Duncan v Hotop

REASONS FOR JUDGMENT 1 On 30 May 2002 the applicant filed an application for extension of time within which to file and serve a notice of appeal together with submissions. The application related to a judgment of Federal Magistrate McInnis given on 9 May 2002 at Melbourne: Duncan v Hotop [2002] FMCA 56. The application was made on the 21st day after the pronouncement of the judgment. The applicant stated in his supporting affidavit that he was an unrepresented litigant applying for legal assistance and that the judgment addressed matters of public interest and in his submission identified reasonable grounds for a viable appeal. The inference is that it was filed to extend the appeal period in order that the applicant would have the time within which to settle grounds of appeal. 2 On 11 June 2002 directions were made in relation to obtaining the applicant legal assistance. In the directions the central proposition on which the advice of pro bono counsel was sought pursuant to O 80 r 4 of the Federal Court Rules was identified as the following: 'That the issue of fact which the applicant seeks to raise as identified in par [8] of the Reasons of the Federal Magistrates Court of 9 May 2002 can only be adequately addressed in a proceeding brought by the applicant pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).' For some reason not presently explained but apparently due to the endeavours to obtain legal assistance for the applicant, it was not until 28 October 2003 that the applicant filed the submissions on the central question thus identified. 3 At a directions hearing on 30 October 2003 and at the request of the applicant directions were made inviting further submissions on an application by him for his name as applicant to be kept confidential. Those submissions were filed by him on 5 November 2003 and answering submissions were filed on 13 November 2003. The applicant's submissions in reply to the respondents' submissions to the applicant's principal submissions were filed on 17 November 2003. 4 In his reasons for judgment delivered on 9 May 2002, the Federal Magistrate recounted that the second respondent had applied for an order pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 ('the FMC rules') that an application by the applicant filed on 13 November 2001 be dismissed as an abuse of process. The application purported to seek review of a decision of the Administrative Appeals Tribunal ('the Tribunal') constituted by the first respondent which was delivered on 15 October 2001. The decision of the Tribunal dealt with a request by the applicant pursuant to s 48 and s 49 of the Freedom of Information Act 1982 (Cth) ('the FOI Act') for amendment of certain documents of Centrelink on the grounds that the documents contained personal information which was 'incorrect and misleading'. 5 His Honour also stated that in his application the applicant had sought review of the Tribunal decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). He referred to very detailed grounds of application filed with the Court by the applicant traversing a wide range of cases canvassing the jurisdiction of the ADJR Act and intended to support his contention that the decision of the Tribunal is a decision to which the ADJR Act applies. 6 Before his Honour submissions were made on behalf of the second respondent that the application was an abuse of process in that it should have been brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act') rather than under the provisions of the ADJR Act. Section 44(1) of the AAT Act reads: '44 (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.' 7 In submissions for the second respondent reliance was also placed upon the provisions of s 10(2)(b)(ii) of the ADJR Act which reads: 'Notwithstanding sub-section (1): (a) … (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) …; 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.' 8 His Honour referred to a number of cases which had been brought to his attention in submissions and did so in the following terms: '13. I have been referred to the decision of the Full Court of the Federal Court in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 where the Full Court said at page 12, "Even so, in any particular decision, although the decision may be a factual one, all the usual grounds of review will apply for they are regarded as being illustrative of questions of law. Thus a decision-maker may have failed to provide procedural fairness or may have failed to take into account a relevant fact, or may have had regard to an irrelevant matter or the decision may have been so unreasonable that no reasonable decision-maker could have come to it". 14. I was further referred to the decision of Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act did not permit the reception of further evidence which was not before the Tribunal and then Weinberg J went on to say, "The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim." 15. At the same page His Honour states after reviewing the appeal process from a State Magistrates Court to the Supreme Court of Victoria the following, "… I can see no reason why an 'appeal' under s 44 which is itself a misnomer since the court is exercising original rather than appellate jurisdiction when that section is invoked, should not encompass a claim of denial of procedural fairness." 16. At page 496 Weinberg J cites with approval the observations of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 where the court there held that an application brought under the ADJR Act to review a decision of the tribunal was misconceived and s 44 of the AAT Act was the appropriate avenue of appeal. His honour cited the following passage from Tuite's case per Davies J at p 484, "The words 'question of law' in s.44 encompass matters concerning not only the interpretation of a Federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words 'question of law' encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision maker would have made, the exercise of a decision making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice".' His Honour the Federal Magistrate then added: '25. …The same factors under s 5 of the ADJR Act which would enable Mr Duncan to properly review his decision can be accommodated under an appeal pursuant to s 44 of the AAT Act. 26. It is desirable that in cases where there is a final decision of the AAT that the appeal rights under the AAT Act be pursued rather than an application for judicial review under the ADJR Act. 27. For those reasons it is my view that the application to dismiss Mr Duncan's application pursuant to Rule 13.10 should be upheld as I am satisfied that in the present case the application brought under the ADJR Act is an abuse of process and the correct application should be by way of appeal pursuant to s 44 of the AAT Act.' 9 As before the Federal Magistrate the applicant has lodged voluminous submissions referring to a wide range of decisions. As the submissions in support of the present application for the respondents have expressed it, what comes through strongly from these submissions is an apprehension on the applicant's part that he would be able to run arguments in the context of the ADJR Act application that he would not be able to do in any s 44 AAT Act application. In particular, he argues that he can obtain ADJR Act review but not review under s 44 where the Tribunal has found as a fact a matter of which no evidence existed (see, for example, the applicant's submissions at pars 8, 17, 94 and 251). He submits that such an error would be a 'question of fact'. That is clearly, itself, an erroneous submission. The Tribunal will have made an error of law if there is no evidence to support a conclusion of fact: Federal Commissioner of Taxation v Raptis (1989) 89 ATC 4994 per Gummow J at 4996 and cases cited there. 10 Generally speaking the words 'question of law' in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act. This appears from the authorities referred to by his Honour: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495-496, and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12. It is also the case that the applicant is incorrect in any view that on an ADJR application he would have a greater entitlement to adduce evidence not before the Tribunal than he would have had in a s 44 AAT Act application. I accept that the clear legislative purpose behind s 10(2)(b)(ii) of the ADJR Act is to avoid 'forum shopping' and to avoid a multiplicity of proceedings. There is, therefore, no basis for the applicant's central submission that on a s 44 AAT Act application the Federal Court would not have jurisdiction to allow the application on any of the grounds of review sought to be agitated by the applicant, providing the Court was satisfied one or more of the grounds was established. 11 It is unnecessary to address in detail the applicant's attempts to discredit the reasoning of the applicable authorities. Like the Federal Magistrate, this Court will not be assisted by such an unrewarding and time-consuming task. 12 The Federal Magistrate's decision was in the exercise of a discretion making his decision subject to review on appeal only where some error occurred in the exercise of the discretion. It also is a matter relating to practice and procedure in which an appellate court will be even more reluctant to interfere. It is apparent that the applicant's case has not established any error in the exercise of the discretion. 13 I accept the view expressed in the submissions for the respondents that the documents filed by the applicant demonstrate ignorance of the principles relevant to the appellant functions of this Court, misunderstanding as to the reasoning of the Federal Magistrate, and an attempt to engage an admitted question of fact which is not open whether the matter proceeds as a s 44 AAT Act appeal or as an application under the ADJR Act. 14 It follows that the applicant's application for an extension of time in which to file a finalised notice of appeal should not be granted and that the applicant should be ordered to pay the respondents' costs of the application. 15 The applicant's application for a confidentiality order in relation to his name is an application for an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) forbidding publication of the applicant's name in connection with these proceedings. The basis on which the order is sought is that a similar order was made under the provisions of s 35 of the AAT Act in the proceedings before the Tribunal from which the applicant appealed to the Federal Magistrates Court. The respondents take the position that they have no objection to such an order being made. 16 There are, however, matters which weigh against the exercise of the discretion in favour of granting the order. No such order was sought by the applicant in the Federal Magistrates Court proceedings. The current application was issued by the applicant in his own name. The directions hearings in this matter have been listed indicating the name of the applicant. To make an order pursuant to s 50 at this stage would have an aura of futility about it. In my view, despite the absence of objection from the respondents, the discretion can only be properly exercised against the making of such an order and accordingly that application will also be refused. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Solicitor for the Respondent: Australian Government Solicitor

Date of Last Written Submissions: 17 November 2003