John Hawkins and Minister for Infrastructure and Regional Development The Hon R J Groom AO (Deputy President) Ms S Taglieri (Member) 11 March 2014 19 March 2014 Hobart
[2014] AATA 152
[2014] AATA 152
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2952
Re
John Hawkins
APPLICANT
And
Minister for Infrastructure and Regional Development
RESPONDENT
WRITTEN REASONS FOR ORAL INTERLOCUTORY DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Ms S Taglieri (Member)Date 11 March 2014 Date of written reasons 19 March 2014 Place Hobart The application is dismissed pursuant to section 42B(a) of the Administrative Appeals Tribunal Act 1975.
[Sgd Hon R J Groom]
Deputy President
PRACTICE AND PROCEDURE – whether application should be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 – proceedings have a collateral purpose – applicant agrees with the decisions under review - proceedings have no reasonable prospect of success - application frivolous or vexatious - application dismissed
Administrative Appeals Tribunal Act 1975, s 42B(a)
Re Septimus Parsonage and Co [1901] 2 CH 424
Gaskell and Chambers Ltd v Hudson Dodsworth and Co [1936] 2 KB 595
Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667
Attorney-General for New South Wales v Wentworth (1988) 14 NSWLR 481
Re Filsell and Comcare (2009) 109 ALD 198
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
Ms S Taglieri (Member)19 March 2014
In its interlocutory decision of 25 November 2013 the Tribunal decided that a further hearing be held for the purpose of providing both parties with the opportunity to make submissions on the question of whether the application lodged by Mr Hawkins should be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.
The parties were invited on 9 December 2013 to make written submissions prior to the hearing. Mr Hyland for the respondent forwarded a written submission dated 20 December 2013. Mr Hawkins responded by email advising that an approach had been made to the Commonwealth Ombudsman with a view to obtaining a decision on Mr Hawkins’ central grievance namely, whether as a matter of law, a single export permit could be granted for the entire “Kennedy Collection”.
Mr Hawkins asked for an adjournment of this hearing until he had received a response from the Ombudsman. As indicated earlier the Tribunal concludes that there is no proper basis for an adjournment of the present application as the Ombudsman has now provided a response to Mr Hawkins.
Central to Mr Hyland’s submission that the proceedings should be dismissed pursuant to section 42B is Mr Hawkins’ statement, which he expressed quite openly and honestly, that Ms Basser’s decisions of 10 May 2013 to refuse export permits for the seven items of jewellery, were correct decisions.
At page 3 of his “Statement of Issues” of 6 August 2013 Mr Hawkins said:
“At this stage seven of the eight initially chosen items have been quite correctly refused an export licence …”.
He confirmed that opinion in unequivocal terms during the hearing held on 22 October 2013 and again at this hearing.
It appears to the Tribunal that Mr Hawkins’ real concern is not with the decisions made on 10 May 2013 but rather with the department’s decision that it cannot lawfully entertain the granting of an export permit for the whole “Kennedy Collection” as a single entity.
Mr Hawkins also said in his “Statement of Issues” (at page 2) that:
“I applied to export the “Kennedy Collection” and supplied all the relevant details to the Department. The Department replied that it was not possible for a permit to be granted for the “Kennedy Collection” as a single entity as only collections of archaeological and philatelic objects fell within the control list as collections
Who made this determination on what grounds, was their collusion to protect this illogical position if so by whom?”
Mr Hawkins also said:
“This has brought the matter to a head resulting in my appeal over the interpretation of the word “Collection” and raises further questions.”
Again, in his “Statement of Issues” (page 3) Mr Hawkins further explained his grievance in the following terms:
“If the acquisition of the Kennedy Collection is not in the National Interest we need this to be stated by the Department.
Has the Department colluded to block this sale and devalue the ‘Kennedy Collection’ by the use of their interpretation of the word Collection?
A decision is requested over these two matters by the Tribunal”
It would appear from Mr Hawkins’ Statement of Issues and also from the explanations given by him at the earlier hearing that these proceedings were not instituted for the purpose of obtaining an adjudication on whether the decisions made on 10 May 2013 were the correct or preferable decisions but for a collateral purpose.
Mr Hawkins’ own statements clearly indicate that the real purpose of these proceedings is to seek a ruling on the Department’s interpretation of the word “collection” and other related questions. Those particular matters will have no relevance in a merits review of the decisions made on 10 May 2013. In that review the Tribunal would necessarily limit the scope of its review to determining whether the decisions made on the eight export permit applications were the correct or preferable decisions
As indicated in our decision of 25 November 2013 proceedings in the Tribunal are not intended to be used for some collateral purpose. It is well established that litigation is vexatious if it is not a bona fide attempt to have a Court or Tribunal adjudicate the issues specified to be in dispute. See, e.g. Re Septimus Parsonage and Co [1901] 2 CH 424; Gaskell and Chambers Ltd v Hudson Dodsworth and Co [1936] 2 KB 595; Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667 and Attorney-General for New South Wales v Wentworth (1988) 14 NSWLR 481.
In addition to his submission that the proceedings have a collateral purpose, Mr Hyland further argues that the proceedings should also be dismissed because they are “futile”.
As stated in the decision of Deputy President Jarvis in Re Filsell and Comcare (2009) 109 ALD 198 at page 206:
“However, if proceedings have no reasonable prospect at all of success, they should be dismissed under section 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this Tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing”.
We are not aware of any other case in which an applicant actually agrees with the decision-maker’s decision but still seeks a review of it by this Tribunal.
It is difficult to see how an applicant could possibly succeed when the applicant is firmly on the record agreeing with the decision being reviewed.
This Tribunal must always be mindful of the time-wasting and costs involved in allowing proceedings to continue if, in reality, they can serve no useful purpose. In the Tribunal’s view the present proceedings fall into that category. The Tribunal is of the view that these proceedings were initiated for a collateral purpose and also that they are “futile” with no reasonable prospect at all of success.
The Tribunal therefore concludes that the application is frivolous or vexatious and it is appropriate that it be dismissed pursuant to section 42B(a) of the Administrative Appeals Tribunal Act 1975.
In making this decision the Tribunal wishes to emphasise that the term “frivolous and vexatious” is a technical legal term which is directed at the character of the application and not of the applicant.
Mr Hawkins has clearly acted in good faith but on a misconceived basis. He embarked on what he believed to be an appropriate process to seek redress for what he considered an injustice flowing from perceived failings in legislation and government policies. The Tribunal’s role is obviously not to seek to correct legislation or policy decisions but to make decisions on the merits in accordance with the facts and the law.
Mr Hawkins’ main grievance is the Department’s decision indicating that, in its view, “the legislation does not allow for the consideration of the objects in your application as a single collection” (see letter from Lyn Allan, Assistant Secretary dated 23 August 2012). It would have been helpful if a formal decision had been made by the Minister or the Minister’s designated delegate on that particular issue within a reasonable period of time. Mr Hawkins if he wished would then have the opportunity to seek a review of that decision.
DECISION
The application is dismissed pursuant to section 42B(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) and Ms S Taglieri (Member) [Sgd]
Administrative Assistant
Dated : 19 March 2014
Date(s) of hearing 11 March 2014 Applicant In person Solicitors for the Respondent Mr J Hyland, Australian Government Solicitor
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