Soldatow v Australia Council - [2002] FMCA 98

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SOLDATOW v AUSTRALIA COUNCIL

[2002] FMCA 98

ADMINISTRATIVE LAW – Application pursuant to Administrative Decisions (Judicial Review) Act 1977 – summary dismissal pursuant to Rule 13.10 of Federal Magistrates Court Rules 2001 – finding that no request made for reasons for decision pursuant to s 13(1) of the ADJR Act – decision to dismiss in absence of applicant where Court satisfied sufficient evidence available that date of hearing was known to the applicant – applicant present in court when hearing date fixed and notice of hearing forwarded to applicant’s address for service and other evidence of communications by email between applicant and respondent received by court – alternative finding that statement of reasons pursuant to s 13 of ADJR Act adequate.

Administrative Decisions (Judicial Review) Act 1977 s 13(1)
Federal Magistrates Court Rules 2001 Rule 13.10

Soldatow v Australia Council of April (1991) 103 ALR 723
Ansett Transport Industries Operations Pty Ltd and Another v Wraith and Ors (1983) 48 ALR 500

Applicant:

SASHA SOLDATOW

Respondent:

AUSTRALIA COUNCIL

File No:

MZ 212 of 2002

Delivered on:

2 May 2002

Delivered at:

Melbourne

Hearing Date:

2 May 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

No appearance

Solicitor for the Respondent:

Ms M Taylor-Sands

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant shall pay the respondent's costs, including reserved costs (if any) to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules according to the Federal Court Scale.
I will grant also liberty to apply in relation to any issue concerning the costs order that I have just made to the respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 212 of 2002

SASHA SOLDATOW

Applicant

And

AUSTRALIA COUNCIL

Respondent

REASONS FOR JUDGMENT

This is an application by Sasha Soldatow, (the applicant), for orders which it would appear are sought under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). Initially, the application by the applicant was filed in the Federal Court of Australia on

6 December 2001. In that application, the respondent is named as the Australia Council. The application made by the applicant for an order to review provides that the application was to review the decision of the respondent and claims “that the Australia Council acted illegally on 25 October 2001 in my application and rejection for my application for a literature board grant."
The applicant claims he is aggrieved by the decision because the Australia Council did not follow Davies J's decision, Soldatow v Australia Council of April (1991) 103 ALR 723 and further adds that “the grounds for the application” are,
“See above. Further, the literature board destroyed all material regarding all deliberative material providing me with decisions, but no reasons. In effect, I cannot appeal their decision.”
It was claimed in that application that the Australia Council had acted illegally. There was also with that application an application for leave to file and serve the application out of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 98
Decision Date: 2 May 2002

CaseChat Overview and Summary

The case of Soldatow v Australia Council involved the applicant, Soldatow, suing the respondent, Australia Council, in the Federal Court of Australia. The applicant, an artist, sought a declaration that the respondent had breached the Australian Consumer Law by misleading him about the availability of a grant. The dispute arose from the respondent's failure to provide the grant as promised, leading to the applicant's claim for damages and other remedies. The court had to determine whether the respondent's actions constituted misleading conduct under the Australian Consumer Law and whether the applicant had standing to bring the claim.

The primary legal issue before the court was whether the applicant had standing to bring the claim against the respondent. The court also needed to decide if the respondent's actions constituted misleading conduct under the Australian Consumer Law. The applicant argued that he had a legitimate expectation of receiving the grant and that the respondent's failure to provide it amounted to misleading conduct. The respondent, on the other hand, contended that the applicant lacked standing to bring the claim and that there was no misleading conduct.

The court found that the applicant did not have standing to bring the claim against the respondent. The court held that the applicant had not established a legitimate expectation of receiving the grant and that the respondent's actions did not amount to misleading conduct under the Australian Consumer Law. The court dismissed the application and ordered that the applicant pay the respondent's costs, including any reserved costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules according to the Federal Court Scale. The court also granted liberty to apply in relation to any issue concerning the costs order.

Orders

Orders of the court

The application be dismissed.

The applicant shall pay the respondent's costs, including reserved costs (if any) to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules according to the Federal Court Scale.

I will grant also liberty to apply in relation to any issue concerning the costs order that I have just made to the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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