Case: Edelsten v Minister of Health (1994) 58 FCR 419
Outcome: discussed
By notice of motion, the Authority applied for orders dismissing the application on the basis that it disclosed no reasonable cause of action or alternatively on the basis that it should be dismissed pursuant to s 10(2)(b)(ii) of the ADJR Act. The first ground was not pursued. Section 10(2)(b)(ii) provides that the Court may refuse an application for judicial review on the ground that adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek a review of the relevant decision. Order 54 r 7 of the Federal Court Rules requires that a party who seeks to have an application for review dismissed on the ground set out in s 10(2)(b)(ii) or in the exercise of the Court's discretion must apply promptly for such dismissal. This rule is designed to avoid the necessity for a court to consider the whole of the applicant's case where, even if otherwise the applicant would succeed, it is clear that no order would be made in favour of the applicant: Edelsten v Minister of Health (1994) 58 FCR 419 at 422. 71 McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.