Miller and Department of Foreign Affairs and Trade [2003] AATA 20 (7 February 2003)

Last Updated: 5 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1674

GENERAL ADMINISTRATIVE DIVISION	)
	Re	DESMOND MILLER

Applicant

And

DEPARTMENT OF FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 7 February 2003

Place Sydney

Direction

Being satisfied that the claims of the Applicant in this matter are frivolous and vexatious, pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 this matter is DISMISSED.

(sgd) M D ALLEN

.....................................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - Dismissal of application as frivolous and vexatious - Matter disclosing no reasonable cause of action and brought as a collateral matter, therefore vexatious.

Administrative Appeals Tribunal Act 1975 - s42B

Attorney General v Wentworth 14 NSWLR 481

Gamester Pty Ltd and Another v Lockhart 112 ALR 623

REASONS FOR DECISION

Senior Member M D Allen

1. On 7 February 2003 I made an order pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 that this matter be dismissed as frivolous and vexatious.

2. Subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 provides that a party to proceedings may within 28 days after the day on which a copy of the decision of the Tribunal is served on him request the Tribunal to furnish to that party a statement in writing of the reasons of the Tribunal for its decision. By letter received 18 February 2003 the Applicant requested written reasons for my decision of 7 February 2003. The reasons for my decision are accordingly set forth below.

3. The term "vexatious" was explained by Roden J in Attorney General v Wentworth 14 NSWLR 481 at 491 quoting Attorney General for NSW v Solomon 8 NSWLR 667 in the following terms:

"Litigation is vexatious if it is brought for collateral or ulterior purposes or if it is not a bonafide attempt to have the question in dispute adjudicated."

4. In Gamester Pty Ltd and Another v Lockhart 112 ALR 623 at 624 the High Court quoted without demur the following passage from the decision of Lockhart J at first instance, namely:

"The Court has of course inherent jurisdiction to control its own process and the orders that I propose to make are pursuant to that and pursuant to O20, r2 of the Court's rules. I am plainly satisfied that there is no reasonable cause of action disclosed in the proceeding presently before the court, that the proceeding is vexatious and that is an abuse of the court's process."

5. This matter came on before me as a Directions Hearing as the application for review lodged by the Applicant did not appear to refer to any decision by the Respondent capable of review by this Tribunal.

6. The following passage then occurs on page 7 of transcript of the Directions Hearing held on 7 February 2003 before me concerning this application for review and another application for review lodged by the Applicant nominating the same Respondent and numbered N2002/1175.

"Mr Allen: Mr Miller, perhaps you can tell me, what is this application all about?

Mr Miller: Well Sir, I was getting nowhere - no documentation and up in the air, so I made an application in the Administrative Appeals Tribunal to try and bring the matter to a head.

Mr Allen: Where does it stand now, this 1674, I've got an application here and I can't understand what it's all about.

Mr Miller: Well, I didn't have enough information and had to fight all the way, Senior Member, to try and get it. I made that application, as I said, as a tactic to try and force the matter to a head. In the letter, I think I state I do this to bring the matter to a head or similar wording, if my memory serves me right.

Mr Allen: Well, where does it stand now? What do you say you haven't got?

Mr Miller: Now that I've got this?

Mr Allen: Yes

Mr Miller: There are a lot of things in the freedom of information, but that's a separate application.

Mr Allen: Well this application is nonsense now, isn't it?

Mr Miller: Yes, it probably is, but I can argue it in a general process..."

7. In these circumstances as I was satisfied that there was no relief the Tribunal could give and that the set application was brought for a collateral purpose, I found that the proceedings in matter number N2002/1674 were frivolous and vexatious and therefore dismissed the matter.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed: .......................................................................................

Associate

Date/s of Hearing 7 February 2003

Date of Decision 7 February 2003

Solicitor for the Applicant Applicant self-represented

Solicitor for the Respondent Minter Ellison