Duncan v Fayle

REASONS FOR JUDGMENT Introduction 1 Ian Laurence Duncan appeals against the refusal by the Federal Magistrates Court to accept an application in which he sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), of a decision of the Administrative Appeals Tribunal ('the Tribunal') dismissing an application to that Tribunal as frivolous or vexatious. The refusal by the Registrar of the Federal Magistrates Court to accept Mr Duncan's application was on the basis that it was frivolous or vexatious. A Federal Magistrate upheld the decision of the Registrar on the basis that the lodgment of the application was misconceived because of the availability of the specific remedy under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') by way of an appeal to this Court. Mr Duncan now appeals against the decision of the Federal Magistrate. For the reasons which follow, I am of the opinion that the learned Federal Magistrate erred in rejecting his application as frivolous or vexatious merely because of the availability of an alternative remedy. The dismissal of an application because of the availability of an alternative remedy is a matter of discretion under s 10 of the ADJR Act. In my opinion it can rarely, if ever, form the basis for rejecting or dismissing an application summarily as frivolous or vexatious. Factual and Procedural History 2 Ian Laurence Duncan has been engaged for some time in a dispute with the Department of Family and Community Services. On 10 January 2001 he lodged with the Secretary of the Department a request under s 15 of the Freedom of Information Act 1982 (Cth) for the provision to him of what he has described as 'personal documents'. His request, so he claimed, was refused on the basis that all the documents other than documents exempt from production had been forwarded to him. 3 On 17 April 2001, Mr Duncan lodged in the Tribunal an application for review of the departmental decision. However on 28 June 2001 Mr RD Fayle, a Senior Member of the Tribunal, dismissed his application pursuant to s 42B(1)(a) of the AAT Act on the basis that it was frivolous or vexatious. Mr Fayle also directed, under s 42B(1)(b), that Mr Duncan 'must not without leave of the Tribunal, make a subsequent application to the Tribunal in relation to this application'. 4 In the notes of his ex tempore reasons for judgment Mr Fayle said it had become apparent after discussion with Mr Duncan and the representative of the Department at a directions hearing before the Tribunal that there were no documents specified by Mr Duncan that could be identified by the Department. He regarded Mr Duncan's application as something of a 'fishing expedition' informed by a desire on Mr Duncan's part to assert that information which had been disclosed to him in relevant documents could be exposed as flawed or without foundation. Mr Fayle said: 'It would not appear that the application is about any documents that actually exist or if they do exist, then on the basis of the request that they might be reasonably identified and are capable of being produced.' 5 According to Mr Duncan's affidavit of 24 May 2004 he was provided with a copy of Mr Fayle's notes of his ex tempore reasons for decision after he had made a request that the Tribunal provide him with reasons for its decision pursuant to s 13 of the ADJR Act. In August 2001 he filed an application in the Federal Magistrates Court purportedly under s 13(7) of the ADJR Act for further and better particulars of the Senior Member's reasons for each of his directions. This application was dismissed. 6 On 6 June 2002 Mr Duncan filed an application in the Federal Magistrates Court seeking review of what he described as 'two decisions of the Administrative Appeals Tribunal'. The two decisions referred to were the decision by Senior Member Fayle dismissing his application under s 42B(1)(a) of the AAT Act and the direction that he not be permitted to make any further application without leave. This application, filed in the Federal Magistrates Court, was rejected by the Registrar. On 12 June 2002 Mr Duncan was sent a letter by the Registrar in the following terms: 'Further to a discussion between yourself and Miss Elena Zorzut of this registry, I confirm that your application to the Federal Magistrates Court File Number WZ109 of 2002 was cancelled. A refund of $250 will be forth coming from the Federal Magistrates Court.' According to Mr Duncan's affidavit Ms Zorzut advised him orally that his application could not be accepted because it was the same as an application that had just been dealt with by the Federal Magistrates Court. However Mr Duncan pointed out that the application which had been dealt with by the Federal Magistrates Court and dismissed was his application for reasons for the decision of the Tribunal under s 13 of the ADJR Act. He said that Ms Zorzut appeared to accept that explanation and he believed the matter had been resolved. He said he was surprised to receive notification in the mail subsequently of the Registrar's decision cancelling his application. There were no written reasons given for the decision. He was referred only to the telephone discussion with Ms Zorzut. She had made no reference to the application being out of time. 7 On 24 June 2002 Mr Duncan filed in the Federal Magistrates Court an application to review the Registrar's decision. The hearing of the application proceeded on 11 July 2002 before Phipps FM. For some reason, which does not appear from the record, judgment was not delivered until more than seventeen months later on 5 December 2003. The learned magistrate dismissed Mr Duncan's application to review the Registrar's decision. He ordered that Mr Duncan pay the Department's costs fixed at $1,707.50. Mr Fayle was named as first respondent in the proceedings and the Department was named as second respondent. That was a misnomer as the Department is not itself a legal entity. The Secretary of the Department was the appropriate respondent and is named as such in these proceedings. 8 In his reasons for decision Phipps FM said that the Registrar's decision was made pursuant to r 2.06 of the Federal Magistrates Court Rules 2001 which provides: '(1) A Registrar may refuse to accept a document for filing if: (a) the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or (b) the document is filed in connection with a pending proceeding and the Registry is not the appropriate Registry. (2) The person seeking to file the document may apply to the Court for review of the Registrar's decision in accordance with Division 20.2.' 9 In determining whether the application to the Federal Magistrates Court was frivolous or vexatious the learned magistrate said that it was not open to him to have regard to anything other than the application itself. He said: 'If a Registrar is to refuse to accept a document for filing pursuant to rule 2.06, being that the document is an abuse of process or frivolous, scandalous or vexatious it must appear on the face of the document.' His Honour concluded from the application that it sought to challenge the decision by the Senior Member of the Tribunal, Mr Fayle, to dismiss his application to the Tribunal as frivolous or vexatious. It could also be seen from the face of the document that the application to the Tribunal had concerned requests for documents that Mr Duncan had made to the Secretary of the Department under the provisions of the Freedom of Information Act. His Honour went on to say: 'The argument put in support of the Registrar's decision to refuse to accept the document is that any challenge to the AAT decision should be made under s 44 AAT Act. The application asserts that it is an established principle that only decisions of the type detailed in s 43 may be appealed under s 44(1). It asserts that decisions under s 42B are not "review" decisions.' 10 His Honour cited the decision of Olney J in Australian Postal Corporation v Niko Matusko delivered on 29 April 1996 in which his Honour said that an appeal under s 44 of the AAT Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. He relied upon the observation by Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 to the effect that applications brought under s 5 of the ADJR Act challenging AAT decisions should be dismissed as of course. He also made reference to the judgment of Weinberg J in Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 496. His Honour concluded that there were no special circumstances in the present case and therefore, if the application were filed, it should be dismissed as of course. He said (at [18]): 'The position is then, that if the application had been permitted to be filed it would have been dismissed as a matter of course. The merits of any complaint about the decision of the AAT would be irrelevant to this decision. If an application must be dismissed as a matter of course because it has been brought under the wrong act then it is obviously untenable and manifestly hopeless and so vexatious.' Statutory Framework 11 The application to the Federal Magistrates Court seeking review under the ADJR Act, of the Tribunal decision was rejected and the rejection upheld by the learned magistrate because of the availability of review under s 44 of the AAT Act. Linked to that was the proposition that the ADJR Act application would inevitably have been dismissed under s 10 of the ADJR Act. 12 The decision by Senior Member Fayle to dismiss the application to the Tribunal was made under s 42B of the AAT Act which provides: '(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application; and (b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction. (2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act. (3) The Tribunal may discharge or vary such a direction.' 13 Section 44 of the AAT Act provides: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.' Jurisdiction is conferred on the Federal Court to hear and determine appeals instituted under subs (1) and (2) of s 44. There is a time limit of 28 days from the date of notification of the decision. That time may be extended by order of the Court (s 44(2A)). Subsections (4), (5) and (6) are ancillary to the jurisdiction conferred by s 44(1) and are not material for present purposes. The Act does not confer jurisdiction upon the Federal Magistrates Court to entertain an application under s 44 unless the proceeding has been transferred to it by the Federal Court under s 44A. 14 An important but not exhaustive class of decisions to which s 44 applies may be derived from s 43(1) which provides: 'For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing - (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and - (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.' 15 There is a very broad definition of 'decision' in s 3 of the Act which is directed to the decisions which may be the subject of review by the Tribunal. It is not applicable to the term 'decision' referable to decisions made by the Tribunal for the purposes of appeals under s 44. As appears later in these reasons the range of decisions covered by s 44 has been the subject of judicial exegesis in Director-General of Social Services v Chaney (1980) 31 ALR 571. 16 Section 5(1) of the ADJR Act provides: 'A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds...' The grounds of review available under the ADJR Act are then set out. 17 The term 'decision to which this Act applies' is defined in s 3(1) of the ADJR Act thus: '"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1.' The definition of 'enactment' includes an Act. This applies to Acts of the Commonwealth Parliament. There is no relevant exclusion in Schedule 1. The only reference to the Tribunal is in par (y) of that Schedule which excludes decisions of the Tribunal made on a review required by the AAT Act to be conducted by the Security Appeals Division of that Tribunal. As appears therefore, from Schedule 1, decisions of the Tribunal other than those specified in par (y) are covered by the definition of 'decision to which this Act applies' in s 3. There can therefore be no suggestion that s 44 of the AAT Act provides an exclusive mechanism for the review of decisions of the Tribunal. 18 Section 10 of the ADJR Act provides: '(1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision - (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and (b) shall be disregarded for the purposes of the application of sub-section 6(3) of the Ombudsman Act 1976 and sub-section 24(2A) of the Complaints (Australian Federal Police) Act 1981. (2) Notwithstanding sub-section (1) - (a) the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Magistrates Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and (b) the Federal Court or the Federal Magistrates Court may in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason - (i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, "review" includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.' Jurisdiction to Review Decisions of the Administrative Appeals Tribunal 19 The scope of the jurisdiction conferred upon the Federal Court by s 44 of the AAT Act was considered by the Full Court in Director-General of Social Services v Chaney. Deane J said (at 593): '... an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.' This observation was subject to two qualifications, one relating to decisions dismissing applications for want of standing and the other relating to applications which could be divided into two or more separate parts in respect of which independent decisions could properly be given. Fisher J agreed with the reasons of Deane J. In that case the decisions under appeal were a preliminary ruling by the President of the Tribunal that it had jurisdiction to entertain the application in question and his interim order suspending a determination of the Director General of Social Services pending the hearing and determination of the review. 20 The definition, enunciated by Deane J, of the class of decisions to which s 44 applies was 'a decision of the Tribunal which constitutes the effective decision or determination of the application for review'. Although, as his Honour went on to say, such decisions would ordinarily be those formulated under s 43 they are not limited, by his definition, to that class of decision. 21 A decision of the Tribunal refusing to dismiss an application as frivolous or vexatious under s 42B(1) clearly does not effectively decide or determine the application. The application remains to be determined. So much appears from the unreported judgment of Olney J in Australian Postal Corporation v Matusko (unrep, Fed Court, Olney J,14 May 1996) which I followed in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at 280. See also at 299 (Carr J). 22 A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed. The Tribunal comprising three judges of this Court, sitting as Presidential Members, in Re Williams and Australian Electoral Commission (1995) 21 AAR 467 considered the application of s 42B and held that it attracted the same general criteria for the dismissal of proceedings as frivolous or vexatious as apply to proceedings in the Court (at 473-474): 'The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly... The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause...' The desirability of a sparing approach to the application of the summary jurisdiction under s 42B was highlighted in Cooper v Comcare [2001] FCA 1085 (French J) at [21] and in the Full Court in Cooper v Comcare (2002) 118 FCR 157 at [20]. In this case summary dismissal has simply led to further delays and collateral proceedings. 23 In my opinion the decision to dismiss the application as frivolous or vexatious under s 42B was a decision by the Tribunal finally disposing of the proceeding and amenable to appeal for error of law under s 44 of the Act. My conclusion in that respect is adverse to Mr Duncan's submissions. But that is not the end of the matter. Turning a Discretion into a Rule 24 In upholding the decision of the Registrar to reject the application to the Federal Magistrates Court the learned magistrate relied upon the decisions of this Court in Tuite and Percerep. In Tuite the applicant sought review, under the ADJR Act, of a Tribunal decision refusing his claim for disability pension. Davies J said (at 484): 'As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course. See FJ Bloemen Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 360; Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483-484, 488-489, 505. In David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (Cth) (1991) 28 FCR 484 it was thought by Morling and French JJ that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1903 (Cth) may, nevertheless, be invoked in special circumstances. But no such circumstances are raised for consideration in the present case. Therefore, the limit imposed by s 44 of the AAT Act, namely that any challenge to a decision of the Tribunal be based on a question of law, must apply.' Nevertheless the respondents in that case had taken no objection to the application being brought under the ADJR Act. As counsel were ready to proceed and desirous of proceeding his Honour heard the application. He said (at 484): 'This course of proceeding should not be taken as a precedent for other cases.' What the decision does demonstrate is that his Honour was not bound to decline to hear the application. It is notable that his Honour did not refer to s 10 of the ADJR Act. 25 Perecep was a case in which an applicant appealed to this Court from a Tribunal decision. The appeal was brought under s 44 of the AAT Act. The contention was advanced that there had been want of procedural fairness in the Tribunal's conduct of the proceedings. Weinberg J considered whether such a contention raised a question of law for the purposes of s 44. His Honour concluded at 495 that he could see '... no reason why an "appeal" under s 44, ... should not encompass a claim of denial of procedural fairness'. He then referred to the alternative of proceeding under the ADJR Act and said (at 496): 'Moreover, in Tuite v Administrative Appeals Tribunal ... it was held that an application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review a decision of the Tribunal was misconceived, and s 44 of the AAT Act was the appropriate avenue of appeal.' His Honour quoted with apparent approval the passage from the judgment of Davies J referred to earlier in these reasons. 26 In my respectful opinion it is too strong a generalisation to characterise the institution of proceedings under the ADJR Act seeking review of a decision of the AAT as 'misconceived'. The jurisdiction conferred upon this Court and the Federal Magistrates Court by s 5 of the ADJR Act is general in its terms and plainly applicable to Tribunal decisions as is apparent from the express exclusion from review under that Act of one limited class of Tribunal decisions referred to in Schedule 1. Section 10(1)(a) also provides that the rights of review conferred by ss 5, 6 and 7 of the ADJR Act are in addition to and not in derogation of any other rights that a person has to seek review, whether by a court or tribunal or other authority or person. That provision is of course directed to the preservation of other specific rights of review such as those conferred by s 44. It does, however, make clear that the rights conferred by s 5 are 'additional'. The discretion to decline relief under s 10 is a discretion. It is not to be fettered by judge made rules, albeit its exercise in particular classes of case may be informed by common approaches and considerations. Being a discretion it is, in my opinion, inappropriate to apply it proleptically to strike out an application under the ADJR Act as frivolous or vexatious on its face by reason only of the availability of an alternative mechanism for review. In my opinion, the learned magistrate was in error in taking that approach. The appeal should be allowed. The decision of the learned magistrate should be set aside and in lieu thereof a decision substituted that the application be accepted for filing in the Federal Magistrates Court. 27 This does not preclude early consideration by the Court of whether the application should be dismissed in the exercise of the Court's discretion under s 10 of the ADJR Act. But such a decision would involve the exercise of the discretion upon consideration of all relevant matters by a magistrate of the Court. It would not require characterisation of the application as frivolous or vexatious. 28 In my opinion the delays in this matter have reached ridiculous proportions. Given the possibility that the discretion under s 10 of the Act might be exercised against Mr Duncan the better course might be for the parties to seek transfer of the proceedings from the Federal Magistrates Court to this Court. If that can be done, I will endeavour to arrange for a hearing of the application, including any question of extension of time, within the space of a few weeks. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.