SZTEZ v Minister for Immigration & Border Protection

[2015] FCCA 2619

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2619

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether Notice of Discontinuance filed by applicant should be set aside – whether prospects of success are sufficient such that it is necessary in the interests of justice to reinstate proceeding – application refused.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.13.01
Migration Act 1958 (Cth), ss.36, 417

Cases cited:
MZZIO v Minister for Immigration and Border Protection & Anor [2014] FCCA 618
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
R v Burrell [2008] HCA 34; 238 CLR 218
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: SZTEZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1976 of 2013

Judgment of: Judge Emmett

Hearing date: 23 September 2015

Date of Last Submission: 23 September 2015

Delivered at: Sydney

Delivered on: 9 October 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Bengali interpreter.

Solicitor for the Respondents: Ms Nayomi Senanayake (DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1976 of 2013

SZTEZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to an Application in a Case, filed by the applicant on 3 August 2015, to set aside a Notice of Discontinuance filed by the applicant in accordance with r.13.01 of the Federal Circuit Court Rules 2001 (Cth) on 4 November 2014.

2. By way of background, the applicant is a male citizen of Bangladesh who claims to fear persecution because he was a supporter of the Bangladesh Nationalist Party (“BNP”).

3. The applicant arrived in Australia on 26 July 2012 and lodged an application for a protection visa on 14 November 2012. On 22 March 2013, the applicant’s visa application was refused and the applicant lodged an application with the Refugee Review Tribunal on 27 March 2013 for review of that decision. On 1 August 2013, the Refugee Review Tribunal affirmed the decision under review (“the RRT”). On 22 August 2013, the applicant lodged an application or judicial review of the RRT’s decision.

Application in a Case

1. On 4 November 2014, the applicant filed a Notice of Discontinuance at the Registry of this Court that was signed and dated by him on that date.

2. The applicant filed a document entitled ‘Applicant’s Outline of Submission’ in support of his Application in a Case, as follows:

   “Background:

   Applicant is a citizen of Bangladesh. He came to Australia as an Irregular Maritime arrival in 2012.

   He lodged application for Protection Visa on 14 November 2012.

   The Department of Immigration refused to grant a Protection Visa on 22 March 2012. On 27 March 2013, he applied to the Refugee Review Tribunal for review of the decision.

   In protection visa application he claims that he has fear of returning to Bangladesh for the following reasons. The applicant grew up in a village called Krishna Nagor in Jessore District of Bangladesh. He never married in Bangladesh. He received only six years of formal education. He worked as salesman in Bangladesh. He left Bangladesh because he was afraid that he would be ki1led by members of Bangladesh Awami League party who had formed the Government in Bangladesh. He spent six month in India (Kolkatao) and came Malaysia in 2009. Prior to coming to India he was involved in politics. He was a bonafide member of the Bangladesh National Party. He organised and attended a number of meetings before election of 2008. His job was to organise meetings and prepare agenda for future meetings. He gave speeches and worked for the promotion of BNP. He delivered speeches in villages and also in the main Town Centres. He became known to the supporters of Bangladesh Awami League. Because of his speeches and active support of the BNP. he became famous in that area. Because of that Awami League member wanted him to stop his political activities and growing influence in the local area BAL members openly threatened him to kill and because of fear of life he left Bangladesh.

   In the Hearing of Tribunal the applicant explained very details of his involvement with BNP in Bangladesh. But the Tribunal did not account all his oral and written evidence. On 1^st August 2013 the Tribunal refused his application for review and affirmed the decision of the Delegate.

   On 22 August the applicant lodged application for review in the Sydney Federal Circuit court.

   On 8 November 2013 the Federal Circuit court made a Order to file a Amended Application by 20 December 2013.

   Hearing Time was fixed on 14 November 2014 at 10.15 am before Hon. Judge Emmett. The applicant submitted Amended Application to the Federal Circuit Court Sydney Registry Office on 25 February 2014.

   In the Amended Application, the applicant's main grounds were that:

   the Refugee Review Tribunal committed a jurisdictional error when it failed to apply correct test in relation to the Complementary protection provision contained in section 36 (2) (aa) of the Migration Act.

   The applicant claims that the Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. The Appellant claims that

   The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958 The Tribunal made a jurisdictional error wizen it did not follow Rules of Real Risk Test of persecution and harm.

   The exceptional circumstances between December 2013 and 4 November 2014 the day when the applicant discontinued his Federal Circuit Court Case SYG 1976/2013 were beyond the control. On which the applicant relies to be considered by the Hon Court to allow for Interlocutory Application.

   1. The applicant met [the applicant’s wife] at Sydney on 19 December2013.

   2. Mr. Ibrahim shifted to Adelaide to live with his [wife] an Australian citizen having infant child.

   3. On [date], the applicant and [the applicant’s wife] married in Adelaide.

   4. The applicant told to the His wife about Schedule 3 which barred make On Shore Partner Visa Application but his wife was not prepared for applicants departure from Australia because she loved him and cared her child.

   5. The applicant filed on Shore Partner Visa application to the Department of Immigration which declared Invalid Application.

   6. [The applicant’s wife] made appeal to the Hon. Minister for Immigration and Border Protection under s.46 of the Migration Act 1958 to waive the Schedule 3 which prevented [the applicant] to lodge application from On Shore.

   7. The Minister refused to use discretionary power to waive the schedule 3 criterion.

   8. [The applicant] also made appeal (under section 417) to the Hon. Minister to use the decision of the Refugee Review Tribunal to substitute the decision on the compassionate Humanitarian Ground and grant Refugee Status.

   9. Hon. Minister for immigration refused to use discretionary power to substitute the decision of the Tribunal and grant refugee status to the applicant Minister.

   10. Application claims that for lodging Partner Visa Application it was mandatory for the applicant to withdraw his pending Case in the Federal Circuit Court.

   11. Due to exceptional circumstances and financial hardship, the applicant did not continue his Federal Circuit Court case SYG 1976/2013 which was scheduled for hearing on 14 November 2014.

   12. The applicant claims that he never breaches the Court Orders Migration Regulations. He is law abiding person. He never abuses the court process.

   13. Mere application for discontinuation cannot be treated as abuse of process.

   The applicant has legitimate expectation from the Hon. Court and Australian justice system to consider all the circumstances in which the applicant discontinued the running case.

   There was not any purpose for discontinuation. He never misused the Court process. It is mandatory to discontinue any case pending in the Immigration or court before lodging any other application. He did it to support the system not the breach or misuse the system.

   The applicant always did everything according to the Provisions of the justice System and the Australian Migration Regu1ations. The intention to discontinuation was not to get any benefit to discontinue the court case. That was done according to law.

   The main issue is that whether the applicant deliberately made situation like that or it happened automatically.

   Another issue is whether there is a prospect of success in the pending case for judicial review in the Federal Circuit court.

   The applicant claims that he was not given any chance to appear before the Federal Circuit Court. How he can assess when he was not given an opportunity to appear before the Court.

   He arrived by boat and did not carry all the evidences which are genuinely required for application for protection Visa application. If notice of Discontinuance is set aside by the Hon Court he will get expert advice Barrister to pursue his case and try to organize all the evidences required for his case in the Court.

   The applicant accepts that there is no express power contained in the Federal Circuit Court Rules 200 I to set aside a notice of discontinuance. But at the same time the Court has an inherent power to set aside a notice of discontinuation in exceptional circumstances.

   The applicant appeals to the Court to set aside by using its inherent power to set aside the Notice of Discontinuation and allow him to proceed his previous matter.”

   (Errors in original. References capable of identifying the applicant omitted.)

Applicant’s Reasons for Setting Aside the Notice of Discontinuance

1. I asked the applicant on several occasions why he sought to set aside the Notice of Discontinuance he filed in the proceeding. The applicant stated that it was because his partner visa application would be invalid and that he had been advised to come back to Court to have the Notice of Discontinuance set aside.

2. The applicant knowingly and voluntarily filed the Notice of Discontinuance. He has not suggested that he did not understand the effect of doing so. The applicant has now changed his mind in relation to his decision to discontinue his proceeding for the reasons given in his submissions above. However, as was held in MZZIO v Minister for Immigration & Anor [2014] FCCA 618 at [17] per Whelan J, “the Court’s discretion to set aside a notice of discontinuance does not extend to circumstances where the Applicant simply made an error of judgment in deciding to discontinue the proceedings” (“MZZIO”).

3. In D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, the majority of the High Court of Australia, per Gleeson CJ, Gummow, Hayne and Heydon JJ, stated at [34] as follows:

   “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”

4. In R v Burrell [2008] HCA 34; 238 CLR 218 at [16] the majority of the High Court of Australia, per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ, stated as follows:

   “It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.”

5. In the circumstances, I accept the submission of the first respondent that the inherent power of this Court to prevent injustice is not enlivened.

6. However, even if the Court’s discretion to consider whether the Notice of Discontinuance should be set aside is enlivened, I accept the submission of the first respondent that such discretion should not be exercised in favour of the applicant.

7. The applicant’s explanation for filing his Notice of Discontinuance is expressed by him to be “due to exceptional circumstances and financial hardship”. No further detail or particulars were provided in support of that assertion.

8. The applicant also stated that “there was not any purpose for discontinuation”. I understand that statement to be that at the time that he discontinued, he had not met his now partner and, therefore, had no compelling reason to pursue his application for judicial review.

9. Further, there was no explanation offered by the applicant for the delay in filing his Application in a Case to set aside the Notice of Discontinuance, filed on 4 November 2014. In the applicant’s submissions he asserts that he met his current partner in December 2014, yet his application to set aside the Notice of Discontinuance was not filed for a further seven months.

10. The applicant also stated that, during that intervening period, he unsuccessfully requested the first respondent to substitute a more favourable decision pursuant to s.417 of the Migration Act 1958 (Cth) (“the Act”). It is well established that an applicant’s conduct in seeking ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the RRT on grounds that may otherwise have been available under the Act (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

Applicant’s Application for Judicial Review – Prospects of Success

1. I now turn to consider the prospects of success of the applicant’s application for judicial review of the decision of the RRT, dated 1 August 2013. As stated above, the applicant filed his initiating application on 22 August 2013, seeking judicial review of the RRT’s decision. The grounds in support of that application made bare assertions that were unsupported by particulars and did not, by themselves, disclose any error capable of review by this Court.

2. The applicant attended a directions hearing before me on 8 November 2013. On that occasion, inter alia, the applicant was given leave to file and serve an Amended Application and any further evidence by 20 December 2013. On 25 February 2014, the applicant filed an Amended Application, which he confirmed were the grounds upon which he now relied.

3. In considering whether the applicant’s grounds for judicial review have sufficient prospects of success to trigger the exercise of the Court’s discretion and to exercise that discretion in favour of the applicant, I refer to the grounds of the applicant’s Amended Application as follows:

   “In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars

   RRT unreasonably raised doubt over the applicant's political activities and the membership of BNP.

   The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh National Party and against the Awami League, and his membership of the particular social group consisting of members of BNP.

   At colum 24 of the RRT decision the RRT concluded:

   Having considered the Applicant's account together with the country information cited in the delegates decision record and submissions to the Department and the Tribunal I have doubts as to the credibility of his claims to fear harm because of his political opinion.

   The applicant claims that he submitted several oral and written evidence of his political activities but the Tribunal disregarded all of the personal evidences and concluded on conflicting country informations collected by the Foreign Affairs. The applicant claims that informations collected by the Delegate is biased and not impartial. The applicant claims that he fled from Bangladesh because of fear of persecution and Political reasons. The fear of persecution was genuine.

   The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal's finding of reasons is confused and test for persecution was not applied according to the rule of the Act.

   Particulars:

   The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion. The RRT made unreasonable doubt about applicant's documents related with his case came on the conclusion that all the documents come from Bangladesh is fabricated that the applicant and persons like him have no fear of persecution and harm.

   The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars:

   The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return Bangladesh. The applicant claims that the Tribunal blindly follow the decision of the Delegate.

   The Tribunal did not consider that how the applicant came to Australia by Boat taking high risk of life. The RRT ignored intentionally the relevant consideration related with complementary Protection set out in s.36(2)(a). He is subjected to a significant harm as consequences of being tried for murder with possibility that death sentence would be carried out on him.

   The RRT ignored real test of persecution and made decision with closed mind.”

   (Errors in original.)

4. The applicant attended a hearing before the RRT on 3 July 2013 with the assistance of an interpreter and an advisor. The RRT explored the applicant’s claims with him in some detail and put to him various concerns it had about his evidence and noted his responses. The RRT also explored with the applicant concerns it had about documents provided to it by the applicant. The RRT considered in some detail a post-hearing submission from the applicant’s advisor.

5. The RRT accepted that the applicant may generally have favoured the BNP and may also have attended some of its public meetings and to that extent may have had a political opinion in favour of the BNP.

6. However, the RRT rejected the applicant’s claims ever to have been targeted by supporters of the opposition party, or that a false case had been lodged against him by political enemies, or that he had ever suffered harm at the hands of the Bangladesh police, or that they were searching for him or that they had an adverse interest in him. The RRT rejected the applicant’s claims to have been politically involved with the BNP or to have had friends and relatives with BNP political profiles, which would lead to him being imputed with a political profile.

1. Ultimately, the RRT did not place any weight on the applicant’s documents and expressed doubt about their authenticity, referring to independent country information about the ready availability of false or falsified documents in Bangladesh. In the circumstances, the RRT found that the applicant was not entitled to protection, either in accordance with s.36 or s.36(2A) of the Act.

2. While unnumbered, the applicant appears to make three complaints about the RRT decision in his Amended Application, filed 25 February 2014.

3. In the first ground of the applicant’s Amended Application, the applicant alleges that the RRT acted without or in excess of jurisdiction by failing to take into account relevant considerations. The particulars in relation to that ground disclose that the relevant considerations that the applicant claims the RRT did not consider were in relation to his membership of the BNP and political activities. The applicant goes on to state that he provided both oral and written evidence demonstrating his political activities but that they were disregarded by the RRT in favour of contradictory country information. A fair reading of the RRT’s decision record does not appear to support such a contention.

4. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

5. The RRT explored with the applicant in some detail the applicant’s claimed political involvement and, indeed, was prepared to accept that the applicant may “generally have favoured” the BNP. However, the RRT found that the applicant was not a credible witness and had exaggerated or fabricated his level of involvement with the BNP.

6. The applicant’s complaint in the first ground appears more to be a disagreement with the findings and conclusions of the RRT. Such a complaint invites merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

7. In making those findings, the RRT was entitled to rely on independent country information, which contradicted supporting evidence provided by the applicant. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

8. Those findings would appear to be open to the RRT on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

9. Accordingly, the first ground would appear to have no, or no reasonable, prospect of success.

10. In the second ground, the applicant appears to claim that the RRT fell into jurisdictional error by not applying the correct test for persecution, as required under the Act.

11. Again, such a claim would not appear to be made out. The RRT’s decision record reveals that the RRT began by stating the relevant law. The RRT then made findings based on the evidence and material before it, which would appear to be open to it for the reasons it gave, including its adverse credibility findings which were the basis for its rejection of the applicant’s claims. As stated above, the RRT’s credibility findings were open to it on the evidence and materials before it and for the reasons it gave. The RRT reached conclusions based on its findings, to which it applied the correct law.

12. To the extent that the second ground cavils with the RRT’s finding that the applicant’s documents from Bangladesh were fabricated, again, those findings would appear to be open to the RRT on the evidence and material before it and for the reasons it gave. As stated above, the country information which the RRT accepted in preference to the applicant’s evidence was a matter for the RRT and a finding which was open to it.

13. Accordingly, the second ground would appear to have no, or no reasonable, prospects of success.

14. In the third ground, the applicant appears to make a similar claim as in the second ground in relation to the RRT’s application of the test for complementary protection.

15. Again, such a ground would not appear to be made out for the reasons stated above.

16. To the extent that the third ground alleges bias on the part of the RRT, such a claim would not appear to be made out. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

17. The applicant was directed on 8 November 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 20 December 2013. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the RRT hearing, he needed to give notice by 20 December 2013. However, no document was filed by the applicant either in accordance with those directions or otherwise.

18. Further, the applicant did not provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

19. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

20. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

21. The third ground makes bare assertions that the RRT did not properly consider complementary protection and that the RRT “blindly” followed the decision of the Delegate. Both assertions are unparticularised and neither assertion would appear to be made out. Complementary protection was considered by the RRT and its conclusion that it was not satisfied that the applicant met that criterion would appear to be open to it on the evidence and material before it and for the reasons it gave, the RRT comprehensively rejected the applicant’s claims to be of any adverse interest to Bangladeshi authorities or suffering past harm. The RRT’s decision record is detailed in its summary of the applicant’s claims, the evidence before it, its exchanges with the applicant, its consideration of those claims, its findings and conclusions. There is nothing on the face of the RRT’s decision record to suggest that it “blindly” followed the decision of the Delegate.

22. Accordingly, the third ground would appear to have no, or no reasonable, prospects of success.

23. In the circumstances, the grounds of judicial review relied upon by the applicant have insufficient prospects of success such as to compel the exercise of any discretion in the Court in favour of the applicant to set aside the Notice of Discontinuance.

24. There is no suggestion by the applicant that the filing of the Notice of Discontinuance was procured by fraud or was an abuse of process or that it was filed pursuant to an agreement that was voidable.

25. The applicant has not persuaded me that it is necessary, in the interests of justice, to set aside his Notice of Discontinuance. Further, as stated above, it is in the overall interests of justice that matters that come to a close voluntarily, in the absence of some compelling reason to do so, should not be revisited by the Court. To do otherwise would impose an intolerable burden on parties to litigation where those parties understood the litigation was finalised and it would be reasonable for those parties to form that understanding.

26. Nothing that has been put to the Court by the applicant, either in writing or in oral submissions, causes me to consider that that proposition should not be complied with.

27. In the circumstances, the applicant’s Application in a Case filed on 3 August 2015 to set the Notice of Discontinuance he filed in the proceeding on 4 November 2014, should be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  9 October 2015