case. This amended Conciliation Outcome Certificate states simply, omitting formal parts:

A conciliation conference was held on 25 August 2003.

I am unable to bring the parties to agreement and the matter remains unresolved.

I certify that the claimant has taken all reasonable steps to settle the dispute.

Application may be made to the County Court or Magistrates Court to determine the matter.

1. It will be seen that this Amended Conciliation Outcome Certificate omits all reference to progress certificates, to directions and to any referral to Dr Strauss for his opinion.
2. I asked Mr Smeaton why the existence of this Amended Conciliation Outcome Certificate was not a sufficient satisfaction of the claim which he now made. It was at that point that he took me to the powers of direction given to conciliation officers by Section 59 followed by the contention that had this conciliation officer been made aware of the true situation relative to the referral to Dr Strauss some direction under Section 8(3) would have been given.
3. It follows from the authorities to which Dr French took me that it is well established by both Tribunal decisions and an appellate decision, namely of the Court of Appeal of New South Wales, that Section 39 is not properly invoked as a means to achieve a collateral attack upon an administrative decision. In accordance with the principles of precedent which have now been postulated by the High Court of Australia, any Victorian court would, save in exceptional circumstances regard it as appropriate to follow a decision of the New South Wales Court of Appeal. It would have to be well convinced of its wrongness to depart from it. Hence the Court of Appeal decision is a very weighty authority indeed in support of Dr French's contention. Moreover, there are decisions of the Administrative Appeals Tribunal of Victoria, this Tribunal's predecessor and also of the Commonwealth Administrative Appeals Tribunal to similar effect.
4. The embarrassment to this apparent unanimity of authority is the decision of Mr Proctor. The determination letter which Mr Proctor ordered be corrected under Section 39 seems to have no less a standing as an administrative decision on the face of it and on the authorities immune from collateral attack under Section 39 of the Freedom of Information Act 1982 than does the certificate in question here. Further in the present case the portion of the Conciliation Outcome Certificate which Mr Smeaton takes exception to is, if you like, almost I won't say an irrelevancy but an excursus rather than an essential part of the certificate. This is testified to by the fact that CGU has issued the Amended Conciliation Outcome Certificate which amongst other things simply omits what is for Mr Smeaton, the offending sentence, namely the reference to Dr Strauss. In those circumstances can it really be said that what Mr Smeaton is trying to do is mount a collateral attack upon an administrative decision for which a separate and distinct legal process of review has been established. In my view that characterisation nevertheless remains correct. Mr Smeaton explained that his purpose in seeking this correction is to establish that the conciliation officer having been hoodwinked by Allianz Australia as he sees it, was led to a decision that he would not otherwise have made, rather he would have made a decision issuing directions under Section 59(3) or 59(8) of the Act based upon a finding that there was no bona fide dispute.
5. Accordingly I do believe that Mr Smeaton now is doing the very thing that the authorities say he is not permitted to invoke Section 39 to do. Insofar as Section 50(4) of the Freedom of Information Act empowers this Tribunal to exercise the powers of a respondent agency in a Freedom of Information Act matter, those powers are the respondent agency's powers under the Freedom of Information Act not its powers under some other statute such as the Accident Compensation Act and so I can put that matter to one side.
6. The only embarrassment to success therefore is the attack mounted by Dr French on behalf of the respondent is the existence of Mr Proctor's determination. It is difficult to see why if the Tribunal lacks jurisdiction to do what Mr Smeaton now asks, it had jurisdiction to grant the relief which Mr Proctor granted. With some hesitation I conclude that Mr Proctor's attention was simply not drawn to these jurisdictional issues. Most of the authorities to which I have made reference are not cited in the VWA decision of Mr Proctor though there is reference to Mann's case. Accordingly given that these matters were not agitated by the parties before Mr Proctor I cannot regard him as having made a deliberate decision contrary to the submissions put by Dr French. In light of the otherwise high and uncontradicted authorities supporting her case, I conclude that she has established to the necessary degree that Mr Smeaton's application in this matter is doomed to fail and hence deserving of the somewhat pejorative description of the adjectives to be found in Section 75(1) of the Victorian Civil and Administrative Tribunal Act, namely frivolous, vexatious, lacking in substance or otherwise an abuse of process and I make an order of summary dismissal as requested.