Duncan v Fayle [2004] FCA 723

FEDERAL COURT OF AUSTRALIA

Duncan v Fayle [2004] FCA 723

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – application for judicial review by Federal Magistrates Court of decision of AAT under s 42B dismissing application as frivolous or vexatious – application for judicial review rejected by Registrar – application for review of Registrar's decision dismissed by Federal Magistrate – whether application under ADJR Act misconceived because of availability of appeal under s 44 AAT Act – availability of s 44 for appeals against dismissal of application under s 42B as frivolous or vexatious – appeal under s 44 available – ADJR application not frivolous or vexatious – discretion to refuse application because of availability of alternative remedy not fettered – inappropriateness of refusing application as frivolous or vexatious by reason of availability of alternative remedy – appeal allowed Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1), s 3(1), s 10 Administrative Appeals Tribunal Act 1975 (Cth) s 42B, s 44, s 43(1) Freedom of Information Act 1982 (Cth) Federal Magistrates Court Rules 2001 r 2.06

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 cited Attorney General (Vic) v Wentworth (1988) 14 NSWLR 481 cited Director-General of Social Services v Chaney (1980) 31 ALR 571 cited Australian Postal Corporation v Matusko (unrep, Fed Court, Olney J, 14 May 1996) cited Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 cited Re Williams and Australian Electoral Commission (1995) 21 AAR 467 cited Cooper v Comcare [2001] FCA 1085 cited Cooper v Comcare (2002) 118 FCR 157 cited IAN DUNCAN v MR RD FAYLE, ADMINISTRATIVE APPEALS TRIBUNAL AND SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES W256 OF 2003 FRENCH J 4 JUNE 2004 PERTH