Nolan v Administrative Appeals Tribunal
[1997] FCA 524
•30 MAY 1997
CATCHWORDS
PRACTICE AND PROCEDURE - application for review under the Administrative Decisions (Judicial Review) Act 1977 -
non-appearance by applicant - non-compliance with order of the Court - whether proceeding an abuse of the process of the Court or vexatious - whether Court has power to dismiss the application of its own motion
Federal Court Rules Order 10 rules 3(2) and 7(1), Order 20 rule 2, Order 54 rule 2(2)
ROSS SAMUEL NOLAN v ADMINISTRATIVE APPEALS TRIBUNAL
No VG 728 OF 1996
Olney J
Melbourne
30 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 728 OF 1996
BETWEEN:
ROSS SAMUEL NOLAN
Applicant
-and-
ADMINISTRATIVE APPEALS TRIBUNAL
Respondent
Coram: Olney J
Place: Melbourne
Date: 30 May 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
There be no order as to costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 728 OF 1996
BETWEEN:
ROSS SAMUEL NOLAN
Applicant
-and-
ADMINISTRATIVE APPEALS TRIBUNAL
Respondent
Coram: Olney J
Place: Melbourne
Date: 30 May 1997
REASONS FOR JUDGMENT
The application in this matter was filed on 10 December 1996 when the applicant sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR) in relation to a decision of the Administrative Appeals Tribunal made on 14 November 1996 whereby the Tribunal held that the applicant was not a person affected by a reviewable decision of the Development Allowance Authority (the DAA) and consequently the Tribunal lacked jurisdiction to determine his application for review.
In this Court the applicant says that he is aggrieved by the decision of the Tribunal because of "denial of natural justice", "error of law" and "procedural inequity". The grounds of the application as stated by him are "errors in law, denial of natural justice and equitable treatment of parties, bad faith action by the AAT" and he has claimed "annulment of proceedings" and "disciplinary action on the AAT".
The matter has been before the Court on several occasions, the first being on 4 February 1997. On that occasion, as indeed on every other occasion apart from today, the applicant appeared in person. On each occasion that the matter has been before the Court the Tribunal has been represented by counsel, it having filed a submitting appearance abiding the decision of the Court except as to any question of costs. On previous occasions the DAA has been represented as amicus curiae. An application made by the Tribunal to join the DAA as a party was opposed both by the DAA and the applicant and was declined by Goldberg J on 6 May 1997.
On 4 February Goldberg J made an order that the applicant file and serve on the respondent, particulars of (a) denial of natural justice on which the applicant relies; (b) errors of law on which the applicant relies; (c) procedural inequities on which the applicant relies; (d) denial of equitable treatment of parties on which the applicant relies; (e) bad faith action of respondent on which the applicant relies. He also ordered that the applicant file and serve a description of the relief sought, particularly regarding the request that proceedings be annulled and that a member or members of the AAT be disciplined.
On 2 April 1997 the applicant tendered a document said to represent the particulars ordered, but which Goldberg J concluded did not satisfy the requirements of his earlier order. On 6 May 1997 his Honour made a further order requiring the applicant within 14 days of that day to provide proper further and better particulars of the various matters which were referred to in the order of 4 February 1997. The matter was then adjourned for hearing until today.
The applicant has not filed any particulars nor has he appeared here today.
Order 10 rule 3(2) of the Federal Court Rules provides that if no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper. In these circumstances, I am of the view that it is appropriate that this proceeding be terminated. The matter can be approached in two ways. First, on the basis of the failure of the applicant to comply with the order of Goldberg J of 6 May 1997 and second, pursuant to provisions of Order 20 rule 2, which makes provision for dismissing a proceeding on the grounds, inter alia, that it is an abuse of process or vexatious.
Order 10 rule 7 of the Federal Court Rules provides that where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice, if the party in default is an applicant, for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed in the proceeding and the Court may make an order of the kind referred to. Although Order 10 r 7(1) contemplates that the party not in default will seek the appropriate order such has not occurred here due to the absence from the proceeding of any active respondent. However the Court has, by reason of the applicant's non-appearance, adequate authority of its own motion to make any order that it thinks proper.
The orders made by Goldberg J on 4 February 1997 and on 6 May 1997 were in substantially the same terms. The applicant has had ample opportunity to comply but has chosen not to do so. In the absence of particulars it is not possible for the Court to know what case is put against the respondent and accordingly there is no basis upon which the matter can proceed. For these reasons the proceeding should be dismissed.
The same factors are, in the circumstances of the case, sufficient to warrant the striking out of the proceeding pursuant to Order 20 rule 2 on the grounds that the proceeding is both an abuse of process and vexatious. In this context the nature of the allegations made, particularly the allegation of bad faith, are relevant. It is a serious matter to allege that an official, tribunal or court has acted in bad faith and indeed Order 54 rule 2(2) of the Federal Court Rules specifically provides that upon an application for an order of review under the ADJR Act, if the grounds of the application include an allegation of fraud or bad faith, the applicant shall set out in the application particulars of the fraud or bad faith on which he relies. The initial application was deficient in this respect and despite the very generous time that has been allowed, the applicant's continued default suggests that the proceeding is vexatious and an abuse of the process of the Court.
The application is dismissed.
I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 30 May 1997
Place: Melbourne
Judgment: 30 May 1997
Appearances:
The applicant did not appear.
Ms W. Chan (instructed by the Australian Government Solicitor) appeared for the respondent.
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