FEDERAL COURT OF AUSTRALIA SZDEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 748 PRACTICE AND PROCEDURE – Anshun estoppel – whether order final or interlocutory – whether leave to appeal is necessary PRACTICE AND PROCEDURE – leave to appeal – Anshun estoppel – delay – whether decision of Federal Magistrate attended by any real doubt – whether appropriate to grant leave to appeal MIGRATION – Anshun estoppel – whether grounds of appeal could have been relied on in earlier proceeding Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 417, s 476 Applicant S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 followed Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 cited Johnston v Cameron (2002) 124 FCR 160 referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited MZWHW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 466 not followed Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 applied Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 not followed Re Luck (2003) 203 ALR 1 applied Wride v Schulze [2004] FCAFC 216 referred to SZDEG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 296 of 2005 BRANSON J 9 JUNE 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 296 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDEG APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 9 JUNE 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The purported appeal be dismissed as incompetent. 2. The appellant pay the respondent's costs fixed in the sum of $1500. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 296 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDEG APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: BRANSON J DATE: 9 JUNE 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter a notice of appeal from a judgment of the Federal Magistrates Court delivered by Raphael FM on 11 February 2005 has been filed by the applicant before the Federal Magistrates Court. The reasons for judgment of Raphael FM reveal that his Honour dismissed the application before him because he considered that the principle of Anshun estoppel applied. The applicant before the Federal Magistrates Court, who for convenience I will refer to as 'the appellant', did not seek or obtain leave to appeal before the notice of appeal was filed. It is therefore necessary to determine whether the judgment of the Federal Magistrates Court is an interlocutory judgment within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). That section operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave to appeal. 2 The learned Federal Magistrate's reference to the principle of Anshun estoppel is to be understood as a reference to the principle invoked by the High Court in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 in upholding an order made by the Supreme Court of Victoria staying an action as an abuse of process. The stay order in question had been made on the ground that the claim sought to be advanced in the proceeding could and should have been raised in an earlier action. The High Court agreed that a party will be estopped from litigating a claim that it unreasonably refrained from raising in an earlier proceeding. 3 The respondent did not file a notice of objection to competency after being served with the notice of appeal in this matter. It appears that her legal advisors considered that the decision of the High Court in Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 ('Anshun No 1') covered the situation. In that case the High Court, constituted by Gibbs CJ, Mason and Murphy JJ, held that the order made by the Supreme Court of Victoria that was thereafter the subject of the appeal in Port of Melbourne Authority v Anshun Proprietary Limited was a final, and not an interlocutory, order because it finally disposed of the rights of the parties. 4 The decision of the High Court in Anshun No 1 is not easily reconciled with the later decision of the High Court in Re Luck (2003) 203 ALR 1. In Re Luck the High Court was again constituted by three judges only (McHugh ACJ, Gummow and Heydon JJ). Their Honours at [6]‑[9] observed: 'For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order. In 1956 in Hunt v Allied Bakeries Ltd, Lord Evershed MR said: After consulting with the Chief Registrar and looking at the case[s], and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions — either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action — have for a very long time been treated as interlocutory. The long line of cases to which Lord Evershed referred was confirmed in Tampion v Anderson, a decision of the judicial committee of the Privy Council on a petition for special leave to appeal against orders of the Supreme Court of Victoria. In Tampion, the judicial committee held that orders staying actions for defamation and misfeasance of office on the ground that they were frivolous, vexatious and an abuse of process were interlocutory orders. Lord Kilbrandon, giving the advice of the judicial committee, said that "a consistent line of authority" left "no doubt" that such orders were interlocutory. His Lordship said that the "matter is really put beyond doubt" by Hunt and cited the above statement of Lord Evershed. When Tampion was decided, the judicial committee of the Privy Council was the final court of appeal for Australia for matters such as those involved in that case. Consequently, the advice of the judicial committee in Tampion was binding on all Australian courts including this court. Privy Council decisions no longer bind this court. Moreover, no case in this court has expressly decided that interlocutory orders include an order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action. But a number of cases decided in this court before and after Tampion are consistent with the view that an order falling within any of these categories is an interlocutory order. In Pye v Renshaw, the court held that an order dismissing a suit if no amendment were made to the statement of claim within 21 days was an interlocutory order. In Hall v Nominal Defendant, the court held that an order refusing an extension of time in which to sue was an interlocutory order. Taylor J referred with evident approval to the rule, established in England, that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process or that it disclosed no cause of action was interlocutory in nature. In Carr v Finance Corp of Australia Ltd (No 1), the court held that an order of the Supreme Court of a state refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence was an interlocutory order. In Bienstein, the court found that orders made by a single justice (a) to dismiss an application to disqualify himself from hearing the application for removal, and (b) to remove particular causes pending in the Family Court into the High Court, were interlocutory orders. Given the long-established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.' (Citations omitted, emphasis added) 5 Their Honours made no reference in Re Luck to Anshun No 1. 6 It is not easy to identify a relevant distinction between an order staying a proceeding as an abuse of process because the matter in question could and should have been litigated in earlier proceedings (ie Anshun No 1) and an order dismissing a proceeding as an abuse of the process of the court or a frivolous or vexatious proceeding (ie Re Luck). 7 In Applicant S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 Selway J at [2] took the view that the decisions in Anshun No 1 and Re Luck are inconsistent. His Honour concluded that Re Luck should be followed as the later of the two decisions. By contrast in MZWHW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 466 Kenny J at [6] took the view that Anshun No 1 provides an authoritative answer to the question of whether an order dismissing a proceeding as an abuse of process because the applicant sought to raise in the proceeding a cause of action adjudicated upon in a previous proceeding is a final or an interlocutory order. 8 It does not appear that either the Full Court of this Court or the High Court has given express consideration to the present status of Anshun No 1. I am thus placed in the difficult position of deciding which of the above decisions of my colleagues I should follow. With some hesitation, and with great respect to Kenny J, I have concluded that the view adopted by Selway J is the preferable view. The unqualified nature of the statement in Re Luck at [9] which is highlighted in [4] above seems to me to carry considerable weight as it was made in a case decided after Anshun No 1. Additionally, I note that the Full Court in Wride v Schulze [2004] FCAFC 216 placed reliance on Re Luck at [9] and made no reference to Anshun No 1. 9 I conclude that the judgment of the Federal Magistrates Court in respect of which the notice of appeal was filed is an interlocutory judgment. As mentioned above, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave. 10 Nonetheless, as I observed in Johnston v Cameron (2002) 124 FCR 160 at [8], leave to appeal is more readily granted in a case in which an order, if allowed to stand, will have the practical effect of determining the applicant's entitlement to relief than in the case of an order concerning matters of practice and procedure. The judgment of the Federal Magistrates Court in this case dismissed the application to that court. If I thought that the judgment was attended by any real doubt I would be willing to give consideration to treating the notice of appeal as an application for leave to appeal duly made. I therefore turn to consider whether the decision of the Federal Magistrate is attended by any real doubt. 11 The decision of the Tribunal to which the judgment of the Federal Magistrates Court relates was a decision dated 1 February 2000. On 3 February 2000 the appellant applied to this Court for judicial review of that decision. The application for judicial review specified no grounds of review. Nonetheless Emmett J heard and determined the application. The grounds of review available to the appellant at that time were the grounds of review specified in s 476 of the Migration Act 1958 (Cth) ('the Act') as then in force. His Honour found that none of those grounds was available to the appellant. On 24 March 2000 Emmett J dismissed the appellant's application to this Court. 12 On 28 March 2000 the appellant filed a notice of appeal to the Full Court from the judgment of Emmett J. On 1 June 2000 the appellant discontinued his appeal to the Full Court. The explanation for the appellant having discontinued his appeal from the judgment of Emmett J may be assumed to lie in his having become a member of the class of plaintiffs in High Court proceeding S89 of 1999, Lie v Refugee Review Tribunal ('the Muin/Lie class action') on 3 May 2000. 13 On 1 April 2004 the appellant again applied for judicial review of the decision of the Tribunal dated 1 February 2000. On this occasion the application was made to the Federal Magistrates Court. The appellant's amended application to the Federal Magistrates Court identified four purported grounds of review of the decision of the Tribunal. It alleged that the decision of the Tribunal was affected by an error of law, that the appellant was denied natural justice, that the Tribunal did not take into account relevant considerations and that the Tribunal made its decision unreasonably. The particulars provided of each ground referred to the Tribunal's failure to address a claim made by the appellant based on membership of a particular social group, namely Nepalese landlords. The particulars also complained of the Tribunal's failure to address the appellant's claimed fear of persecution by the Maoists. Additionally, the particulars of the final ground alleged that the Tribunal did not use 'its discretionary power to find facts' and did not base its decision on logical grounds and the supporting material and evidence. 14 The complaints that the Tribunal did not use 'its discretionary power to find facts' and did not base its decision on logical grounds and the supporting material and evidence are, as best I can determine, complaints that the Tribunal did not recognise the merit of the appellant's claim to be entitled to a protection visa. These complaints need not be further considered. They do not constitute grounds for judicial review. 15 The complaint that the Tribunal did not address a claim made by the appellant that he had a well‑founded fear of persecution by reason of his membership of a particular social group finds only slight, if any, support in the evidence and material before the Tribunal. The appellant, in one paragraph of a statutory declaration made by him, described his father as, amongst other things, a landowner. He did not assert a fear of persecution for reason of being a landowner or a family member of a landowner. 16 The complaint that the Tribunal did not address the appellant's claimed fear of persecution by the Maoists is without substance. The Tribunal found that the appellant, who has been absent from Nepal since 1996, 'would not be of any particular adverse interest to the insurgent Maoists for his minimal political profile'. 17 Complaints that the Tribunal did not consider claims made by the appellant were open to be made in the appellant's application for judicial review heard and determined by Emmett J. Such complaints could have been relied upon in support of the grounds identified in s 476(1)(b), (c) and (e), namely that the Tribunal lacked jurisdiction, that its decision was not authorised by the Act and that its decision involved an error of law (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') per Gaudron J at [38] and McHugh, Gummow and Hayne JJ at [83]‑[84]). I reject the submission of the Minister that the appellant's complaints could have been raised under s 476(3)(e). This submission is based on a misreading of s 476(3). 18 I acknowledge, however, that the appellant's application to this Court for judicial review of the decision of the Tribunal was made before the publication of the decision of the High Court in Yusuf and at a time when the ambit of the grounds of review identified in s 476 of the Act was unclear. In the absence of other considerations, this might constitute a special circumstance sufficient to make it inappropriate to apply the principle referred to by the Federal Magistrate as Anshun estoppel. 19 In my view, there are other relevant circumstances in this case. First, as mentioned above, the appellant became a class member of the Muin/Lie class action. He did not file an application seeking an order nisi in respect of the decision of the Tribunal within the time limited by Gaudron J in her Honour's order of 25 November 2002 as extended by McHugh J on 23 May 2003. The appellant filed an application in the High Court seeking an order nisi in respect of the decision of the Tribunal approximately one month outside the time fixed by their Honours' orders. His application was remitted to this Court and came before Emmett J. On 9 February 2004 his Honour noted that the affidavit filed in support of the application disclosed no basis upon which any relief could be granted. His Honour refused the application for an order nisi. His Honour's decision did not of itself bar the appellant from making a fresh application for the issue of an order nisi. However, the appellant did not move promptly, or at all, to do so. 20 Rather, the appellant on 4 March 2004 made an application to the respondent under s 417 of the Act. I note that in a number of judgments of this Court an application under s 417 has been regarded as indicative of a decision to abandon any challenge to the decision of the Tribunal on legal grounds (see Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [14] and the cases there cited). 21 On 1 April 2004, and without waiting for his application under s 417 of the Act to be determined, the appellant made the application to the Federal Magistrates Court from which this appeal is brought. As at 1 April 2004 the decision of the Tribunal of which judicial review was sought was more than four years old. It appears that the application under s 417 was subsequently withdrawn. 22 Having regard to all of the factors identified above, and in particular the apparent lack of merit in the appellant's proposed appeal and the time that has passed since the decision of the Tribunal was made, I do not consider it appropriate to treat the notice of appeal as an application for leave to appeal duly made. In my view, the appellant's protracted efforts to challenge the decision of the Tribunal must be brought to an end. If I were to treat the notice of appeal as an application for leave to appeal I would refuse the application for leave to appeal. 23 The appropriate course, in my view, is simply to dismiss the purported appeal as incompetent. The appellant is to pay the respondent's costs fixed in the sum of $1500. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 9 June 2005 Counsel for the Appellant: The Appellant appeared in person Advocate for the Respondent: P Reynolds Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 May 2005 Date of Judgment: 9 June 2005