1. The Respondent's application under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998, that the proceeding be struck out is refused.
2. A directions hearing is scheduled at 3 pm on 19 January 2015 at 55 King Street, Melbourne.

1. On 7 July 2014, Mr Smeaton made an application to VCAT under the Freedom of Information Act 1982 (the FOI Act), on the basis that the Victorian WorkCover authority (WorkCover) was deemed to have rejected his requests under the FOI Act to it.
2. WorkCover applied to have the proceeding struck out on the basis that the application was vexatious, an abuse of process and/or VCAT did not have jurisdiction.
3. VCAT scheduled a directions hearing on 30 September 2014 to consider the strike-out application. Due to Mr Smeaton's non-appearance, the proceeding was struck out with right of reinstatement. Mr Smeaton sought reinstatement and on 6 November 2014, I heard the strike-out application and reserved my decision.

1. Mr and Mrs Smeaton have conducted a long-running campaign against the WorkCover concerning its treatment of Mrs Smeaton in the early to mid 2000s. Mrs Smeaton was seriously injured at work.
2. Part of the campaign involved making over 50 applications to VCAT under the Freedom of Information Act 1982 (the FOI Act).
3. It is important here to focus on the chronology of events leading up to Mr Smeaton's application to VCAT in this proceeding.
4. On 19 May 2014, Mr Smeaton made an FOI request.

1. He sought what I refer to as the 'Harrison emails'.

23 March 2004 Mr Tim Fox sent an email with an attachment to VWA's Jane Harrison. The attachment was a VCAT case called Salcedo v TAC with a note, "here is an (unhelpful) decision [Attached]".

I request under this FOI Jane Harrison communications regarding who she sent this emails content onto, either as an email, memo, brief, letter, etc."

I request information relating to those in VWA who received this Salcedo v TAC VCAT order and their communications if they forwarded said case onto others.

I seek knowledge as to who in VWA had knowledge of this case prior to KPMG and the Ombudsman's reports of Oct 2005 and Nov 2006.

I request as part of the searches a search be carried out in the old backup email tape of May 2004 for said email information. VWA did not print and file email to TRIM in the past and deleted email.

1. In requesting the emails, Mr Smeaton referred to the Salcedo v TAC decision.
2. In 2004, WorkCover's lawyers advised it of a VCAT decision Salcedo v TAC [2002] VCAT 419.[1] A young woman visiting Australia was rendered paraplegic in a car accident. Her mother came to Australia and in part cared for her in hospital. TAC was to authorise the mother as an attendant carer and pay her as such for a set duration each day.
3. WorkCover's lawyers sent the decision to WorkCover with a one-line comment saying the decision, "did not help" WorkCover's denial of funding for Mr Smeaton as night carer for his wife. Mr Smeaton obtained the document with the one line comment under the FOI Act.

1. He also sought what I refer to as the Ray Butts emails:

I request under FOl searches to be undertaken into the new VWA email backup system that covers the time span from 10:01. am on 8 March till 30 March 2006.

I request a copy of every email that Ray Butts sent onto any others in VWA or its agents or Ministers office that contains a copy of the Ombudsman's email that he either passed on as a forwarded copy or as an email with attachment.

I request a copy of any email sent, by those in VWA who received a copy of the Ombudsman to Ray Butt's email, i.e., any email where they have sent it onto others as either an attachment or forwarded copy. Example of others being - VWA personnel, VWA Management, VWA PA's Board Members, Audit Risk Management Committee members, VWA CEO1 Deputy CEOP, VW.4 Chair, VWA Deputy Chair, Board Members, Ministers Office, Personnel in Allianz or C&U.

I have attached a copy of what was released in a past FOI request showing Mr Butts sent the Ombudsman email onto Jane Harrison and Kylie Menz. Kylie Menz sent it onto Bernie Dean. As an example of what I expect from this FOI. I would be seeking a copy of who else Kylie Menz, Jane Harrison and Bernie Dean sent this Ombudsman email on to, who the receiver of their email then passed it onto that fall under VWA FOI jurisdiction

Mr Butts along with anyone else who reads the content of the Ombudsman email can see the Ombudsman has made it explicitly clear his section 14 investigation is confidential, while VWA are aware he is conducting an investigation what it surrounds remain secret, I wish to discover who breached the confidentiality order contained in the Ombudsman email, who alerted colleges to the secret information the Ombudsman investigations were underway into Sue Smeaton's case.

I believe hid investigations were seriously compromised by the conduct of VWA personnel alerting each other, a situation I see reflected by the inaccuracies and flaws within the Ombudsman's report of 30 Nov 2006.

1. By separate letters, both dated 3 July 2014, WorkCover responded to Mr Smeaton's request:
   • (a) Refusing access to the Harrison e-mails under s24A of the FOI Act, on the basis that his request had already been the subject of two previous applications to VCAT in proceedings G105/2011 and G244/2010; and
   • (b) Refusing access to the Butts e-mails on the basis that after making a thorough and diligent search the FOI officer was satisfied the documents did not exist.
2. The 45th day since his FOI request was 3 July 2014. On 4 July 2014, Mr Smeaton had not received the 3 July letters. Therefore, on 4 July, under s 53 of the FOI Act Mr Smeaton's requests were deemed to have been refused by the principal officer of WorkCover, thus giving VCAT jurisdiction under s50(1)(a) of the FOI Act.
3. On 7 July 2014, VCAT received Mr Smeaton's FOI application.
4. On 9 July 2014, Mr Smeaton received the 3 July 2014 letters.

1. Mr Smeaton made his FOI request on 19 May 2014. VCAT received Mr Smeaton's application on 7 July 2014, 49 days after WorkCover received the FOI request, when Mr Smeaton had not received the 3 July decision letters.
2. Therefore VCAT had (and retains) jurisdiction to review the FOI requests under s50(1)(a) of the FOI Act. When VCAT received the application, under s 53(1) of the FOI Act the FOI requests were deemed refused by WorkCover's principal officer.
3. VCAT would not have jurisdiction if Mr Smeaton had received the 3 July letters before VCAT received his application.
4. VCAT has power to strike the proceeding out, in whole or in part.
5. Section 75 of the VCAT Act gives the Tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if in its opinion all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. [2]

1. If VCAT is not satisfied that, on one of the grounds set out in the section, the case is vexatious, an abuse of process and/or untenable, then the matter should go to a hearing so the applicant has the chance to be heard and so the evidence can be tested in the usual way. When the high bar set is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.

1. The issue for VCAT to decide is whether the proceeding relevant to the Harrison email request should be struck out.
2. Otherwise, the issue at hearing will be whether Mr Smeaton's request for the Harrison emails should be refused under section 24A of the FOI Act:

(1) An agency or Minister dealing with a request under Part III for access to documents or under Part V for the correction or amendment of information may refuse to grant access to documents or to amend a record in accordance with the request, without having caused the processing of the request to have been undertaken or at any later time, if the agency or Minister is satisfied that -

(a) the request is made by, or on behalf of, a person who, on at least one previous occasion, has made a request to the agency or Minister, or to a predecessor of the agency or Minister, for access to the same documents or the same information; and

(b) the request was refused and the Tribunal, on reviewing the decision to refuse the request, confirmed the decision; and

(c) there are not reasonable grounds for making the request again.

(2) An agency or Minister must give notice of a refusal under subsection (1) and must inform the applicant of -

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

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

(c) the time within which the application for review must be made.

1. WorkCover submitted Mr Smeaton's request for the Harrison emails should be struck out as either 'vexatious' under s 75(1)(a) or as being 'otherwise an abuse of process under s75(1)(b) of the VCAT Act.
2. It reminded VCAT that the Harrison emails were considered in two previous VCAT proceedings.
   • (a) In VCAT proceeding G105/2011 between the parties, Mr Smeaton requested access to:

The email boxes in and out of the below listed personnel be searched between the dates Feb 2003 and Dec 2006 for any internal emails, and also any email communication between them and Allianz and CGU surrounding Smeaton.

Seven WorkCover staff were named including Ms Harrison.

WorkCover submitted VCAT spent great effort in and determining proceeding G105/2011. It made many decisions establishing the sample documents and the validity of the sample process. The applicant has never accepted this. To allow this review to proceed on one of the nine staff's emails will undermine the decisions that VCAT made in G105/2011.

(b) The request in G244/2010 covered the TRIM files. (The evidence that VCAT accepted in G244/2010 was that these were the paper files of the agency).

1. WorkCover submitted:
   • (a) Between the two proceedings, Mr Smeaton has sought access to all relevant documents of the agency that concern the processing of Mrs Smeaton's claim whether kept electronically or in hard copy. To seek individual documents from within this class is vexatious and an abuse of process. It represents a waste of resources that s24A is obviously designed to avoid. The intention of s24A is to relieve an agency of the burden of deciding for a second or subsequent time an FOI request that has been litigated in VCAT;
   • (b) If this VCAT review is allowed to proceed, Mr Smeaton may revive each of the nine staff members' emails that were considered in G105/2011 and make requests of them person by person, day by day, month by month and topic by topic; and
   • (c) The common law recognises a form of estoppel that requires litigants to run all their cases at the same time and not run them seriatim; to save time and effort of the parties and the courts. The point is applicable to VCAT and recognised in s24A of the FOI Act.

1. I have dismissed WorkCover's strike out application. WorkCover's submissions are extensive and may well have merit when considered at a full hearing of issues in dispute. However, with the decision under review involving the exercise of discretion under s24A, and a strike out hearing being of a preliminary nature, despite the detailed submissions made in this hearing, in my view WorkCover has not established that the application is doomed to fail.

1. One 'peculiarity' of FOI applications is an applicant may make a request related to earlier requests with the most recent request covering fresh ground. While WorkCover refers to the previous proceedings I have decided, on examination of the decisions in those proceedings, it has not clearly demonstrated that Mr Smeaton's request in this proceeding is on all fours with those early decisions taken together. Given Mr Smeaton's rights under the FOI Act to request documents I do not regard it as appropriate to, as a preliminary matter, deny him the right to proceed hearing in this proceeding. I do not regard the common law form of estoppel mentioned above as usefully applying in the FOI Act in this context.
2. I do not regard the application as "vexatious", as defined under s75 of the VCAT Act. (WorkCover did not raise the applicability of the Vexatious Proceedings Act 2014. I have not considered it.)
3. To quote Victorian Administrative Law (Vol 1), Nekvapil, Thomson Reuters at VCAT.75.120:

In Cabot v City of Keilor [1994] VicRp 14; [1994] 1 VR 220 Gobbo J applied Attorney-General v Wentworth (1988) 14 NSWLR 481 and held that proceedings were vexatious if they were instituted with the intention of annoying or embarrassing the party against whom they are brought, or for a collateral purpose or, irrespective of the motive for initiating the proceedings, if they were obviously untenable or manifestly groundless. Cabot was followed in Al-Hakim v Arthur Robinson and Hedderwicks [2001] VCAT 1767.

1. Nekvapil goes on to discuss later VCAT decisions consistent with the above approach. I have already said I do not regard the application as obviously untenable or manifestly groundless. Neither do I regard Mr Smeaton as bringing the application to annoy or embarrass WorkCover. He genuinely believes his multiple VCAT applications are in the public interest.

Decision - Ray Butts emails - request for further searches

1. In Smeaton v Transport Accident Commission (Review and Regulation) [2014] VCAT 341, where TAC had decided Mr Smeaton's FOI request on the basis that it could not locate documents, I decided the FOI Act, as amended in 2012, no longer gave VCAT jurisdiction to review that decision. Rather, it is now a matter for complaint to the Freedom of Information Commissioner. I said (from para 39):

Since 1999, VCAT, and before it the Administrative Appeals Tribunal of Victoria regarded the FOI Act as conferring jurisdiction for the Tribunal to order agencies to further search for documents within the scope of an FOI request.

Relatively recent examples of VCAT 'employing' the jurisdiction include Friends of Mallacoota Inc v Department of Planning and Community Development (General) [2011] VCAT 1889, Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) (Review and Regulation) [2013] VCAT 1234 and Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance (Review and Regulation) [2013] VCAT 1731.

In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264, I said, in my view VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999). Hedigan J said 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. Section 51 of the VCAT Act sets out VCAT's functions on review, including reviewing a refusal.

The then FOI Act had relatively little to say about rights to challenge whether a government agency had conducted a thorough and diligent search for documents. Section 27(e) gave, in an indirect fashion, a right to complain to the Ombudsman:

The then Act said nothing further on the topic. Section 50 conferred jurisdiction on VCAT. The 'old s 50' was relatively brief compared to the new s 50 (see below).

On 1 December 2102 [sic], the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 amended the FOI Act to change the 'FOI scheme' in Victoria to among other things introduce the Freedom of Information Commissioner.

In my view, VCAT's jurisdiction to order an agency to search for documents, where the agency has already searched for documents, ended that day.

Parliament's intention, as expressed in the amendments, is that the FOI Commissioner, not VCAT, deal with complaints about thoroughness and diligence of searches for requested documents.

The current FOI Act contains the new s 27(e), which speaks of the applicant's right to complain to the FOI Commissioner. The Ombudsman no longer has a role. The current FOI Act then goes further.

It creates the right to complain to the FOI Commissioner about a decision by an agency that a document does not exist or cannot be located (s 61A(1)(a)). If the Commissioner accepts a complaint, she may make enquiries or consult with the agency (s 61G) and compel the agency to produce documents (s 61J). The Commissioner also has power to make recommendations to the agency in relation to a complaint (s 61L).

Importantly, s 61B(3) says the Commissioner must dismiss a complaint, if VCAT could deal with the substance of the complaint by an application for review. This clarifies the demarcation between the Commissioner's and VCAT's roles.

If following the legislative amendments, VCAT retained jurisdiction to deal with the issue of complaints about thoroughness and diligence of searches, the Commissioner would have to dismiss every such complaint to her. Parliament did not intend that.

Before December 2012, while the Ombudsman had powers to investigate under the Ombudsman's Act 1973, that Act had no equivalent to s61B(3). The Ombudsman could investigate even though VCAT had jurisdiction to order searches.

The new s 50 of the FOI Act details VCAT's jurisdiction, running to approximately four pages of text. It includes new jurisdiction such as the right of an agency to apply for review of a decision by the Commissioner (s 50(3D)). However, it makes no mention of VCAT having jurisdiction to deal with thoroughness and diligence of searches.

If Parliament intended VCAT to have this jurisdiction it would have, when creating a detailed list of areas of jurisdiction, said so.

1. In making that decision I noted I was only deciding the 'Burton jurisdiction issue', where an agency had made a decision and the application to VCAT had not been made on the basis that TAC had been deemed to have refused the decision.
2. I note the analysis in Victorian Administrative Law (Vol 2), Nekvapil, Thomson Reuters at FOI.50.140:

... It should be noted that the VCAT [in Smeaton v Transport Accident Commission (Review and Regulation) [2014] VCAT 341] observed but did not decide (Smeaton at [48]-[491) whether there might yet be occasions when the VCAT might have a power to order further searches, including in cases of deemed refusals under s 53(1). Tabcorp Holdings Ltd v The Secretary to the Department of Treasury and Finance (No 1) [2013] VCAT 1234 is an example of the VCAT exercising its powers on review of a deemed refusal to ensure that thorough and diligent searches were conducted. In that case, the VCAT called upon the FOI Commissioner, under s 51 of the Act, to assist the VCAT in respect of a review as to whether there had been such a search. See also Tabcorp Holdings Limited v Secretary to the Department of Treasury and Finance [2013] VCAT 1731, where (in the same proceeding as Tabcorp (No 1)) the VCAT made more extensive orders in order to ensure that all relevant documents had been located. On that occasion, the VCAT called in the assistance of an expert under s 94(1) of the VCAT Act to review the files and documents located by the Department and to provide a report to the VCAT and the parties about which (if any) of the documents located fell within the scope of the request.

The existence of the VCAT's powers to make orders of this kind on review of a deemed refusal may be consistent with the VCAT's reasoning in Smeaton. In such cases, the decision under review is "a decision refusing to grant access to the document" deemed to have been made by the principal officer of the agency or the Minister (s 53(1) of the FOI Act). In those circumstances, s 50(1)(a) of the FOI Act entitles the applicant to apply to the VCAT for review of the deemed refusal decision. Stepping into the shoes of the decision-maker, in circumstances where the deemed refusal decision has not identified the documents to which access has been refused, the VCAT must first identify the documents falling within the applicant's request, those forming the subject-matter of its review function. The Tabcorp decisions may be understood as examples of the VCAT exercising available powers on review in order to identify for itself the documents deemed to have been refused.

1. I agree with Nekvapil's analysis. In this proceeding, Mr Smeaton has applied to VCAT at a time when WorkCover was deemed to have refused his request.
2. The fact that WorkCover later made its decision that no documents can be found does not alter the circumstances in which the application was made.
3. Further, it does not appear the FOI Commissioner can entertain a complaint from Mr Smeaton concerning WorkCover's decision made after the VCAT application was made. As I said in Smeaton v TAC, s61B(3) of the FOI Act says the Commissioner must dismiss a complaint, if VCAT could deal with the substance of the complaint by an application for review. Therefore, once the deemed refusal application is made to VCAT, VCAT has jurisdiction and so if a FOI applicant complains to the Commissioner about the inadequacy of a search, the Commissioner must refuse it.
4. Also, s 53(5) supports this approach. It says:

Where, after an application has been made to the Tribunal by virtue of this section [i.e. on the basis of a deemed refusal] but before the Tribunal has finally heard the application, a decision, other than a decision to grant, without deferment, access to the document in accordance with the request, is given, the Tribunal may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with this Part. (my emphasis)

1. Therefore, Mr Smeaton may request (in substance he already has) that VCAT review WorkCover's decision.

1. I have scheduled a directions hearing in this proceeding on 19 January 2015.
2. Hopefully before that date the parties will agree and seek in chambers consent orders concerning:
   • (a) Dates for filing and serving of material on which they wish to rely; and
   • (b) A suggested earliest hearing date;

such that the directions hearing may be vacated and the proceeding heard as soon as practicable.

1. Finally, I note after I heard the strike out application in this proceeding, on 13 November 2014, Mr Smeaton filed what he described as further evidence. With my decision reserved, I have not read it. If Mr Smeaton has not provided WorkCover with a copy (his email is not copied to WorkCover, an unacceptable habit of his (in breach of VCAT's requirements), he should do so immediately.

[1] The Court of Appeal of the Supreme Court of Victoria dismissed TAC's appeal on this point Transport Accident Commission v Salcedo [2003] VSCA 226.

[2] See: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; and the decisions of VCAT - Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074 and recently Chysostomou v Victorian Workcover Authority (Review and Regulation) [2014] VCAT 176.