Duncan v Fayle [2002] FMCA 79 (9 May 2002)

Last Updated: 25 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNCAN v FAYLE

[2002] FMCA 79

ADMIINSTRATIVE LAW - Administrative Appeals Tribunal - request for additional Statement of Reasons pursuant to s 13(7) of the Administrative Decisions (Judicial Review) Act (ADJR Act) - decision by AAT to dismiss an application pursuant to s 42B of Administrative Appeals Tribunal Act 1975 upheld - sufficient reasons given pursuant to s 13 of ADJR Act. PRACTICE AND PROCEDURE - proceeding without oral hearing pursuant to Rule 15.03 of the Federal Magistrates Court Rules 2001.

Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481

Re Williams & Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467

Administrative Decisions (Judicial Review) Act 1977 s 13

Administrative Appeals Tribunal Act 1975 s 42B

Federal Magistrates Court Rules 2001 Rule 15.03

Applicant:

IAN DUNCAN

Respondent:

MR R D FAYLE

File No:

WZ 74 of 2001

Delivered on:

9 May 2002

Delivered at:

Melbourne

Hearing Date:

No hearing pursuant to Rule 15.03 of the Federal Magistrates Court Rules 2001

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

Mr Ian Duncan in person

Solicitor for the Respondent:

Mr T Carey

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.

(2) There be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

WZ74 of 2001

IAN DUNCAN

Applicant

And

MR R D FAYLE

Respondent

REASONS FOR JUDGMENT

1. Mr Ian Duncan (the applicant) makes application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) seeking orders in relation to a "Statement of Reasons" dated 19 July 2001 provided by the Administrative Appeals Tribunal (the AAT). The reasons were provided pursuant to a request said to be made by the applicant under s 13(1) of the ADJR Act.

2. The applicant claims that if the court were to be satisfied that the statement does not contain adequate particulars of findings on material questions of fact and adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision then the court may order additional statements containing further and better particulars in relation to the matter specified in the order with respect to those findings and that evidence or other material or those reasons pursuant to s 13(7) of the ADJR Act.

3. The AAT had before it an application by the applicant in file number W2001/122 wherein the respondent was the Secretary, Department of Family and Community Services. Before this court the applicant had named the Administrative Appeals Tribunal as respondent. By order of the court made 30 August 2001 the "AAT" was deleted as respondent and in lieu thereof substituted "Mr R D Fayle" was the tribunal member who made the decision. The applicant was also ordered to notify the Secretary, Department of Family and Community Services of the application.

4. When the application was first listed Mr Carey appeared for the respondent. At the further hearing by audio link on 27 September 2001 Mr Carey continued to appear for the substituted respondent and although further orders were made concerning the conduct of the application on that occasion including requirements for the parties to file and serve any submissions in support, it was made clear by Mr Carey that his client did not wish to participate further in the proceedings. Accordingly the Court has not received any submissions from the Respondent.

5. The present application was filed on 15 August 2001 and by consent an order was made on 27 September 2001 that the application be conducted without the requirement of an oral hearing pursuant to Rule 15.03 of the Federal Magistrates Court Rules 2001. I should also add for the sake of completeness that Mr Duncan is an applicant in an unrelated application filed with this Court on 13 November 2001 in application number WZ104/2001. The decision in that matter was reserved after a hearing which occurred on 18 February 2002. No objection has been taken to the Court hearing both matters in which Mr Duncan is an Applicant.

6. The present application has attached to it 34 pages of Grounds for Application and in those grounds reference has been made to numerous cases and legislation. The Applicant has also filed an Affidavit sworn 15 August 2001 which has annexed to it the Application for Review of Decision to the AAT dated 17 April 2001 (comprising 26 pages of documents), a document entitled Grounds in Support of Application to Dismiss dated 4 May 2001 from Mr Steve Ellis Advocate of the Advocacy and Administrative Law Team Centrelink together with a letter with an amending page and dated 8 May 2002, the Applicant's Outline of Submissions to the AAT which are said to have been lodged at a directions hearing on 28 June 2001, a copy of a direction by the AAT dated 28 June 2001, a request for a Statement of Reason by the Applicant to the AAT dated 16 July 2001 (comprising 15 pages), a copy of the AAT's answer to the request for written Statement of Reasons in accordance with s 13(1) of the ADJR Act dated 28 June 2001.

7. The Applicant has further filed and served submissions to this Court dated 11 October 2001 (comprising 13 pages).

8. Before considering the material to which I have referred to the extent that it is relevant it is appropriate in my view to understand that the application for review of decision which was before the AAT purportedly refers to a letter from a Freedom of Information Review Officer of the Respondent dated 2 March 2001 and the reasons for the Application in relation to that decision are referred to by the Applicant as request 1 and request 2. It is sufficient to note for the present purposes that both requests related to a decision made on 2 March 2001 by the FOI Review Officer where that officer stated the following:

"Further, it is my understanding that Centrelink WA or National Office has previously provided you with all documents requested.

Accordingly, if you are still seeking documents which you believe have not been made available, I can only conclude that the documents do not exist now, or have never existed".

9. That response was in relation to requests made by the Applicant by letter dated 10 January 2001. Request 1 referred to an item of correspondence from Centrelink dated 28 September 2000 and the Applicant after referring to that correspondence simply stated, "Please provide me with a copy of the ´Previous Correspondence' referred to. It seems not to have been provided in response to previous requests."

10. In relation to Request 2 the Applicant states in his letter dated

10 January 2001 the following:

"Also, please provide me with a copy of all files, documents, or other information, held at any location that contain any reference whatsoever to me, that have not previously been forwarded to me. (Apart from documents already identified by Centrelink in relation to previous requests)".

11. The Respondent requested that the AAT list the Applicant's Application for Review for a directions hearing. By letter dated 4 May 2001 notice was given that the Respondent would ask the AAT to exercise its power under s 42B of the Administrative Appeals Tribunal Act 1975 to dismiss the application.

12. Section 42 B of the AAT Act provides:

"42B(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. The test for vexatiousness has been expressed by Roden J in Attorney-General (Vic) v Wentworth (1988) 14 NSWLR 481 at 491 as follows:

"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

14. That test by Roden J has been applied in a number of other cases and in particular the decision of the Full Court of the Federal Court in Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467.

15. The Respondent in support of its application to dismiss which was heard by the AAT on 28 June 2001 had argued that there had not been any new or fresh refusal or FOI matter that has not already been the subject of an application to the AAT and referred to the fact that there had been a number of other applications by the Applicant which had been dealt with by the provision of certain documents which at one time may have been claimed to have been exempt but were subsequently released. The Applicant in his written submissions to the Tribunal persisted with arguments in relation to Request 1 and Request 2 though at the hearing did not pursue Request 1.

16. It is relevant however to note that the Tribunal considered the Applicant's detailed Application and submissions made by both parties before it made a direction on 28 June 2001 as follows:

"The Tribunal is satisfied that the application for review of the Decision is frivolous/vexatious.

The Tribunal therefore, pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975:

(1) Dismisses the application; and

(2) Directs that applicant, must not without leave of the Tribunal, make a subsequent application to the Tribunal in relation to this application".

17. As indicated earlier the Applicant had sought, by letter dated 16 July 2001, a Statement of the AAT's Reasons.

18. A Statement of Reasons in response to that request was provided and it is relevant to note that those reasons effectively comprise notes on the directions hearing held on 28 June 2001. The Tribunal states in those notes the following:

"During the course of the hearing the applicant (Mr Duncan represented himself) conceded that those matters to which he referred to as "Request 1" were withdrawn. The Tribunal checked this with the applicant to make sure that that was indeed his request now. He confirmed his position, so "Request 1" was not proceeded with, deemed withdrawn."

19. I should add in passing that the withdrawal of Request 1 is not at all surprising given the nature of the request to which I have referred, the vague reference to "previous correspondence" in the letter which was the subject of the request and the almost incomprehensible nature of the request combined with the matters raised by the Applicant in his application for review before the AAT.

20. In its reasons provided in accordance with s 13(1) of the ADJR Act the Tribunal goes on to say the following:

"In regard to ´Request 2' this relates to the applicant's FOI request to the respondent of 10 January 2001. On 11 January 2001, Ms E Greif, FOI Officer, replied to that letter. In her reply she addressed the request and, in regard to related matters that she was then unable to deal with, promised to obtain the relevant documents and forward them. Ms Greif again wrote to the respondent on 19 February 2001 and provided further information. She also stated that ´it appears that there are no separate AAT files, and as you will see, all documents created by the Advocacy and Administrative Law Section are attached to the relevant FOI file'. That letter concludes with a statement to the effect that other requested documents that the applicant believe exists are either already in his possession or do not in fact exist. The delegate therefore refused the request pursuant to s 24A of the FOI Act on that basis".

21. In its reasons the Tribunal further states:

"The Tribunal discussed with the parties what specific documents were indeed the subject of the application. It became apparent that there are no specific documents identified by the applicant in such a way as would lead the respondent to actually identify them. The applicant has made now 5 separate FOI requests to date including this one (2 of which have been heard and await decision, 1dismissed for lack of jurisdiction and 1 dismissed pursuant to s 42B of the AAT Act, and the current application). The Tribunal expressed the view that if this matter were to proceed then both the respondent and the applicant would be hard put to identify the actual issues and deal with them. It would appear that the application is something of a ´fishing expedition' and is clouded with a desire on the part of the applicant to assert that information which has been disclosed to him in relevant documents should be exposed as flawed, or without foundation etc etc. 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. The T explained to the applicant that in his particular circumstances, where numerous FOI applications have been made concerning the same issue, that in future, (and because he has already received considerable information and documentation), for him to pursue this further he needs to be specific. That is, any further application should at least identify, by reference to existing documents in his possession, actual documents that he then believed should be produced. This would enable the respondent to identify the documents in question (if they exist) and to test them against the exemption provisions of FOI. If after that process, the documents are refused then that is something with which the Tribunal can deal."

22. The Tribunal then proceeded to make the direction to which I have already referred.

23. In my view having considered all the material placed before me and noting that most of the material relied upon by the Applicant does not assist me in the consideration of this application, it is clear that the Tribunal has provided reasons for decision which in my view satisfactorily set out the findings and material questions of fact and referred to evidence and other material upon which those findings were based and has given sufficient reasons for its decision to comply with

s 13 of the ADJR Act.

24. In matters of this kind where there has been an extensive past history and the decisionmaker is aware of that history and recites the details in a brief manner, it is not a valid criticism of those reasons to suggest that further details should be given of a kind suggested by the Applicant. It is also clear in my view that the Tribunal quite correctly considered the application that was before it and as it dealt only with Request 2 was able to properly conclude from the request which I have recited in this judgment that the application could be regarded as one which is vexatious and frivolous pursuant to s 42B of the AAT Act.

25. The Tribunal in my view correctly applied the principles to which I have referred concerning the issue of vexatiousness of applications. The applicant had not been able to specify documents which had been the subject of the FOI request. It is clear that on a proper and objective consideration of the application that was before the Tribunal that it would have been pointless to continue with the application on the material then before it. In those circumstances it is my view that the Tribunal has correctly made a direction on 28 June 2001 that the application be dismissed pursuant to s 42B(1)(a) of the AAT Act. In doing so it has in the brief reasons to which I have referred complied adequately with the requirements of s 13 of the ADJR Act. It is not appropriate for the AAT in those circumstances to provide any further or detailed reasons particularly in circumstances where an Applicant who is familiar with the process has made numerous applications on other occasions and has withdrawn one request leaving a vague, uncertain and unspecific request before the Tribunal.

26. Accordingly for the reasons stated it is my view that the appropriate order to make in relation to this application is that the application be dismissed. The Respondent has not sought costs and accordingly I will make no order as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 May 2002