M279 of 2003 v Minister for Immigration
[2004] FMCA 556
•10 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M279 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 556 |
| MIGRATION – Protection visa – no jurisdictional error – application dismissed – summary dismissal – no appearances by applicant – res judicata – whether issue estoppel. |
Judiciary Act 1903, s.39B
Dey v Victorian Railways Commissioner (1948) 78 CLR 62
VFAJ v Minister for Immigration [2003] FMCA 161
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Somanader v Minister for Immigration and Multicultural Affairs [2000] 178 ALR 677
Kuligowski v Metrobus [2004] HCA 34 (3 August 2004)
| Applicant: | M279 of 2003 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and KIM BOYD |
| File No: | MLG 652 of 2004 |
| Delivered on: | 10 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 August 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the First Respondent: | Mr P. Barker |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 652 of 2004
| M279 of 2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and KIM BOYD |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the issue that has arisen is an application for a protection visa. The application before this court is effectively set out in an affidavit of the applicant sworn 31 October 2003. It is significant to note that in that affidavit the applicant gives an address and the address for the applicant has not altered since the application was filed and since the matter was transferred to the Federal Court from the High Court or indeed since the matter on 31 May 2004 was transferred by the Federal Court to this court.
The significance of the address is that the court has before it this day a notice of motion which I shall deem to be an application for the purposes of this court filed by the first respondent on 28 July 2004 which seeks to have the application dismissed on the basis that it discloses no reasonable cause of action and/or it is frivolous or vexatious and/or it is an abuse of the process of the court. The application in this court is made pursuant to Rule 13.10 which provides:
“13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of process of the Court.”
The respondent has relied upon an affidavit of Beth Naomi Hunns sworn 10 August 2004, filed this day, in relation to service of the notice of motion.
The affidavit of service reveals that the notice of motion was served by prepaid post upon the applicant at the address indicated on the applicant's affidavit which I have referred to earlier in this judgment. When the matter was called this day an interpreter was present to assist the applicant should she attend, but the applicant did not attend and there has been no appearance. I note from the court file that when the matter was listed before the Federal Court before His Honour Marshall J on 31 May 2004 there was no appearance for the applicant on that occasion.
It is evident from the court file that correspondence had been forwarded by the Federal Court to the applicant care of the same address which has been used throughout and that that correspondence dated 27 May 2004 had advised the applicant that the matter was listed before Marshall J on 31 May 2004. It further advised the applicant that the application was to be the subject of a directions hearing and that submissions were required as to whether or not the matter should be transferred to the Federal Magistrates Court.
As I indicated, there was no appearance for the applicant on that occasion and no appearance today. I am satisfied that the applicant on the material before me has had proper notice of this application. In the circumstances, given that this is a notice of motion, it is my view that the notice of motion supported as it is by an outline of submissions filed by the respondent and dated 9 August 2004 should be permitted to proceed. It is not a case where it is appropriate, in my view, to exercise my discretion to simply dismiss the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules on the basis of the applicant's failure to attend or on the basis of the applicant's absence.
The notice of motion is a discrete notice of motion which clearly sets out the intention of the respondent to make application to dismiss this application on the grounds referred to earlier in this judgment. Hence, in my view, it is more appropriate to consider the application made by the respondent as an application effectively for summary dismissal under Rule 13.10 of the Federal Magistrates Court Rules.
The issue of a summary dismissal was considered by the High Court of Australia in the matter of Dey v Victorian Railways Commissioner (1948) 78 CLR 62 at p.91 per Dixon J as follows:-
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
I apply and adopt the reasoning of His Honour in that case in considering whether or not I should accept this application for what is effectively summary dismissal. It is relevant to consider and to incorporate in this application the chronology of events set out in the respondent's outline of submissions as follows:
DateEvent
11 September 2000 The applicant applied for a Protection visa
3 October 2000 A delegate of the first respondent refused to grant the Protection visa
29 May 2002 The Refugee Review Tribunal affirmed the decision of the delegate (“the RRT Refugee”)
24 July 2002 The applicant sought review of the RRT decision by the Federal Court of Australia (V476 of 2002) (“the first application”)
13 September 2002 The first application was transferred to the Federal Magistrates Court by order of the Honourable Justice North (MZ955 of 2002)
8 April 2003 Federal Magistrate Hartnett dismissed the first application (VFAJ of 2002 v Minister for Immigration [2003] FMCA 161)
24 April 2003 The applicant appealed to the Full Federal Court from the judgment of Hartnett FM (V320 of 2003)
8 October 2003 Justice Marshall dismissed that appeal (VFAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1081)
31 October 2003 The applicant filed the present application in the High Court of Australia seeking review of the RRT decision (M279 of 2003) (“the present application”)
23 February 2004 The present application was remitted to the Federal Court by order of the Honourable Justice Hayne
31 May 2004 The present application was transferred to this Court by order of Marshall J.
It is clear from that chronology, in my view, that the substantive ground relied upon by the respondent has been made out. The respondent submits, having regard to the chronology of events which
I have incorporated, that the applicant in the first application for review of the RRT decision had sought relief pursuant to s.39B of the Judiciary Act 1903 on the ground that the RRT decision was affected by jurisdictional error.
The matter had been dealt with by this court on 8 April 2003 and in the course of judgment the court stated in VFAJ v Minister for Immigration [2003] FMCA 161 at paragraph 25 the Court states the following:
“Whatever be the scope or extent of jurisdictional error, there is nothing in the material before me which could produce a finding of jurisdictional error or breach of procedural fairness such as is reviewable under s.39B of the Judiciary Act 1903 (Cth) or s.75 of the Constitution of Australia.”
It is submitted that thereafter the applicant appealed to the Full Court of the Federal Court from the whole of the judgment of the Federal Magistrates Court and that Marshall J sitting as the Full Court held that the appeal was "completely devoid of merit" and dismissed it with costs. The respondent submits that the dismissal of the first application by the Federal Magistrates Court precludes the applicant from bringing the present application to challenge the RRT decision because it is barred by the doctrine of res judicata.
Reference has been made to the authority of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612, 613, Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 511, and Somanader v Minister for Immigration and Multicultural Affairs [2000] 178 ALR 677. It is submitted by the respondent the cause of action in the present application is in substance the same cause of action that passed into the judgment of the Federal Magistrates Court upheld by Marshall J sitting as the Full Federal Court.
It is further submitted that where res judicata applies as a matter of law it bars a litigant from pursuing a claim. The court does not retain a discretion to ameliorate the application of the doctrine. Again reference has been made to the Port of Melbourne Authority decision and it is not necessary for me to otherwise refer to the further authorities. It is accordingly submitted by the respondent that the Federal Magistrates Court had decided that the RRT decision was free from jurisdictional error and the applicant cannot now contend otherwise. It is further submitted the present application has no prospect of success.
The respondent further raises issue estoppel as a basis upon which this Court should dismiss the application.
Further reliance is placed in the alternative on Anshun estoppel and it is further argued that accordingly based on those matters the present application is an abuse of process of the court. In the alternative it is argued that the application discloses no arguable case for the grant of the relief sought. The grounds of review raised by the present application are unaccompanied by particulars, and accordingly it is submitted the application has no prospect of success. It is further submitted by the respondent that, in any event, the application is frivolous or vexatious.
It is not necessary for me to further consider other issues which have also been raised in the outline. In my view, the substantive argument raised for and on behalf of the respondent in relation to res judicata must apply to the present case. It is clear on a proper reading of the application the submission by the respondent is well-founded. It is clear to me that essentially the applicant has sought to agitate yet again a matter which was the subject of decision in the Federal Magistrates Court, upheld on appeal by the Federal Court of Australia and involves consideration of the identical issue of whether or not this court should or should not consider review of the same RRT decision which is the subject of complaint by this applicant.
In matters of this kind it is important to remember that the courts provide a facility for the proper hearing of genuine grievances in relation to decisions made by the RRT. The fact that there are two Chapter III courts which deal with applications of this kind, together with the rights available to applicants to pursue in the High Court of Australia, does not mean that in circumstances of cases of this kind that there should be an endless procedure available to applicants to simply make further applications on a repeated basis when those applications relate to the same issues which have been properly determined according to law by the court. In my view, the principles of res judicata and issue estoppel set out in the authorities to which reference has been made clearly apply to the present case.
I note the recent High Court decision in Kuligowski v Metrobus [2004] HCA 34 (3 August 2004) in as joint judgment of Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ restated the principles applicable in relation to issue estoppel as follows:-
“21.In his speech in Carl Zeiss Stiftung v Rayner & Keller Ltd (No 2), Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:
‘(1)that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.’”
In Kuligowski the Court was concerned with requirements 1 and 2 namely that the same question has been decided and that the judicial decision which is said to create the estoppel was final. The Court was dealing with whether a decision of a review officer under the workers compensation law was a final decision for the purposes of issue estoppel and where a finding of the officer that the worker’s injuries had “resolved” raised the issue of whether leave to institute for damages at common law could be refused on the grounds of issue estoppel. This meant dealing with the matter of whether or not issues arising in District Court proceedings were the same as those issues decided by the review officer.
In the present case applying the principles referred to by the High Court in Kuligowski it seems clear to me based upon the chronology and having regard to the nature of the applications that final decisions have been made both in the Federal Magistrates Court and on appeal to the Federal Court and I am satisfied there is no doubt that the same question has been decided. There can be no doubt that the judicial decisions to which I have referred involved the same persons as the parties to the proceedings before this Court. It is clear in the present case that there is no ambiguity of a kind found to exist by the High Court in Kuligowski.
It is perhaps useful to also set out in this judgment the finding by the High Court in Kuligowski in relation to a final decision where the Court states at paragraph 25 the following:-
“25.‘A’ final decision, then, is one which is not of an interlocutory character, but is completely effective, unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. (The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 454 per Gibbs J) It must be ‘final and conclusive on the merits’; ‘the cause of action must be extinguished by the decision which is said to create the estoppel.’”
I am satisfied on the basis of the chronology of events before me and the matters to which I referred that applying the principles of the High Court as set out by Dixon J in the decision of Dey there is ample basis upon which this court can reach a conclusion that the proceedings before this court could properly be characterised an abuse of process of the court and/or frivolous or vexatious.
For those reasons it follows that the application before this court should be summarily dismissed and that the applicant should pay the respondent's costs which I shall fix in the sum of $6000.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 August 2004
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