Ho, P.O. v Minister for Immigration and Ethnic Affairs

[1987] FCA 94

Re: PARK OH HO; LEE JAE EUN; KO JUNG WOONG; LEE JONG IN; HAN BUM HOON; SONG
BANG JIN and CHONG BONG YOL
And: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NSW G562 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

Practice and Procedure - motion for leave to amend application under AD(JR) Act to challenge further decisions made after the original application was filed - Principle that an amendment cannot except by consent add a cause of action that had not accrued at the date of filing of the application - Whether if the Court has discretion such an amendment should be permitted.

Administrative Decisions (Judicial Review) Act 1977, s.11(1), (6), (7)

Federal Court Rules O.13 r.2, O.29 r.5

Wigan v. Edwards (1973) 1 ALR 497

HEARING

SYDNEY

#DATE 6:3:1987

Solicitors for the Applicants: Mr. N.L.A. Barlow

Solicitor for the Respondent: Mr. S. Daley, of the Australian Government Solicitor's Office

ORDER

Leave to amend the application as set out in the form of amended application the subject of the motion for leave be refused.

The costs of the application for leave to amend be the respondent's costs in the principal application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In this application under the Administrative Decisions (Judicial Review) Act 1977 the applicants seek leave to file an amended application. The original application was filed on 3 December 1986. It sought review of decisions of the Minister for Immigration and Ethnic Affairs made in relation to the refusal of applications for permanent resident status and in relation to the making of orders for deportation of the applicants. After the institution of proceedings, the Minister indicated that he was prepared to reconsider his decisions in these matters. The process of reconsideration was embarked upon, following which the original deportation orders were revoked and fresh deportation orders were made. The applicants now seek to amend the application for the purpose of seeking in it review of the new deportation orders and decisions associated with them.

1. The respondent Minister objects to the amendment of the application for this purpose, on the ground that it is not possible by an application filed on 3 December 1986 to seek review of decisions made well after that date, and that in any case the proposed amended application would introduce confusion into the proceedings, blurring the distinction between decisions the legal merits of which must be considered separately. The respondent contends that the correct procedure is for the applicant to take out a fresh application and, to the extent that the original application retains any vitality, for the two applications then to be consolidated under Order 29 rule 5. This is the course which appears to have been pursued in Lebanese Moslem Association v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 195, a case in which also the Minister revoked a decision which was under review and then made the same decision upon reconsideration.

2. The applicants put no argument upon the basis of the terms of s.11 of the Administrative Decisions (Judicial Review) Act. Sub-s.(1) of that section provides that an application "shall be made in such manner as is prescribed by Rules of Court". Order 54 rule 1 of the Rules of Court makes the general rules applicable to the manner of making an application and rule 2 prescribes the form of application. Section 11(6) and (7) provide in general terms a power of amendment.

3. Reference was made to Camilleri's Practice and Procedure of the High Court and Federal Court of Australia, p.1203, in which the commentary on Order 13 rule 2 contains the statement:
   
   

"(A)n applicant cannot, except by consent, add a cause of action that had not accrued at the date of filing the application: Eshelby v. Federated European Bank Ltd. (1932) 1 KB 254; Wigan v. Edwards (1973) 1 ALR 497 at 508, 515."

There is a similar statement in the CCH Australian High Court and Federal Court Practice at sec.24-514. However, for the applicant, it was contended (on the basis of the headnote to Wigan v. Edwards) that in that case the majority of the High Court held that a rule of the Queensland District Court comparable to Order 13 rule 2 authorised an amendment adding a cause of action which had not accrued at the time of the issue of the plaint. There are at least three problems about this submission. In the first place, it is far from clear that the rule considered in Wigan v. Edwards was comparable to the Federal Court rule. In the second place, a reading of the judgments in the High Court shows that the suggestion in the headnote that three of them took the view propounded is not borne out by the judgments themselves. In the third place, two of the judges whose judgments the argument calls in aid were in dissent, and on an issue relevant to this very point.

1. A conglomerate of the views of dissenting judges with a view of one of a majority does not constitute a binding precedent: Dickenson's Arcade Pty. Limited v. The State of Tasmania (1974) 130 CLR 177 at 188, per Barwick C.J.; Wasson v. Commercial & General Acceptance Ltd. (1985) 2 NSWLR 206 at 228, per McHugh J.A.

2. But in any case, as I have said, the headnote to Wigan v. Edwards is misleading. It suggests that McTiernan ACJ., Menzies and Gibbs JJ. indicated that rule 104(b) of the District Court Rules 1968 (Queensland) authorized amendment of a plaint to add a cause of action which had not accrued at the time of issue of the plaint. The case concerned a contract to rectify defects in certain building work, and the amendment in question introduced a new cause of action for failure to rectify a distinct major defect not originally alleged. One of the arguments raised upon the appeal was that the only breach in respect of this separate matter which had been proved was a breach occurring after institution of the proceedings, and that the respondent could not hold a verdict based upon a cause of action which arose after the commencement of the action. Of the majority, Walsh J. (at p.504) and Mason J. (at 515) accepted this submission. Menzies J. (with whom McTiernan A.C.J. agreed) did not dissent from the view expressed by Walsh J. at 504 that "there could be no justification for entering in this action a judgment against the appellant for damages for a breach of contract if that breach had not been committed at the time when the action was commenced." The ground of his dissent, as clearly stated at p.500, was that there had been a repudiation by the appellant of his promise "before proceedings were taken against him", and that this exposed him, from the time of the repudiation, to a claim for the breach of contract which was later alleged by virtue of the amendment. It was irrelevant that at the time of the institution of the proceedings the nature of the particular major defect was not known to either party. The majority rejected the suggestion that any repudiation of contract had been established. But the third member of the majority, Gibbs J., held (see p.508) that no breach had been established at any time, before or after the action was commenced, and therefore he did not need to decide the point with which I am concerned; nor did he purport to do so. However he did express the view that:
   
   

"It seems to me at least arguable that r104(b) was intended to abolish the previous rule of procedure so far as the District Court is concerned and to extend the power of amendment in the District Court to allow the introduction of new causes of action which have arisen after the commencement of proceedings. No doubt if the rule were construed as having this effect care would be taken in exercising the discretion which it gives and if the amendment were sought at the trial heed would be given to the warning of Lord Greene M.R. in J. Leavey & Co. Ltd. v. George H. Hirst & Co. Ltd. (1944) 1 KB 24 at 27 as to the danger of the injustice that may occur when new issues, not previously pleaded, are raised for the first time at the trial. In the view that I take, however, no cause of action for breach of the obligation to repair major faults had arisen at the date of the trial and it is unnecessary to consider whether, if it had arisen before trial but after the plaint was issued, the amendment would have been properly made."

1. A firm view of the effect of the rule was expressed by Mason J. at 515. He said:
   
   

"To succeed a plaintiff must establish his cause of action at the date of the plaint, for that is the origin of the action. An amendment dates back to the original filing of the plaint (see Sneade v. Wotherton Barytes and Lead Mining Co Ltd (1904) 1 KB 295, at 297, per Collins MR). It is for this reason that a plaintiff cannot, in the absence of statutory authority, amend the proceedings without the consent of the defendant by adding a cause of action which has accrued to him since the commencement of the action (Eshelby v. Federated European Bank Ltd (1932) 1 KB 254). And in the absence of such authority an amendment, if allowed, must be regarded as asserting a cause of action existing at the date of the writ.

Although the District Court is not a strict court of pleading there is no good reason for concluding that in the absence of appropriate statutory provision, or the consent of the defendant, the respondents could succeed in obtaining a judgment on a cause of action which had not accrued at the date of the plaint. Rule 104(b) of the District Courts Rules 1966 (Qld) allows a 'new cause of action' to be added by amendment, but I read it as meaning a cause of action 'different' from that already pleaded, and not new in the sense of a cause of action accruing after filing of the plaint. Now that it appears that the cause of action pleaded in paragraph 6A arose after the date of the plaint, it is my opinion that the amendment should not have been allowed and that the respondents must fail."

1. The view of Walsh J. and Mason J. has since been applied by Nader J. in John Holland (Constructions) Pty. Ltd. v. Jordin (1985) 36 NTR 1 at 6. The same view obtains in England: Eshelby's case (supra); Coutts & Co. v. Duntroon Investment Corporation Ltd. (1958) 1 All ER 51 at 53; Roban Jig & Tool Co. Ltd. v. Taylor (1979) 5 FSR 130, a decision of the Court of Appeal. A similar view was taken in the Irish case Creed v. Creed (1913) 1 IR 48. Against this phalanx of authority, it was suggested there stood the decision in Greaves v. The Minister for Immigration and Ethnic Affairs (Einfeld J., unreported, 19/2/87). But I can find no reference in that judgment to any relevant amendment. If there was such an amendment it was not the subject of argument, and none of the cases was cited. In that situation, Coutts & Co. v. Duntroon Investment Corporation Ltd. (supra) is authority for the proposition that the judgment may be regarded as proceeding on the footing that a fresh application must have been taken to have been made, though informally.

2. I have said that it is far from clear that the Queensland rule discussed in Wigan's case can be regarded as comparable to Order 13 rule 2 of the Rules of this Court. The words in the Queensland rule to which Gibbs J. drew attention were:
   
   

"In an amended plaint or counter-claim a new cause of action may be added ... ."

These words do not appear in rule 2. For the applicants, reliance was placed on sub-rule (2) which provides:

"All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings."

Particular emphasis was put on the last four words. But the Rules offer a convenient means for dealing with the problem of multiplicity of proceedings, in a case such as the present, by the consolidation rule to which I referred earlier. Had it been intended to alter the long standing principle that an amendment will not be permitted to raise a cause of action which did not exist when the proceedings were commenced, it would have been easy to say so, as has been done in Order 36 rule 3 of the Victorian General Rules of Procedure in Civil Proceedings 1986.

1. If one turns from the Rules to s.11 of the Administrative Decisions (Judicial Review) Act, subsecs. (1), (3) and (4) all contain language suggesting the legislature envisaged that an application would be made only after the decision challenged by it. I can find no indication that it was contemplated an application might be amended in order to seek review of a decision made after the institution of the application. There are, of course, particular rights under ss.6 and 7 in respect of certain conduct and in respect of certain failures to make decisions, which do not depend on the making of any decision.

2. It was pointed out in argument in the Roban Jig & Tool Co. case that courts have regularly allowed interest, loss of wages, and other damages suffered after institution of proceedings; but in these cases the liability had already accrued and what occurred afterwards was merely the establishment of the measure of the loss.

3. If I have power to allow the amendment sought, I would not consider this an appropriate case in which to do so. It is important that the issues raised by the more recent decisions to make deportation orders not be obscured by a fog of considerations related to earlier decisions. Should the applicants wish to contend that the Minister, when making the later decisions, allowed himself to be influenced by extraneous matters deriving from those earlier decisions, that contention would itself require to be argued in relation to the later decisions so impugned, and upon what is relevantly alleged and proved in respect of them. It should not be debated upon the allegations made simply for the purposes of the original application. Clear argument and a right judgment would not be helped by a procedure which could be conducive to an amorphous rolled-up approach to the issues.

4. In The Tottenham Local Board of Health v. The Lea Conservancy Board (1886) 2 TLR 410 the Court of Appeal (Cotton, Bowen and Fry L.J.J.) unanimously affirmed an order of Pearson J. refusing, in his discretion, an amendment, to an action challenging an administrative decision, which would have raised issues under a separate decision. While suggesting there might (given a rule expressed in the terms he was considering) be power in a case such as the present, Gibbs J. in Wigan's case warned of the need for care in its exercise. I think leave to amend should be refused on the ground that it is more appropriate for the applicants to take out a fresh application, which can then be the subject of a consolidation order. (Cf. Mafubi Pty. Limited v. Westfield Limited (Lockhart J., unreported, 29/7/85).) In the circumstances, it may be the Registrar should waive an additional filing fee, but that is a matter for him to consider if a request is made. The leave sought to amend is refused. I order that the costs of the motion be the respondent's costs in the application.