DUNCAN v Fayle - [2003] FMCA 556

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNCAN v FAYLE & ANOR

[2003] FMCA 556

ADMINISTRATIVE LAW – Review of decision of Registrar to refuse filing of application – whether application sought to be filed frivolous, vexatious – whether ADJR application can be made when under s.44 of the AAT Act can be made.

Federal Magistrates Court Rules 2001, r 2.06, r 20.03
Administrative Decisions (Judicial Review) Act 1977, ss.5, 16
Administrative Appeals Tribunal Act 1975, ss.41, 42B(1)(a), 42B(1)(b), 44, 44(1), 44AA, 43
Freedom of Information Act 1982

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483
Bloemen Pty Ltd v. Commissioner of Taxation (Cth) (1981) 147 CLR 360
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483-4; 488-9, 505
David Jones Finance and Investment Pty Ltd v. Commissioner of Taxation (Cth) (1991) 28 FCR 484
Percerep v Minister for immigration (1998) 56 FCR. 483 at 496.
Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 at 491
Williams and Australian Electoral Commission (1995) 21 AAR 467

Australian Postal Corporation v Niko Matusko, 29 April 1996 per Olney J.

Applicant:

IAN DUNCAN

First Respondent:

MR R D FAYLE ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent:

DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File No:

WZ 129 of 2002

Delivered on:

5 December 2003

Delivered at:

Melbourne

Hearing date:

11 July 2002

Judgment of:

Phipps FM

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent’s:

Mr T Carey

Solicitors for the Respondent’s:

Australian Government Solicitor

ORDERS

That the Application filed 24 June 2002 to review the Registrar’s decision is dismissed.
That the Applicant pay the Respondent’s cost fixed at $1,707.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

WZ 129 of 2002

IAN DUNCAN

Applicant

And

MR R D FAYLE ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

And

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Second Respondent

REASONS FOR JUDGMENT

The applicant has applied for review of a decision of a Registrar to refuse filing of an application by the applicant. The Registrar's decision was made pursuant to rule 2.06 of the Federal Magistrates Court Rules 2001. That rule provides:
1) A Registrar may refuse to accept a document for filing if:
(a) the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or
(b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry.
(2)The person seeking to file the document may apply to the Court for review of the Registrar's decision in accordance with Division 20.2.
The applicant sought in the rejected application, review of what the application described as two directions of the Administrative Appeals Tribunal (“AAT”). These are described as directions made by senior member Mr Fayle dated 28 June 2001, one was made under s.42B(1)(a) of the Administrative Appeals Tribunal Act (AAT Act) and the other made under ss.42 B(1) (b) of the same act. These subsections provide:
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
In support of his review application, the applicant filed an affidavit and written submissions. From these it can be seen that the applicant had made Freedom of Information Requests to the second respondent in relation to documents which concerned the applicant. Those requests got to the point where the second respondent's officers had stated that the further documents either did not exist or could not be found. The applicant then applied to the AAT. That application was dismissed by the Tribunal constituted by senior member Mr Fayle as vexatious or frivolous. The dismissal was pursuant to section 41 of the AAT Act. This decision was given ex-tempore. The senior member’s ex-tempore notes were provided and were annexed to the applicant's affidavit. The basis of the dismissal was that the applicant could not specify the documents he was seeking and could not provide information which might enable the documents he was seeking to be identified. The senior Tribunal member said that the applicant had now made five separate Freedom of Information Requests to date including the one he was dealing with.
I do not consider that I can have regard to anything other than the application itself. If a Registrar is to refuse to accept a document for filing pursuant to rule 2.06, being that the document is an abuse of process or frivolous, scandalous or vexatious it must appear on the face of the document. An application to review a Registrar's decision is to be made in accordance with part 20 of the rules. Rule 20.03 permits the receiving of further evidence on the review. However, while I must make the decision de novo, it has to be in the same circumstances as the Registrar. The document must be judged on its face therefore subsequent evidence cannot be taken into account.
The application itself does not set out the senior member’s reasons or show what the application to the Administrative Appeals Tribunal was. It can be seen from the face of the document that an application to the Administrative Appeals Tribunal had been dismissed using the powers contained in section 42B of the A.A.T Act. Since that section provides for dismissal on grounds of an application being vexatious or frivolous it follows that it can be seen from the face of the document that the applicant seeks to challenge in some way the decision by the senior member of the Tribunal to dismiss an application as being frivolous and vexatious.
It can also be seen from the face of the document that the application to the AAT concerned requests for documents that the applicant had made to the second respondent under the provisions of the Freedom of Information Act.
The application states that it is made under s.5 and s.16 of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). The application seeks:
1. A declaration that there is evidence that documents requested in accordance with the Freedom of Information Act 1982 have not been provided to the applicant, as claimed by the second respondent.
2. A declaration that thereby the application for review to the Tribunal was not frivolous or vexatious.
3. A declaration that direction 2 is unlawful.
4. An order to remove this matter to the Tribunal, to be dealt with according to law.
The application then sets out 19 grounds relying upon many of the grounds of review contained in s 16 of ADJR Act.
The argument put in support of the Registrar's decision to refuse to accept the document is that any challenge to the AAT decision should be made under s.44 AAT Act. The application asserts that it is an established principle that only decisions of the type detailed in s.43 may be appealed under s.44 (1). It asserts that decisions under s.42B are not "review" decisions.
In Australian Postal Corporation of v Niko Matusko, 29 April 1996 per Olney J. it was sought to appeal under s.44 (1) of the AAT Act from a decision of the Tribunal not to exercise its power under s.42B. Olney J. found that there was no ability to appeal in these circumstances. But it is otherwise if an application is dismissed pursuant to s.42 B. Olney J. said at paragraphs 11 and 12:
11.The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.
12. As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this Court pursuant to the provisions of s.44 (1) of the Act. In the event that the Tribunal adheres, in the light of all the evidence, to its present ruling that jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from that ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision. The position would, of course, have been different if the ruling had gone the other way and the Tribunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would have effectively disposed of the proceeding before it.
Here, the ruling has gone the other way, and so the decision of the Tribunal has effectively disposed of the proceeding before it. Therefore, an appeal could have been brought under s.44 of the AAT Act.
The application sets out 19 grounds for review. Each of them alleges an error of law as that term is used in s.44 of the AAT Act. The application could have been brought under s.44 of the AAT Act. In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 Davies J. said at 484:
In my view, the application to this Court is misconceived insofar as the application is brought under s.5 of the ADJR Act. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that a party to a proceeding before the Tribunal may appeal to this Court on a question of law from any decision of the Tribunal in that proceeding. The Tribunal having made a decision on Mr Tuite's application, by which he was aggrieved, his appropriate course was to institute an appeal under s.44 of the AAT Act. The words "question of law" in s.44 encompass matters concerning not only the interpretation of a Federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words "question of law" encompass grounds enunciated in s.5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision maker would have made, the exercise of a decision making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice.
As s.44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s.5 of the ADJR Act, when an appeal under s.44 of the AAT Act is available, should be dismissed as of course. See F.J. Bloemen Pty Ltd v. Commissioner of Taxation (Cth) (1981) 147 CLR 360; Wiest v. Director of Public Prosecutions (1988) 23 FCR 472 at 483-4, 488-9, 505. In David Jones Finance and Investment Pty Ltd v. Commissioner of Taxation (Cth) (1991) 28 FCR 484, it was thought by Morling and French JJ. that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1901 (Cth) may, nevertheless, be invoked in special circumstances. But no such circumstances are raised for consideration in the present case. Therefore, the limit imposed by s.44 of the AAT Act, namely that any challenge to a decision of the Tribunal be based on a question of law, must apply.
These observations of Davies J. were cited with approval by Weinberg J. in Percerep v Minister for immigration (1998) 56 F. C. R. 483 at 496.
There are no special circumstances in this case. Therefore, if it was filed, it should be dismissed as of course.
The test for vexatiousness has been expressed by Roden J in Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 at 491 as follows:
“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1.   Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.   They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3.   They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”
That test by Roden J. has been applied in a number of other cases and in particular the decision of the Full Court of the Federal Court in Re Williams and Australian Electoral Commission (1995) 21 AAR 467.
Application to appeal from a decision of the AAT pursuant to s.44 of the AAT Act cannot be made directly to the Federal Magistrates Court. It must be made to the Federal Court. Section 44AA of the AAT Act provides for transfer of appeals from the Federal Court to the Federal Magistrates Court. This cannot affect what was said by way of Davies J. in Tuite. If an application under the ADJR Act should be dismissed as a matter of course in the Federal Court because it should have been brought under the AAT Act, it should be dismissed as a matter of course in the Federal Magistrates Court.
The position is then, that if the application had been permitted to be filed it would have been dismissed as a matter of course. The merits of any complaint about the decision of the AAT would be irrelevant to this decision. If an application must be dismissed as a matter of course because it has been brought under the wrong act then it is obviously untenable and manifestly hopeless and so vexatious.
It follows that the decision of the Registrar was correct and the application to review the decision of the Registrar is dismissed.
There is no reason why the normal rule as to costs should not apply. The respondents have been successful and are entitled to costs. I will fix them in Accordance with schedule 1 of the Federal Magistrates Court Rules 2001. I will allow Counsel’s fee as a half day hearing fee plus advocacy loading, $1027.50 and a further half day hearing fee for solicitor’s costs, $680, a total of $1707.50.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: