DTW16 & Ors v Minister for Immigration & Anor (No.2)
[2019] FCCA 2212
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTW16 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 2212 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – applicants applied for reinstatement based on a claim of fraud under Rule 16.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth) of an earlier reinstatement application which they had agreed should be dismissed – earlier reinstatement application had sought reinstatement of their substantive application for judicial relief to this Court which had been dismissed for their non-appearance at the scheduled final hearing with respect to a decision of the Administrative Appeals Tribunal refusing them Protection visas – no proper allegation or pleading of fraud and no fraud established – application for reinstatement dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 Harris v Caladine (1991) 172 CLR 84 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No.5) [2010] FCA 1204 |
| First Applicant: | DTW16 |
| Second Applicant: | DTV16 |
| Third Applicant: | DTX16 |
| Fourth Applicant: | DTY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3486 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 31 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr R. Turner |
| Solicitors for the Applicants: | Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Ms K. Hooper of Counsel |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application in a Case filed in this Court on 13 May 2019 is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs of the Application in a Case as agreed or assessed.
Pursuant to Rule 35.13(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 28 August 2019 to apply for leave to appeal to the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3486 of 2016
| DTW16 |
First Applicant
DTV16
Second Applicant
DTX16
Third Applicant
DTY16
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction & Background
The First Applicant is a female citizen of Tuvalu aged 42 years, having been born on 21 May 1977, and the wife of the Second Applicant.
The Second Applicant is a male citizen of Samoa aged 44 years, having been born on 19 June 1975, and the husband of the First Applicant.
The Third Applicant is a female citizen of Samoa now aged 18 years, having been born on 3 January 2001, and is the daughter of the First and Second Applicants.
The Fourth Applicant is a male citizen of Samoa aged 14 years, having been born on 8 March 2005, and is the son of the First and Second Applicants.
By Application filed in this Court on 8 December 2016 (substantive Application), the Applicants had originally sought:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 644 days outside of the time limit prescribed by s.477(1) for them to make their substantive Application under s.476(1); and
b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 January 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 15 August 2013 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visas).
The First Applicant arrived in Australia on 1 March 2009 on a Student (Class TU) (Subclass 576) visa (Student visa) as a dependant applicant. The Student visa had been granted to the Second Applicant as primary applicant and it expired on 30 July 2013.
The Second Applicant had most recently arrived in Australia on 27 March 2011, having previously travelled to Australia on six occasions. He held the Student visa to undertake studies for a PhD at the University of Queensland.
The Third and Fourth Applicants, who are the children of the First and Second Applicants, arrived in Australia on 1 March 2009 on the Student visa of the Second Applicant as dependant family members.
The Applicants applied for Protection visas on 23 October 2012 with the First Applicant being the primary applicant and the Second to Fourth Applicants applying as secondary dependant members of her family unit, relying on the First Applicant’s claims for protection and making none in their own right.
The First Applicant is an educated woman. In her Protection visa application form she claimed that she had attended Tuvalu Secondary School in Fiji and attended the University of the South Pacific in Samoa, and that she has attained a Diploma in Tropical Agriculture in 2000, a Bachelor of Agriculture in 2006 and a Post-Graduate Diploma in Agriculture in 2007.
The First Applicant has worked as a crops physiologist and quarantine officer in Samoa and has worked in Australia as a quality control team leader and quality assurance officer in Queensland. In Samoa between 2001 and 2009 she had been employed by the Samoan Ministry of Agriculture and Fisheries. She speaks, reads and writes the English language and at no time has requested or required an interpreter at the various stages of the processing of her application for the Protection visa, including in this Court.
Procedural History in this Court
The first return date for the substantive Application was 6 October 2017, when the First Applicant was in attendance and the substantive Application was set down for final hearing at 10:15am on 19 February 2019, to which hearing date the First Applicant agreed.
By a letter dated 11 February 2019, the solicitors for the Minister sent by email to the Applicants’ nominated email address the Minister’s Written Outline of Submissions for the final hearing scheduled for 19 February 2019, and which letter specifically advised as follows:
We note that this matter is listed before the Court in Court 9.2 at 80 William Street, Sydney on 19 February 2019 at 10.15am. If you do not appear on that occasion the Minister may apply to have the matter dismissed for non-appearance under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) with costs.
The Applicants did not appear at the hearing on 19 February 2019 and I dismissed the substantive Application at the Minister’s request, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) because the Applicants were absent parties, with the First and Second Applicants being ordered to pay costs in the amount of $5,600.
On 7 March 2019 the First Applicant filed an Application in a Case seeking reinstatement of the substantive Application, which I understood at the time and took to be an application to reinstate on behalf of all of the Applicants (first Application in a Case). The first Application in a Case was supported by the First Applicant’s affidavit of 7 March 2019, which simply stated at [1]:
[1] I have inadvertently not attended my last hearing and wish to reinstate my case at Federal Circuit Court.
By email of 17 April 2019 the parties were advised by my Associate that the hearing of the first Application in a Case would take place on 24 April 2019 at 9:30am. At the hearing on 24 April 2019 the First and Third Applicants appeared on behalf of the Second and Fourth Applicants and themselves, and Ms Juarez appeared for the Minister.
The circumstances of that hearing are set out in my Reasons for Judgment dated 24 April 2019, bearing medium neutral citation [2019] FCCA 1185, which it is convenient to reproduce as part of this judgment, as follows:
REASONS FOR JUDGMENT
[1] The matter before me this morning is an Application in a Case filed by the Applicants which seeks reinstatement of the original Application filed in this Court on 8 December 2016, which had been dismissed by me for absence of appearance on 19 February 2019. This morning, my Deputy Associate reported to me that the First Applicant, who was the primary applicant for the Protection visa, had indicated to him in Court before I took the Bench that she wished to withdraw the Application in a Case. When the matter was called on I noted to the First Applicant and the Third Applicant, who also appeared and who is now an adult, that the Second Applicant, the husband of the First Applicant, had not appeared but the First Applicant informed me that he was busy working and was unable to be here this morning but that she appeared on his behalf.
[2] Ms Juarez, who appeared for the Minister, then advised that on the way to Court she had received an email from a solicitor, being Ms Elena Su, who is not on the record for the Applicants, but indicates in that email to Ms Juarez at 9:20am this morning that the First Applicant had instructed her that she would be attending the Court in person this morning to withdraw her current Application in a Case. The First and Third Applicant have now informed me that such is their wish, that is, that the Application in a Case be withdrawn, and the First Applicant has indicated that she asks for it to be withdrawn also on behalf of her husband, the Second Applicant, and I note that the Fourth Applicant is a minor. The First Applicant indicates that she also seeks to withdraw the current Application in a Case on the Fourth Applicant’s behalf. In that situation, there is no need to say anything else and accordingly, on the advice from the Applicants that they wish to withdraw their Application in a Case, filed with this Court on 7 March 2019 and which I had by administrative order set down for hearing today, and at their request that the Application in a Case be withdrawn, I hereby dismiss it.
The order I made dismissing the first Application in a Case is to be viewed as finally disposing of that particular application and, in substance, was a consent order. As such, it is to be regarded as a judicial determination of the issues raised by the first Application in a Case: see Brennan J in Harris v Caladine (1991) 172 CLR 84 at 101.
Further Application for Reinstatement
By Application in a Case filed on 13 May 2019 (present Application in a Case) the First Applicant sought reinstatement of the first Application in a Case filed on 7 March 2019 on the particularised ground that:
All proceedings before the Court in this matter have been affected by fraud on the Applicants and the Court, leading to a miscarriage of justice.
The present Application in a Case was signed by Mr Turner, as lawyer for the First Applicant, and was supported by the First Applicant’s affidavit affirmed on 9 May 2019 which in substance stated that:
a) one Mr Eddy Kang (Mr Kang) told her on 18 February 2019 that she did not need to attend the final hearing of her substantive Application scheduled for 19 February 2019 and that she could leave the matter in his hands;
b) on 7 March 2019 Mr Kang told her that she should go to the Court’s Registry and seek to reinstate the substantive Application; and
c)on 11 April 2019 the First Applicant contacted lawyers then known as Agape Immigration Pty Ltd (or alternatively as Agape Henry Crux) (Agape) which gave her a letter of advice on 23 April 2019 in relation to the first Application in a Case and the substantive Application. Then on the morning of 24 April 2019 Ms Elena Su (Ms Su), a solicitor at Agape, told her that she should withdraw her first Application in a Case “as the prospect of success is small”.
The First Applicant further said at [14] and [15] of her aforementioned affidavit as follows:
[14] My daughter and I entered into the courtroom for the hearing, unbeknownst to us the consequences of what I was going to do, that is to withdraw my case.
[15] As I did not fully comprehend what was happening and the reasons to withdraw my case, I made an uninformed decision with a paralysed state of mind and followed through with their advice even though I wanted to proceed with my hearing.
Consideration
Having considered the present Application in a Case and the First Applicant’s affidavit of 9 May 2019 in Chambers I directed that the present Application in a Case be set down for first directions on 14 May 2019 when I asked Mr Turner to identify the alleged fraudsters of whom the Applicants made complaint, and he identified Mr Kang, Ms Su and Agape.
Due to my concern at the seriousness of a charge of fraud, and even more particularly to a charge of fraud against lawyers, and to enable me to come to a view about the proper procedure to be followed, having regard to the well-settled area of law in this regard as recently summarised by the High Court of Australia in Clone Pty Ltd v Players Pty Ltd (2018) 353 ALR 24 (Clone) at 31 – 32 [32] to the effect that generally a new proceeding is appropriate in this context, I ordered that Points of Claim be filed and served. I further advised Mr Turner in the following terms, recorded at TP5:39 – 44 of the transcript of 14 May 2019:
His Honour: Can I point out to you and give you a reference. Fraud needs to be pleaded with particulars, and all the matters, facts and circumstances have to be set out. And they have to be shown, those matters, facts and circumstances, not to be consistent with mere negligence, and all this - how it’s pleaded is set out by Lord Millett, M‑i‑l‑l‑e‑t‑t, in the case - well-known case of Three Rivers (2003) 2 AC, page 1. In paragraphs 183 to 186, he sets out how fraud should be pleaded.
Ultimately, Points of Claim were filed on 28 May 2019 (Points of Claim) and were succeeded by Amended Points of Claim filed on 7 June 2019 (Amended Points of Claim). In neither of those documents, apart from “a bare and unparticularized assertion” of fraud in [1] (see: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 287 per Mason CJ and Gaudron J), was there any reference to or use of words such as “deceit”, “dishonesty”, “wrongful” or “misleading” and, otherwise, no proper pleading at all of a case of fraud. Neither the Points of Claim nor the Amended Points of Claim came anywhere near pleading fraud in accordance with the statement of Lord Millett in the well-known case of Three Rivers District Council v Bank of England(No.3) [2003] 2 AC 1, where at 291 – 292 [183] – [186] he said as follows:
[183] Having read and re-read the pleadings, I remain of opinion that they are demurrable and could be struck out on this ground. The rules which govern both pleading and proving a case of fraud are very strict. In Jonesco v Beard [1930] AC 298 Lord Buckmaster, with whom the other members of the House concurred, said, at p 300:
“It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires”.
[184] It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake, 7th ed (1952), p 644; Davy v Garrett (1878) 7 Ch D 473, 489; Bullivant v Attorney General for Victoria [1901] AC 196; Armitage v Nurse [1998] Ch 241, 256. This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.
[185] It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”. Such language is equivocal. A similar requirement applies, in my opinion, in a case like the present, but the requirement is satisfied by the present pleadings. It is perfectly clear that the depositors are alleging an intentional tort.
[186] The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
These observations of Lord Millett have previously been cited with approval by Australian Courts, with Flick J saying in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No.5) [2010] FCA 1204 at [38] as follows:
[38] And the importance of properly pleading a case involving an allegation of dishonesty, and the fact that such matters are not matters of mere pleading but matters of substance, was also adverted to by Lord Millett in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 (Three Rivers) at 291 where it was said:
[184]It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: … This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.
Thereafter it was further said at 291–292:
[186]The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
The observations of Lord Millett (at [186]) have previously been cited with approval: Pharm-a-Care (No 3), above, at [69]. Emphasis was thus rightly placed by the Respondents on those observations that stressed the need for particulars to be provided which are not merely consistent with honesty.
Finally, in Clone at 41 [62] the High Court said in this context that a Court’s power to set aside perfected orders of a Court requires:
[62] …pleading, and proof, of actual fraud… Fraud needs to be clearly pleaded and proved.
Accordingly, at the next directions hearing on 21 June 2019 I struck out the Amended Points of Claim of my own motion and set the present Application in a Case down for hearing on 31 July 2019 at 2:00pm, because I was of the view that in the circumstances I should exercise my discretion to deal with the present Application in a Case in this proceeding, rather than requiring a new, separate independent proceeding to be commenced: see generally the decision of McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 and Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555.
I also took the opportunity on 21 June 2019 to apprise Mr Turner, who in fact was not then aware of it, of the First Applicant’s affidavit of 7 March 2019 in support of the first Application in a Case where her non-appearance at the final hearing on 19 February 2019 was blamed on inadvertence (see [15] above).
The source of this Court’s power to set aside a judgment or order for fraud is r.16.05(2)(b) of the Rules, which states as follows:
16.05Setting aside or varying judgments or orders
…
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
(emphasis added)
In my view, consistent with the decision of the High Court in Clone, the express power given to the Court by r.16.05(2)(b) of the Rules requires an allegation and proof of actual fraud. Here there is no pleading or proof of fraud brought in support of the present Application in a Case, and that means that it must be dismissed: see Clone at 25 [3].
Further, no allegation of fraud is made against the Minister, nor is there any suggestion of wrongdoing by or for the Minister, and in my view that also would mean that the present Application in a Case ought to be dismissed.
At the hearing of the present Application in a Case Mr Turner did not read or rely upon the affidavit of the First Applicant of 9 May 2019, but rather on her amplified affidavit of 26 June 2019, where she sets out a fuller version of her complaints against Mr Kang, Ms Su and Agape. The First Applicant was cross-examined and I have to say with regret that I was unimpressed by both her demeanour under cross-examination and the substance of her evidence. In essence, with respect to Mr Kang her case is that she was prepared, being a woman of intelligence and ability, to swear an affidavit, being the affidavit of 7 March 2019, which gave to the Court in support of the first Application in a Case a false reason as the basis for reinstating the substantive Application, which had been dismissed for non-appearance on 19 February 2019.
In her affidavit of 7 March 2019 the First Applicant was prepared to say to this Court and to a judge of this Court that she had simply, in effect, forgotten to attend the Court on 19 February 2019. That is how I understand the reference to inadvertence. Now she says to the Court that this was not the case, but rather that she had been told by Mr Kang not to attend the hearing and to leave the matter in his hands. In explanation of her earlier affidavit of 7 March 2019, which I had raised with Mr Turner as I have stated above at [28], at [6] of her affidavit of 26 June 2019 she blamed Mr Kang, asserting that he advised her that such an affidavit was required to get her case reinstated. In other words, her case today is that she took his advice to lie to this Court in order to get her case reinstated.
In my view, before me today in the witness box the First Applicant has sought by her demeanour and in her substantive answers to portray herself as some sort of innocent abroad, but I reject any such suggestion. I do not accept that the First Applicant has established that Mr Kang was fraudulent vis a vis either herself, the Minister or the Court. I am of the view that she is a woman who would be well capable of saying to Mr Kang that she would not lie to the Court and of not following his advice to lie to the Court. I reject her evidence that the affidavit of 7 March 2019 was sworn, relied upon and filed by her because Mr Kang told her to do so and I reject her claim that Mr Kang told her on the night of 18 February 2019 not to attend the final hearing of 19 February 2019 and to leave the matter in his hands. In my view it is a lot more likely that in her affidavit of 7 March 2019 deposing to inadvertence the First Applicant was telling the truth of her own volition, and not under the advice or influence of any other person.
In relation to Agape, the First Applicant again seeks to portray herself as some sort of helpless individual who just blindly followed not only the advice of Mr Kang, but also the advice of Agape. I find that no fraud has been proved against Ms Su or Agape, nor has it been established to my satisfaction that they have been guilty of any wrongdoing. The evidence which has been led indicates, and this was admitted by the First Applicant, that Agape was approached very late in the day and that Agape gave, on the face of it, rational and reasonable legal advice which indicated that the Applicants had some prospects of success in relation to their substantive Application. However, I reject any suggestion that Agape was ever retained to appear at the hearing of the first Application in a Case on 24 April 2019 but find, rather, that it was never so retained. In my view, the evidence establishes that Agape was only retained to give advice, which it provided.
It is true, as Mr Turner points out, that on the evening of 23 April 2019 Agape was prepared to seek an adjournment of the hearing scheduled for 24 April 2019. However, that was presumably because such an adjournment request would not give rise to any appreciable costs. I do not accept his submission that the sending of the adjournment request of 23 April 2019 indicates that in some way Agape had been retained for the hearing or was otherwise bound to appear for the Applicants at the hearing before me on 24 April 2019. I also do not accept that the payments or fees paid by the Applicants to Agape established an agreement or obligation for Agape to appear for the Applicants on 24 April 2019 in this Court.
The adjournment request of 23 April 2019 made clear in its terms that Agape “have not received proper instructions” and it is relevant that at no time had Agape ever filed a notice of address for service or noted its appearance in this case on behalf of the Applicants, and this is consistent with it not having ever agreed or having been retained to appear.
I do not accept the claim of the First Applicant made in [11] of her affidavit of 26 June 2019 that, unilaterally and without notice, Ms Su on the morning of 24 April 2019 simply required instructions from the First Applicant to withdraw the first Application in a Case. It is not plausible that a lawyer who on 23 April 2019 had given a reasonably detailed legal advice, to the effect that the substantive Application may have reasonable prospects for success, would then on the morning of the next day turn around and say “… withdraw your case … the prospect of success is small…”. It is in fact more likely that the Applicants made a decision to go down the route of the other possible migration pathways available to them, outlined by Agape at [44] of its letter of advice to the Applicants, including an application to the Minister under s.48B of the Act to lift the s.48A bar or to apply for other types of visas. Be that as it may I do not accept that Ms Su was guilty of any wrongdoing or any belated and unjustified withdrawal from a hearing at which she was bound to appear.
I do not accept, again, that the First Applicant, who I have seen on a number of occasions before this Court, is someone who can be overborne or would simply blindly follow the advice or instructions of other people, even if she perceived them to be professional or more able than herself in their particular area of expertise.
At the hearing on 24 April 2019 I was concerned as to whether or not the First Applicant spoke for her husband and son and that the Applicants truly wanted to withdraw the first Application in a Case. Initially, the First Applicant, in my view at the time, was prevaricating in not giving me a square answer confirmatory of her speaking on behalf of her husband, but ultimately I did establish to my own satisfaction that she appeared on his behalf and that of her son. I sought her confirmation on three separate occasions, as the transcript of the hearing of 24 April 2019 bears out, whether she wished to continue with the first Application in a Case or withdraw it, and on each occasion she asserted her wish to withdraw.
The Third Applicant, who had become an adult since the filing of the substantive Application, also indicated in unequivocal terms that she wished to withdraw the first Application in a Case. I was, therefore, firmly of the view at the hearing on the 24 April 2019, from both the demeanour of the First Applicant and what was being said by she and her daughter, that they had come to a deliberate, clear and conscious decision of their own volition to withdraw. There was no indication to me from their demeanour or statements that they were in a state of shock, consternation or paralysis of mind. My clear impression, indeed, was rather that they were relieved to be withdrawing the first Application in a Case.
I reject the claim of fraud against any party. If a claim is intended to be made that fraud has been brought to bear or exercised upon the Court in carrying out its functions, I reject that claim. The claim to set aside the dismissal made by the present Application in a Case is put on the ground of fraud, and I have said that I regard it as necessary for actual fraud to have been proved, but it is not.
Even if the present Application in a Case had been put, as it was not, on the basis of r.16.05(2)(c) of the Rules because the dismissal of the first Application in a Case was interlocutory, I would have dismissed the present Application in a Case, because of the necessity and importance of the finality of litigation and that parties cannot in serious matters of this nature take one particular stand and then, at a later point, repent of that stand and seek to resuscitate the proceeding which they have earlier agreed to be dismissed. The interests of justice in this case do not require that the first Application in a Case be reinstated.
Conclusion
Accordingly, for these reasons I will order that the present Application in a Case filed in this Court on 13 May 2019 be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 14 August 2019
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