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

1. The application be dismissed.

2. 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.

3. 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

1. 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."

2. 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.”

3. 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 time.  The matter remained in the Federal Court of Australia and I should add the application was also the subject of a document purporting to be an affidavit sworn by the applicant which was before that court and sworn, it would appear, on 2 December 2001.  That affidavit is in a somewhat unusual form as it has in the body of the affidavit by way of literally `a cut and paste’ process, words which seem to be taken from the application, that is, the paragraphs that I just read are in fact inserted into that affidavit.

4. The respondent had filed a notice of appearance on 10 January 2002 and on 27 February 2002 filed a notice of motion where at that stage in the Federal Court it sought to move for orders that the time to file notice of objection to competency be extended and that pursuant to Order 20 Rule 2 the application be dismissed as the proceeding “discloses no reasonable basis for the application is frivolous or vexatious or is an abuse of process of the Court”.  That application was supported by an affidavit of Michelle Taylor-Sands sworn 27 February 2002.

5. When the matter was before his Honour Marshall J on 4 March 2002, orders were made that earlier orders apparently made on 4 February 2002 be vacated and the proceedings be transferred to this court.  The matter then was listed before this court on 22 March 2002.  On that day Mr Soldatow appeared in person and Ms Taylor-Sands appeared for the respondent.  I made certain orders on that occasion which included leave being granted to the applicant to file and serve an amended application for an order for review dated 21 March 2002.

6. It should be noted at this stage that prior to that date, that is, prior to March 2002, the respondent, although as I understand it not conceding that any request for reasons for its decision to decline to make a grant to the applicant under the new work established writers scheme, had in fact produced what it calls a “STATEMENT PURSUANT TO SECTION 13” dated 26 January 2002. Hence, the amended application for an order to review refers to that statement and seeks to make application to review the decision of the respondent that the applicant not be awarded a Literature Board grant in the New Work (Established Writers) grant category for 2002 and the amended application states that the applicant is aggrieved by the decision because “the applicant's interests as a professional writer are adversely affected by the decision not to award him a grant”.

7. He goes on in that amended application to say that the grounds of the application are:

   “(1) the respondent, in a statement dated 26 January 2002, sent to the applicant and signed by Nicholas Hasluck on behalf of the respondent, and allegedly made pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, failed to furnish reasons for the decision (not to award the applicant a grant) which comply with the requirements of section 13;

   (2)the statement, in contravention of section 13, does not, inter alia, contain reasons which deal with the substantial issues raised for determination, and which expose the reasoning process adopted, by the decision maker;

   (3)the respondent has consequently failed to observe procedures required by law, specifically required under section 13, to be observed.”

8. The applicant claims

   “(1)An order under s 13(7) of the Administrative Decisions (Judicial Review) Act 1977 that the respondent provide the applicant with a statement of reasons complying with s 13(1) of the Act for the decision not to award the applicant a grant.

   (2)Such other order as the Court deems appropriate.

   (3)Costs”.

9. I had, as indicated, allowed leave to the applicant to file that amended application and on 22 March 2002 I made further orders in relation to the filing and serving of a response by the respondent, including any application relating to competency and/or summary dismissal.  I made further orders that the proceedings be fixed for final hearing, including the hearing of any application in relation to competency or summary dismissal on 2 May 2002.  In addition, orders were made that the applicant should file and serve any affidavits upon which he sought to rely on or before 12 April 2002 with the respondent being ordered to file and serve any affidavits upon which it seeks to rely on or before 19 April 2002 and the parties both being required to file and serve outlines of submissions, together with authorities, on or before 26 April 2002.  I granted liberty to the parties to apply and reserved costs.

10. Pursuant to those orders, the respondent filed a response on 27 March 2002 and in its response the respondent seeks orders that the application be dismissed, that the applicant pay the respondent's costs.  In the category of “interim or procedural orders sought” the respondent has further added,

    “1. The application be dismissed as the proceeding

    (a)     discloses no reasonable basis for the application,

    (b)     is frivolous or vexatious, or

    (c)   is an abusive process of the court

    2.The applicant pay the respondent's costs”. 

11. The respondent has relied upon an affidavit of Gale Cork sworn 19 April 2002, together with a supplementary affidavit of the same deponent sworn 23 April 2002, and has filed an outline of submissions on 26 April 2002.  The applicant has filed with the court a document purporting to be an affidavit sworn by him on 11 April 2002 which has "affidavit 1" referred to on the front sheet.  That document has attached to it other documents which are labelled “affidavits” 2, 3, 4, 5 and 6.  I received that affidavit material without objection from the respondent.

12. When the matter was listed before the court this day upon the application being called Mr Fairfield of counsel appeared on behalf of the respondent.  There was no appearance for the applicant.  I asked for the applicant to be called, and again there was no appearance.  In the circumstances, it was indicated by counsel for the respondent that I should consider making an order that the application be dismissed and that the applicant pay the respondent's costs.  I indicated to counsel that in circumstances of this kind where an unrepresented litigant fails to appear, it may be appropriate to consider options including that the application be struck out, or if I were to proceed to hear the matter, it may be further appropriate in circumstances where a respondent has before the court an application for summary dismissal that I consider that application on its merit and indeed the applicant's substantive application on merit, albeit in the absence of the applicant.

13. I received evidence from the respondent's instructing solicitor, Ms Michelle Taylor-Sands, and received into evidence exhibits R1 to R11.  Those exhibits include file notes, email printouts and correspondence which indicate that there had been a change of address for the applicant who had earlier resided, as it appears on the court file, at an address given in the documents as 18 Trinian Street, Vermont.  It is clear to me in the material which has been provided in exhibits R1 to R11 that the applicant, although changing addresses, has received appropriate and adequate notice that the proceeding is to be heard this day, and I am satisfied has received by way of adequate service, or at the very least notice, material to be relied upon by the respondent.

14. I am satisfied on the material before me therefore that adequate and appropriate notice has been given to the applicant that his application is to be heard this day, and there is no material before me which would indicate that there is any reason why I should not proceed to hear and determine the matter, albeit in the absence of the applicant.  Accordingly, I have now heard submissions which essentially followed the outline of submissions by the respondent in relation to both the substantive application and the respondent's application for summary dismissal.  It is appropriate to refer to the relevant facts set out in that outline of submission so that at least the chronology of events may be determined.

15. In the outline of submissions the respondent indicates that the applicant had applied to the respondent on 14 May 2001 for a grant under the New Work (Established Writers) category offered by the Literature Board of the respondent and that by letter dated 25 October 2001 the literature board informed the applicant that he was unsuccessful in his application.  The letter, which is attached by way of exhibit GC5 to the affidavit of Gale Cork, to which I have referred, also provides details of the assessment process and other relevant information.  It is clear on a proper reading of that document that it is not a document which is specifically addressed to the applicant who was unsuccessful in his application for the grant, but nevertheless does provide details of the persons making the decision and the procedures to be followed, together with other relevant information.

16. In any event, on 29 October 2001 Ms Cork received an email from the applicant, and that email is attached by way of exhibit to her affidavit.  It is appropriate that I should indicate that email from the applicant is one which essentially expresses concern by the applicant to the recipient of the email about the documents which he has received.  It is useful to set out what in that email as follows.  The applicant states:

    “Initially, I want to point out that there is nothing in the assessment meeting report which indicates that an applicant can request any details of their individual application report.  Only pushy people like me can access this information.  Why send out five pages of PR rubbish and then later say you haven't the funding to send out a report on individual reports.  There is nothing personal in my application rejection.  Why do I have to phone to obtain this information?  Pathetic as it be, I request this information.” 

17. In that email the applicant goes on to refer to the decision of Davies J in Soldatow v Australia Council.  The applicant further goes on in the email to remind the recipient of the message of a certain obligation and otherwise makes clear that, as I read it that he is dissatisfied with the procedures of the respondent in relation to the granting of awards.  An email response dated 30 October 2001 was forwarded to the applicant by Gale Cork and in that email some details are provided.  It is relevant to note that the author of that email refers to the assessment meeting report, which had been the subject of some criticism by the applicant, and then goes on to state:

    “I'd like to point out that the letter of advice which accompanied the report invited you to contact program officer, Virginia Faye, if there was anything you wished to discuss in relation to your application”.

18. The letter included Ms Faye’s direct telephone number and email address and continues: 

    “It is inaccurate to say that only pushy people can access this information.  Many applicants, most of them not at all pushy, take up the invitation to discuss their application directly with a program officers.  Others prefer not to know the detail of their ranking and scores.  It can be gratuitously upsetting, particularly for those who score poorly”.

19. The author adds:

    “Apart from the serious resource implications of providing individual reports to all 469 applicants, we feel it is kinder to provide information about individual applications in person and on request.  Most clients appreciate this service”.

20. In the same document, the author refers to the obligations as understood by the Australia Council arising out of the decision of Davies J to which I have referred. It refers to the process in terms of deciding the award of grants and also refers to other matters which I do not need to refer to in this judgment. After that exchange of email correspondence, it would appear that the application has been filed in the Federal Court. It is submitted for and on behalf of the respondent that the email references that I have just read out, and in particular the email from the applicant, does not constitute for the purposes of section 13 of the ADJR Act a notice in writing, give it to the person who made the decision requesting him to furnish a statement in writing setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

21. It is submitted, as I understand it, that that email request for further information does not of itself constitute a request under section 13 of the ADJR Act. During the course of submissions I have been referred to various authorities dealing with the nature of a request under section 13 of the ADJR Act. In particular, I was referred to a decision of Woodward J in Ansett Transport Industries Operations Pty Ltd and Another v Wraith and Ors (1983) 48 ALR 500. I was taken in particular to the passage of his Honour's judgment which appears at line 23 on page 507, and further taken to the passage which appears at page 508, at the third line where his Honour states:

    “The right to obtain information about decisions is given by section 13(1) of the act.  It's to be noted that no form of request is prescribed.  Nor does the section require that the request be stated as being made pursuant to the Judicial Review Act.  Persons making decisions to which that Act applies must be taken to know of their obligations to supply reasons when requested to do so.  They should not need to be referred to the relevant legislation.  Nor should a person with rights under the Judicial Review Act be denied those rights merely because he does not know of them, or only knows of them vaguely, and so makes a request in some informal letter or other communication which does not follow the wording of section 13(1)”. 

22. It is submitted by the respondent, and I accept, that the email correspondence to which I referred does not constitute a request under section 13 of a kind which I would regard as being appropriate. In my view, the email correspondence does not constitute the appropriate notice in writing despite the fact that section does not, as his Honour Woodward J in the Ansett Transport Industries case to which I referred stated require a specific form of request.

23. I should add, however, in the present case that the applicant cannot be said to be a person unfamiliar with the ADJR Act. He is a person who was an applicant in litigation before Davies J in the case to which I have referred earlier. He is certainly a person who is well aware of the provisions of the ADJR Act and the requirement that there be a request for reasons to be given by notice in writing pursuant to section 13 of the ADJR Act. In my view, therefore, there is substance in the submission being made for and on behalf of the respondent that in the present case after the decision was made in relation to the application by the applicant for the grant by the Literature Board that when the decision was notified to the applicant there has not been a request of a kind that could properly be described as one complying with section 13 of the ADJR Act.

24. If I am wrong about that, then it is appropriate to further consider the alternative submission made for and on behalf of the respondent and that is that the application for review, which I have indicated was an amended application filed by leave of the court on 22 March 2002, refers to the section 13 statement which had been dated 26 January 2002 signed by the Chairman of the Literature Board which had considered the applicant's application. That decision and statement, which is entitled “Statement Pursuant to Section 13”, it is said by the respondent, more than adequately covers those matters which ought to be covered in a section 13 statement. To the extent that it does cover those matters it obviates the need, and indeed deprives this court of the ability to make any order under subsection 13(7).

25. It is appropriate to note that in his amended application for an order for review and the grounds of that application that the applicant does seek to attack the statement and seeks to attack it on the basis that it fails to furnish reasons for the decision. In my view, without transgressing all the details of the material set out in that statement pursuant to section 13 provided by the respondent, it seems to me clear that those details more than adequately satisfy the requirements of section 13. The details in that statement clearly provide the applicant with sufficient information which in all the circumstances provides findings of a kind which are adequate, and findings which are of a kind which satisfy the authorities to which I have been referred in relation to reasons being made available to a person such as the applicant in this present case.

1. It is not appropriate in my view for the Literature Board or other organisations of a similar kind to provide what might be described as more particular details as to the exchange that may occur amongst members when making an assessment of applications for grants. It is sufficient in my view to provide reasons of a kind that are referred to in the section 13 statement which in detail indicates the procedure followed, the outcome of that procedure, the criteria upon which an assessment was made and indeed the ranking of the applicant in a way which would clearly indicate to the applicant the process and reason why he was ranked in that position by the various members who had to make a decision on the issue. It should also be said that the identity of those members has been clearly indicated to the applicant.

2. In those circumstances, even if I were in error in finding that there has been no request under section 13 of the ADJR Act, I am satisfied and find that the statement to which I have referred, in any event, complies with the requirements of the ADJR Act and that there is no need, and indeed, no basis upon which this court should make any orders pursuant to section 13(7) of the ADJR Act. It remains necessary, therefore, in the light of those findings to consider whether the application should be dismissed pursuant to rule 13(10) of the Federal Magistrates Court Rules.

3. In my view, the finding that there has been no request pursuant to section 13 of the ADJR Act is a sufficient basis upon which I should exercise my discretion to summarily dismiss the application on the basis that it discloses no reasonable cause of action, is frivolous or vexatious or is an abuse of process, and I so find. In the alternative, in regard to the statement of reasons pursuant to section 13, to which I have referred, I am satisfied it is appropriate in the circumstances of this case, having regard to all the material, including material filed and relied upon by the applicant, that I should likewise find it is appropriate to exercise my discretion under rule 13(10) to dismiss the application.

4. The orders therefore shall be as follows:

   (1)The application be dismissed.

   (2)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.

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

5. In this matter I want to make it clear that those costs are costs which are applicable to the Federal Court Scale given that this matter was commenced in the Federal Court and it would be unduly harsh to expect the respondent in these circumstances to seek to divide those costs and embark upon a process of assessing the costs in two different jurisdictions.  To the extent, however, that I may be required to do so, I would certify it was appropriate for the respondent to employ an advocate pursuant to rule 21(15) of the Federal Magistrates Court Rules 2001.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  2 May 2002