KROUSHEV v Secretary Dfacs

[2004] FMCA 299

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

1. The application be adjourned to 10 am on 21 June 2004.

2. The applicant shall file and serve any notice of discontinuance of his application on or before 11 June 2004.

3. 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)

1. 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.

2. 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.

3. 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.

4. 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…