FEDERAL COURT OF AUSTRALIA

Cremona v Administrative Appeals Tribunal [2015] FCAFC 72

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the orders made by the Federal Circuit Court of Australia on 16 October 2014 be set aside.

3.    The second respondent pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appeal relates to the discretion of a Court under s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to refuse to grant an application for judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) where adequate provision is made for review of the AAT’s decision by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2    For the reasons that follow we consider that the Federal Circuit Court of Australia (“the FCCA”) applied the wrong principle in determining whether or not to exercise the discretion under s 10(2)(b)(ii) of the ADJR Act, which constitutes appellable error.

Background to the appeal

3    The genesis of the appeal relates to a decision of Centrelink to cancel the appellant’s carer’s allowance under the Social Security Act 1991 (Cth). The Social Security Appeals Tribunal (“the SSAT”) affirmed Centrelink’s decision. On 6 March 2014, the AAT affirmed the decision of the SSAT (“the AAT’s Decision”).

4    On 1 April 2014 the appellant filed an application for judicial review of the AAT’s Decision in the FCCA, relying on s 5 of the ADJR Act. His application for judicial review set out many of the grounds contained in s 5 of the ADJR Act, as is apparent from the following list taken from his application (errors in original and noting that the references to “the uncertified/un-signatured decision” are a reference to the AAT’s Decision):

Grounds of application

1.    That a breach of the rules of natural justice occurred in connection with the making of the uncertified/un-signatured decision.

2.    That procedures that were required by law to be observed in connection with the making of the uncertified/un-signatured decision were not observed.

3.    That the making of the uncertified/un-signatured decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

4.    That the uncertified/un-signatured decision involved an error of law, whether or not the error appears on the record of the uncertified/un-signatured decision.

5.    That an exercise of discretionary power in bad faith was done.

6.    That an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power which also constitutes an abuse of that power.

7.    That the uncertified/un-signatured decision was done defeating the Tribunals purpose of providing a mechanism of review that is fair, just, economical, informal & quick.

8.    That the Tribunal failed to ensure the applicant was given reasonable opportunity to present the applicants (sic) case by failing to issue summonses requested to be issued.

5    On 23 April 2014, the second respondent (“the Secretary”), through his solicitor, wrote to the appellant and drew his attention to s 10(2)(b)(ii) of the ADJR Act. The appellant was invited to discontinue his ADJR Act proceeding and to file an appeal in the Federal Court of Australia under s 44 of the AAT Act. The Secretary indicated that he would not pursue costs incurred to date in respect of the ADJR Act proceedings and would not oppose an extension of time to appeal to the Federal Court.

6    On 23 May 2014, the appellant informed the Secretary’s solicitor that he would be proceeding with the ADJR Act application notwithstanding the solicitor’s letter dated 23 April 2014.

7    On 26 May 2014, the FCCA ordered the Secretary to file any application directed to the dismissal of the ADJR Act application, together with any affidavits and submissions in support within 21 days. The appellant was ordered to file any affidavits and submissions in response within a further 28 days.

8    On 10 June 2014, the Secretary filed an application in the FCCA seeking dismissal of the ADJR Act application pursuant to s 10(2)(b) of the ADJR Act, together with an affidavit in support and written submissions. The appellant did not file any evidence or submissions in response.

9    The Secretary’s application was heard on 16 October 2014. At the commencement of the hearing, the appellant sought an adjournment, which was refused. The appellant then left the courtroom and did not remain to hear the Secretary’s case or make any submissions in relation to it.

10    Under s 10(2)(b)(ii) of the ADJR Act the FCCA dismissed the appellant’s application for judicial review and ordered the appellant to pay the Secretary’s costs.

Reasons of the FCCA summarised

11    In reasons given ex tempore, the FCCA identified the relevant question as whether s 10(2)(b)(ii) of the ADJR Act was applicable in the circumstances of this case and, if so, whether the Court should exercise its discretion to refuse the application under that provision.

12    After noting that it had been held in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 that the phrase “question of law” in s 44(1) of the AAT Act encompassed grounds for review set out in s 5 of the ADJR Act, the FCCA also noted that there was authority in this Court that an appeal from a decision of the AAT on the ground of a denial of procedural fairness raises a question of law (citing Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28). The FCCA found that the grounds relied upon by the appellant in his ADJR Act application were grounds which were referred to in s 5 of the ADJR Act, including the claim of denial of procedural fairness. Her Honour concluded at [28] that “adequate provision is made by the AAT Act under which the Applicant would be entitled to seek a review by the Federal Court of Australia of the Tribunal’s ‘decision, conduct or failure’”.

13    The FCCA stated in [29] that the next relevant matter was whether it should exercise its discretion to refuse the application on the basis of its finding that there was adequate provision in the AAT Act for the appellant to seek a review. The FCCA stated at [29]:

“… The Court determines it should exercise its discretion in circumstances where the Applicant is able to appeal a decision under the AAT Act to the Federal Court of Australia and where there are no special circumstances in the proceedings. The Court notes that the Applicant put no evidence before the Court and made no submissions to the Court of special circumstances.” (Emphasis added.)

14    The FCCA noted that the appellant “chose” to pursue his ADJR Act application despite the correspondence he received from the Secretary. The FCCA also discussed various cases which the Secretary had contended were relevant to the exercise of the Court’s discretion. Those cases included Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, where, at 465, Gray J referred to there being “authority that the specific procedure under s 44 of the AAT Act should be adopted, at least in the absence of special circumstances” (citing Clements at [3] per Gray ACJ and North J and Tuite at 484 per Davies J).

15    The FCCA also discussed Tuite. In [32] of the reasons for judgment, her Honour set out the following statement by Davies J at 44 in Tuite:

“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.”

16    The FCCA also noted that, in Duncan v Fayle (2004) 138 FCR 510, French J described Davies J’s characterisation of the ADJR Act application in Tuite as “misconceived” as being “too strong a generalisation”.

17    The FCCA stated in [33] that the Federal Court:

“… has consistently recognised that an appeal under s.44 of the AAT Act is the more appropriate procedure for an applicant to adopt when the applicant has the option of proceeding under either s.44 of the AAT Act or the ADJR Act.”

18    The FCCA considered that Federal Court authorities supported the Secretary’s application. Her Honour concluded that the appellant’s ADJR Act application should be dismissed and that costs would follow the event.

Determination of the appeal

19    By an amended notice of appeal, the FCCA’s judgment was appealed on the following grounds:

“1.    Her Honour erred in exercising her discretion under s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to dismiss the appellant’s judicial review application by failing to take into account the following relevant circumstances:

1.1    First, the appellant had already made the application to the Federal Circuit Court and if the matter was dismissed, the appellant would have to commence another proceeding by completing a new initiating process and paying any applicable filing fee.

1.2    Secondly, the appellant was self-represented and an application to the Federal Court under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for review requires an applicant to formulate questions of law, unlike an application for judicial review under the ADJR Act. Formulating questions of law would be difficult for an unrepresented litigant.

2.    Her Honour erred by fettering and/or misconstruing her discretion under s.10(2)(b)(ii) by considering whether there were “special circumstances” to allow the appellant’s judicial review application to proceed, rather than considering the relevant circumstances.

3.    Her Honour erred in exercising her discretion under s.10(2)(b)(ii) to dismiss the appellant’s application by finding that there was no evidence before the Court of “special circumstances” without considering whether the circumstances set out at 1.1 and 1.2 above were special circumstances.

4.    Her Honour misconstrued her discretion under s.10(2)(b)(ii) by ignoring s.10(1) of the ADJR Act, which provided that the rights conferred by sections 5, 6 and 7 of the ADJR (sic) were in addition to, and not in derogation of, any other rights the appellant had to seek review.

5.    Her Honour erred by taking into account an irrelevant consideration that the first respondent had provided documents pursuant to “r.33 of the Federal Circuit Court Rules 2001 (Cth ) (sic)”.”

20    It is convenient to set out s 10 of the ADJR Act and to emphasise some of its relevant features.

The ADJR Act

21    Section 10 of the ADJR Act provides as follows:

“10    Rights conferred by this Act to be additional to other rights

(1)    The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Circuit 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 subsection 6(3) of the Ombudsman Act 1976 and section 40TF of the Australian Federal Police Act 1979.

(2)    Notwithstanding subsection (1):

(a)    the Federal Court or the Federal Circuit 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 Circuit Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and

(b)    the Federal Court or the Federal Circuit 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.”

22    The following relevant features of that provision should be noted:

(a)    it is expressly stated in s 10(1)(a) that the rights conferred by ss 5, 6 and 7 of the ADJR Act to challenge a decision or conduct are in addition to, and not in derogation of, any other rights that the person has to seek out review, including by a tribunal (such as the AAT);

(b)    notwithstanding the matter referred to immediately above, s 10(2)(b)(ii) confers upon the relevant Court a discretion to refuse to grant an application made under ss 5, 6 or 7 of the ADJR Act in respect of a decision or conduct where adequate provision is made by a law apart from the ADJR Act under which the applicant can seek a review of that decision or conduct by, relevantly, a tribunal (such as the AAT); and

(c)    it is notable that the discretion which is conferred upon the Court in s 10(2)(b)(ii) of the ADJR Act is, on its face, unconfined save for the requirement that there be “adequate provision” for an alternative review. In particular, the Court’s discretion to refuse to grant an application for review because of the existence of an adequate alternative review mechanism is not qualified by any reference to the need for there to be “special circumstances” or other like words which would operate to confine the discretion.

23    As noted above, in considering whether or not to exercise its discretion to refuse the ADJR Act application on the basis of its finding that there was adequate provision under the AAT Act for the appellant to seek a review of the AAT’s “decision, conduct or failure”, the FCCA stated that it should do so because the appellant “is able to appeal a decision under the AAT Act to the Federal Court of Australia and where there are no special circumstances in the proceedings” (at [29], emphasis added). In our view, this approach discloses appellable error. To condition the exercise of the Court’s discretion under s 10(2)(b)(ii) of the ADJR Act on the absence or presence of “special circumstances” is to introduce a limitation on that discretion which is not authorised by the ADJR Act.

24    Before turning to consider relevant authorities concerning the application of s 10(2)(b)(ii) where adequate provision exists for a judicial review applicant to bring an appeal under s 44 of the AAT Act it is desirable to set out that latter provision:

“44    Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(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.”

25    As previously mentioned, the FCCA proceeded on the basis that there was existing authority of this Court which supported the view that, absent special circumstances, the specific procedure under s 44 of the AAT Act should be adopted and not the ADJR Act. It is appropriate to consider each of the authorities referred to by the FCCA in coming to that view, as well as some other relevant authorities which apparently were not cited to the FCCA. As will shortly emerge, while we agree with the FCCA’s view that there is some authority of this Court which supports her Honour’s approach, we consider that those authorities were wrongly decided.

26    The first relevant authority is Tuite. In that case, an application was brought under the ADJR Act in respect of a final decision of the AAT. As noted above, Davies J described the proceedings as “misconceived” and held that the procedure in s 44 of the AAT Act should have been adopted. His Honour also stated that, in David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, Morling and French JJ “thought… that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1903 (Cth) may, nevertheless, be invoked in special circumstances” (emphasis added). Davies J held that there were no special circumstances in Tuite. After noting, however, that the respondents did not object to the fact that the proceedings were brought under the ADJR Act and that the parties were keen to have the proceeding determined, Davies J proceeded to hear and determine the ADJR Act application in Tuite after emphasising that this course should not be taken as a precedent for other cases. It might be added that Davies J made no express reference to s 10(2)(b)(ii), but it can be assumed that his Honour had this provision in mind (together perhaps with the residual discretion to refuse relief in proceedings under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”)).

27    The Full Court’s decision in David Jones Finance was directed to the question whether a taxpayer could seek relief against the Commissioner of Taxation under s 39B(1) of the Judiciary Act, rather than pursue the statutory rights of review of an assessment under Pt V of the Income Tax Assessment Act 1936 (Cth) (“the Income Tax Assessment Act”). The Full Court held by majority that s 177 of that Act did not displace the Court’s judicial review jurisdiction under s 39B of the Judiciary Act.

28    There are two points to note about that decision. First, David Jones Finance did not involve s 44 of the AAT Act. Rather, it was directed to the interrelationship between s 39B of the Judiciary Act and the appeal rights under Pt V of the Income Tax Assessment Act. It is now well established that the statutory rights of appeal under that legislation attract particular and unique considerations, which are largely driven by the combined operation of ss 175, 175A and 177 of the Income Tax Assessment Act (see, for example, Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243 at 251-252 per Kitto J; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 and Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 at 152-3 and 156-7 per Gummow, Hayne, Heydon and Crennan JJ), which are different from those raised in relation to s 44 of the AAT Act. (Likewise, different considerations can arise where the alternative review mechanism is a merits review by a specialist body, as was the case in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 per Morling, Pincus and O’Loughlin JJ; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829 per Heerey J; and Darling Downs Bacon Co-Operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 per Moore J). And perhaps even more significantly, David Jones Finance was expressly disapproved by the High Court in Richard Walter at 185-8 per Mason CJ, at 212-3 per Deane and Gaudron JJ, at 231-4 per Toohey J and at 241-3 per McHugh J.

29    Secondly, to the extent that Davies J in Tuite was suggesting that Morling and French JJ in David Jones Finance had stated that, despite the availability of statutory rights of appeal under taxation legislation, jurisdiction under the ADJR Act or the Judiciary Act may be invoked “in special circumstances”, that particular phrase was not used by their Honours in their joint judgment. The phrase is that of Davies J in Tuite, not that of Morling and French JJ in David Jones Finance.

30    Clements involved an appeal under s 44 of the AAT Act from an AAT decision which affirmed a decision of the Independent Indigenous Advisory Committee. That Committee upheld an objection to the inclusion of the applicant’s name on the Indigenous Electors Roll in Tasmania. The question arose whether the appeal under s 44 was inappropriate because it involved an alleged denial of procedural fairness. It is evident from 30 of the joint judgment of Gray ACJ and North J that Tuite was raised by counsel for the applicant in Clements in support of a submission that the procedural fairness argument should have been raised in an ADJR Act proceeding. After considering case law on the question whether a denial of procedural fairness raises a question of law, their Honours stated at 32 that the Court should accept the principle that a denial of procedural fairness is an error of law which can be raised in a s 44 AAT Act appeal. Accordingly, they concluded that the proceedings had been properly commenced. Their Honours did not expressly endorse Davies J’s use of the phrase “special circumstances” in Tuite. It is unnecessary for the purposes of this appeal to offer any view on the correctness or otherwise of the comments by Gray ACJ and North J as to whether procedural unfairness raises a question of law in a s 44 AAT Act appeal.

31    In Reeve, the appellant brought proceedings under both s 44 of the AAT Act and s 5 of the ADJR Act in seeking to set aside a decision of the AAT in respect of the appellant’s workers’ compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Gray J said that it was not clear why the appellant had felt it necessary to rely on the ADJR Act at all. His Honour said at 465:

“The document that initiated the proceeding in this Court was filed on 9 December 2010. It contained both a notice of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), seeking to set aside the Tribunal's decision. On 23 December 2010, an amended document was filed invoking s 44 of the AAT Act and s 8 of the ADJR Act. It is not clear why the CBA felt it necessary to rely on the ADJR Act at all. There is authority that the specific procedure under s 44 of the AAT Act should be adopted, at least in the absence of special circumstances. See Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [3] per Gray ACJ and North J, quoting Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, and the cases to which Davies J referred in the passage quoted. The adoption of the procedure under s 44 of the AAT Act makes it unnecessary to join as a party in this Court the Tribunal, as was done in the present case (the Tribunal entered a submitting appearance, save as to costs). As all of the grounds on which the CBA relied appear to be grounds of error of law, the proceeding was dealt with as an appeal under s 44 of the AAT Act.”

32    It is notable that the other two judges in the Full Court in Reeve said nothing on this issue.

33    Justice Davies’ comments in Tuite have been considered in several other decisions of the Court. In both Chowdhary v Bayne [1999] FCA 41; (1999) 165 ALR 151 and Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697, Finn J at [14] and [13] respectively described Davies J’s view in Tuite as possibly being “expressed somewhat more inflexibly than is necessary or appropriate”, citing Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314 at 316. In both Chowdhary and Peczalski, Finn J also added that, nevertheless, Davies J’s views in Tuite regarding s 44 of the AAT Act “encapsulates a sound principle to be followed when, as here, a s 44 application has been instituted and that application makes adequate provision for the review of the tribunal’s decision: cf ADJR Act, s 10(2)(b)”.

34    It is notable that in Chowdhary, Finn J was dealing with circumstances where AAT proceedings had been commenced first in the Court. Similarly, in Peczalski the applicant first sought an extension of time to bring s 44 proceedings and then subsequently sought an extension of time to bring ADJR Act proceedings in respect of the same AAT decision. That is not the case here, where only ADJR Act proceedings had been commenced in the FCCA (and also noting that the appellant could not have brought a s 44 AAT Act appeal in that Court as only the Federal Court has such original jurisdiction, as to which see further below).

35    In a series of other single instance decisions, Davies J’s views in Tuite have been approved and applied. They include Duong v Australian Postal Corporation [2005] FCA 991; (2005) 41 AAR 288 at [12] per Edmonds J and Combe v Inspector General in Bankruptcy [2005] FCA 1101. In the latter case, Bennett J referred at [49] to Davies J’s view that 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 as having been “modified” in cases such as Peczalski and Duncan. Nevertheless, Bennett J declined relief under the ADJR Act in circumstances where her Honour considered that s 44 of the AAT Act made adequate provision for review of the Tribunal’s decision.

36    In Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538, the applicant commenced proceedings in the Federal Court under s 44 of the AAT Act as well as judicial review proceedings under both the ADJR Act and s 39B of the Judiciary Act. Justice Rares referred to Tuite and stated at [61] that “ordinarily” proceedings are brought under s 44 of the AAT Act and it was not appropriate to also proceed by judicial review. However, his Honour allowed all the proceedings to go forward in circumstances where his Honour considered that there was some doubt as to whether an issue of construction of the Customs Tariff Act 1995 (Cth) may not raise a question of law for the purposes of s 44 of the AAT Act.

37    Justice Bennett revisited the issue in Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 245 ALR 561. Her Honour considered that the Full Court’s decision in Comcare v Etheridge (2006) 149 FCR 522 was relevant. Her Honour noted (at [97]) that in Etheridge, Branson J (with whom Spender and Nicholson JJ agreed), emphasised that s 44 provided only a limited power for the Court to review findings of fact by the AAT when compared with an appeal by way of rehearing (see at [14]). Furthermore, Bennett J noted (at [99]) that Branson J had acknowledged in Etheridge at [27] and [30] that the ADJR Act was also available. In Sellick, Bennett J refused to strike out a judicial review application brought into the Federal Court under both the ADJR Act and s 39B of the Judiciary Act. Her Honour observed that both of those avenues of judicial review had been introduced after the AAT Act and the jurisdiction under those Acts was additional to that under s 44 of the AAT Act.

38    At [102] of Sellick, Bennett J emphasised that decisions of the Court which had applied Tuite, such as Peczalski, Chowdhary and Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483, were all decided before Etheridge and, accordingly, needed to be viewed in that light.

39    Another post-Etheridge decision is that of Moore J in Ugur v Commissioner of Australian Federal Police [2010] FCA 303. ADJR Act proceedings were brought against an AAT decision concerning a request under the Freedom of Information Act 1982 (Cth). Justice Moore described Davies J’s views in Tuite as having been modified by Bennett J in Combe. His Honour stated that he was not bound to hear an ADJR Act application where s 44 AAT Act review was also available, but in circumstances where the applicant was unrepresented and the Court was proposing to dismiss the judicial review application on its merits in any event, the proceeding would not be summarily dismissed. His Honour added at [19] that otherwise s 10 of the ADJR Act may have “loomed larger”.

40    In Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300, the applicant (who represented himself) commenced proceedings in this Court against an AAT decision under both s 44 of the AAT Act and s 5 of the ADJR Act. Subsequently he also sought to rely on s 39B of the Judiciary Act and to adduce fresh or further evidence. At [15], the Full Court (Marshall, Tracey and Flick JJ) commented on the “imprecision” which attended the applicant’s prosecution of these various proceedings which had occasioned “great difficulty” for both the respondent and the Court. The Full Court concluded that not all of the questions raised in the applicant’s revised notice of appeal under s 44 raised questions of law, but it also accepted that at least some were capable of being reformulated to constitute questions of law. The Court was prepared to hear and determine the s 44 appeal on that basis. The Court stated at [16]:

“In any event, decisions made by the Tribunal are subject to judicial review by this Court, albeit normally not pursuant to the ADJR Act: see Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484.”

41    After hearing the s 44 appeal, the ADJR Act application and the application to also bring a judicial review application under s 39B of the Judiciary Act, the Full Court dismissed them all.

42    Although the Full Court cited Tuite in support of its statement that while AAT decisions are subject to judicial review by the Court, “albeit not normally pursuant to the ADJR Act”, we do not consider that the Full Court intended to endorse Davies J’s comment in that case that “special circumstances” were required. Nor do we consider that the Full Court was saying that there was no discretion to refuse relief under s 39B of the Judiciary Act.

43    Finally, another notable feature of Rana is that, notwithstanding the multiple appeal and review mechanisms either initiated or sought to be initiated by the applicant there, the Full Court did not exercise the discretion under s 10(2)(b)(ii) of the ADJR Act to dismiss the ADJR Act proceeding and, instead, proceeded to hear, determine and reject all of the applicant’s applications.

44    More recently, the issue of the interrelationship between s 10(2)(b)(ii) of the ADJR Act and s 44 of the AAT Act was considered by Katzmann J in Kennedy v Comcare [2014] FCA 82. The applicant had commenced proceedings in the Federal Court under the ADJR Act against an AAT decision and not under s 44 of the AAT Act. At [26] her Honour observed that there was no doubt that the AAT’s decision could have been challenged by either avenue of review, but that the discretion to refuse relief was available under s 10(2)(b) of the ADJR Act even if no other proceeding was pending. At [29], Katzmann J referred to Davies J’s comments in Tuite regarding the need for “special circumstances” and added that there were no such special circumstances in Kennedy. However, after noting that Davies J had in fact proceeded to hear and determine the ADJR Act application in Tuite, Katzmann J adopted an equally pragmatic approach and proceeded to treat the judicial review application as though it were an appeal under s 44 of the AAT Act. Her Honour said that this course was consistent with s 37M of the Federal Court of Australia Act 1976 (Cth).

45    In the light of the analysis above of the observations of Gray ACJ and North J in Clements and Davies J’s comments in Tuite, we respectfully disagree with the approach adopted by Gray J in Reeve, i.e. that the specific procedure under s 44 of the AAT Act should be adopted, at least in the absence of special circumstances. The joint judgment of Gray ACJ and North J in Clements provides no support for that proposition. And if the observations of Davies J in Tuite support that proposition, as would appear to be the case, we respectfully disagree with them. Such statement of legal principle is, in our view, wrong, as also is the case with Gray J’s statement in Reeve and any other authority which has turned on whether or not there are “special circumstances” in relation to the discretion under s 10(2)(b)(ii) of the ADJR Act.

46    It necessarily follows that we consider that, with respect, the FCCA erred in applying the principle that an applicant who commences judicial review proceedings under the ADJR Act in the FCCA, and who could have brought an appeal under s 44 of the AAT Act in the Federal Court, has to establish “special circumstances” to avoid the judicial review application being dismissed under s 10(2)(b)(ii) of the ADJR Act.

47    That view of s 10(2)(b)(ii) of the ADJR Act is inconsistent with the approach of French J in Duncan, who emphasised that the discretion to decline relief under s 10 of the ADJR Act “is a discretion” (emphasis added) and 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” (at [26], and see also at [27] where his Honour emphasised that the exercise of the discretion required consideration of all relevant matters). With respect, that approach is plainly correct. It is the approach which the FCCA ought to have adopted here instead of being distracted by the question whether there were special circumstances which permitted the ADJR Act proceeding to continue in the FCCA, rather than require the appellant to commence proceedings in the Federal Court under s 44 of the AAT Act.

48    To focus attention on whether there are special circumstances which justify maintaining and proceeding with the ADJR Act application and not requiring an applicant for review to avail himself or herself of a right to bring proceedings under s 44 of the AAT Act has the effect of creating a preference in favour of the latter review right which is not warranted by the language of s 10(2)(b)(ii). Indeed, it involves reading words into that provision which is unjustified in the circumstances and is inconsistent with s 10(1)(a) of the ADJR Act.

49    Contrary to the Secretary’s submission, we do not consider that Davies J’s “special circumstances” approach in Tuite is supported by the fact that the FCCA is not invested with original jurisdiction in relation to appeals under s 44 of the AAT Act, but is invested with jurisdiction under the ADJR Act. The Secretary submitted that this manifested a statement of Parliamentary intention that the Federal Court was the appropriate forum to hear such appeals. Obviously any such consideration played no role in Davies J’s assessment as the FCCA (or, more correctly, its predecessor, the Federal Magistrates Court) was not established until late 1999, well after Tuite was decided. When the Federal Magistrates Court was invested with jurisdiction under the ADJR Act, the text of s 10(2)(b)(ii) remained essentially the same as previously, apart from the insertion of the reference to that Court.

50    The Secretary’s submission cannot be reconciled with the clear statement of Parliamentary intention in s 10(1)(a). Nor does it sit comfortably with the fact that, although the FCCA does not have original jurisdiction to entertain a s 44 AAT Act appeal, the Federal Court has the power in an appropriate case to remit such an appeal to be heard by the FCCA in accordance with s 44AA of the AAT Act and the Federal Court Rules 2011 (Cth), rr 27.11 and 27.12.

51    The fact that the Federal Court alone has direct jurisdiction under s 44 of the AAT Act may be a relevant consideration in a particular case, along with potentially others, in the exercise of the discretion under s 10(2)(b)(ii). The FCCA might also take the view in an appropriate case that the cost and difficulties of requiring an applicant in ADJR Act proceedings in the FCCA to start fresh proceedings in the Federal Court, under s 44 of the AAT Act, which might then possibly be remitted to the FCCA, are relevant matters, which need to be weighed against any other relevant matters in determining whether the FCCA should permit the ADJR Act proceedings to be heard and determined by it.

52    Properly construed, if it is satisfied another law makes “adequate provision” for review, s 10(2)(b)(ii) requires the Court to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding. That exercise is not to be confined by simply asking, as the FCCA did here, whether there are “special circumstances”. That constitutes acting upon a wrong principle, which is an appellable error (see House v The King (1936) 55 CLR 499 at 505).

53    That is sufficient to allow the appeal. We are not disposed to be critical of the FCCA for failing to take into account allegedly relevant considerations when the appellant elected not to present that argument below. He will have the opportunity to revisit this matter if the Secretary decides to press his application in the FCCA relying on s 10(2)(b)(ii).

54    It should also be noted that the appellant did not press before us his ground of appeal relating to an alleged irrelevant consideration having been taken into account by the FCCA.

Conclusion

55    The appeal should be allowed. Orders 2 and 3 made below should be set aside. The second respondent must pay the appellant’s costs of and incidental to the appeal. No order was sought regarding costs of the proceedings below.

56    Nor was an order sought in the amended notice of appeal that the matter be remitted to the FCCA for reconsideration according to law, however, that issue was raised in the appellant’s outline of written submissions. The Secretary’s counsel (Mr Rebikoff) also raised for the first time in his closing address the possibility of this Court exercising for itself the discretion under s 10(2)(b)(ii).

57    We do not favour either of those courses. As to the first, it is a matter for the Secretary to determine whether or not the application in relation to s 10(2)(b)(ii) will be revived in the FCCA proceeding. That is the appropriate court to hear any such application, including hearing from the appellant. Alternatively, the Secretary might well decide to consent to the appellant’s ADJR Act proceedings being heard and determined in the FCCA.

58    As to the second, it is plainly inappropriate for a Full Court to determine for itself in circumstances such as these how the discretion under s 10(2)(b)(ii) should be exercised. The appellant was given no prior notice of the Secretary’s position on this issue and he had no meaningful opportunity to consider what evidence and/or submissions he might wish to adduce and make in respect of any such application.

59    Finally, the Court expresses its gratitude to Ms Costello and Mr Aleksov for accepting pro bono referrals in the appeal. Their assistance was greatly appreciated.

Associate:

Dated:    27 May 2015