› Deemed refusal — application to VCAT under s 50(1)(ea)
Administrative law
› Freedom of information
› No documents decision — VCAT jurisdiction after deemed refusal
Administrative law
› Tribunals
› Summary dismissal — s 75 VCAT Act — high threshold — proceeding not obviously hopeless
Administrative law
› Freedom of information
› Section 19 — generation of documents — limits of agency obligation
Quick Take
1Where VCAT jurisdiction is properly engaged under ss 50(1)(ea) and 53 of the FOI Act via a deemed refusal, a subsequent 'no documents' decision by the agency does not deprive VCAT of jurisdiction to review the scope of the agency's decision, including the adequacy of searches and whether further documents should be generated under s 19.
2The question of whether VCAT has jurisdiction over a no documents decision cannot rest on whether there is evidence that further documents exist; jurisdiction must be determined first as a prior question, with the sufficiency of evidence going to the merits rather than jurisdiction — distinguishing the Davis reasoning from the Department's characterisation of it.
3While VCAT retains jurisdiction in this scenario, an applicant seeking orders for further searches or document creation under s 19 bears a practical burden of providing credible and persuasive evidence that such orders are justified — the question of evidentiary sufficiency was left open for the substantive hearing.
