MZWKJ v Minister for Immigration
[2005] FMCA 1294
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWKJ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1294 |
| MIGRATION – Review of Refugee Review Tribunal decision – Anshun estoppel – application dismissed. |
| Migration Act 1958 (Cth) |
Applicants M24 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 600
BC v Mnister for Immigration & Multicultural Affairs [2001] FCA 1669
BC v Mnister for Immigration & Multicultural Affairs [2002] FCAFC 221
Port of Melbourne Authority vAnshun Pty Ltd (1981) 147 CLR 589
S1198 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1046
SAAP v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Somanader& Ors v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677
Wong v Minister for Immigration & Multicultural &Indigenous Affairs[2004] FCAFC 242
| Applicants: | MZWKJ & MZWKK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 632 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 17 June 2005 |
| Date of Last Submission: | 17 June |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr Krohn |
| Solicitors for the Applicants: | Chandra Weerakoon |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 632 of 2004
| MZWKJ & MZWKK |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 17 March 1997. The male applicant is the primary applicant who made specific claims of persecution for a convention reason. The female applicant is his wife who made no specific claims of her own and whose application for a visa, and consequent applications in the courts, rise or fall entirely with the male applicant's case.
It is conceded in argument before me that the applicant was present throughout the Tribunal proceedings and that he brought forward the evidence that is referred to in his current review application.
It is also agreed that section 424A of the Migration Act was not enacted at the relevant time and therefore does not apply. As a consequence, the ratio in SAAP v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 would not apply to this case.
The applicant first brought proceedings some six years after the initial Tribunal decision. Those proceedings were an application in the High Court of Australia for an order nisi for review. The terms of the order nisi sought in those proceedings is set out in an exhibit to an affidavit by the applicant, filed in those proceedings, which has been made an exhibit in these proceedings. The relevant part of the order nisi is clause 2, which provides (together with particulars) as follows:
2.Further or in the alternative, the Second Respondents
(a)failed to accord the applicant natural justice;
(b)failed to follow the procedures required by the Migration Act;
(c)asked the wrong question or misconceived her duty.
PARTICULARS
In making its decision the Tribunal failed to observe or breached the rules of natural justice in that it failed to comply with the procedures prescribed by the Migration Act and in particular it failed to give to the applicant particulars of information which the Tribunal considered or ought reasonably to have considered as a reason or reasons for affirming the decision under review and referred to in pages 12-19 of its decision.
This application was remitted to the Federal Court and considered by Weinberg J. His Honour gave an extempore judgment in those proceedings on 24 March 2004, wherein his Honour said as follows:
This is an application for an order nisi for what are described as constitutional writs in which the applicant contends that by reason of the decision of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal, the decision of that tribunal dated 17 March 1997 should be set aside. The applicant joined the Muin and Lie class action in the High Court in August 2002 and filed a draft order nisi in the High Court on 22 May 2003. On 16 October 2003, Marshall J made orders for the future conduct of this case, including an order that contentions be filed. Those orders required the applicant to identify with some greater precision how it was that he contended that he fell within the principles of Muin, entitling him to succeed in this application. The applicant did file contentions but having regard to the fact that he is and has at all material times been unrepresented they shed little light on the nature of his claim.
Counsel for the minister have submitted that the application for an order nisi should be refused and has pointed to five specific reasons why that course should be followed. He has submitted that the applicant has failed to identify the nature of the material that was supposedly adverse to his claim that was taken into account by the tribunal - I should interpolate that if that were the only argument advanced by the minister I would reject it.
As previously indicated the applicant is unrepresented and a fair reading of the tribunal’s reasons demonstrates fairly obviously that at pages 18 and 19, there was some country information that could reasonably be regarded as adverse to the applicants case because it described conditions in Sri Lanka as having improved significantly by the time the matter was heard by the tribunal. However, the other points put forward by counsel have more substance. He submitted that:
There was no evidence before this court that the adverse material was not brought to the attention of the applicant during the course of the tribunal hearing and that is self-evidently correct.
In other words there is no such evidence.
Thirdly, the applicant has not said what, if anything he would have done had that material been drawn to his attention. Fourthly, the vast bulk of the country information referred to was indeed favourable to the applicant. That proposition again is self-evidently correct from reading the reasons of the tribunal. It was only really small parts of the country information that were adverse to his case.
Fifthly, and most importantly of all, it was submitted that the country information that was adverse to his case played no role whatsoever in the tribunal’s reasons. The last point, it seems to me, is decisive. A fair reading of the tribunal’s reasons for decision demonstrates that the tribunal rejected the applicant’s account as a credible account and it set out detailed reasons for adopting that course and pointed to a number of inconsistencies in the versions that he had given and for that reason concluded that his evidence regarding past mistreatment was positively to be disbelieved. In those circumstances, and in the absence of any proper explanation for the lengthy delay that has elapsed between 1997 and the time that the applicant filed this application in the High Court, it seems to me that the application must be regarded as hopeless.
The applicant has maintained before me this morning that the tribunal should have accepted him as a credible witness and that he continues to fear persecution if returned to Sri Lanka. I have explained to him as clearly as I could that this court, and indeed the High Court, cannot engage in merits review or rehear matters of credibility in the way that he has sought to have the court do. In all the circumstances, the only order that the court can make is an order that:
1. The application for an order nisi be refused.
The applicant then sought leave to appeal, the leave application being considered by Finkelstein J.
Finkelstein J declined to grant leave to appeal, and in a brief judgment said as follows:
This is an application for leave to appeal from orders made by Weinberg J on 24 March 2004. The judge ordered that the applicant’s application for orders nisi for the issue of constitutional writs in respect of a decision of the Refugee Review Tribunal be refused, with costs. The application was refused because the judge, after examining the tribunal’s reasons for decision, was satisfied that the applicant had no prospect of successfully challenging the tribunal’s decision.
I too have examined the tribunal’s reasons, perhaps not as closely as the judge, for the purpose of determining the basis upon which the tribunal rejected the applicant’s claim for asylum It is abundantly clear that the tribunal rejected the claim because it was not prepared to accept the applicant’s account of what had happened to him in Sri Lanka. That is, the tribunal did not accept that the applicant had been mistreated for a Convention reason and consequently formed the view that it was unlikely that he would be persecuted for a Convention reason if he were required to return.
It is almost impossible to challenge the tribunal’s decision when it is based on findings of fact of the type made in this case. It follows that the orders made by Weinberg J are not in any relevant sense unjust. There is therefore no basis for granting leave to appeal from his decision.
The application will be refused with costs.
The amended grounds of application in the current proceedings are in the following terms:
1.The decision of the tribunal was made without jurisdiction or is affected by jurisdictional error in that the Tribunal denied procedural fairness to the applicants or acted in breach of the rules of natural justice.
PARTICULARS
(a)There were significant inconsistencies which the Tribunal perceived in the evidence but did not put to the applicants for comment. Those inconsistencies were as follows:
· Inconsistency between the first applicant’s written statement he and his wife went to live in Batticaloa in August 1990 and the first applicant’s mother-in-law’s affidavit that they went to Batticaloa in November 1990 (CB 162.3);
· Inconsistency which the Tribunal perceived between evidence of the first and second applicant in relation to the making of an insurance claim concerning a burglary at their house (CB 162.8);
· Inconsistency perceived by the Tribunal between evidence of the applicants and evidence of the second applicant’s sister concerning the timing of the purported disappearance of second applicant’s brother-in-law and concerning the whereabouts of the second applicant’s sister after 1992 (CB 162.9);
· Inconsistency perceived by the Tribunal between evidence of the applicant’s sone and the applicants concerning the date the applicants went to Batticaloa (CB 163.1);
· Inconsistency perceived between the evidence of the first applicant and the second applicant concerning the number of contacts they had with the LTTE and the timing of the LTTE visits (CB 163.3);
· Inconsistency perceived by the Tribunal between the claim of the first applicant that he and his son were detained in 1995 and evidence of the witness who stated the second applicant said the first applicant was having trouble with the police in 1993 to 1994 (CB 163.8).
(b) The Tribunal at no stage indicated to the applicants that the inconsistencies in the evidence raised the question whether the Tribunal would accept that the applicants had ever lived in Batticaloa and that this was an issue which was potentially critical to their claim.
2.The decision is affected with an error of law which affected the exercise of its power.
PARTICULARS
The applicants refer to and repeat the particulars to Ground 1 herein.
The preliminary issue raised by the respondent as a result of the judgment of Weinberg J is that the applicant’s estopped in one of the three common forms: res judicata; issue estoppel; or Anshun estoppel. The applicant referred to a number of authorities including Somanader& Ors v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677, Wong v Minister for Immigration & Multicultural &Indigenous Affairs[2004] FCAFC 242 and Applicants M24 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 600 on the question of issue estoppel. There is considerable argument between the parties as to whether this is an issue estoppel case or an Anshun estoppel case. That is because an issue estoppel would be a complete bar to the applicant bringing these proceedings, whereas if there is only an Anshun estoppel, then the applicant may be entitled to bring proceedings again, at the court's discretion.
It is convenient in these circumstances to deal firstly with the question of Anshun estoppel. The nature of what is described as an Anshun estoppel flows from the comments of the High Court in Port of Melbourne Authority vAnshun Pty Ltd (1981) 147 CLR 589 at 603 to 604, where the High Court said:
37. In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v. County of Sac. (1876) 94 US (24 Law Ed, at p 199) .
38. It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect the discussion in Brewer v. Brewer (1953) 88 CLR 1 is illuminating.
39.There it was held that the wife's omission to plead matters which would have constituted a discretionary bar to her husband's suit for dissolution of marriage on the ground of adultery did not estop her from raising those matters in subsequent proceedings for maintenance. Fullagar J., with whom Dixon C.J. agreed, said (1953) 88 CLR, at p 15 :
"In Hoysted's Case (1925) 37 CLR 290; (1926) AC 155 the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different. As Somervell L.J. said: -
'He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously'
(1949) Ch, at p 360. The point in question had been 'the groundwork of the decision itself, though not then directly the point at issue' (per Coleridge J. in Reg. v. Township of Hartington (1855) 4 El & Bl 780, at p 794 (119 ER 288, at p 293) )."
This was also the conclusion reached by Williams, Webb and Taylor JJ. (1953) 88 CLR, at p 10.
40.The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
41.It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.
42.Taking into consideration the relevant factors we conclude that the Full Court was right in holding that there was an estoppel. The matter now sought to be raised by the Authority was a defence to Anshun's claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun. The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment.
43.The Authority did not adduce evidence at the trial to show why it failed to raise the indemnity issue in the first action. Apart from considerations such as the ability to overcome any prejudice to Anshun by orders for costs and the fact that O'Bryan J. refused to strike out the action summarily -matters mainly associated with the conduct of this action - the Authority's case is that the principle in Henderson v. Henderson (1843) 3 Hare 100 (67 ER 313) does not apply.
44. There is, however, one other factor which should be mentioned. It is that the defence of an indemnity required to be specially pleaded at common law. It was not covered by a general or particular traverse. Consequently the failure to plead it would not have founded an estoppel under the old law in its strictest formulation. But the evolutionary development of that rule evidenced by the decision in Humphries v. Humphries (1910) 2 KB 531 may well have resulted in releases and indemnities being equated to traversable allegations for the purposes of estoppel. In any event the fact that the defence required to be specially pleaded at common law is not now a material consideration. It does not derogate from the conclusion that it was unreasonable for the Authority to refrain from raising its case of indemnity for disposition in the first action.
These principles have been taken up in judicial review proceedings and in particular migration cases, as is apparent from the decision of the court in BC v Mnister for Immigration & Multicultural Affairs [2001] FCA 1669. At first instance, in the decision of Sackville J, his Honour made the following comments as to whether or not it was unreasonable to have raised additional judicial review grounds in earlier proceedings:
39 Before addressing Mr Killalea's submissions, reference should be made to a point that received relatively little attention in argument but, in my view, is of considerable importance. In Anshun, the High Court emphasised that an estoppel normally arises where a party brings proceedings which, if successful, will result in a judgment that conflicts with an earlier judgment. As Kenny JA pointed out (at 27) in Gibbs v Kinna, a factor indicative of "unreasonableness" in failing to assert a cause of action in an earlier proceeding, is that any judgment or order made in the later proceedings will conflict with the earlier judgment or order. Her Honour also pointed out that this factor explains the outcome of a number of cases, including Rahme v Commonwealth Bank and Bryant v Commonwealth Bank, to which reference has already been made.
40 In the Part 8 proceedings, Madgwick J dismissed the application for judicial review of the RRT's decision. If the applicant were to succeed in the remitted proceedings, the consequence would be the issue of a writ of certiorari quashing the decision and of a writ of mandamus directing the RRT to perform its duty to reconsider the application for a protection visa. In these circumstances, the remitted proceedings would result in a "conflicting judgment" in the sense in which that term was used in Anshun. This is a powerful indicator that it was "unreasonable" for the applicant not to raise the jurisdictional unreasonableness argument in the Part 8 proceedings.
In my view the nature of the grounds claimed in this case are so similar, in substance, to those the subject of the order nisi application (even on the best case of the applicant with respect to the difference in focus between the country information and inconsistencies in evidence) that nonetheless the arguments ought to have all been brought as part of the initial proceedings. I find that it was unreasonable that the applicant did not pursue his current basis for judicial review in the proceedings previously pending before Weinberg J, which were dismissed.
It is then appropriate for me to determine whether or not there are circumstances in this case which would justify granting the applicant leave to litigate these issues, despite having had an opportunity to do so before Weinberg J and not pursuing them on that occasion. The court in Wong's case, at paragraph 38, said:
38 Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs[2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
In BC, on appeal, [2002] FCAFC 221, the court looked at what were said to be special circumstances in that case, identifying the following arguments:
31 The special circumstances on which the appellant relied can be summarised as follows:
(a) the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings;
(b) the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants;
(c) review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court);
(d) the state of the authorities at the relevant time was such that it was reasonable not to rely on jurisdictional unreasonableness;
(e) a High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 had opened up the possibility of judicial review on the ground of jurisdictional unreasonableness;
(f) the proposed ground of review was meritorious especially in view of the fact that the High Court had granted special leave in Gamaethige; and
(g) the appellant could not obtain redress by suing counsel for neglecting to take the point in the proceedings before Madgwick J.
Ultimately the court concluded that special circumstances were established with respect to the first four factors listed, stating:
38 In the Court's view, a combination of the four factors referred to above at subparagraphs (a), (b), (c) and (d) amounted to special circumstances. In the context of this case, we would not regard any one of those four factors on its own as amounting to special circumstances. In the Court's view the first, third and fourth factors are of significantly greater weight than the second factor to which we would attach only marginal weight. In relation to the fourth factor (the state of the authorities), there may appear to be some contradiction in the proposition that for Anshun purposes it was unreasonable on the appellant's part to fail to raise jurisdictional unreasonableness in his first application, on the one hand, and, on the other hand, to have regard to the degree to which the case law on jurisdictional unreasonableness had developed at the relevant time when considering whether special circumstances exist. However, the two points of view can be reconciled by treating the appellant's use of the word "reasonable" as meaning that mitigating circumstances existed. From a technical and procedural viewpoint, failure to raise jurisdictional unreasonableness was unreasonable in the Anshun sense, but in our opinion that is excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition and there was little guidance in the particular context of the Act. Now that the High Court has granted special leave to appeal in Gamaethige, it is likely that a clearer picture of the law will emerge. This leads to the next question in the appeal, namely whether we should follow the decision of the Full Court in Gamaethige.
In this case the applicant relies upon the following factors as being relevant to the discretion:
a)That the case does potentially involve questions of life and liberty;
b)The minister is a statutory respondent;
c)The applicant was unrepresented at the earlier court proceedings; and
d)That if the applicant succeeds in showing that there was procedural unfairness, it would usually be the case that relief would follow by way of certiorari and mandamus.
There was considerable argument before me as to whether or not the merit of the proposed application was relevant in the exercise of the discretion. Counsel for the minister relied upon comments by McInnis FM in Applicants M24 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 600 at paragraphs 38 to 39, where his Honour said:
38.I have considered all those factors, and in my view none of those factors would lead the court to conclude that it should not apply the principles of res judicata, issue estoppel or Anshun estoppel in the manner described earlier. I am further satisfied that none of the issues raised would encourage this court to find there are special circumstances of a kind which would avoid the operation of Anshun estoppel, even if the court were incorrect in relation to the operation of the doctrine of res judicata and issue estoppel. The factors include:
• the consequence to the applicants namely a real risk to their life and liberty,
• that the Minister is a respondent by force of statute only and not subject to the pressure of costs and time which often weigh on individuals who are litigants,
• that the applicants have no other redress available to them or no other form to raise complaints,
• that at the time of lodging the application to the High Court the applicant was unrepresented and only recently obtained pro bono assistance, has very poor and limited English,
• the applicant has attempted access to legal avenues available
• that the applicant suffers from a medical disorder claimed to be post-traumatic stress disorder with depression,
• The substantive application before the Court has merit and is not bound to fail.39.Those factors do not provide any or any proper basis in the current application for the exercise of a discretion in order to find that there are special circumstances which may apply to avoid the operation of Anshun estoppel. I am further satisfied that none of those factors would otherwise lead the court to conclude that it is inappropriate to apply the doctrine of res judicata or issue estoppel. Most of those factors will be applicable in many applications of this kind. The specific medical condition of itself does not provide a basis for the exercise of my discretion in the absence of further detailed medical opinion.
In that case it seems that McInnis FM did have regard to the question of potential merit of the application then before him. Counsel for the applicant also relied upon Somanader as authority assisting in this proposition. However, on my reading of Somanader's case, the court concluded that there was issue estoppel and therefore there was no discretion and as such, despite the fact that the subsequent basis of claim did have merit, it was not a case that could proceed.
I am of the view that it is appropriate to consider whether or not a subsequent case is without merit as there would be no purpose in allowing the application for a case that is not reasonably arguable.
I have heard Mr Krohn briefly on whether or not the substantive case has merit. Whilst it does not appear to me to be a strong case, it may well be an arguable one. I take that into account and proceed on the basis that the applicants' substantive case is not a hopeless case.
The applicant says that he was unrepresented in earlier proceedings. Counsel for the Minister refer to some comments by Mowbray FM in S1198 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 1046 at paragraph 17, where his Honour said:
17. I have carefully considered these grounds for special circumstances, as they apply both individually and cumulatively to the applicant's case. In my view, the circumstances are not so special as to amount to "exceptional" in the words of the Full Court in Wong. For example, in the applicant's Federal Court case, Conti J found the applicant to be a well-educated and intelligent person with a reasonable command of the English language. Although he was unrepresented he had in the past had assistance from advisers, including migration agents. It is clear that he has had access to resources. The lack of representation in migration cases, in both the Federal Court and the Federal Magistrates Court, is indeed the norm and cannot amount to a special circumstance.
I do not read his Honour's comments as creating any specific rule but rather a comment as to the significance of representation, in a general sense, which forms part of the circumstances to which one would have regard in any particular case. In this case there are no particular details about the lack of representation that are put forward beyond the more general proposition that the applicant was not legally assisted in judicial review proceedings, which are often complex matters.
I have regard to the fact that the Minister is a statutory respondent and therefore that there is less need to protect the Minister from litigation as there perhaps would be in cases of civil or general commercial dispute such as Anshun. However, this is not a complete answer to the exercise of the discretion because the public has a right to expect that a statutory respondent such as the Minister should not have to repeatedly defend proceedings at public expense. Similarly the limited resources of the courts should not be wasted by hearing cases on multiple occasions, effectively clogging court lists and creating delay and expense to all litigants and the public purse.
I do accept that for the applicant personally, this case presents very significant issues potentially relating to his life and liberty.
It is also relevant that there has been inordinate delay in these proceedings. Indeed, there was inordinate delay before the proceedings were commenced with respect to the order nisi heard by Weinberg J.
Having regard to all of the circumstances of the case, I am not satisfied that there are circumstances in this case such as to justify a further hearing.
In the circumstances I therefore dismiss the applicant's application on the basis of an Anshun estoppel.
Having made this finding it seems to me that it is not necessary for me to formally determine whether the order nisi actually creates an issue estoppel at law. Therefore I do not embark upon an analysis of those issues. Similarly I do not need to embark upon an analysis of the issues relating to res judicata in the context of this case.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
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