1. a letter from Mr Zeqaj to Mr Hulls' alleging he had been assaulted by members of Victoria Police, dated 27 November 2009; 2. an undated reply from Mr Hulls' Electorate Office, recommending Mr Zeqaj seek legal advice, enclosing a "Flyer" for Essendon Community Legal Centre. The Flyer was not provided;

1. a reply from Mr Zeqaj to Mr Hulls dated 26 January 2010, predicting Mr Hulls' resignation; and

1. a copy of Mr Zeqaj's original request dated 31 March 2011.
2. On 13 September 2010 VCAT, gave Mr Zeqaj leave to withdraw his application, with a right of reinstatement no later than 12 November 2010. At the VCAT hearing on that day, a DoJ officer advised Mr Zeqaj that his original application had not been interpreted as seeking documents held by DoJ (not in the Office of the Attorney-General).
3. Mr Zeqaj requested such documents under the Act. They were provided with some deletions. Mr Zeqaj did not seek a review of that decision and it is not the subject of this proceeding.
4. In October 2010, Mr Zeqaj applied for reinstatement of this proceeding. I will not detail various events, procedural steps and orders that followed. In November 2010, a six month adjournment was ordered to enable Mr Zeqaj to complain to the Ombudsman (under section 27(1)(e) of the Act) saying there were further documents to be discovered. By letter dated 17 February 2011, the Ombudsman advised VCAT that while Mr Zeqaj had requested an investigation, the Ombudsman was not able to pursue his complaint. Mr Zeqaj had declined to provide details of his knowledge of any documents.
5. On 5 October 2011, I heard the application. Mr Zeqaj represented himself. Mr Batskos, Solicitor represented DoJ.
6. Ms S. Hamilton, FOI Officer, DoJ gave detailed evidence by way of affidavit about the history of DoJ receiving Mr Zeqaj's two FOI requests and of this proceeding at VCAT. Mr Zeqaj cross-examined her.
7. I accept her evidence including about her direct involvement in handling the request and a detailed description of the steps taken to search for the relevant documents.
8. By the end of the hearing:
   1. Mr Zeqaj had given evidence, provided written submissions (provided before hearing) and made oral submissions;
   2. Mr Batskos had provided written submissions (provided before hearing) and made oral submissions. During the hearing, he handed up a list of cases[1].
9. Mr Zeqaj asked VCAT to order that:

1. DoJ provide him with a copy of the Essendon Community Legal Service Flyer; 2. an independent community legal centre chosen by Mr Zeqaj, or VCAT itself, search for the unidentified documents, which he submitted must exist because documents had been released 'in drips'; and

1. DoJ provide him with copies of audio CDs and/or notes of his conversations with DoJ staff. I understood this to relate to conversations after he made the request, which gave rise to this hearing.
2. DoJ submitted VCAT should dismiss the application or alternately affirm DoJ's decision not to release documents because no documents can be found:

1. where a thorough and diligent search of the former Office of the Attorney-General's office was conducted, yielding no relevant documents; 2. when it was understood documents may be at the Attorney's Electorate Office, while that office is not covered by the Act, the relevant documents were located and provided to Mr Zeqaj, other than the Flyer;

1. where there is no basis for VCAT to conclude the Office of the Attorney-General holds a copy of the Flyer. In any case, the Flyer alone does not fall within the scope of Mr Zeqaj's request. It is a publicly available document which does not relate to him; and

1. concerning audio recordings and/or notes of his conversations with DoJ Officers, this apparently relates to times after the FOI request was made and is thus outside the scope of the request before me.
2. I reserved my decision.

1. Section 27(2) of the Act sets out what reasons DoJ 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...

1. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010) I said in my view, VCAT must follow Victoria Police v Burton [1999] VSC 534 (16 December 1999). I see Hedigan J's decision about jurisdiction as part of the ratio decidendi of his decision. He decided VCAT 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. I dismiss the application for an order that DoJ provide Mr Zeqaj with a copy of the Flyer. I do so under section 75 of the Victorian Civil and Administrative Tribunal Act 1998, on the basis that the application is lacking in substance. That is also the basis of the other elements of my orders in this proceeding.
2. There is no evidence before me that a copy of the Flyer, as an attachment to the reply from Mr Hulls' electorate office, recommending Mr Zeqaj seek legal advice, is held by the Office of the Attorney-General. The Act does not cover documents held at the Electorate Office. Therefore, VCAT has no power to make orders with respect to documents held at the Electorate Office.

1. I dismiss the application for orders that a further search be conducted.
2. In Smeaton v Victorian Workcover Authority (General) [2010] VCAT 1264 (4 August 2010), which I refer to above, a WorkCover employee gave evidence that it was possible to recover relevant information from computer back-ups, which could then be electronically searched. I found there was some possibility documents would be found. On balance, I decided to order Workcover to search the backups for the requested e-mails, conditional on Mr Smeaton paying search costs not greater than $4,235.00.
3. In this proceeding, the situation is very different. Ms Hamilton gave evidence, which I accept, that a thorough and diligent search for the requested documents was conducted within the Office of the Attorney-General Further, while not obliged to do so, documents were provided from the then Attorney-Generals' Electorate Office. At the suggestion (it appears) of the then DoJ FOI officer in September 2010, Mr Zeqaj requested documents from the Department of Justice, which were provided, minus some personal information which was deleted. Mr Zeqaj did not challenge that decision.
4. There is no logical basis for accepting that because Mr Zeqaj was provided with different documents at different times, more documents must exist. This is not a case where successive searches have repeatedly revealed more documents, giving rise to a reasonable belief there are likely to be yet more documents.
5. I should note, had I been persuaded to order a search, I would have ordered DoJ to conduct the search. While I do not need to decide the issue, I doubt VCAT has the power to order a third party or to itself conduct a search.

1. I dismiss the application that VCAT order DoJ to provide Mr Zeqaj with copies of audio recordings and/or notes of conversations between DoJ officers and him. If he is referring to conversations before he made his FOI request, given I find DoJ has made a thorough and diligent search, I assume is such existed they would have been located and released or an exemption claimed. If he refers to conversations with DoJ officers after he made his request, any such documents are not covered by his request. Any recordings of conversation with staff of Mr Hulls' Electorate Office would not be the subject to the Act.
2. I note Mr Zeqaj has been provided with a copy of Ms Hamilton's affidavit, which exhibits various file notes of conversation with him.

[1] By letter dated 12 October 2011 addressed to VCAT's principal registrar, referred to me, Mr Zeqaj objected to the handing up of the List of Cases, orders having been preciously made that all document to be relied on at hearing be files and served beforehand. I do not agree with Mr Zeqaj's objection. It is common practice for copies of caselaw to be provided at hearing to the presiding member.