Harriman, Allen Louis v The Queen
[1996] FCA 1020
•21 NOVEMBER 1996
CATCHWORDS
PROCEDURE - summary disposal - whether no reasonable cause of action or whether action vexatious or an abuse of process - application to review criminal conviction - appeal to Court of Criminal Appeal dismissed - special leave allowed and appeal dismissed by High Court - whether reasons of High Court conclusive of constitutional cause of action and issues
PROCEDURE - summary disposal - whether no reasonable cause of action or action vexatious or an abuse of process - a review sought of Deportation Order - deportation executed with applicant's consent - whether execution of order entitles respondents to dismissal of application for review
Administrative Decisions (Judicial Review) Act 1977, s10, s16
Criminal Code (WA), s689(1)
Federal Court Rules, O20 r2(1)
Judiciary Act 1903 (Cth), s40, 40(1)
Migration Act 1958 (Cth), s55, s180
Attorney-General for the Commonwealth and Anor v Finch (1984) 155 CLR 107
Blair v Curran (1939) 62 CLR 464
Fancourt v Mercantile Credit Ltd (1963) 154 CLR 87
General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hunter v Chief Constable of the West Midland Police [1982] AC 529
Jackson v Goldsmith (1950) 81 CLR 446
Orison Pty Ltd v Strategic Minerals Corp NL (1988) 81 ALR 183
O'Toole v Charles David Proprietary Ltd (1991) 171 CLR 232
Second Life Decor Pty Ltd v Comptroller‑General of Customs (1994) 53 FCR 78
Webster v Lampard (1993) 177 CLR 598
ALLEN LOUIS HARRIMAN v THE QUEEN and THE COMMONWEALTH MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
NO WAG 134 OF 1995
R D NICHOLSON J
PERTH
21 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 134 OF 1995
B E T W E E N: ALLEN LOUIS HARRIMAN
Applicant
and
THE QUEEN
In right of the Commonwealth
First Respondent
and
THE COMMONWEALTH MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Second Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: R D NICHOLSON J
DATE OF ORDER: 21 NOVEMBER 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The proceeding be dismissed.
The applicant pay the costs of the first and second respondents of the application, including each of those respondents' motion for dismissal and any costs reserved on 1 March 1996.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 134 OF 1995
B E T W E E N: ALLEN LOUIS HARRIMAN
Applicant
and
THE QUEEN
In right of the Commonwealth
First Respondent
and
THE COMMONWEALTH MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Second Respondent
CORAM:R D NICHOLSON J
DATE:21 NOVEMBER 1996
PLACE:PERTH
REASONS FOR JUDGMENT
The first respondent moves the Court to strike out the applicant's Statement of Claim and to dismiss it as disclosing no reasonable cause of action or as being embarrassing or an abuse of process of the Court. The second respondent moves the Court to dismiss the whole of the amended application on the same grounds. Each of the respondents relies upon Federal Court Rules, O20 r2(1).
The application
In the application the only order sought affecting the first respondent was the following:
A declaration in equity that the Applicant's conviction in the District Court of Western Australia on 10 February 1988 was obtained in breach of rights implied in the Commonwealth Constitution, is void and is of no effect."
The remaining orders, 1, 2 and 4, affect the second respondent and read as follows:
A permanent injunction pursuant to s39B of the Judiciary Act restraining the Second Respondent, whether by himself, his servants, agents or officers from making any requirements that the Applicant leave Australia by reason only of the Applicant's conviction in the District Court of Western Australia on 10 February 1988.
A writ of prohibition pursuant to s39B of the Judiciary Act directed to Second Respondent prohibiting him, whether by himself, his servants, agents or officers from proceeding under the Deportation Order in respect of the Applicant dated 18 May 1990.
4(a)Alternatively to the above orders, an extension of time pursuant to s11 of the Administrative Decisions (Judicial Review) Act to seek judicial review under the act of the Deportation Order referred to in par2 hereof.
(b)An order pursuant to s16 of the Administrative Decisions (Judicial Review) Act quashing the Deportation Order referred to in par2 hereof..."
Statement of Claim
The Statement of Claim recites that the applicant is a citizen of New Zealand who was convicted on 10 February 1988 in the District Court of Western Australia of being knowingly concerned in the importation into Australia of approximately 300gms of heroin, contrary to s233B of the Customs Act 1901 (Cth). Upon conviction the applicant was sentenced to eleven years imprisonment with no minimum term. The Claim states the applicant appealed to the Court of Criminal Appeal of the Supreme Court of Western Australia which dismissed the appeal on 28 July 1988 by a majority of two to one. It is further stated that on 9 November 1989 the High Court of Australia granted the applicant special leave to appeal against conviction but dismissed the appeal.
The Claim recites that the argument put by counsel before the Court of Criminal Appeal was that evidence admitted at the applicant's trial was inadmissible at common law and/or should have been excluded in the exercise of a common law discretion and further the conviction involved a substantial miscarriage
of justice within the meaning of s689(1) of the Criminal Code (WA). The evidence is said in the Claim to be that led from Gawthorpe and Lisk that the applicant was a heroin user and engaged in commercial supply of heroin on occasions previous to the importation of the quantity of heroin, the subject of the indictment which he faced.
The Claim also states at trial Martin gave evidence that he and the applicant, together with a Thai national known as "Toy" travelled from Bangkok to Chiang Mai to acquire heroin for importation into Australia. This is said to have been denied by "Toy" in an interview with Australian Federal Police but neither the applicant nor his counsel were aware of that information during the course of the trial.
The Statement of Claim raises other matters in relation to the conduct of the trial: the witness Martin was receiving psychiatric treatment prior to and during the proceedings; statements and/or notes of interviews between members of the Australian Federal Police and Martin, Gawthorpe and Lisk were not made available to counsel for the applicant; police witnesses denied the existence of three records of interview and one additional formal statement made by the witness Martin, although their testimony in the preliminary hearing disclosed otherwise; the trial judge instructed the jury the Crown need not prove motive for the alleged importation and then proceeded to misstate a material fact in regard to an item of evidence; and it had been stated at trial the witness Gawthorpe, granted an immunity from prosecution, was not an accomplice.
The Claim continues with the following three paragraphs alleging the conviction is void because of considerations arising under the Commonwealth Constitution:
"23.The Conviction is void in that the Applicant was not accorded the right implied in Chapter III of the Commonwealth Constitution to a trial by an impartial jury.
In the alternative to par23 hereof, the Conviction is void in that the Applicant was not accorded the right implied in Chapter III of the Commonwealth Constitution to a trial according to due process of the law.
Further, and in the alternative to pars23 to 24 hereof, the Conviction is void in that the judicial power of the Commonwealth vested in the Court has been exercised in a manner inconsistent with judicial process. Such power must be exercised fairly and in accordance with the rules of natural justice bound by constitutional principles enumerated in Chapter III of the Commonwealth Constitution. That power or function cannot be exercised secretly or arbitrarily."
The Statement of Claim then turns to matters arising under the Migration Act 1958 (Cth). The Claim states that on 16 May 1990 an officer of the Department of Immigration recommended to a delegate of the Minister responsible for the Act, that an order be made that the applicant be deported. It further claims that on 18 May 1990 the delegate purported to make an order pursuant to s55 of the Migration Act that the applicant be deported. It is claimed that on a true construction of that section the word "convicted" refers to a conviction obtained in accordance with the Commonwealth Constitution and that, by reason of the matters pleaded in par23, 24 and 25, there was no evidence or other material to justify the making of the Deportation Order. It is claimed in the alternate that if s55 of the Migration Act does not bear that construction, it is void as being ultra vires the Commonwealth Constitution.
There are then a number of alternate claims in respect of the Deportation Order. The first is that it was made by taking into account irrelevant considerations. The second is there was a failure to take into account that there was no evidence to suggest the applicant would offend again. Next it is said it was made in breach of natural justice because of a failure to direct the applicant's attention to the importance which would be attached to a professional opinion or other evidence which indicated he was unlikely to offend again.
The Claim concludes the applicant is being held in custody and was due for release on 13 February 1996.
High Court reasons
The reasons of the High Court for dismissing the application for removal in a joint judgment (Gaudron, Gummow and Kirby JJ), read as follows:
"This is an application arising under s40(1) of the Judiciary Act 1903 (Cth) for the removal into this Court of proceedings currently pending before the Federal Court of Australia. It has not been shown that, in the circumstances of this case, any question arises under the Constitution or involves its interpretation. Nor has it been shown that sufficient cause exists to remove the proceedings into this Court. The application is dismissed."
Applicant's deportation
On 23 August 1996 the applicant wrote to the Criminal Deportation Section of the Department confirming his wish to leave Australia at the earliest convenience irrespective of litigation. On 27 August 1996, in accordance with an undertaking previously given to the Court, the solicitor for the second respondent advised the amicus curiae of the intention to remove the applicant. On 11 September 1996 the applicant was removed from Australia.
Strike‑out application
It is not in dispute the power to order some rejudgment must be exercised with exceptional caution: General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. This power should never be exercised unless there is no real question to be tried: Fancourt v Mercantile Credit Ltd (1963) 154 CLR 87 at 99. The issue is not whether the applicant would probably succeed in his action, but whether the current material before the Court is such that the action should not be permitted to go to trial because it is apparent it must fail: Webster v Lampard (1993) 177 CLR 598 at 547.
Claims against conviction
The primary submission for the first respondent is the reasons of the High Court are conclusive of this aspect of the Claim. It is said pars23, 24 and 25 cannot be maintained in the light of the reasons of the High Court concluding it has not been shown "any question arises under the Constitution or involves its interpretation".
Mr Hannan as amicus curiae directed the Court to issues arising in relation to res judicata. That doctrine applies where the right or cause of action claimed or put in suit has in former proceedings passed into judgment, so that it is merged and has no independent existence: Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J. In Jackson v Goldsmith (1950) 81 CLR 446 at 466, Fullagar J (in a dissenting judgment) described res judicata as meaning where an action has been brought and judgment has been entered, no other proceedings can thereafter be maintained on the same cause of action. (For his part he saw it not so much as a rule of estoppel but as a broad rule of public policy). Cause of action estoppel is to be contrasted with issue estoppel. Issue estoppel arises where a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment decree or order: Blair (supra).
Mr Hannan took the Court to the statement in Spencer-Bower and Turner, Res Judicata, Butterworths, 2nd ed, (1969) at 18-19, where it is stated the party desirous of setting up res judicata bears the burden of establishing each and every of the following:
"(i)that the alleged judicial decision was what in law is deemed such;
(ii)that the particular judicial decision relied upon was in fact pronounced, as alleged;
(iii)that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf;
(iv)that the judicial decision was final;
that the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised;
(vi)that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem."
In the submission of the amicus the decision by the High Court could not be described as final. It was said it was arguable it did not involve a determination of the same question which falls for determination here.
In support of these submissions amicus referred the Court to Attorney-General for the Commonwealth and Anor v Finch (1984) 155 CLR 107 at 114-5 where Gibbs CJ, Mason, Wilson and Dawson JJ said the decision of the Court to refuse to grant special leave to appeal "means no more than that it was considered that the matter lacked that special character that justifies the grant of special leave to appeal to this Court". Further it was stated by those members of the Court at 115, "the refusal of an application for special leave to appeal is not the same as the determination of an appeal". The result was that a petition for special leave to appeal to the Privy Council was held competent although the High Court had refused special leave to appeal.
Amicus also directed attention to O'Toole v Charles David Proprietary Ltd (1991) 171 CLR 232. It was there held the procedure for the removal of causes under s40 of the Judiciary Act 1903 (Cth) enabled the High Court to reconsider preliminary questions of law decided by a Full Court of the Federal Court of Australia. This was even though the decision of that Court was not the subject of an appeal and might not be appealable. At 257 Brennan J said:
"The purpose of a power to reserve a question is to obtain from the court which answers the question a ruling which the judge who reserves the question can apply in determining the proceedings. The answer itself may not conclude an issue in the proceedings, or a cause of action in the proceedings or the proceedings as a whole; it may amount to no more than a
consultative opinion to be applied in the determination of the proceedings by the judge who reserves the question. There are significant distinctions between an answer which concludes an issue, a cause of action or a proceeding, and an answer which does not."
The starting point for consideration of these submissions is the nature of the matter which was before the High Court.
Section 40(1) of the Judiciary Act provides for the removal of "any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court...". The present proceeding is the same cause in relation to which removal was sought. This is not a case where judgment has been given in another cause.
Furthermore, the threshold test for removal is the existence of a cause "arising under the Constitution or involving its interpretation". When the High Court ruled the threshold test was not met, that was the end of that issue.
In my opinion the High Court expressed its opinion directly on the point affecting the arguability of pars23, 24 and 25 of the Claim and the related claims challenging the deportation order on grounds related to the alleged unconstitutionality of the applicant's criminal conviction. The reasons of the High Court on the application for removal provide an answer which concludes each of the issues raised in those paragraphs of the Claim. Those reasons were given in an action involving the same parties and the same subject matter, not involving an application for special leave or a preliminary issue. The reasons of the High Court have unequivocally finally determined the issues raised in these paragraphs. It follows pars23, 24 and 25 can not be accepted as providing a reasonable cause of action so the first respondent's motion should be allowed in relation to them.
Amicus also directed attention to the terse character of the reasons of the High Court, submitting that in the circumstances the weight given to the High Court's decision as a precedent should be limited. This overlooks the High Court's reasons, although brief, determined the essential point as to whether the Claim sought to be maintained by the applicant in pars23, 24 and 25, gave rise to a cause under the Constitution or involved its interpretation. That essential point was determined by the High Court against the applicant. Where the claims are based solely on the Constitution and its interpretation they must therefore necessarily fail.
There are other reasons why that should be the result. The applicant is seeking by way of relief a declaration that his conviction on 10 February 1988 is void and of no effect. Having exhausted all avenues of appeal through the criminal process, he now seeks to maintain a collateral attack on the conviction by means of a civil action. The use of a civil action to collaterally attack a conviction is an abuse of process of the Court: Hunter v Chief Constable of the West Midland Police [1982] AC 529. A claim is an abuse of process if it is brought to obtain some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers: Second Life Decor Pty Ltd v Comptroller‑General of Customs (1994) 53 FCR 78 at 85.
In addition, par23 of the Claim pleads no facts upon which the allegation of denial of the right of trial by an impartial jury is based so that it is unsupported and should be struck‑out.
Further, the particulars to par25 are not matters going to jurisdiction.
Deportation Order
Patently, the actions of the applicant in permitting himself to be deported are a bar to the grant of either of the first two remedies he seeks namely, the permanent injunction or the writ of prohibition, each of which is directed to action being taken pursuant to the Deportation Order.
Likewise in relation to par4 of the application it is the case the Deportation Order has been acted upon with the applicants concurrence, so this is not a case where the relief provided by s16 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") would be appropriate in the exercise of the Court's discretion. Quashing the order would be futile. It would be so futile inevitably the Court's discretion would be exercised against granting the remedies sought in par4 of the Amended Application.
Further, this is not a case in which the pleadings disclose the applicant is seeking, as s16 of ADJR Act permits, a declaration of right.
It is also the position the relief claimed in par4 of the Amended Application cannot be granted because the Deportation Order has been executed so there is no question upon which the rights of the parties depend to be determined. The continuation of the application would be vexatious and an abuse of process: Orison Pty Ltd v Strategic Minerals Corp NL (1988) 81 ALR 183.
I accept amicus's submission the motion of the second respondent does not rely on argument based on s10 of the ADJR and the availability of remedy provided by the Migration Act 1958, s180 for review by the Administrative Appeals Tribunal and therefore do not consider that issue.
For these reasons I consider the Amended Application and Claim disclose no reasonable cause of action and are vexatious and an abuse of process. Pursuant to FCR, O20 r2(1), the proceeding should be dismissed generally.
I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date:21 November 1996
APPEARANCES
The Applicant (telephone observation)
Counsel for the First Respondent: Mr I Birmingham
Solicitors for the First Respondent: Commonwealth Director of Public Prosecutions
Counsel for the Second Respondent: Mr J Allanson
Solicitor for the Second Respondent: Australian Government
Solicitors
Amicus Curiae Mr P J Hannan
Date of Hearing: 1 May 1996
Date of Judgment: 21 November 1996
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