S1878 of 2003 v Minister for Immigration

[2005] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1878 OF 2003 v MINISTER FOR IMMIGRATION [2005] FMCA 194

MIGRATION – Application by respondent Minister for summary dismissal – whether the substantive application for judicial review of RRT decision constitutes an abuse of process – where hearings before the Federal Court and High Court were interlocutory.

Federal Magistrates Court Rules 2001

Port of Melbourne Authority v Anshun (1980-1981) 147 CLR 589

Applicant: APPLICANTS S1878 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 697 of 2004

Judgment of: Raphael FM

Hearing date: 25 February 2005

Date of Last Submission: 25 February 2005

Delivered at: Sydney

Delivered on: 25 February 2005

REPRESENTATION

For the Applicant: Applicant in Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Notice of Motion dismissed.

2. The matter remains set down for hearing on 29 May 2006 at 2.15pm.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 697 of 2004

APPLICANTS S1878 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. I have before me today an application by way of a notice of motion from the respondent Minister seeking to strike out the application filed on 12 March 2004 and amended on 5 October 2004 on the grounds that it constitutes an abuse of process of the court.

2. The respondent has filed an affidavit which in annexure C sets out a litigation chronology commencing on 17 May 1996 and running up to the application to this Court on 12 March 2004.  The chronology includes an application for a draft order nisi filed in the High Court, an application to the Federal Court which was discontinued and then two proceedings which were heard, albeit on an interlocutory basis by Davies J in the Federal Court, matter number NG993/96 and by McHugh J in the High Court being matter S98/1996.

3. Those familiar with this type of proceeding will instantly recognise that citation as belonging to one of the seminal decisions in this area of the law. But it is important to remember that it was a seminal decision upon an application for an order nisi and it was not, and his Honour declined to allow it to be, a final decision in the case. Certain parts of the claim were transferred for hearing by Davies J.

4. Thereafter the applicant now joined by his wife and stepdaughter participated in further litigation as members of the Muin and Lie class actions.  Their application met a fate similar to that of many other applicants in that after extensions of time were given Emmett J in Federal Court proceedings N1202/2003 dismissed the application for an order nisi.

5. The applicant then filed his application in this court seeking review of the same Tribunal decision that had been considered by those illustrious members of the bench and, in respect of the decision of Davies J on appeal, a Full Bench.

6. Although the applicant has never had a final hearing into his claims it cannot be said that the decisions that were given on them were not full But it seems to me that because they were interlocutory the applicant is not shut out from making a further application.  It could be argued against him in relation to such further application that the litigation should be stayed because the applicant failed in his earlier proceedings to bring before the court the matters which he could have brought and which he now seeks to bring: Port of Melbourne Authority v Anshun (1980-1981) 147 CLR 589.

7. I understand it is generally accepted that the Minister could not argue for issue estoppel or res judicata in the circumstances of this case but she has not argued Anshun either nor has she attempted to argue that any of the matters which are contained in the applicant's amended application under the Judiciary Act 1901(Cth) are matters which I could have dealt with on the Anshun principle.  In fact, and to my regret, I have not been addressed at all on the content of the applicant's amended application. It has merely been put to me that he seeks review of a decision that has been the subject of consideration by other courts and that this is an abuse of process.

8. I do not think that in these circumstances it is for me to go through this document and to compare it with other assertions made by the applicant in previous proceedings.  In those circumstances I am unable to be satisfied that there is any abuse of the process of the court in this application.  I decline to grant the application of the Minister.  The matter will remain in the list and be dealt with upon its merits at the appropriate time.

9. The Notice of Motion is dismissed.  The Applicant is self-represented and is not entitled to an order for costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  3 March 2005