Nolan, Ross Samuel v Administrative Appeals Tribunal

[1997] FCA 477

CATCHWORDS

PRACTICE AND PROCEDURE - Application under Administrative Decisions (Judicial Review) Act 1977 - motion by party acting effectively as amicus curiae that application be dismissed - no motion by respondent - respondent functus officio and wishing to abide result - unrepresented applicant - whether application should be dismissed

Administrative Decisions (Judicial Review) Act 1977

s 10(1)(a), s 10(2), s 11(6), s 11(7), s 11(9)

Development Allowance Authority Act 1992: s 119(1), s 120(1)

Administrative Appeals Tribunal Act 1975: s 27(1), s 27(2)

Freedom of Information Act 1982

Federal Court Rules Or 6 r 8, Or 20 r 2, Or 10 r 7,

R v Australian Broadcasting Tribunal; ex parte Hardiman

(1980) 144 CLR 13

Queensland Newsagents Federation v Trade Practices Commission,

ex parte Newsagency Council of Victoria Ltd

(1993) 118 ALR 527

Kimberly‑Clark Ltd v Commissioner of Patents

(1988) 83 ALR 714

Sixth Ravini Pty Ltd v Deputy Commissioner of Taxation

[1985] 6 FCR 356

Custom Credit Corporation Ltd v Lupi [1992] 1 VR 99

Dorf Industries Pty Ltd v Toose (1994) 127 ALR 654

ROSS SAMUEL NOLAN v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

No VG 728 of 1996

GOLDBERG J

MELBOURNE

6 MAY 1997

FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY)

GENERAL DIVISION ) No VG 728 of 1996

B E T W E E N:

ROSS SAMUEL NOLAN

Applicant

and

ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

Respondents

Coram: GOLDBERG J

Place: MELBOURNE

Date: 6 MAY 1997

JUDGMENT

On 10 December 1996 the applicant filed an application for an order of review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 seeking to review the decision of the respondent Administrative Appeals Tribunal on 13 November 1996 that "the applicant is not a person affected by a reviewable decision and consequently the Tribunal lacks jurisdiction to determine his application for review". That decision came about in the following circumstances. In January 1996 the Development Allowance Authority ("the Authority") constituted under the Development Allowance Authority Act 1992 decided to issue certain infrastructure borrowing certificates under Chapter 3 of the Development Allowance Authority Act 1992 in relation to some proposed borrowings to fund the Melbourne City Link project.

On 12 March 1996 the applicant applied to the authority to reconsider its decision to issue those certificates. On 11 April 1996 the Authority determined that the applicant was not a person who was affected by a reviewable decision and that the request for review did not fall within s 119(1) of the Development Allowance Authority Act 1992. On 12 April 1996 the Authority notified the applicant of its determination and the applicant then applied to the Administrative Appeals Tribunal on 19 May 1996 pursuant to s 120(1) of the Development Allowance Authority Act 1992 to review the decision of the Authority. The applicant's application came before the Administrative Appeals Tribunal constituted by Deputy President G L McDonald on 9 July 1996 on matters of jurisdiction and joinder.

Prior to that date, on 6 June 1996, the Tribunal had received a letter from the solicitors for the Authority objecting to the jurisdiction of the Tribunal to proceed to review the applicant's application. It was contended by the solicitors that the Tribunal had no jurisdiction to review the primary decision of the Authority. The Tribunal wrote to the applicant on 7 June 1996 informing him of the Authority's solicitors' contention that no jurisdiction existed for the Tribunal to proceed to a review and the District Registrar of the Tribunal enclosed a copy of the letter sent by the Australian Government Solicitor. The letter proceeded:

"The Tribunal will take no further action in respect of your application until you show that the decision is reviewable. Please advise in writing the legislation which you contend would give the Tribunal jurisdiction to review the decision and any other information you may have to show the decision is reviewable. If we do not receive a response from you within 14 days of receiving this letter, the Tribunal may dismiss your application without proceeding to review the decision. It may be necessary to hold a directions hearing to determine if the Tribunal has jurisdiction or not."

On 22 June 1996 the Tribunal received a 15 page submission from the applicant outlining his reasons as to, inter alia, the issue of "standing". On 3 July 1996 the Tribunal sent a letter of notification of a jurisdiction hearing on 9 July 1996 to determine matters of jurisdiction and joinder. The letter was also sent to other parties who had filed applications for review in relation to the same issue of the Authority's decision in January 1996.

On 9 July 1996 a hearing was conducted into the four applications before the Tribunal and all the applications, save for the applicant's application, were adjourned on the application of the various parties. The applicant resisted any attempt to have the hearing adjourned and insisted that the hearing proceed. The transcript of that hearing is in evidence before me as an exhibit to an affidavit of Anthony Robert Gawne, District Registrar of the Administrative Appeals Tribunal. It appears from that transcript that the applicant had filed two volumes of material with the Tribunal. In the course of that hearing counsel for the Authority handed to the Tribunal and to the applicant a 29 page outline of submissions in support of its submission that the Tribunal had no jurisdiction to entertain the applicant's application for three reasons, one of which was that the applicant was not a person whose interests were affected by the decision within the meaning of s 27(1) of the Administrative Appeals Tribunal Act 1975. Counsel for the Authority then made his submissions and the Deputy President then asked the applicant what he wished to say either specifically responding to what had been said by counsel for the Authority, or whether there were other matters he wanted to raise. He asked the applicant if he wanted to give evidence and the applicant said he did and the applicant was then sworn, by affirmation, and then gave evidence and made submissions. At the conclusion of the applicant's evidence and submissions the Deputy President gave the applicant 14 days to reply in writing to the Authority's submissions and the Authority was given a further seven days to reply. Otherwise the Tribunal reserved its decision on the preliminary issue of jurisdiction. On 13 November 1996 the Tribunal handed down its decision that the applicant was not a person affected by a reviewable decision and consequently the Tribunal lacked jurisdiction to determine the application for review. On 16 December 1996 the Tribunal released a number of documents to the applicant as a result of a formal request made by the applicant under the Freedom of Information Act 1982.

On 10 December 1996, as well as filing the application in this proceeding for an order of review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977, the applicant filed an application for an extension of time within which to file and/or serve a notice of appeal from the decision of the Tribunal. That application came before me for hearing on 4 February 1997 on which date I ordered that the application for extension of time to file or serve a notice of appeal from the decision of the Tribunal would be dismissed with costs.

On the same day as I dismissed that application I adjourned the directions hearing in this proceeding which had also been scheduled for that day to 14 February 1997. At that directions hearing the applicant appeared in person and Ms Chan from the office of the Australian Government Solicitor appeared for the respondent Tribunal. Ms Chan indicated, consistently with the decision of R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 that the Tribunal would not participate in the proceedings but would abide the decision of the Court. Mr Gunst of counsel, who had appeared as counsel for the Authority in the proceedings whereby the applicant sought leave to extend the time for filing a notice of appeal, also appeared at the directions hearing of this proceeding, in effect as amicus curiae, as Ms Chan had announced that she was seeking to have the Authority joined as a respondent to the application for an order of review in order that there should be a proper contradictor. The applicant and Mr Gunst on behalf of the Authority opposed such an order.

The applicant's application to review the decision of the Tribunal was in the following form:

"The applicant is aggrieved by the decision because-

-a denial of natural justice

-errors of law

-procedural inequity

The grounds of the application are-

-errors in law

-denial of natural justice or equitable behaviour of parties

-bad faith action by AAT

The applicant claims-

-annulment of proceedings

-disciplinary action on AAT."

On 4 February 1997 I ordered that the applicant within seven days file and serve on the respondent particulars of:

(a)the denial of natural justice on which the applicant relies;

(b)the errors of law on which the applicant relies;

(c)the procedural inequities on which the applicant relies;

(d)the denial of equitable treatment of the parties on which the applicant relies;

(e)the bad faith action of the respondent on which the applicant relies.

I also ordered the applicant to file and serve a description of the relief sought particularly regarding his request that the proceedings be annulled and that members of the Administrative Appeals Tribunal be disciplined.

On the adjourned hearing of the directions hearing on 14 February 1997 no particulars had been filed or served by the applicant and on that date the applicant made application that I disqualify myself from any further hearing in relation to the application. After submissions I dismissed that application and adjourned the further hearing of the directions hearing to 2 April 1997.

On 2 April 1997 the applicant appeared in person, Mr Knowles from the office of the Australian Government Solicitor appeared for the Tribunal and Mr Gunst appeared for the Authority in effect as amicus curiae. Mr Knowles again indicated that, consistently with the decision in Hardiman (supra), the Tribunal would abide the decision of the Court and submitted that the Authority should be joined as a respondent to the proceeding pursuant to Or 6 r 8 of the Federal Court Rules.

Mr Gunst submitted, in effect, that there was no point in joining the Authority as a respondent because the Court had already held (on 4 February 1997) that the applicant had no prospect of success of appeal against the decision of the Tribunal on 13 November 1996 and that there had been no appeal against that decision. He submitted that any right to review a decision under the provisions of the Administrative Decisions (Judicial Review) Act 1977 was in addition to and did not derogate from any other right that an applicant had to seek review of that decision (s 10(1)(a)) and he submitted that where adequate provision for review was made in some other way the Court, as a matter of discretion, could dismiss the application for review (s 10(2); Queensland Newsagents Federation v Trade Practices Commission, ex parte Newsagency Council of Victoria Ltd (1993) 118 ALR 527, 537-542; Kimberly‑Clark Ltd v Commissioner of Patents (1988) 83 ALR 714, 718). He also submitted that relevant factors to consider when determining whether to dismiss an application for review included the nature of the application and its prospects of success and that where an application was frivolous or vexatious it might be dismissed and he relied upon the decision of Northrop J in Sixth Ravini Pty Ltd v Deputy Commissioner of Taxation [1985] 6 FCR 356, 364. He submitted that the application was incompetent in the relief it sought and was without possibility of success, that it was frivolous and vexatious and should be dismissed.

I then drew the applicant's attention to the fact that he had not complied with the order for the provision of particulars which had been made on 4 February 1997 and the applicant responded that he had had the particulars available on the previous hearing date, 14 February 1997 and that they were present in Court. I then invited the applicant to file the particulars which he then did, the particulars were made available to Mr Knowles and Mr Gunst and I adjourned the hearing to enable them to consider the particulars.

Mr Gunst submitted that the particulars were not in compliance with my order and that they were "a farrago of invective and abuse", directed against a number of persons including the Court. He submitted that the Tribunal had not made a determination of issues arising under the Development Allowance Authority Act 1992 and that there was nothing in the particulars which advanced the applicant's position in relation to the question of standing. He submitted that pursuant to Or 20 r 2 of the Federal Court Rules I should dismiss the application as it was frivolous, vexatious, an abuse of process and had no merit being without any prospect of substantive success. He submitted that the tone of the document demonstrated the vexatious nature of the proceedings and also submitted that the issue raised by the application was now res judicata as a result of the Court's decision on 4 February 1997.

Mr Knowles on behalf of the Tribunal made no submission in relation to the particulars, said that the Tribunal would submit to any order of the Court save as to costs, and renewed the submission that the Tribunal should join the Authority as a respondent pursuant to Or 6 or 8 of the Federal Court Rules.

I then directed the applicant's attention to the particulars which he had filed and asked him to identify in the document the particulars which were the subject of my order of 4 February 1997. The document does not, in my opinion, provide the particulars required but rather contains a discursive narrative of a number of substantive issues which the applicant wanted to agitate but which were not before the Court.

I asked the applicant on a number of occasions to point out where the document provided particulars of the matters specified in my order. In relation to the denial of natural justice upon which he relied the applicant said that the Tribunal should have focused on the matter before it, which I took to mean the Tribunal should have considered the substantive matter raised by the applicant's application before it. It will be remembered that the matter before the Tribunal on 9 July 1997 was a preliminary point of standing and jurisdiction. The applicant also drew my attention to s 27(2) of the Administrative Appeals Tribunal Act 1975 which provides:

"An organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objectional purposes of the organisation or association".

However that provision is of no assistance to the applicant as he seeks to have the decision of the Authority reviewed in his personal capacity.

I also invited the applicant to identify in the particulars the bad faith action of the respondent on which he relies. He responded by saying that the Tribunal ignored fundamental statements he had made and his request to correct factual assertions by the authorities. He also said that he relied upon the fact that the Authority had gone beyond what Parliament had intended and the Tribunal had to listen to all matters. In my opinion these propositions or particulars provide no basis for an allegation of bad faith by the Tribunal. Insofar as they suggest that the applicant was not given an opportunity to be heard on the issue as to standing or jurisdiction the transcript of the hearing before me demonstrates that such a submission is patently wrong and not in accordance with what in fact occurred.

When I pressed the applicant once again to identify the particulars the subject of my order by reference to the document he had filed he submitted that the case he had brought before the Tribunal had been altered and had been run on an issue other than the matters on which he had approached the Tribunal. He said that the Tribunal had denied the use of its powers. However, this submission fails to address the issue that what the Tribunal determined was a preliminary point as to jurisdiction and standing. Having ruled against the applicant on those issues, the determination of the substantive issues raised by the applicant did not arise.

Finally in relation to the particulars which had been supplied the applicant submitted that I should use my discretion to allow the particulars to stand having regard to the provisions of ss (6), (7) and (9) of s 11 of the Administrative Decisions (Judicial Review) Act 1977. These provisions provide that the applicant for an order of review is not limited to the grounds set out in the application, that the Court can permit a document to be amended and that strict compliance with rules of Court made for the purposes of s 11 is not required and substantial compliance is sufficient. In my view none of these provisions in s 11 assist the applicant in relation to the sufficiency of his particulars.

I am not concerned so much with the form of the particulars supplied by the applicant as with their substance. In my opinion, the particulars provided by the applicant, on a most expansive and generous view, do not provide any proper particulars of the grounds of the application relied upon by the applicant. The particulars deal with irrelevant matters, invective and personal abuse.

However, the difficulties associated with the present form and content of the Particulars do not mean that the application in its present form should be dismissed. The only respondent to the application makes no application or submission that the application be dismissed but simply indicates that it will abide the decision of the Court and submit to any order save as to costs. Although the respondent submits that the Authority should be joined as a respondent pursuant to Or 6 r 8 of the Rules of the Federal Court, both the applicant and the Authority oppose such joinder. The applicant says that he does not want to run the risk of incurring further costs by such joinder. Having regard to the fact that the applicant appears in person and does not have the benefit of legal representation I am not prepared to exercise the summary jurisdiction given to the Court under Or 20 r 2 to dismiss the application. Although the particulars presently provided are not proper particulars of the grounds of the application relied upon it may be possible for the applicant so to refine the particulars as to identify proper grounds of review.

In the face of opposition to joinder by the applicant and the Authority I am not disposed at this stage to join the Authority as a respondent. This may raise future difficulties but the matter should be reconsidered after the applicant has been given the opportunity to refine his particulars into a proper form. It is true that the usual course in a situation such as presently exists in this application, where the Tribunal sought to be reviewed is nominated as a respondent, is that the Tribunal does not contest the case for relief but abides the result. That is not an absolute rule: R v Australian Broadcasting Tribunal & Ors ; ex parte Hardiman (1980) 144 CLR 13, 36. In that case the High Court said at 36:

"The presentation of the case in this Court by a Tribunal should be regarded as exceptional and where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."

As was pointed out by O'Bryan J in Custom Credit Corporation Ltd v Lupi [1992] 1 VR 99, 112:

"The role of the Tribunal in appearing to argue the correctness of a decision should be dictated by the appearance or non‑appearance of the litigants at the hearing. Should no party appear to uphold the correctness of a decision it might be desirable that the Tribunal be represented to present an argument to assist the court. Should a party appear to uphold the correctness of a decision it will usually be undesirable for the Tribunal to play a role in the proceeding."

(See also Dorf Industries Pty Ltd v Toose (1994) 127 ALR 654, 671.)

I therefore do not accede to the respondent's application to join the Authority as a respondent in the proceeding, nor do I accede to the Authority's submission, albeit as amicus curiae, that the proceeding be dismissed. I propose to order that within fourteen days the applicant provide proper further and better particulars of :

(a)the denial of natural justice on which the applicant relies;

(b)the errors of law on which the applicant relies;

(c)the procedural inequities on which the applicant relies;

(d)the denial of equitable treatment of the parties on which the applicant relies;

(e)the bad faith action of the respondent on which the applicant relies;

(f)the relief sought namely that the proceedings be annulled and that members of the Administrative Appeals Tribunal be disciplined.

I will otherwise adjourn the further hearing of the directions hearing to a date to be fixed and reserve the costs of the hearing before me on 2 April 1997.

For the applicant:Mr R S Nolan in person

Counsel for the First Respondent:R Knowles (AAT)

Solicitors for First Respondent: Australian Government

Solicitor

Counsel for the Second Respondent:Mr C Gunst (DAA)

Solicitors for Second Respondent:Australian Government

Solicitor

Date of Hearing:3 April 1997

Date of Judgment:6 May 1997

I certify that this and the preceding fourteen (14) pages are a true copy of the judgment of his Honour Justice Goldberg.

Associate:

Date: 6 May 1997