1. The Victorian Workcover Authority is to search for the requested emails as defined in the Mr Smeaton's application for review on the pre 2005 back up medium on which email is stored, as identified in evidence in the course of this proceeding, subject to Mr Smeaton paying search costs not exceeding $4235.00.
2. If the search costs exceed $4235.00, the Victorian Workcover Authority is to pay the excess.

1. In May 2009, under the Freedom of Information Act 1982 (the Act), Mr Smeaton asked the Victorian Workcover Authority ("Workcover") for access to documents including all emails from various named Workcover employees "time frame 1 September 2003 till 30 November 2003 that mention Smeaton or have reference to matters regarding the Notice of Rejection 20 Nov 2003 sent to Sue Smeaton".
2. By letter dated 22 July 2009, Workcover replied saying three relevant emails existed, refusing access to two and granting partial access to one. Mr Smeaton requested internal review of that decision.
3. After internal review, Workcover advised, by letter dated 7 August 2009, that another three emails existed and granted access to them. Concerning the three emails the subject of its decision of 22 July 2009, it confirmed that decision.
4. Mr Smeaton formed a view that the latest disclosed three emails indicate that further undisclosed emails exist. In September 2008, he asked Workcover for access to,

All the documentation file notes or memos, e-mails that led to Ms [DF] and Mr [U] and possibly others conclusions mentioned in these emails dated 10 and 11 November 2003 and who they told that they had recommended Sues case was approved and who they told he was approved to be employed to care for Sue.

1. By letter dated 15 October 2009, Workcover refused Mr Smeaton's request. It said in part,

Pursuant to the Freedom of Information Act 1982, I have considered your request and am unable to locate any documents. I have been advised that backup emails are available from 1 October 2005 and as such there are no backup emails for the requested period.

If you believe documents exist and cannot be located you may complain to the Victorian Ombudsman

1. In March 2010, VCAT received an application from Mr Smeaton under the Act for a review of what he described as Workcover's decision of 15 October 2010, "Unable to locate any documents".
2. On 29 June 2010, I heard the application. Mr Smeaton represented himself. Mr Hurley of counsel represented Workcover.
3. By the end of the hearing, Mr Smeaton submitted VCAT should order Workcover to search pre October 2005 email records (held on magnetic tape) for emails relevant to Mr Smeaton's request.
4. By the end of the hearing, Workcover's position was refined to be:

1. VCAT has no jurisdiction to determine the application; 2. if VCAT has jurisdiction the application should, under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) be dismissed as it is vexatious and/or an abuse of process in that the issues before VCAT have already been determined by VCAT; and/or

1. if VCAT decides to determine the application, it should be dismissed. Workcover's search of reasonably available records has not revealed any further emails. It is unlikely that further investigation of pre October 2005 emails, now stored on magnetic tape, will reveal further emails. Workcover should not be required to spend approximately $4,235, say half a day of IT staff time and some time of other staff time to search for other records. First, VCAT has no power to make such orders. Second, it is not reasonable to require such a search; and

1. if I ordered a search, it should be on the basis that Mr Smeaton will pay the search costs payable to a contractor to restore the tapes.
2. The parties agreed to me hearing evidence and submissions on all issues potentially before VCAT in this proceeding. If I were to rule VCAT had no jurisdiction, I would go no further. If I ruled VCAT has jurisdiction and dismissed the application under section 75, I would go no further. If I refused the section 75 application, I would consider Mr Smeaton's application.
3. I reserved my decision.

1. Section 27(2) of the Act sets out what reasons Workcover must give in response to an FOI request. It relevantly says,
   1. Reasons etc. to be given

(1) Where, in relation to a request for access to a document of an agency ... a decision is made under this Part that ... no such document exists, the agency ... shall cause the applicant to be given notice in writing of the decision, and the notice shall -

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and the reasons for the decision;

(b) where the decision relates to an agency, state the name and designation of the person giving the decision; ...

(i) his right to apply for a review of the decision;

(ii) the authority to which the application for review should be made; and

(iii) the time within which the application for review must be made;

(e) where the decision does not relate to a request for access to a document that if it existed would be, an exempt document under section 28, 29A or 31 but the decision is to the effect that the document does not exist or cannot, after a thorough and diligent search, be located, inform the applicant of his right to complain to the Ombudsman.

1. Section 50(2) of the Act enables an applicant to apply to VCAT for review of a decision by an agency. It says,

(2) Subject to sections 51 and 51A, an applicant may apply to the Tribunal for review of -

(a) a decision refusing to grant access to a document in accordance with a request;

(b) a decision deferring the provision of access to a document;

(c) a decision as to the amount of a charge that is required to be paid before access to a document is granted, whether or not the charge has already been paid by the applicant, provided that the Ombudsman has certified that the matter is one of sufficient importance for the Tribunal to consider; ...

(d) a decision under section 12(2)(a) not to specify a document in a statement; or

(e) a decision to disclose a document under section 33(3), or to disclose a document contrary to the applicant's view as obtained under section 34(3), or not to amend a record pursuant to a request under section 39.

1. Section 51 of the VCAT Act sets out VCAT's functions on review. It relevantly says,
   1. Functions of Tribunal on review

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. Section 75 of the VCAT Act deals with summary dismissal. It relevantly says,
   1. 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

1. In Victoria Police v Burton [1999] VSC 534 (16 December 1999), Hedigan J. considered an appeal of a VCAT decision. He said in part,

There appear to have been jurisdictional disputes between the parties from the outset, at least according to the affidavit of Alisa Flavel, a law clerk employed by the Victorian Government Solicitor who, under supervision took care of this proceeding for the appellant, sworn on 10th December 1998. These disputes appear to have included whether or not it was the Ombudsman who had jurisdiction in relation to complaints about the inadequacies of searches (which Burton was asserting) rather than the Tribunal. (para 2)

in this case the Tribunal found that the applicant was entitled to be indemnified in part as to the costs which he had incurred. (para 4)

what was being appealed against (and it is the only order appealed against) was an order for costs made by the Tribunal (para 5)

[VCAT] also made the following observations relevant to the question of costs and I summarise: ...

(a) it confirmed that determination on the issue of jurisdiction and stated that it was satisfied that the respondent had now undertaken a thorough and diligent search of the documents and that access had now been provided to all existing relevant documents; (para 21)

The second submission was concerned with whether or not the Tribunal had any jurisdiction to determine whether documents sought by the applicant existed, whether adequate searches had been made for them and whether or not there was any jurisdiction at all to make any form of inquiry as to documents. This was founded upon the proposition that s.52 of the Freedom of Information Act only empowered the Tribunal to review a decision "refusing to grant access" to a document. The argument thus was that a failure to produce was not a refusal to grant access nor was a response by an agency that a particular document did not exist amount to a refusal to grant access to a document. I have already made some reference to this and take the view that such a statement may amount to a refusal, and did in these circumstances. (para 27)

The argument was also advanced that the Tribunal had no power to review the response by the Victoria Police that the documents did not exist. The Tribunal clearly did conclude that it had that power at least in the circumstances here prevailing when it reached provisional views that the documents did exist but had been either suppressed or diverted out of the possession of the Victoria Police. (para 29)

The argument was also advanced by Mr. Kaye that the whole issue of whether the search for documents had been adequate and thorough was never a matter for the Tribunal but only for the Ombudsman. I have already indicated my view this argument is incorrect. It may be that in many circumstances the matter might be run through the Ombudsman but once the Tribunal was seized of the issue, its right to direct appropriate inquiries could not be subordinated to and fettered by the overlapping power in the Ombudsman, if he were called upon to exercise the powers. (para 29)

With respect to the argument there is no jurisdiction under s.52(a) to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal. I reject that submission. In any event, s.27 was not likely to be intended to apply to a case in which the issue of proper disclosure of documents was actually before the Tribunal. It should be noted that the Lock affidavit was put in after the preliminary orders made by the Tribunal. It was the Lock affidavit that explained how Barnes had taken the documents and, moreover, that he had a track record of doing this. It was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. (para 29)

1. In Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (19 June 2008), the New South Wales Court of Appeal decided the New South Wales FOI legislation did not confer jurisdiction on the state's Administrative Decisions Tribunal Appeal Panel where an agency had advised a document did not exist. Basten JA said (at paragraph 135),

For these reasons, in my view the Tribunal did not have power to inquire into the adequacy of the searches undertaken by the agency and the question referred to this Court should be answered accordingly. The question should be answered as follows:

Question: Is a notification under s 28(1)(b) of the Freedom of Information Act 1989 that an agency does not hold a document, a determination that the Administrative Decisions Tribunal has jurisdiction to review?

(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989;

(b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24;

(c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to ss 17 and 18 of the Freedom of Information Act.

1. In reaching that decision, the Court of Appeal considered Burton, noting differences between the New South Wales and Victorian legislation.

1. I heard evidence from Mr Osman Koc, an information technology professional employed by Workcover. In essence, his evidence was that Workcover backs up its email records each month. From October 2005, the records are backed up to discs and relatively easily recovered. These records have been searched. They have revealed relevant emails, including emails sent after October 2005 which include older emails as part of a email history. Recently discovered emails were part of that email history. Pre October 2005 emails are backed up to magnetic tape which Workcover holds. However, Workcover does not own the machinery to read the tapes and convert them to disc format. Once in disk format the emails could be searched for the requested emails. An independent contractor could be engaged to convert the data at a cost of $4,235 (including GST). Information technology staff may then take say half a day processing the data. Other Workcover staff could then electronically search the data. Mr Koc said Workcover policy was that emails concerning clients were printed and placed on client files.
2. I admitted a variety of documents into evidence.

1. the long history of FOI disputes between himself, his wife, Workcover and its agents arises from a dispute that started in 2003. At issue was whether Workcover would allow him to be the paid attendant carer for his wife. Eventually he was appointed attendant carer. Mr Smeaton says dealing with Workcover has been traumatic for his wife, with very serious consequences. He is on a mission to uncover all that went on and then make submissions to Workcover about how it should have conducted itself in this matter and how it should conduct itself in the future. He says this will be the end point of his FOI disputes with Workcover; 2. an element of the dispute has been that over the years Workcover has repeatedly advised there were no more documents to provide, only to later have to provide more documents. The latest example is the discovery of three, then another three emails as described above;

1. VCAT has jurisdiction, as decided by Hedigan J. in Burton;

1. this application is not an abuse of process. Mr Smeaton has never before made the request which is the subject of this proceeding. Nor is it vexatious. The recently discovered three emails indicate more important emails exist; and 2. he should not be required to pay search costs.
2. Counsel for Workcover submitted;
   1. in relation to this proceeding, Workcover formed the view that it held no documents relevant to Mr Smeaton's request. No hard copy versions had been discovered on file. None existed as part of email histories. It had advised Mr Smeaton "there are no backup emails for the requested period";

the effect of section 27(1)(e) of the Act, and Parliament's intention, is that where, in relation to a request for access to a document, Workcover decides no such document exists, it is to notify Mr Smeaton that its decision is that the document does not exist or cannot, after a thorough and diligent search, be located and Mr Smeaton may complain to the Ombudsman. Under section 27, VCAT has no jurisdiction in this process;

Burton should be distinguished (that is I am not bound to follow it).

First, Hedigan J was deciding an appeal against a costs order made by the Tribunal. His comments about jurisdiction were obiter dicta, rather than ratio decidendi and so do not bind VCAT;

Second, his comments about jurisdiction are only relevant where a matter is already before VCAT because access to some documents has been refused and it was said other documents do not exist. In this proceeding, access to documents has not been refused. Workcover says there are no documents.

Neither does VCAT have jurisdiction under section 50(2) of the Act. Workcover has not made a decision refusing to grant access to a document. There is no document to make a decision about.

This interpretation is supported by an examination of the limited powers VCAT would have if it assumed jurisdiction and favoured Mr Smeaton. What is VCAT to order? That Workcover to produce documents it says do not exist?

1. if I rule VCAT has jurisdiction, I should dismiss the application under section 75 of the VCAT Act as it is vexatious and/or an abuse of process; or

1. if I do not dismiss the application under section 75, I should dismiss the application because there are no documents which the Respondent has in its possession and it is not reasonable to require Workcover to search the pre 2005 backups; or
   1. if I order Workcover to search the backups, that it should be conditional on Mr Smeaton paying the estimated $4,235 search cost.

1. In my view, VCAT has jurisdiction to make the orders Mr Smeaton seeks. I am bound by and have followed Burton. I disagree with Mr Hurley that a close reading of Hedigan J's decision shows that he said VCAT has jurisdiction where access to some documents has been refused and it was said other documents do not exist.
2. I see Hedigan J's decision about jurisdiction as part of the ratio decidendi of his decision. Early in his decision he refers to the jurisdictional issue,

There appear to have been jurisdictional disputes between the parties ... [including] whether or not it was the Ombudsman who had jurisdiction in relation to complaints about the inadequacies of searches (which Burton was asserting) rather than the Tribunal.

1. He later refers to a second submission, in terms that lead the reader to understand he was addressing it as part of his decision. He decided the Tribunal had jurisdiction, indicating his decision applied to the facts before him in Burton. He said,

The argument thus was that ... a response by an agency that a particular document did not exist amount to a refusal to grant access to a document. I have already made some reference to this and take the view that such a statement may amount to a refusal, and did in these circumstances.

With respect to the argument there is no jurisdiction under s.52(a) to do anything other than review a refusal to grant access, it is an excessively narrow and unacceptable view of refusal. I reject that submission. In any event, s.27 was not likely to be intended to apply to a case in which the issue of proper disclosure of documents was actually before the Tribunal. ... It was open to the Tribunal to conclude that no sufficient searches had been done and that the claimed inability to discover the documents was in truth a refusal. (para 29)

1. However, the jurisdiction concerning documents which an agency says do not to exist (Hedigan J's view) does not appear to in any logical way arise from there also existing documents to which the agency has refused access. In my view, Hedigan J. does not explain any link.

1. I decline to dismiss Mr Smeaton's application on the grounds that it is vexatious and/or or an abuse of process. I am struck with his submission that over the years he has made applications to the Tribunal concerning Workcover, further documents have been provided to him. It appears to me that this application deals with the new issue, not previously before VCAT, where Mr Smeaton became aware of the potential existence of undisclosed e-mails on the pre 2005 backups.

1. Having decided VCAT has jurisdiction and refusing the section 75 application, the next issue is, What I should order? I decided to exercise the power under section 51(2)(c) of the Act to set aside the decision under review and make another decision in substitution for it.
2. In this matter, it is possible that relevant emails exist on the pre 2005 backups.
3. I accept the evidence of Mr Koc that it is possible to recover the information, which can then be electronically searched. If relevant e-mails are discovered, Workcover would have to decide whether to release them.
4. While this is not an application where a document is claimed to be exempt because the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations (a basis for refusal under section 25A of the Act), that resource question seems relevant to this application.
5. I decided to order Workcover to search the backups for the requested e-mails, conditional on Mr Smeaton paying search costs not greater than $4235.00. If the search costs exceed $4235, the excess is to be paid by Workcover.
6. I see this as reasonable given:

1. it appears there is a small potential for relevant documents to exist on the backups, but not in Workcover's present records and apart from the cost, I understand the process to not be overly burdensome on the Workcover and thus not an unreasonable diversion of Workcover's resources; 2. however, given Workcover has already provided existing e-mails which include e-mail histories going back to the time covered by the backups, that potential is so small that is not reasonable to require Workcover to pay the recovery costs payable to a third party; and

1. Mr Smeaton said in discussions between him and me in closing submissions, that this application and its result bring his process of making FOI applications against Workcover to an end.

He said he intended to use the documents he had obtained via the FOI process to make a submission to the Workcover about his and his wife's experiences with Workcover, following her injury. He described his motivation to be to have Workcover consider its processes with respect to future applicants, rather than any desire to benefit him and his wife.

In terms of Mr Smeaton's planned submission to Workcover, given the volume of documents Mr Smeaton has obtained, I am not persuaded it is likely that e-mails which exist nowhere but on the backups will be material to such a submission.