Smeaton v WorkSafe Victoria (General) [2010] VCAT 1437

Application for review is dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. This is an application under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 whereby the respondent, WorkSafe Victoria seeks the summary dismissal of an application for review made on the face of it under the Freedom of Information Act 1982 by Mr Anthony Smeaton.
2. Mr Smeaton's wife suffered injury in the course of her employment in the early years of the first decade of this century. Mr Smeaton is of the view that his wife has suffered significant injustice at the hands of the Victorian WorkCover Authority and its authorised agents under the WorkCover scheme. Over a period of years he has been campaigning in relation to this matter. His campaign has included repeated applications for access to documents under the Freedom of Information Act 1982 relative to his wife's situation and matters related to that.
3. He says that the pattern which has been established over the years is that his early requests were turned aside either wholly or partially with the assertion that either no documents existed at all in relation to the relevant subject matter in the records of the WorkCover Authority or its authorised agents or that a limited number did and no further documents of the relevant description existed beyond those. Later effective requests he says have demonstrated that these further documents did in fact exist and some of them have come into his possession. One particular discovery which he has made of late is that a large quantity of material was held on back-up magnetic tapes. The existence of this store of information was not he said disclosed in the course of his earlier applications. Per contra in at least one Tribunal hearing before Senior Member Preuss the WorkCover Authority denied the existence of documents whose existence as part of this back-up magnetic tape system has now been established beyond doubt. He has a bundle of documents which he says he is willing to disclose to me to make good these contentions.
4. The present proceeding arises out of a request for access under the Freedom of Information Act which he made to an organisation known as WorkSafe Victoria (which I understand to be but another name for the Victorian WorkCover Authority) on 27 January 2010.
5. The documents requested there were all documents in the possession of the WorkCover Authority that show any of the following:

(a) The purpose of the unaccounted $200,000 invoice by KPMG and paid by VWA.

(b) The authorisation for the unaccounted $200,000 invoice by KPMG and paid by VWA.

(c) Any description of explanation of services or goods received by VWA as a result of the expenditure of the unaccounted $200,000 invoiced by KMPG and paid by VWA.

1. The hearing before me did not go into the detail of KPMG's involvement. KPMG is an international firm of chartered accountants. My understanding is that KMPG provided a report either relative specifically to Mrs Smeaton or to issues which affected Mrs Smeaton and that this request pertains to those matters. A letter from the Manager of Freedom of Information at WorkSafe, Mr George Karaisaridis dated 10 March 2010 stated inter alia:

Following thorough and diligent searches I inform you that all documentation relevant to this request has been provided to you previously and in response to your FOI request regarding KPMG invoices, including as recently as in January this year under request F209/00855. No other documents relative to this request have been located.

If you believe that documents exist and cannot be located you may complain to the Victorian Ombudsman at Level 9, 459 Collins Street Melbourne Vic 3000, Telephone 9613 6222 or email: ombudvic@ombudsman.vic.gov.au

1. This reference to the Ombudsman was made according to Counsel for WorkSafe, Mr Hurley who appears on its behalf today because WorkSafe's view was that where documents exist and are claimed to be exempt an applicant dissatisfied with a respondent agency's determination under the Freedom of Information Act has a review procedure leading to this Tribunal but that where documents are not admitted to exist, an applicant for access dissatisfied with this result should pursue a complaint to the Ombudsman.
2. Mr Smeaton has lodged an application for review of Mr Karaisaridis' decision dated 10 March 2010 purportedly under Section 50(2) of the Freedom of Information Act 1982. Section 50(2) authorises the Tribunal inter alia to carry out a review of a determination by a respondent agency refusing to grant access to a document in accordance with a request. In the circumstances Mr Smeaton says that this has occurred here and he therefore has a right of review from the Tribunal in accordance with Section 50(2).
3. Mr Hurley on behalf of WorkSafe however draws attention to Section 51(2) of the Freedom of Information Act which provides:

(2) Subject to section 51A, a person is not entitled to apply to the Tribunal for review of a decision in relation to which subsection (1) applies unless -

(a) he has made an application under subsection (1) in relation to the decision; and

(b) he has been informed of the result of the review or a period of fourteen days has elapsed since the day on which he made that application.

1. Section 51(1) entitles a person who has received an adverse decision from an agency (and that would include a person who has been refused access to a document in accordance with his request under the Freedom of Information Act) to seek an internal review from the principal officer of the agency. The result appears to be to make resort to the internal review procedures a condition precedent to resort to the Tribunal for a review under Section 50(2). Mr Smeaton admits in the present case he has not sought any internal review. He says that his proceeding is nevertheless not incompetent because it can be seen as on all fours with an application for review which was heard and determined by Member Proctor on 4 October 2010 in the matter of Smeaton v Victorian WorkCover Authority. In the case before Mr Proctor the issue was whether the Tribunal had jurisdiction to review a finding by a respondent agency under the Freedom of Information Act that it had no documents within the scope of the request which had been made to it. The view of the WorkCover Authority as I noted earlier is that these circumstances allow and allow only an investigation process by the Ombudsman but do not allow a review application to a Tribunal. Mr Proctor rejected that view advanced to him by the WorkCover Authority. In so doing he regarded himself as bound by a decision of Hedigan J in the Supreme Court of Victoria on appeal from this Tribunal in the matter of Victoria Police v Burton [1999] VSC 534; (1999) 15 VAR 443 where in the circumstances before His Honour he concluded that the Tribunal did have jurisdiction to investigate the correctness of an assertion by Victoria Police that no documents existed falling within the scope of a request for access. His Honour made this determination as Member Proctor saw it in circumstances where the discovery of further documents effectively gave the lie to the Police's initial assertion that no documents existed.
2. Mr Proctor was pressed with a number of arguments seeking to distinguish Burton's case, contending that His Honour's expressed view that the Tribunal could look into the existence or non-existence of documents whose existence was denied by a respondent agency was a mere obitor dictum and so on. Nevertheless, Mr Proctor concluded that this part of His Honour's reasoning was part of the ratio decidendi and binding upon him. It followed therefore that he was unable whatever his own inclination might have been to give effect to decisions to contrary effect in the New South Wales Court and Tribunal system as to the corresponding provisions of the New South Wales Freedom of Information Act.
3. Mr Smeaton asserts that his application survived an attempted summary dismissal by the WorkCover Authority despite the absence of an application for internal review. I will accept for the purposes of the present proceeding that in the matter before Mr Proctor there was in fact no application for internal review. Nevertheless, that argument does not seem to have been pressed upon Mr Proctor. Mr Proctor at paragraph [22] of his determination summarised the submissions which he understood WorkCover was making and that summary does not include an assertion that Mr Smeaton's application to the Tribunal was incompetent for failure to have an internal review conducted as a condition precedent. Therefore I cannot regard Mr Proctor as having decided that issue. What he decided was whether or not the views expressed by Hedigan J in Burton's case were part of the ratio of His Honour's decision and whether they were binding on the Tribunal. He answered those questions in the affirmative. I can therefore put Mr Proctor's decision to one side and return to the provisions of Section 51.
4. They seem to be quite clear and incontrovertible. No argument other than an argument based on Mr Proctor's decision has been put to me on behalf of Mr Smeaton. The learned editor of the Victorian Administrative Law, Mr Jason Pizer at paragraph, [FOI 51.120] Internal Review as a Pre-condition to application to the VCAT says:

Where a decision falls within Section 51(1) and Section 51(a) does not apply the applicant must request the head of the relevant agency to review the decision before an application for review can be lodged with the VCAT. If a request for internal review is not made the VCAT will not have jurisdiction to review the decision in question.

1. Mr Pizer then refers to Re Borthwick v University of Melbourne (1985) 1 VAR 33 of 37; Hinchcliffe v Victoria Police (unreported VCAT Member Mattei 29 October 1999); Russell v Transport Accident Commission [2004] VCAT 469. I was not taken to those decisions but they appear to do no more than give effect to the plain meaning of Section 51.
2. Clearly the determination which Mr Karaisaridis has made in the present proceeding should be treated as a refusal to grant access to documents in accordance with a request. I say that for two reasons, first as Mr Hurley points out, Mr Karasairidis has admitted that documents do exist within the scope of the request but on behalf of the respondent agency declines to produce them because they have already been produced. That therefore is a refusal to grant access to documents. Even if that were not right and this were regarded as a pure no documents determination, Burton's case as applied by Mr Proctor, unless and until disapproved by the Supreme Court or the Court of Appeal tells us that a denial of the existence of documents within the scope of a request amounts to a refusal of access. Whichever way one looks at it one is remitted to Section 51 which establishes the internal review process as a condition precedent to a competent application to this Tribunal.
3. Mr Hurley submits that the lack of jurisdiction so identified characterises these proceedings as frivolous, vexatious, lacking in substance or otherwise an abuse of process. Mr Smeaton was at pains to identify what he has achieved in his campaign over the years in terms of changes of policy, the documents that he has obtained and the worthy purpose which underlies all that he does. In making these responses he perhaps mistakes the purport of the rather pejorative set of words set out in Section 75. In a case such as the present a finding that an application should be summarily dismissed is not a reflection on an applicant's motives. Rather it simply draws attention to a lack of jurisdiction. As a matter of law, it is frivolous and vexatious to invite a court or a tribunal to exercise a jurisdiction which it does not have even if that invitation is made for the highest and purest of motives. The principles which guide the exercise of powers under Section 75 and its analogues to be found for instance in Order 23 of the Rules of the Supreme and County Courts have been the subject of analysis on many occasions and in many decisions of high authority. For present purposes it is sufficient to note a decision of the Court of Appeal in State Electricity Commission v Rabel [1998] 1 VR 102 dealing with an application for summary dismissal under the Equal Opportunity Act and a decision applying Section 75 itself in this Tribunal, a decision of Deputy president Mackenzie in Norman v Australian Red Cross Society (1998) 14 VAR 243.
4. I am conscious of the principles which those authorities and others to which they make reference establish. It is unnecessary however for me to rehearse them in detail. What those cases establish is, that no summary dismissal under Section 75 should be made in a case where there is any doubt as to the arguable nature of a claim. If a claim is at all arguable it should not be met with a summary dismissal. No matter which turns on any issue of credibility of evidence should be the subject of a summary dismissal. In effect nothing should be summarily dismissed unless it is conclusively shown that it is doomed to fail. In my view where it is conclusively shown that the Tribunal lacks jurisdiction to entertain the application, the 'doomed to failure' element is conclusively established. For the reasons which I have sought to explain there is a radical defect in jurisdiction here and so it is appropriate that I summarily dismiss this application pursuant to Section 75.