Fischer, Thomas v PSS Board

[1997] FCA 697

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - Application for leave to bring proceedings under the ADJR Act out of time - whether leave should be granted where decision has already been challenged on different grounds.

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

THOMAS FISCHER v
PSS BOARD

NG 414 of 1997

DAVIES J
16 JULY 1997

SYDNEY

 IN THE FEDERAL COURT OF AUSTRALIA     ) 

)  
NEW SOUTH WALES DISTRICT REGISTRY     )  No G 414 of 1997
  )     
GENERAL DIVISION  )     

BETWEEN:            THOMAS FISCHER     Applicant

AND:PSS BOARD

Respondent

Coram:           Davies J.
Date:               16 July 1997
Place:              Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed.

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 G 414 of 1997
  )     
GENERAL DIVISION  )     

BETWEEN:            THOMAS FISCHER     Applicant

AND:PSS BOARD

Respondent

Coram:           Davies J.
Date:               16 July 1997
Place:              Sydney

REASONS FOR JUDGMENT

This is an application for leave to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") out of time.  The time would appear to have been a date 28 days from some time in 1994 or 1995. 

Mr Fischer did in fact earlier challenge the decision taken but did so on a different basis from that which he now seeks to put forward.  He challenged the decision before the Superannuation Complaints Tribunal and subsequently took its decision on appeal to a single judge of the Federal Court, and then to the Full Court.  He was unsuccessful at all three levels.  He wishes to pursue this matter again on a different ground. 

It would in general be inconsistent with the approach taken by courts to this type of matter to allow fresh proceedings to be brought on different grounds.  There is a rule, which was established as far back as 1843, that, if a person seeks to pursue a right or to challenge something that has occurred, the person ought to bring forward in those proceedings all matters upon which the party might reasonably rely.  The purpose of this rule is that litigation should be final and that proceedings should not, having once been concluded, be recommenced with the result of the first proceedings being challenged on different grounds.  That principle was laid down in the case of Henderson v Henderson, (1843) 3 Hare 100. It has been applied many times thereafter and it was established by the High Court of Australia as the law of Australia in Port of Melbourne Authority v Anshun (1981) 147 CLR 589.

For my own part, it seems to me that, applying that principle, this would not be an appropriate case in which to extend time. The attention of the Superannuation Complaints Tribunal, of a single judge and of the Full Court have already all been taken up in considering Mr Fischer's challenge to this particular decision.

I did hear Mr Fischer on the merits of the case.  I heard him shortly; but it did not seem to me that an arguable case existed.  From what was said in the course of that argument, it seems to me that the matters that Mr Fischer wishs to put by way of challenge to the decision must necessarily fail. 

We reached the stage in the discussion where Mr Fischer was saying that the rules have now been changed and there may be a way by which this sum of money can be paid to him under the new rules.  That may be so, but it does not support a challenge by way of judicial review proceedings to the decision that was actually made at the time.

For all those reasons, I think the appropriate course is to dismiss the proceedings.

I certify that this and the preceding 2 pages
are a true copy of  the reasons for judgment
of  the Honourable Justice Davies.

Associate:

Date:  16 July 1997

For the applicant:  The applicant appeared for himself.

Counsel for the respondent:  P.J. Hanks

Solicitor for the respondent:  J. Neeley
  for Australian Government Solicitor

Date of hearing:  16 July 1997

Date of judgment:  16 July 1997