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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - notice of motion - notice of motion dismissed.

SZDXB v Minister for Immigration [2004] FMCA 770 (6 December 2004)

SZDXB v Minister for Immigration [2004] FMCA 770 (6 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDXB v MINISTER FOR IMMIGRATION
[2004] FMCA 770




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - notice of motion - notice of motion dismissed.




Migration Act 1958 (Cth), s.417

Judiciary Act 1903 (Cth), s.39B

Federal Magistrates Court Rules Part 13, Rule 13.10(c)

Ministerial Guidelines for Stay in Australia (MSI 225).

NAYF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 196 (10 February 2004)

Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340

NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366

SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255

Walton v Gardiner (1993) 177 CLR 378

Rogers v The Queen (1994) 181 CLR 251

Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314

Johnson v Gore Wood & Co [2002] 2 AC 1

SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589

Stuart v Sanderson (2000) 100 FCR 150

Re Ruddock; Ex parte LX [2003] FCA 561

Henderson v Henderson (1843) 3 Hare 100

National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld [2001] FCA 237

Hughes v Gales (1995) 14 WAR 434

Deangrove Pty Limited v Commonwealth Bank of Australia (2001) 37 ACSR 465

Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576

Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192

VQAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1541

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377

Re South American and Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 Isaacs v Ocean Accident and Guarantee Corporation Ltd [1957] 58 SR (NSW) 69

Makhoul v Barnes (1995) 60 FCR 572

Applicant:
SZDXB




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1909 of 2004




Delivered on:


6 December 2004




Delivered at:


Sydney




Hearing date:


12 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Counsel for the Applicant:


Mr B Zipser




Solicitors for the Respondent:


Ms A Gibson of Sparke Helmore




ORDERS

(1) The notice of motion dismissed.

(2) Costs of the hearing of 12 October 2004 are costs in the proceedings.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1909 of 2004

SZDXB



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. By a Notice of Motion filed on 27 September 2004, the Respondent moves the Court for orders that these proceedings be summarily dismissed. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 June 2004. The respondent tendered and applied for the following material to be admitted to evidence:

a) An affidavit of Catherine Jane Gray sworn on 27 September 2004 ("the affidavit of Ms Gray").

b) A Court Book prepared by the Solicitor for the respondent ("CB").

2. The applicant tendered and applied to have admitted into evidence the following:

a) An affidavit of the applicant (SZDXB) affirmed on 1 October 2004 and filed on 6 October 2004 ("applicant's affidavit").

Background

3. The applicant arrived in Australia on 20 January 2001: CB p.14. On 1 February 2001, the applicant applied for a protection (Class XA) visa: CB pp.1-23. On 28 February 2001, a delegate of the respondent ("the delegate") refused the application: CB pp.33-42.

4. On 26 March 2001 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision: CB pp.62-81. On 19 July 2002 the Tribunal issued a letter to the applicant inviting him to attend a hearing on 27 August 2002 which the applicant attended and gave evidence: CB p.56. On 10 October 2002 the Tribunal handed down a decision affirming the decision of the delegate to refuse to grant the applicant a protection visa: CB pp.61-82.

5. On 14 November 2002 the applicant's solicitor filed a draft order nisi and an accompanying affidavit in the Adelaide Office of the Registry of the High Court of Australia: Annexure A to the affidavit of Ms Gray. On 7 February 2003 these proceedings were remitted to the Federal Court of Australia: Annexure B to the affidavit of Ms Gray. On 26 May 2003, his Honour Justice von Doussa made orders regarding the future conduct of the proceedings at a directions hearing: Annexure C to the affidavit of Ms Gray. On 18 July 2003 his Honour Justice Selway dismissed the application as the applicant had failed to comply with the orders made on 26 May 2003 and ordered the applicant to pay the respondent's costs: Annexure D to the affidavit of Ms Gray.

Examination in chief and cross examination

6. The applicant was sworn and gave evidence with the assistance of an interpreter.

Submissions

7. Ms Gibson of Sparke Helmore appeared for the respondent and filed written submissions which addressed both the abuse of process and the doctrine of Anshun estoppel. It was submitted that the current proceedings are an abuse of process and ought to be dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules.

8. The respondent submitted that the applicant was legally represented at all relevant times in his previous proceedings before the High Court of Australia and the Federal Court of Australia. He had ample opportunity to bring forward any legitimate and bona fide claim and to inform the Court and the respondent of the nature and evidential basis for his claims, but did not do so: see generally, NAYF v Minister for Immigration & Multicultural & Indigenous Affairs. His former proceedings were dismissed as he failed to comply with the Court's orders. He has now filed an application seeking judicial review of the same Tribunal decision that was sought to be challenged in the previous proceedings.

9. It was submitted further that approximately fourteen months have elapsed since the orders of Selway J in the applicant's former proceedings in the Federal Court of Australia. It is open to the Court to infer that the applicant is now using the process of this Court to extend his presence in Australia, rather than for any legitimate purpose. This is an abuse of process: Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18]; NALE v Minister for Immigration & Multicultural & Indigenous Affairs.

10. In addition, it was submitted, the current proceedings suffer from the same vice as the application which was previously dismissed by his Honour Justice Selway. That is, it is devoid of particulars disclosing any substantial basis for the application. Accordingly, for this reason it is open to the Court to dismiss the application as an abuse of process: SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs ("SZBIC") at [21] per Moore J.

11. The respondent also submitted that it would be unjustifiably vexatious or oppressive to the respondent and would bring the administration of justice into disrepute to permit the applicant to now seek to litigate his case anew in the Federal Magistrates Court of Australia, when it has already been disposed of by earlier proceedings: SZBIC at [18]; Walton v Gardiner at 393; Rogers v The Queen at 255-256; Chu v Minister for Immigration & Ethnic Affairs at 323-326. There is an underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same matter: Johnson v Gore Wood & Co.

12. It was further submitted that the current application for judicial review pleads "error of law" and denial of procedural fairness (see Annexure E to the affidavit of Ms Gray), which also formed the substance of the applicant's claims made in the previous proceedings (see Annexure A to the affidavit of Ms Gray). No particulars, other than that the Tribunal relied on "old" and "out dated" information have been provided to support the bare allegations of the applicant. The proceedings, being groundless on their face, are an abuse of process: SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs at [29]-[30] per Madgwick J.

13. It was submitted that the doctrine of Anshun estoppel applies to these proceedings because the grounds upon which the applicant now seeks to rely could have been raised in the first proceeding: Port of Melbourne Authority v Anshun Pty Limited ("Anshun") at 597.

14. It was further submitted, since the additional claims also arise out of the same facts (i.e. the same Tribunal decision) that were the subject of previous proceedings it is appropriate to apply the principle of Anshun estoppel: See Stuart v Sanderson ("Stuart") per Madgwick J. The materials and arguments now sought to be relied upon to prove the applicant's claims were equally available to the lawyers who prepared the original application: Re Ruddock; Ex parte LX ("Ruddock").

15. The respondent also submitted that the applicant had also not offered any explanation for taking the delayed course of action, and that as such, Anshun estoppel should be applied to ensure the finality of proceedings and to prevent the applicant from gaining an advantage in the use of the Court's time: Stuart.

16. In the absence of special circumstances, the respondent submitted that the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the first proceedings: Henderson v Henderson ("Henderson") at [115] per Wigram VC. There is no material before the Court to suggest that special circumstances exist.

17. The applicant was represented by Mr B Zipser of Counsel. It was submitted that the decision of Selway J dated 18 July 2003 dismissing the applicant's application in the Federal Court was interlocutory. Counsel submitted that a reading of Anshun indicates that Anshun estoppel only applies where a party, having litigated an action (the first action) to final judgment, attempts to raise in a subsequent action a claim or pleading which could have been raised in the first action. Thus the High Court noted the principle stated in Henderson at 115 (see Anshun at 598):

"... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except in special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward ..." (emphasis added)

18. Counsel for the applicant submitted that in the present case, there was no adjudication or final judgment in the applicant's Federal Court proceedings. Hence Anshun estoppel does not apply.

19. To make the point clear, Counsel referred to the decision of Moore J in SZBIC at [21], noting it was a case on which the respondent relies:

"In my opinion, the Federal Magistrate was almost certainly wrong in concluding that, in the present circumstances, the appellant was precluded from prosecuting his application in the Federal Magistrates Court on the footing that any of res judicata, issue estoppel or Anshun estoppel arose."

20. Counsel submitted that the mere fact that an applicant, having had an action dismissed on an interlocutory basis, commences fresh proceedings does not involve an abuse of process. Counsel referred to three cases which, it was submitted, make this point clear.

a) Firstly, in National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) proceedings brought by the plaintiff had been stayed (presumably under Order 30 Rule 5 of the Federal Court Rules) on the ground that the plaintiffs had not prosecuted the proceedings with due diligence. The Full Court of the Federal Court considered the effect of the order staying the proceedings. The Full Court stated at [8]:

"An order dismissing or staying a proceeding for want of prosecution merely determines the question of whether the proceedings have been prosecuted with due diligence. Such an order involves no final determination of a matter in issue between the parties in the proceedings. There is nothing to prevent the appellants filing fresh proceedings in a Court of competent jurisdiction. The dismissal of an action for want of prosecution is not a bar to the commencement of a fresh action based on the same cause of action. Neither the dismissal for want of prosecution nor the expiration of an applicable limitation period would justify, for that reason alone, the dismissal or staying of any subsequent action as an abuse of process. The orders appealed from by the appellants were interlocutory orders." (emphasis added)

b) Secondly, in Hughes v Gales the Full Court of the Supreme Court of Western Australia stated at 437:

"An order dismissing an action for want of prosecution is interlocutory. In such a case the court merely determines the question whether the action has been prosecuted with due diligence. There is no judgment on the merits. When an action has been dismissed for want of prosecution, there is no reason why a fresh action should not be commenced, based on the same cause of action, provided the relevant limitation period has not expired ... The position is that the dismissal of an action for want to prosecution provides no bar to the commencement of a fresh action based upon the same cause of action." (emphasis added)

c) Thirdly, in Deangrove Pty Limited v Commonwealth Bank of Australia the applicants commenced proceedings in March 2000 against the respondent in the Federal Court alleging misleading conduct by the respondent with respect to certain matters. In June 2000 the proceedings were dismissed by virtue of the applicant's non-compliance with self-executing orders made by Hely J to file and serve a statement of claim. In October 2000 the applicants commenced fresh proceedings in the Federal Court. The respondent contended that the fresh proceedings constituted an abuse of process. Sackville J adopted the following approach:

i) The commencement of fresh proceedings founded on the same cause of action or seeking the same relief may constitute an abuse of process if the dismissal of the earlier proceedings was the product of contumacious behaviour by the applicant, that is behaviour which is "wilfully and obstinately disobedient to authority".

ii) However, if the dismissal of the earlier proceedings was not the product of contumacious behaviour by the applicant, the commencement of fresh proceedings will not constitute an abuse of process.

iii) In determining whether the dismissal of the earlier proceedings was the product of contumacious behaviour by the applicant, it is relevant for the applicant to explain its conduct in relation to why the earlier proceedings were dismissed.

d) In the case before Sackville J, the applicant's solicitor explained that he had been given oral advice by senior and junior counsel that the earlier proceedings were not properly constituted and should be allowed to be dismissed under the self-executing order made by Hely J. Sackville J concluded:

"... the failure to comply with Hely J's self-executing orders was not the product of contumacious ("wilfully and obstinately disobedient to authority") behaviour, but a decision based on counsel's advice that the proceedings should not be pursued ... ... in view of counsel's advice, it cannot be said that the failure to comply [with the orders made by Hely J] reflected wilful disobedience to the orders made by the Court."

21. Counsel for the applicant noted that the case of NAYF involved an application for summary dismissal on the ground that no reasonable cause of action was disclosed in the applicant's application. It was submitted that on this basis, the case is distinguishable. In any event, the applicant had prepared a proposed amended application which set out a cause of action.

22. Counsel for the applicant also submitted that the delay between the orders of Selway J in July 2003 and the applicant commencing fresh proceedings in the Federal Magistrates Court in June 2004 is not fourteen months, as relied upon by the respondent, but eleven months and an explanation of the delay is contained in paragraphs 12 to 14 of the applicant's affidavit. It was further submitted that at all times the respondent has been aware of the reason for the delay to the extent that it was comprised by an application to the Minister under s.417 of the Migration Act 1958.

23. It was submitted in respect of the respondent's submissions that Moore J stated:

"However, on a fair reading of the Federal Magistrate's reasons for judgment, his Honour almost certainly viewed the application before him as an abuse of process because it suffered from the same vice as the application which had been dismissed in this Court by Selway J. That is, it was an application for constitutional writs devoid of particulars disclosing any substantial basis for the prosecution of the application. It was open to the Federal Magistrate to form this view and dismiss the application on the ground that it was an abuse of process. While his Honour may have taken a different view given that the appellant was then unrepresented, he was not precluded from adopting the approach he did."

24. Counsel submitted that the applicant had now provided a proposed amended application and as such SZBIC is distinguishable.

Reasons

25. This matter has been in the Court system since 14 November 2002. The applicant's solicitor, Mr Mark Clisby filed the draft order nisi and accompanying affidavit in the High Court of Australia in respect of the Tribunal's decision handed down on 10 October 2002. On 7 February 2003 his Honour Justice Haynes made orders remitting the proceedings to the Federal Court of Australia. On 26 May 2003 his Honour Justice Von Doussa made orders regarding the future conduct of the proceedings. Within those orders the applicant was required to complete a number of procedural steps by 3 July 2003. Item 1(b) of those orders was that the applicant was to file and serve an amended application "specifying precisely the error or errors upon which the decision under review is challenged". On 18 July 2003 his Honour Justice Selway dismissed the application because the applicant had failed to file the relevant documents in accordance with orders made on 26 May 2003 by Von Doussa J. The application was dismissed with costs. Throughout these proceedings there was no substantive review of the Tribunal's decision. All of the proceedings had been interlocutory in nature.

26. During the period commencing 2001 up until the proceedings were removed from the Federal Court, the applicant was represented by a migration agent, a Mr Christopher Muthu, and from the time up until 14 November 2002, by a South Australian Barrister and Solicitor, Mr Mark Clisby. Some time after the matter was dismissed from the Federal Court, the applicant's arrangement with Mr Muthu and Mr Clisby was terminated. The applicant then sought the assistance of Mr Adrian Joel & Co, Solicitors and Consultants, to prepare and lodge a submission under the auspices of s.417 of the Act and the Ministerial Guidelines for Stay in Australia published in June 1999 (MSI 225). That application was dated 21 August 2003. In May 2004 Mr Joel advised the applicant that the application to the Minister had not been successful. On 22 June 2004 the applicant filed an application in the Federal Magistrates Court of Australia seeking a review of the Tribunal's decision on 10 October 2002 under s.39B of the Judiciary Act 1903.

27. I acknowledge that there is a considerable delay between the date of the Tribunal's decision in October 2002 and the filing of the application for review on 22 June 2004. During that time, however, except for brief periods, the applicant has been pursuing his cause either through the Courts or by direct application on his behalf to the Minister. The applicant has been receiving advice from a number of sources and, it would appear, of varying standards. Some of the documentation would appear to have been prepared by the applicant himself and others have been prepared by people with some legal training. Some documentation is hand written and others are typed and set out in a formal nature. I cannot readily discern a period in which the applicant has appeared not to have been pursuing his cause in some way to stay in Australia. Obviously during this time there have been some periods of no action whilst the applicant has been waiting for matters to be attended by the Court or the Minister to respond to an application made on his behalf. I cannot readily identify a period in which the matter has been left idle by the applicant.

28. Dealing first with the issue of whether an applicant's application to the Minister pursuant to s.417 of the Act is an adequate reason for any delay in proceedings, the respondent referred me to Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs ("Applicant M29 of 2002") per Weinberg J at [10]:

"The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. The applicants also claimed financial hardship, but put forward little material in support of that claim."

29. Then at [12]:

"In my view, the delay has not been adequately explained, I agree entirely with the comments of von Doussa J regarding the very same issue in Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs."

30. In the present case there was a delay of sixteen months between the Tribunal's decision and the applicant's application to the High Court. The comments of von Doussa J in Applicant A2 of 2002 refer to an attempt by an applicant to explain his delay in commencing proceedings pursuant to s.417 of the Act: Applicant A2 of 2002 per von Doussa J at [9]:

There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s.417. The application under s.417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.

31. Similar comments were made in Ruddock per Hely J at [42]:

"The critical delay was caused while they waited for the outcome of the s.417 application. As a matter of law there was no reason why that should have held up the filing of the application in the High Court. The terms of s.417 itself, including the provisions that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such an application where other avenues of possible relief are available as of right."

32. The delay that occurred in the present case during the period between the applicant making a s.417 request and awaiting the outcome of that request was for a period from 21 August 2003 until 5 May 2004; a period of approximately nine months.

33. The contention of the applicant is that the circumstances of this case can be distinguished from each of the decisions relied upon by the respondent. In Applicant M29 of 2001 the applicant made an application to the High Court for an order nisi after his substantive hearing in the Federal Court had been dismissed. The applicant had applied to the High Court which had then ordered that the application be remitted to the Federal Court but had failed to meet the time limits set by the High Court Rules: (O55 rr 17, 30).

34. Similarly in the matter of Ruddock, the matter came before the Federal Court by way of remitter from the High Court. The applicant had already run proceedings in the Federal Court before commencing the action in the High Court and these proceedings were dismissed by consent. His Honour Heery J accepted the proposition that orders by consent equally gave rise to pleas of res judicata and issue estoppel: Ruddock J at [48]:

"The application of these doctrines in the context of judicial review is the subject of comprehensive discussion and analysis by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677. I adopt his Honour's analysis. I note in particular his Honour's conclusions, well supported by authority, that the doctrines of res judicata and issue estoppel apply to applications for judicial review (at [43]), that orders by consent equally give rise to such pleas (at [35]), and that the question whether there is identity between the earlier cause of action and the ones raised in the proceeding said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded (at [52])."

35. The applicant contended that the matter before this Court is best distinguishable from Somanader v Minister for Immigration & Multicultural Affairs ("Somanader") on the basis that Somanader, prior to commencing his second set of proceedings, agreed by consent that his first set of proceedings be dismissed.

36. In the matter of VQAN v Minister for Immigration & Multicultural & Indigenous Affairs ("VQAN") a decision of the Tribunal made on 7 January 2002 was subject to an application for review commenced in the Federal Court on 4 June 2002, being two and a half years after the Tribunal's decision was handed down. Some of the intervening period was taken up by a s.417 application. On 18 July 2002, Goldberg J dismissed the application on a technical ground and upholding an objection to competency. The applicant then waited another year until 2 July 2003 before commencing proceedings, again in the Federal Court. In VQAN there was a three year delay between the time of the Tribunal's decision in January 2000 and the applicant applying for the second time in the Federal Court in July 2003, a three and a half year delay. Heerey J at [15] make the finding that no satisfactory explanation had been proffered for the long delay. In VQAN the case was a substantive final hearing but because of the length of the applicant's delay the Court, without looking at the substantive issues in the matter, exercised its discretion to refuse the application because of that delay.

37. The line of authority for that principle was recently summarised by the High Court in the decision of Re Refugee Review Tribunal; Ex parte Aala where the High Court confirmed the proposition that has been recognised before, that in relation to the prerogative writs, even if the grounds exercised in the writs are made out, a Court has a discretion to refuse to grant relief. One of those reasons is if the applicant had delayed in replying to the Court.

38. The respondent also pleaded in the Notice of Motion Anshun estoppel. Counsel for the applicant submitted that Anshun estoppel does not apply in circumstances where there has been no final adjudication of a case. It was the respondent's submission that the Anshun principle is a hybrid principle of estoppel formulated by the High Court in the case of Anshun, and based on the English principle that was expounded in the case of Henderson. It was submitted the English principle was clearly founded on the notion of abuse of process and that the Courts have an inherent power to prevent the misuse and abuse of the Court processes.

39. In support of the contention that Anshun estoppel applies here, I was taken by Ms Gibson to the decision of SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs where her Honour Barnes FM notes that consideration of a principle relating to res judicata and Anshun estoppel are of assistance in determining whether or not a subsequent application is an abuse of process. At [13]:

"The Court may, in an appropriate case, prevent a party from re-litigating issues which have been decided against that party or decided involving that party in other proceedings whether or not such litigation is precluded by the rules relating to estoppel by judgment, as an abuse of process. However the principles relating to res judicata and issue estoppel are of assistance in determining whether or not the subsequent action is an abuse of process (see Wilcox J in R v Balfour; Ex parte Parks Rural Distribution Pty Limited (1987) 17 FCR at 26 in which it was suggested that the principle of estoppel could be applied to preclude the bringing of an action, which if it succeeded, would result in a judgment which conflicted with an earlier judgment and also see generally in relation to abuse of process in such texts as South Australian Housing Trust v South Australian State Government Insurance Commission (1989) 51 SASR 1).

40. In support of this argument I was also referred by Ms Gibson to the case of Stuart v Sanderson per Madgwick J at [33], where a principle in the context of Anshun estoppel was discussed:

"It is a particular application of a general rule of public policy that there should be finality in litigation."

41. Counsel for the applicant drew the distinction on the operation of res judicata, issue estoppel and Anshun estoppel as only applying where there has been a final judgment after a contested hearing. The authority to support that argument commenced with the Federal Court decision of SZBIC per Moore J at [8] where his Honour gives a brief procedural history:

In the proceedings commenced in the High Court on 13 December 2002, the appellant sought writs of prohibition, certiorari and mandamus, as well as an injunction on the grounds that there had been a breach of the rules of natural justice, that the decision of the Tribunal involved an error of law, that the procedures required by law to be observed were not observed, that the Tribunal's decision was an improper exercise of power conferred upon it, that there was no evidence or other material to justify the making of the decision and that the decision was otherwise contrary to law. As noted earlier, the matter arising from that application, was remitted to the Federal Court which resulted in Selway J dismissing the application for non compliance with procedural orders. This occurred before any final hearing of the application for constitutional writs."

42. And at [20] where his Honour addresses the issue of estoppel:

"In my opinion, the Federal Magistrate was almost certainly wrong in concluding that, in the present circumstances, the appellant was precluded from prosecuting his application in the Federal Magistrates Court on the footing that any of res judicata, issue estoppel or Anshun estoppel arose. The Federal Magistrate was also probably wrong if he viewed the application of the appellant as an abuse of process simply because the appellant commenced in the Federal Magistrates Court, proceedings of substantially the same character as those commenced in the High Court and remitted to this Court and summarily dismissed by this Court (because the appellant had not complied with procedural directions and orders)."

43. The second case that supports this contention is that of Somanader per Merkel J commencing at [35]:

"[35] The remaining issue is whether the dismissal orders dismissing the applicants proceeding under Pt 8 of t he Act have disentitled the applicants to the relief they now seek by reason of res judicata or issue estoppel.

[36] It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata (3rd ed, 1996) at [38]-[40].

[37] In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 ("Chamberlain") at 508, Deane, Toohey and Gaudron JJ stated:

"The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date... [b]ut the principle of res judicata holds good in such a case."

[38] The position is the same with issue estoppel. The fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it, but the issue estoppel operates only as to those matters which were necessarily decided by it."

44. His Honour then refers to three decisions in support of his position, namely: Re South American and Mexican Co; Ex parte Bank of England at 45; Isaacs v Ocean Accident and Guarantee Corporation Ltd at 75; Makhoul v Barnes at 582: Somanader at [39]-[41].

45. His Honour continues at [42]:

"The Minister relied on the doctrine of res judicata as a ground for the Court to dismiss the present proceedings. If res judicata is found not to apply, the Minister relied on issue estoppel as an alternative to dismiss the proceedings. The Minister also submitted that if the Court found that res judicata and issue estoppel had no application, the Court should dismiss the matter on the basis of Anshun estoppel. "

46. Counsel for the applicant in his oral submissions also raised the line of authority which I have set out in paragraph 20 above.

Conclusion

47. I acknowledge that there has been a delay in the applicant pursuing the appropriate course to have the Tribunal's decision reviewed and this delay amounted to a period of approximately nine months. However, during this period he was pursuing a review of his decision under the auspices of s.417 of the Act and the Ministerial Guidelines for Stay in Australia. Regretfully the applicant appears to have received conflicting and confusing advice on the appropriate course of action that he should be pursuing.

48. One of the views that I have formed, as a result of the able cross examination of the applicant by Ms Gibson for the respondent, was that the advice the applicant received from various independent advisers reflected on them very poorly and it appeared to leave the applicant confused as to the appropriate course he should be following. From an examination on the written material before me and the submissions from Counsel there was no period of time in which the applicant was not pursuing a remedy although at times this was misdirected, misguided and incorrect. However, I do not believe he should be denied the opportunity to have the merits of his application denied by the principle of res judicata or Anshun estoppel. I believe that the fairest course for me to adopt is to set the matter down for final hearing at the earliest possible date.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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