KROUSHEV v Secretary Dfacs
[2004] FMCA 299
•20 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KROUSHEV v SECRETARY DFACS | [2004] FMCA 299 |
ADMINISTRATIVE LAW – whether to bring the appeal pursuant to provisions of ADJR Act or under s. 44 of the AAT Act.
Administrative Decisions (Judicial Review) Act
Administrative Appeals Act, s.44
Duncan v Hotop & Anor [2002] FMCA 56
Duncan v Hotop [2004] FCA 274
| Applicant: | VICTOR KROUSHEV |
| Respondent: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File No: | MZ 1338 of 2003 |
| Delivered on: | 20 April 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 20 April 2004 |
| Ruling of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms A. McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be adjourned to 10 am on 21 June 2004.
The applicant shall file and serve any notice of discontinuance of his application on or before 11 June 2004.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1338 of 2003
| VICTOR KROUSHEV |
Applicant
and
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
REASONS FOR RULING
(Revised from transcript)
In this matter a notice of appeal, which has been relied upon by the applicant, seeks to bring the appeal pursuant to provisions of the Administrative Decisions (Judicial Review) Act and the provisions under s.44 of the Administrative Appeals Tribunal Act. It is clear that the application relates to a decision by the Administrative Appeals Tribunal delivered on 3 October 2003.
At the commencement of this hearing it was indicated by the applicant, who appears in person, that he had deliberately sought to make the application or indeed pursue the notice of appeal relying upon both the Administrative Decisions (Judicial Review) Act and s.44 of the Administrative Appeals Tribunal Act. Indeed he indicated a preference to pursue the matter under the provisions of the Administrative Decisions (Judicial Review) Act and indicated to this court in sufficient terms that it would be understood that he had a preference for that Act because, in his view, that gave him a greater opportunity to explore findings of fact and other matters which were of concern to him arising out of the AAT decision.
I brought to the attention of the parties a decision I delivered in the matter of Duncan v Hotop & Anor [2002] FMCA 56, a decision delivered on 9 May 2002 which was the subject of an appeal to the Federal Court of Australia in the matter of Duncan v Hotop (2004) FCA 274 where the appeal was in fact dismissed and the decision of this Court affirmed. The relevant part of that decision relates specifically to the issue of whether or not it is more appropriate for this Court to entertain an application under s.44 of the AAT Act or to consider whether or not the application should be pursued under the provisions of the Administrative Decisions (Judicial Review) Act.
I refer to my decision in Duncan and otherwise adopt and apply the reasoning in that case to this ruling:
“10.Before the court the Department in its application to dismiss Mr Duncan’s application on the grounds that it is an abuse of process has made a number of submissions with the main thrust of the submissions being that the application is misconceived and an abuse of process in that it should be an application brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) rather than under the provisions of the ADJR Act.
11.In support of that submission it was argued by the Department that although s 44 of the AAT Act provides for an appeal to the Federal Court of Australia on a question of law from any decision of the tribunal in that proceeding it is now well established law that such an appeal should arise from a final decision of the tribunal. Once established however it is submitted by the Department that such an appeal although referring to a “question of law” encompasses and includes each and every one of the factors set out in s 5 of the ADJR Act so that there is no prejudice to Mr Duncan in pursuing his claim under s 44 of the AAT Act. It is further submitted that there are numerous authorities which this court should accept as binding or at the least very persuasive where courts have indicated in clear terms that where a final decision is made and a claim may be brought under another enactment such as s 44 of the AAT Act then that is the course to be preferred rather than bring the claim under any provision of the ADJR Act.
12.The Department relied upon s 10(2)(b)(ii) of the ADJR Act which provides:-
“Notwithstanding sub-section (1):
(a) …
(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.”
13.I have been referred to the decision of the Full Court of the Federal Court in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 where the Full Court said at page 12,
“Even so, in any particular decision, although the decision may be a factual one, all the usual grounds of review will apply for they are regarded as being illustrative of questions of law. Thus a decision-maker may have failed to provide procedural fairness or may have failed to take into account a relevant fact, or may have had regard to an irrelevant matter or the decision may have been so unreasonable that no reasonable decision-maker could have come to it”.
14.I was further referred to the decision of Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act did not permit the reception of further evidence which was not before the Tribunal and then Weinberg J went on to say,
“The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
15.At the same page His Honour states after reviewing the appeal process from a State Magistrates Court to the Supreme Court of Victoria the following,
“… I can see no reason why an ‘appeal’ under s 44 which is itself a misnomer since the court is exercising original rather than appellate jurisdiction when that section is invoked, should not encompass a claim of denial of procedural fairness.”
16.At page 496 Weinberg J cites with approval the observations of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 where the court there held that an application brought under the ADJR Act to review a decision of the tribunal was misconceived and s 44 of the AAT Act was the appropriate avenue of appeal. His honour cited the following passage from Tuite’s case per Davies J at p 484,
“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”.
…
19.I accept that it is now settled law that a decision under s 44 of the AAT Act should be a final decision or determination. This has been accepted in a number of cases and in particular I refer to Geographical Indications Committee v The Honourable Justice O’Connor and Ors (2000) FCA 1877 where at paragraph 19 the Court said,
“At the outset we should briefly mention the basis upon which we consider this Court has jurisdiction to entertain the present application. It will be noted that the application is not brought by way of appeal from a decision of the AAT under s 44 of the AAT Act. Section 44 (1) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. The application is not so based as ‘decision’ in s 44(1) has a restricted meaning. The meaning is confined to a final decision or determination: See Director General of Social Services v Chaney (1980) 47 FLR 80 per Deane J with whom Fisher J agreed at 100, 103 and Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 447. As no right of appeal arises under s 44 of the AAT Act, the respondents to this appeal are not correct in asserting on the authority of Tuite v Administrative Appeals Tribunal and Another (Tuite) (1993) 40 FCR 483 that the applicant’s reliance upon the ADJR Act is misconceived”.
…
23.In my view it is appropriate to follow the decision of Weinberg J in the Percep case where His Honour applied the decision of Davies J in the Tuite case. It is clear in the present case as I have indicated a final decision has been made which could properly be the subject of an application pursuant to s 44 of the AAT Act. It is also clear that this does provide another enactment by which the appeal can be brought and hence I am satisfied that where there is a right of appeal under s 44 of the AAT Act then that provides an alternative remedy under an enactment for the purposes of s 10(2)(b)(ii) of the ADJR Act.
24.I am strengthened in this conclusion by the observations of Burchett J in Secretary Department of Employment Education Training and Youth Affairs v Allen (1998) 26 AAR 420 where His Honour at 421 said in dismissing an application for judicial review under s 5 of the ADJR Act that as the decision in that case was a preliminary point raised in relation to the application by the tribunal it could not be challenged in a court in the normal way by appeal under s 44 of the AAT Act. His Honour applied what had been said in the decision of Director General of Social Services v Chaney (1980) 47 FLR 80. He then went on to say at p 421 the following,
“Notwithstanding that it is open to a litigant in the Administrative Appeals Tribunal to bring before the Court an application under the Judicial Review Act or s 39B of the Judiciary Act, the desirability of not permitting a proceeding before the Tribunal to be fragmented by interlocutory appeals, and the availability, at the end of the proceedings, of a right of appeal under s 44, provides strong reasons for refusing, as a matter of discretion, to grant relief by way of judicial review, except where significant benefit may be obtained by an early determination of some particular point.”
25.It is submitted and I accept that in the present case adopting the passage of Burchett J and applying it to the circumstance of the present case that it would appear, conversely, where there is a final decision it is inappropriate to permit review under the ADJR Act where that final decision can be the subject of an appeal conducted under s 44 of the AAT Act. The same factors under s 5 of the ADJR Act which would enable Mr Duncan to properly review his decision can be accommodated under an appeal pursuant to s 44 of the AAT Act.
26.It is desirable that in cases where there is a final decision of the AAT that the appeal rights under the AAT Act be pursued rather than an application for judicial review under the ADJR Act.”
It is useful to set out the following paragraphs from the decision of Nicholson J in Duncan v Hotop [2004] FCA 274:
“10.Generally speaking the words ‘question of law’ in s44 of the AAT Act encompass the grounds available under s5 of the ADJR Act. This appears from the authorities referred to by his Honour: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495-496, and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12. It is also the case that the applicant is incorrect in any view that on an ADJR application he would a greater entitlement to adduce the evidence not before the Tribunal that he would have had in a s44 AAT Act application. I accept that the clear legislative purpose behind s10(2)(b)(ii) of the ADJR Act is to avoid ‘forum shopping’ and to avoid a multiplicity of proceedings. There is, therefore, no basis for the applicant’s central submission that on a s44 AAT Act application the Federal Court would not have jurisdiction to allow the application on any of the grounds of review sought to be agitated by the applicant, providing the Court was satisfied one or more of the grounds was established.”
For the reasons given in Duncan, it is my view that it is appropriate in matters of this kind where there is an application dealing with a final decision of the AAT that the proper course is for the applicant to pursue rights he may have under s.44 of the Administrative Appeals Tribunal Act and I so rule.
Having indicated that I was prepared to make that preliminary ruling, the applicant understandably has asked for time to reflect upon and consider his position. In fairness to the applicant, it is my view that it is entirely appropriate for him to be given that opportunity.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for ruling of McInnis FM
Associate:
Date: 20 April 2004
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