FEDERAL COURT OF AUSTRALIA Applicant A210 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579 APPLICANT A210 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N495 of 2004 JACOBSON J SYDNEY 5 MAY 2004 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No N495 of 2004 BETWEEN: APPLICANT A210 of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 5 MAY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. That the motion filed on 8 April 2004 be dismissed. 2. The applicant pay the respondent's costs of the motion as taxed or assessed or as agreed between the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No N495 of 2004 BETWEEN: APPLICANT A210 of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE: 5 MAY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is a motion for an extension of time under O 52 r 10(2)(b) to file an application for leave to appeal against the judgment of Whitlam J given on 19 March 2004. The motion was filed on 8 April 2004. 2 When the matter was called on for hearing this morning, the applicant did not appear. I stood the matter down from 10.15 to 10.30 am in case the applicant was unavoidably delayed but the applicant failed to appear when I resumed the hearing. I am satisfied that the applicant was notified of today's hearing. The court file contains a copy of a notice of listing dated 27 April 2004 which was sent to the applicant at the postal address stated in the Notice of Motion. Moreover, the notice of listing refers to a telephone conversation of 27 April 2004 in which the applicant was notified that the motion had been listed for hearing before me this morning at 10.15 am. 3 The Minister asked me to deal with the matter under O 32 r 2(1)(d), that is to proceed with the matter and I propose to deal with it in the absence of the applicant in accordance with O 32 r 2. 4 Whitlam J ordered that the proceedings be dismissed pursuant to O 20 r 2(1)(c) of the Federal Court Rules. His Honour made the order on the ground that the proceedings were barred by an "Anshun estoppel". 5 There is authority for the proposition that the dismissal of a motion as an abuse of process does not in a legal sense determine the rights of the parties and is interlocutory; see Wilson v Official Trustee in Bankruptcy [2000] FCA 304. However, even if his Honour's judgment is a final judgment within the test referred to by the High Court in Carr v Finance Corporation of Australia (1981) 147 CLR 246 and Computer Edge Pty Limited v Apple Computer Inc (1984) 54 ALR 767, the applicant is now out of time to appeal and leave to appeal is required. 6 These proceedings were remitted to the Federal Court from the High Court of Australia. The applicant sought an order nisi for the issue of constitutional writs under s 75(v) of the Constitution. He claimed that he had been denied procedural fairness by reason of the failure of the Refugee Review Tribunal ("the RRT") to give him an opportunity to respond to certain adverse country information. 7 However, in earlier proceedings under s 39B of the Judiciary Act 1903 (Cth), the applicant sought judicial review of the decision of the RRT on the ground that the decision was affected by bias and therefore fell within the proviso to the "Hickman principle". The application for review was dismissed by Federal Magistrate Raphael: see NALE v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FMCA 170. 8 Whitlam J was of the view at [5] that the reasons for judgment in the Federal Magistrates' Court showed that the particulars of the amended grounds in the current proceeding sought to agitate the same kind of matters as were relied on in the earlier proceedings. His Honour said at [5] that it was unreasonable for the applicant not to raise the issue of procedural fairness in the earlier proceedings and he was therefore estopped under the principle stated in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. 9 His Honour also said at [5]: "It is true that important High Court decisions on natural justice were handed down shortly before the judgment in the Federal Magistrates Court and have been handed down since that time, but such circumstances do not permit the applicant to rerun under that rubric what is in substance the same case as the one he has already lost." 10 It is well established that the Anshun principle applies to successive proceedings in which an applicant seeks judicial review of an administrative decision: see S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 at [23] (Allsop J); Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 28 at [15] (Finn, Emmett, Selway JJ); BC v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 60 ("BC") at [24] (Sackville J). 11 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 ("Wong") at [49], Lindgren J said that the Anshun principle applies to every point which properly belonged to the subject of the earlier litigation, which the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceedings. His Honour said that the principle as identified in Anshun that an estoppel arises where the matter relied on in the second action was "…so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it". That is a quote from the judgment of Gibbs CJ, Mason and Aiken JJ in Anshun at 602. 12 However, as Sackville J said in BC at [26]: "The authorities emphasise that the Anshun principle, since it shuts out a litigant from pursuing a cause of action, should be applied only after a 'scrupulous examination of all the circumstances." 13 The Anshun principle is, as Sackville J said, subject to a special circumstances exception; see also Wong at [49]. 14 It seems to me that the claim of a denial of procedural fairness was plainly relevant to the proceedings before the learned Federal Magistrate within the Anshun principle. It is true that the question of whether the decision of the RRT was affected by bias raises an issue on which an applicant bears a heavy onus. Indeed, the onus is far higher than a claim for denial of procedural fairness. Nevertheless, if the applicant had a claim that he was denied natural justice, it would have been an element of the claim which he could with reasonable diligence have put forward as part of the allegation of bias and it ought therefore properly to have been made in the earlier proceedings. 15 Although the decision of the High Court in Plaintiff S157 was not handed down until after the decision of the Federal Magistrate, I do not consider that this constitutes special circumstances which would enliven a discretion to refrain from the application of an Anshun estoppel. 16 It was perfectly open to the applicant to raise the claim of denial of procedural fairness before the Federal Magistrate notwithstanding that on the then current state of the authorities in this court the claim, if made as a discrete claim of denial of procedural fairness, would have failed. It was a claim which could either have been put forward as an element of the allegation of bias or alternatively it was a claim which could have been brought and pursued upon the basis that it would have failed at first instance but may have succeeded in the event, as was eventually the case, that a favourable decision of the High Court was given on the issue. 17 It follows in my view that whether or not the judgment of Whitlam J was interlocutory I would not extend time under the rules because an application for leave to appeal would fail. 18 The orders I will make are that the motion filed on 8 April 2004 be dismissed and I order the applicant to pay the respondent's costs of the motion as taxed or assessed or as agreed between the parties. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 5 May 2004 Solicitor for the Respondent: Sparke Helmore (A Houlton) Date of Hearing: 5 May 2004 Date of Judgment: 5 May 2004