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Recent Cases: Victoria

Myers v Department of Education and Training [2023] VCAT 74 

Mr Myers (“applicant”) made a freedom of information request to the Department of Education (“Department”) for copies of annual school magazines relating to five secondary schools. After a ‘thorough and diligent search’ the Department concluded that no documents were found that met the terms of the applicant’s request and informed the applicant of his right to make a complaint to the Office of the Victorian Information Commissioner (“Commissioner”).

 

The applicant made a complaint to the Commissioner under s 61A(1) of the FOI Act.  The Commissioner dismissed the complaint under s 61B(1)(b) of the FOI Act, on the grounds that there was no basis for making any further inquires or taking further action. 

The applicant then lodged an application for review with the Victorian Civil and Administrative Tribunal (“Tribunal”), seeking review of a decision under s 50 of the FOI Act.  

 

A delegate of the Principal Registrar at VCAT notified the applicant that the application was rejected under s 71 of the VCAT Act on the basis that it was not made by a person entitled to make it.  The notice confirmed that decisions of the Commissioner about complaints are not reviewable by the Tribunal, and that the Tribunal does not have jurisdiction. 

 

The applicant requested a review of the Tribunal’s decision to reject his application, and this was subsequently heard by the Tribunal. 

 

Applications for Review by the Tribunal: s 50

 

Section 50 of the FOI Act outlines a range of freedom of information decisions under which a person may apply to the Tribunal for review. These exclude the right to seek a review of a decision made by the Commissioner to dismiss a complaint under s 61B(1)(b). 

 

Requirement for an application to review 

 

For completeness, the Tribunal considered whether the position of the Tribunal would have differed if the applicant had made an application to review the decision of the Commissioner.  As the applicant had not made any such application, and there was no reviewable decision of the Commissioner in any event, the Tribunal was unable to allow the applicant to amend any application, as it was only allowed under s 127 of the VCAT Act for documents in a ‘proceeding’.  With no proceeding before the Tribunal at that time, there was no power to allow the application to be amended. 

 

HELD:

The Tribunal confirmed the Registrar’s decision, as the Tribunal lacked jurisdiction. 

Susilo v Russborough [2022] VCAT 1427

Ms Susilo (“complainant”) attended Dr Rossborough’s (“respondent”) chiropractic practice for treatment following a motor vehicle accident in 2019. 

 

In September 2020, the complainant made a complaint to the Health Complaints Commissioner (“Commissioner”) in regard to the records of her treatment.  In February 2021, the complaint was referred to the Victorian Civil and Administrative Tribunal (“Tribunal”). 

 

The complaint was about the following issues:

  • that the respondent made amendments to the complainant’s medical records which were not dated or described as amendments – breaching HPP 6;
  • that the information and account of events in the records was allegedly incorrect – breaching HPPs 3 and 6; and 
  • that the information remained unchanged after the complainant had sought that it be correct – breaching HPP 6.

The issue for the Tribunal was whether the respondent breached HPPs 3 and 6. 

 

Correction of documents: HPP 6.8(a) 

 

The Tribunal found that while there was a breach of HPP 6.8(a), there was no evidence of substantive consequences stemming from the failure to identify the date and maker of the corrections. 

 

The Tribunal accepted the respondent’s evidence that he intended to meet the complainant’s requests for corrections or further information and that he made the alterations to the extent he was able to while remaining consistent with his own recollections and professional judgment.

 

Jurisdiction: s 74 of the HR Act 

 

The original complaint made to the Commissioner contained nine items.  During the course of the proceedings, in her particulars of claim, the complainant provided a longer set of 26 items of complaint.

 

The Tribunal considered its jurisdiction – it highlighted that the HR Act gives the Tribunal power to hear and determine a complaint referred to it by the Commissioner. Extra complaints made after the referral are not within the Tribunal’s jurisdiction.

 

The Tribunal was however satisfied that the 26-item complaint covered the same issues as in the nine-item complaint, but with more detail of a pattern of alleged contraventions. 

 

Possible breach of HPP 6.1

 

In the complainant’s witness statement, she asserted that the respondent had refused to provide her health records to another chiropractor.  While it was not part of the complaint that was referred to the Tribunal by the Commissioner, the Tribunal addressed it for completeness. 

 

Section 34(2)(c) of the HR requires that access is provided ‘as soon is practicable, but not later than 45 days after receiving the request’.  The records were provided 12 days after the complainant’s request. There was therefore no failure to provide access to the complainant’s records.

 

HELD:

 

The Tribunal found no breach in 21 of the 26 items of complaint.  It was satisfied the respondent breached HPP 6.8(a) by not recording the date of the correction made to the complainant’s records and the name of the person making the correction.   

 

The Tribunal declined to take any further action in relation to the breaches.