1. The Respondent's application that the application be dismissed for want of jurisdiction is dismissed.
2. The matter is listed for a directions hearing on 13 February 2012 at 10 am at 55 King Street Melbourne.

1. WorkCover submits VCAT lacks jurisdiction to hear this proceeding.
2. Its 'strike out application' revolves around whether Mr Smeaton made an application to VCAT, when WorkCover was, under the Freedom of Information Act 1982 (the FOI Act), deemed to have rejected his FOI request to it, and so VCAT has jurisdiction.
3. The answer to that question rests on deciding whether Mr Smeaton had confirmed or altered his request under section 25A(7) of the FOI Act.
4. I find he confirmed his request and decide VCAT has jurisdiction.

1. On 23 December 2010, under the FOI Act, Mr Smeaton asked the Victorian WorkCover Authority ("WorkCover") for access to documents contained in the "email boxes" of 14 people employed by CGU (WorkCover's agent) for the dates August 2003 to December 2006.
2. On 7 February 2011, Mr Smeaton applied to VCAT on the basis that WorkCover was deemed to have failed to make a decision, under section 53 of the FOI Act. This gave rise to Proceeding G86/2011.
3. On 27 May 2011, I dismissed Mr Smeaton's application in Proceeding G86/2011, on the basis that he had applied before the 45 day time limit after which a decision is deemed to have been refused had not expired. I calculated he had applied to VCAT on Day 45 (7 February 2011), not after 45 days had expired.
4. As it happened, on 7 February 2011, Mr Smeaton received a letter from WorkCover under section 25A(7) of the FOI Act saying WorkCover regarded the request as unclear, too broad and voluminous. Under section 25A(6) of the FOI Act, it informed Mr Smeaton of its intention to refuse access to the documents sought, subject to an invitation to Mr Smeaton to consult with WorkCover with a view to amending his request to be in a form that would remove this ground for refusal.
5. On 25 September 2011, VCAT received a further application from Mr Smeaton arising from his 23 December 2010 application. He said WorkCover was then deemed to have rejected his application
6. WorkCover submits Mr Smeaton's 'second application' should also be dismissed as VCAT does not have jurisdiction, submitting the 45 day time limit had not on 25 September 2011 expired, because:

1. after VCAT dismissed Mr Smeaton's application in G86/2011 his original request was still in the consultation phase under section 25(A) of the FOI Act. The letter of 7 February 2011 had, under section 25A(7), stopped the clock on Day 45; 2. following the dismissal, Mr Smeaton sent an e-mail to WorkCover on 23 June 2011 which did not narrow or confirm his request;

1. therefore, the request was still in the consultation phase at the time Mr Smeaton made his second application and so the 45 day period had not expired;

1. therefore, VCAT should dismiss the application for that reason or alternatively dismiss it as frivolous or vexatious or otherwise an abuse of process under section 75 of the Victorian Civil and Administrative Tribunal Act 1998. 2. WorkCover notes that on 8 November 2011 it refused Mr Smeaton's request under section 25A(1) as one that would unreasonably divert the resources of WorkCover.
2. Mr Smeaton submits:

1. following his application in G86/2011 being rejected, there was correspondence between the parties. In an e-mail on 23 June 2011, Mr Smeaton discussed various issues but at paragraph five of the e-mail wrote, "as such we request all the CGU e-mail asked for be searched for". 2. In this e-mail, he confirmed his original request. Therefore, the clock which stopped when WorkCover originally began consultation under section 25A(6) began to run again and Day 45 passed.

1. He made his application to VCAT when well over 45 days had passed. Therefore, VCAT has jurisdiction.

1. Also, given the 45 days has passed and WorkCover is deemed to have refused the application, its decision of 8 November 2011 to refuse Mr Smeaton's request under section 25A(1), is of no effect. The proceeding at VCAT should proceed on the basis that WorkCover is deemed to have refused his application.

1. The 45 day time limit being discussed arises under section 53 and 21 of the FOI Act.

(a) a request has been made to an agency or Minister;

(b) the time period provided in section 21 or section 43 as the case may be has elapsed; and

(c) notice of a decision on the request has not been received by the applicant -

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 50, be deemed to have made, on the last day of the relevant time period, a decision refusing to grant access to the document.

21 Time within which formal requests to be decided

An agency or Minister shall take all reasonable steps to enable an applicant 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 by or on behalf of the agency or Minister.

1. That 45 days began running on 24 December 2010 (Day 1), the day after WorkCover received Mr Smeaton's FOI request fee payment. The clock stopped on 7 February 2011, Day 45.
2. In my view, the issue of jurisdiction rests on whether or not Mr Smeaton with reference to section 25A(7), "confirmed or altered his request following the consultation referred to in subsection 25A(6)".
3. Section 25A relevantly says,

(1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request -

(a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; ...

(6) An agency or Minister must not refuse to grant access to a document under subsection (1) unless the agency or Minister has -

(ii) identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and

(b) given the applicant a reasonable opportunity so to consult; and

(c) as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.

(7) For the purposes of section 21, the period commencing on the day an applicant is given a notice under subsection (6)(a) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the 45 day period referred to in section 21.

1. In my view, once the decision maker gives notice under section 25A(6), the consultation period starts, during which the clock is stopped. The consultation period ends, "on the day the applicant confirms or alters the request following the consultation".
2. Here a close reading of Mr Smeaton's e-mail 23 June 2011 is required.
3. After four paragraphs of discussion, in paragraph 5 Mr Smeaton writes in bold, "As such we request all the CGU email asked for be searched for."
4. In my view, on 23 June 2011, Mr Smeaton confirmed his original request.
5. Therefore, the clock started, having been stopped on Day 45 and Day 45 passed.
6. Mr Smeaton made the application to VCAT which gave rise to this proceeding on 25 September 2011, well after the 45 days lapsed and before 8 November 2011 when WorkCover purported to refuse Mr Smeaton's request under section 25A(1) as one that would unreasonably divert the resources of WorkCover.
7. Therefore, in my opinion, VCAT has jurisdiction to consider the application. Therefore, I dismiss WorkCover's strike out application.
8. The next issue to consider is the further progress of this proceeding. Mr Smeaton has briefly submitted, WorkCover's decision of 8 November 2011 to refuse Mr Smeaton's request under section 25A(1), is of no effect. The proceeding at VCAT should proceed on the basis that WorkCover is deemed to have refused his application.
9. In Victorian Administrative Law, Pizer J (at [FOI.25A.180] discusses the relationship between sections 25A(1) and 53 of the FOI Act. He notes the decision in Mildenhall v Department of Education (unreported, VCAT, Dr Lyons SM, 9 April 199) where VCAT decided it did not have the power to make a decision under section 25A(1) on a deemed refusal application and, as such, ordered that the respondent could not rely upon section 25A(1) to justify a deemed refusal.
10. WorkCover has not had an opportunity to make a considered submission on this point.
11. I have scheduled a directions hearing where the parties may make submissions on VCAT's powers to determine the application.