ADMINISTRATIVE LAW – Administrative Appeals Tribunal – application for judicial review by Federal Magistrates Court of decision of AAT under s 42B dismissing application as frivolous or vexatious – application for judicial review rejected by Registrar – application for review of Registrar’s decision dismissed by Federal Magistrate – whether application under ADJR Act misconceived because of availability of appeal under s 44 AAT Act – availability of s 44 for appeals against dismissal of application under s 42B as frivolous or vexatious – appeal under s 44 available – ADJR application not frivolous or vexatious – discretion to refuse application because of availability of alternative remedy not fettered – inappropriateness of refusing application as frivolous or vexatious by reason of availability of alternative remedy – appeal allowed
IAN DUNCAN v MR RD FAYLE, ADMINISTRATIVE APPEALS TRIBUNAL AND SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES W256 OF 2003
FRENCH J 4 JUNE 2004 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W256 OF 2003
On Appeal from the Federal Magistrates Court of Australia
BETWEEN:
IAN DUNCAN APPELLANT
AND:
MR RD FAYLE, ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECOND RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
4 JUNE 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The appeal is allowed.
2.The decision of the Federal Magistrates Court given on 5 December 2003 dismissing the appellant’s application to review the Registrar’s decision and ordering that he pay the second respondent’s costs of the application for review are set aside.
3.In lieu of the orders set aside it is ordered that the Registrar be directed to accept the application for review of the decision of the Administrative Appeals Tribunal for filing.
4.The second respondent pay the appellant’s costs of this appeal to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
OF 2004
On Appeal from the Federal Magistrates Court of Australia
BETWEEN:
IAN DUNCAN APPELLANT
AND:
MR RD FAYLE, ADMINISTRATIVE APPEALS TRIBUNAL
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Duncan v Fayle [2004] FCA 723
Case
[2004] FCA 723
Decision Date
CaseChat Overview and Summary
In the case of Duncan v Fayle, the parties involved were Duncan, the appellant, and Fayle, the second respondent. The dispute centred around an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The matter was brought before the Federal Court of Australia. The central legal issues revolved around the scope and exclusivity of the jurisdiction granted to the Federal Court by section 44 of the Administrative Appeals Tribunal Act, as well as the interplay between the Federal Court's jurisdiction and the rights conferred by sections 5, 6, and 7 of the Administrative Decisions (Judicial Review) Act.
The court was required to determine whether the Federal Court's jurisdiction under section 44 of the AAT Act to review decisions of the AAT was exclusive, and whether the rights provided by sections 5, 6, and 7 of the ADJR Act were supplementary rather than competing with other forms of judicial review. The court also had to consider whether the Federal Court had the discretion to refuse an application under the ADJR Act if an applicant had already sought a review by another court or tribunal. The decision in Director-General of Social Services v Chaney provided a precedent that guided the court in assessing the scope of its jurisdiction in reviewing decisions of the AAT.
The court concluded that the Federal Court's jurisdiction to review decisions of the AAT was not exclusive and that the rights under the ADJR Act were additional to any other rights of review. The court held that section 10 of the ADJR Act clarified that the rights conferred by sections 5, 6, and 7 were supplementary to other forms of review, and that the court had the discretion to refuse an application under the ADJR Act if the applicant had already sought review by another court or tribunal. The court allowed the appeal, set aside the decision of the Federal Magistrates Court dismissing the appellant's application, and directed the Registrar to accept the application for review of the AAT decision. The second respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. The appeal is allowed.
2. The decision of the Federal Magistrates Court given on 5 December 2003 dismissing the appellant’s application to review the Registrar’s decision and ordering that he pay the second respondent’s costs of the application for review are set aside.
3. In lieu of the orders set aside it is ordered that the Registrar be directed to accept the application for review of the decision of the Administrative Appeals Tribunal for filing.
4. The second respondent pay the appellant’s costs of this appeal to be taxed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH J
Section 10 of the ADJR Act provides: ‘(1)The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision – (a)are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and(b)shall be disregarded for the purposes of the application of sub-section 6(3) of the Ombudsman Act 1976 and sub-section 24(2A) of the Complaints (Australian Federal Police) Act 1981.(2)Notwithstanding sub-section (1) –(a)the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Magistrates Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and (b)the Federal Court or the Federal Magistrates Court may in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason – (i)that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.(3)In this section, “review” includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.’Jurisdiction to Review Decisions of the Administrative Appeals Tribunal The scope of the jurisdiction conferred upon the Federal Court by s 44 of the AAT Act was considered by the Full Court in Director-General of Social Services v Chaney. Deane J said (at 593): ‘... 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.’This observation was subject to two qualifications, one relating to decisions dismissing applications for want of standing and the other relating to applications which could be divided into two or more separate parts in respect of which independent decisions could properly be given. Fisher J agreed with the reasons of Deane J. In that case the decisions under appeal were a preliminary ruling by the President of the Tribunal that it had jurisdiction to entertain the application in question and his interim order suspending a determination of the Director General of Social Services pending the hearing and determination of the review.