The proceeding is dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. Mr Smeaton seeks access to documents from WorkCover under the Freedom of Information Act 1982 (the FOI Act). WorkCover submits the proceeding should be struck out as VCAT does not have jurisdiction.
2. On 21 August 2012 Mr Smeaton requested, documents related to what he described as the Interest Review in 2005-06. In VCAT Proceeding G778/2012 between the parties, I heard evidence that the review in question related to in 2005/2006 WorkCover becoming aware that tens of thousands of people were owed interest on compensation payments that should have been paid to them by WorkCover's agents, but for a range of reasons were not. The Review ran from mid-2005 to late 2006 which resulted in further payments.
3. In his August 2012 request Mr Smeaton sought, quoting his request:
   1. Outcome of review for example a report letter or memo.
   2. Documents which show the reason for the review.
   3. Documents that show information sent to Allianz regarding the outcome of review.
   4. Copies of generic letters sent by VWA to Allianz that contain the alert to injured people regarding their entitlements to interest having been Identified, etc, the letter that agents could use as a template to send to the injured when they have paid out interest to them.
   5. Copies of letter or circular documents sent to Allianz by VWA instructing Allianz. If claimants are Identified from the interest project run straight of the computer system that are owed interest. If they have signed a release they are not to be paid the interest entitlement, nor are they to be advised nor given the opportunity to challenge VWA's decision not pay due to signed releases.
   6. Any generic letter provided to Allainz that AIlainz could send to individuals following the review re 5.
   7. Legal advice that VWA or its agents had no liability to pay interest to any person who signed a release.
   8. Letter or circular from VWA to Allianz concerning the scheme in future not being responsible for interest caused by none or late payment, i.e. in future Allianz will fund interest. This part is limited to documents created from date of review to 1st Jan 08. Any legal advice why Allianz / agent responsible and why VWA picked up tab from the result of the review given the agents responsible.
   9. Briefs to VWA senior management or any minister concerning the outcome from the review.
   10. Instructions provided by VWA to its agents concerning types or classes of interest to be paid to claimants stemming from the review.
   11. Any legal advice to VWA regarding its obligations to pay certain type of interest in relation to review.
   12. Any advice to chief executive or senior executives of VWA about the total cost of interest payments following the review. This request is limited to documents recreated or received by VWA between 1 Jan 2005 and end 31 Dec 2007.
   13. Any letter or circular sent to law firms by VWA as a result of the review alerting them to the fact VWA agents did not comply with the Act and did not pay interest entitlements.
   14. Copy of any media releases or letter memo of suggested releases to alert the tens of thousands of injured workers regarding their interest rights that were not paid.
   15. VWA letter to Allianz advising what pay code to pay penalty interest under to the injured worker, it will be either identified to the injured worker on the pay sheet as say 81 penalties paid for late payment of weekly payments" or 001 weekly compensation (section 93)" etc.
4. By letter dated 1 March 2013, WorkCover advised Mr Smeaton that in its view the request did not comply with section 17 of the FOI Act (see below). After further correspondence, by email dated 26 March 2013 Mr Smeaton narrowed his request to 5 'topics'.
5. On 24 April 2013, Mr Smeaton applied to VCAT to review a 'deemed rejection' of his request. On 6 May 2013, WorkCover advised Mr Smeaton it remained of the view that his request did not comply with section 17(2).
6. On 26 June 2013, I heard the strikeout application and reserved my decision.

1. A proceeding should only be struck out under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), if the application is undoubtedly hopeless, obviously unsustainable in law or in fact or is bound to fail.
2. Turning to the FOI Act, the following paragraphs are closely based on McKenzie DP's decision in Kyriazis v Department Justice (General) [2010] VCAT 1788 (from para 4).
3. Under section 13, subject to the FOI Act, a person has a legally enforceable right of access to documents of an agency in accordance with the Act. Section 17 enables a person to request access to a document (with some exceptions that are not relevant). Section 5(1) defines 'request' as a request in accordance with section 17.
4. Section 17(2) requires the person making the request to provide sufficient information about the requested document/s as is reasonably necessary to enable the agency to identify the document/s.
5. The importance of a compliant request is emphasised by other provisions of the FOI Act. For example, section 20 speaks of a request duly made. Section 17(3) places a duty on an agency to assist a person who has made a request which does not comply with the section to make a request in a manner which complies with the section. Section 17(4) requires an agency to give an applicant who has made a non-compliant request a reasonable opportunity for consultation with the agency with a view to the making of a compliant request.
6. An agency only has to act on a request (that is, to decide whether or not to give access to the relevant document) where the request complies with the section.
7. Under section 21, an agency shall take all reasonable steps to enable an applicant to be notified of its decision on the request as soon as practicable but not later than 45 days after the day on which the request is received by or on behalf of the agency. It is clear from the case law that when section 21 refers to a request being received, it means a compliant request being received. In other words, if a non-compliant request is made, and later it becomes compliant, then the date when the request becomes compliant is the date of receipt of the request.
8. Under section 50(2), among other things, a person may apply to VCAT for a review of a decision to refuse to provide access to a document in accordance with the request.
9. Under section 53(1), where a request has been made to an agency and the time prescribed by 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 or the minister (if the request is made to a minister - see below) is, for the purposes of enabling an application to be made to VCAT under section 50, deemed to have made, on the last day of the relevant period under section 21, a decision refusing to grant access to the relevant document.
10. Leaving Kyriazis, in McIntosh v Department of Justice (General) [2009] VCAT 92, Ross J discussed what is sufficient information. He concluded

The question for determination is whether the request ... provides such information about the documents sought as is reasonably necessary to enable those documents to be identified ... the documents requested may be described in broad terms and need not be expressed with the same eye to detail as a legislative provision or a set of pleadings.

1. It is self evident from the request quoted above that Mr Smeaton's first request failed to provide such information about the documents sought as is reasonably necessary to enable those documents to be identified, even if only by reason of the enormous scope of the request. Also, elements of the request are vague, such as, "3. Documents that show information sent to Allianz regarding the outcome of review."
2. If the revised '5 point request' from Mr Smeaton which WorkCover received on 27 March 2013, did not comply with section 17(2), then there was never a valid request and VCAT does not have jurisdiction.
3. If on 27 March 2013 the request did comply with s 17(2), that was the date when a valid request was received. If that were the case, 45 days had not elapsed by the time VCAT received Mr Smeaton's request and again, VCAT does not have jurisdiction.
4. The 45 days would run from the next day (Day 1), (see s 44(1) of the Interpretation of Legislation Act 1984). Saturday 11 May 2013 is day 45. Allowing for the weekend, the 45th day would be the next Monday and the first day the application may be received at VCAT is Tuesday 14 May 2103.
5. VCAT received Mr Smeaton's application on 24 April 2013, Day 28. Therefore, VCAT does not have jurisdiction.
6. This proceeding is dismissed under s 75(1) of the VCAT Act.
7. For completeness, I mention that WorkCover made a secondary submission, being that if Mr Smeaton had made a valid request, which had been deemed refused, following recent amendments to the FOI Act, his remedy would be to approach the Freedom of Information Commissioner under the new section 49A of the FOI Act, before he would have the option to apply to VCAT.
8. While I do no decide the issue, I doubt this is correct. Section 53 operates where, "a request is made to an agency or minister" (53(1)(a)). Once the relevant time period ends (here 45 days) and notice of a decision 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 quote from section 53 with my emphasis.

1. That is, when the request is made to the agency and the time expires, the agency is not deemed to have refused the request. Rather the principal officer of the agency or the Minister is deemed to have refused the request.
2. Presumably, with reference to section 53(1)(a):
   1. where the request is made to the agency, the principal officer of the agency is deemed to have refused it; and
   2. where the request is made to the minister, the minister is deemed to have refused it.
3. As section 53 says, the reason for deeming refusal is to allow application to VCAT under section 50.
4. Therefore, an applicant need not first go the Freedom of Information Commissioner.