Abuse of process
23 The immediate and obvious problem facing Mr Bethell in his application for a writ of habeas corpus is that he made an application for identical relief to Rangiah J and sought to lodge the present application the very day after Rangiah J dismissed the first application. Hence the Minister's submissions about res judicata, Anshun estoppel and abuse of process.
24 Nevertheless, Mr Bethell relies on Re Edwards (1988) 92 FLR 96 as authority for the proposition that in cases of habeas corpus, an applicant has the right to go from one court to another and that no court is bound by the view taken by any other court. That was a case of an application for bail in criminal proceedings. The relevant passage from the judgment of McPherson J (at 98) is:
On behalf of the respondent, Mr Scott of counsel submitted that, the earlier application for bail having been refused, it was not now competent for the applicant to apply again to another judge of this Court. The submission is certainly contrary to the law as it used to be. Bail was originally granted upon application for habeas corpus: see R v Malone [1903] St R Qd 140 at 141. In England the old rule was that an applicant for habeas corpus was entitled to go from one Court to another, and that no Court was bound by the view taken by any other: ibid. In England that is now no longer possible: see Re Kray [1965] Ch 736 at 742. In Queensland, however, the right to go from judge to judge was recognised by the Full Court as recently as 1973: see R v Kerr; Ex parte Groves [1973] Qd R 314 at 316. In R v Malone (supra) the Full Court held that there was 'an independent right' in the party of a person detained in custody 'to apply for bail, and if refused by one judge, to apply to another'.
25 The 'old rule' to which McPherson J refers was affirmed by the Privy Council in Eshugbayi Eleko v The Government of Nigeria (Officer Administering) [1928] AC 459. In that case, the judge at first instance had decided that, having heard and dismissed a motion for habeas corpus previously, he had no jurisdiction to entertain a new application (at 465). The conclusion of the Privy Council was that each judge of the High Court of Justice 'still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation and that he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application' (at 468). The Privy Council did not, however, consider the potential application of doctrines which frequently stand in the way of repeating an application made previously, namely res judicata, Anshun estoppel and abuse of process.
26 In any event, there is authority in this court, which I am required to follow, to the effect that those doctrines can apply to applications for habeas corpus. That authority is the decision of Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246; (2010) 276 ALR 326 (Vasiljkovic 1st Instance) together with the Full Court decision in which it was upheld, Vasiljkovic v The Honourable Brendan O'Connor (No 2) [2011] FCAFC 125 (Vasiljkovic FC). The applicant in that case was arrested with a view to extraditing him to Croatia. The ensuing procedural history was extremely involved; I will only describe the aspects of it that are relevant to the present issue. Mr Vasiljkovic applied to this court for review of a decision of a magistrate that he was eligible for surrender to the Republic of Croatia. That application was dismissed, an appeal by Mr Vasiljkovic to the Full Court was successful, but the High Court overturned that, and Mr Vasiljkovic was returned to prison. He then filed the application which came before Edmonds J. It sought, relevantly, a declaration that Mr Vasiljkovic's detention was unlawful, and an order in the nature of a writ of habeas corpus. The Minister sought summary judgment on various grounds, including that the application for habeas corpus was precluded by the outcome of the earlier review decision in the High Court, because both the High Court's decision and the application before Edmonds J turned on the lawfulness of Mr Vasiljkovic's detention.
27 Edmonds J granted summary judgment on several grounds. One was that the substance of both the review proceeding and the habeas corpus proceeding was the same: a challenge to the legality of the instrument that authorises Mr Vasiljkovic's detention (at [58]). Thus, res judicata precluded the new proceeding (at [60]). Also, Mr Vasiljkovic sought to raise new issues that were closely connected with the review proceeding and were not, but should have been, litigated in the review proceeding, so Anshun estoppel prevented him from raising them (at [73]). Also, to the extent that Mr Vasiljkovic was seeking to reargue the very matter decided adversely against him in the previous proceeding (at [76]), or that he was wanting to argue a different case (at [77]), he was seeking an outcome that would conflict with the previous decision in the review proceeding, and this was an abuse of process (at [83]).
28 In Vasiljkovic FC the Full Court unanimously dismissed the applicant's appeal, and in emphatic terms. At [16], after describing the grounds just mentioned, Jessup J (with whom Keane CJ and Dowsett J agreed) said:
The primary Judge upheld the respondents' motion on all the grounds referred to above. Save for the matters briefly raised on behalf of the appellant to which I shall refer presently, it was not submitted on his behalf that his Honour had been in error in relevant respects. In my opinion, and with respect to the grounds referred to in the previous paragraph, this was a very clear case for the exercise of the power with which the court is invested under both s 31A of the Federal Court Act and O 20 r 5 of the Rules of Court. Nothing put on behalf of the appellant, and nothing which the material before us otherwise discloses, gives rise to a scintilla of doubt as to the correctness of his Honour's disposition of the respondents' motion.
29 That dictum was not the ratio decidendi of the Full Court's decision, given that those grounds appear not to have been argued before it. It is also true that neither the Full Court nor Edmonds J had their attention drawn to the Eshugbati Eleko line of authority. But the emphatic way in which the Full Court agreed with Edmonds J's conclusions on those points means, in my view, that I must accept those conclusions. Res judicata, Anshun estoppel and abuse of process may be raised in answer to an application for habeas corpus.
30 Mr Bethell sought to distinguish Vasiljkovic on various grounds. One is that it was an appeal. It was not clear what he meant or whether he was referring to Vasiljkovic 1st Instance or Vasiljkovic FC. The first of these was a summary judgment application, not an appeal, and Edmonds J's approach at first instance was emphatically approved by the Full Court, so the fact that that was an appeal is not a relevant point of distinction.
31 Mr Bethell somehow sought to rely on a submission that the 'nature of habeas; is proof in the negative, not in the positive'. He appears to have been referring to the principle enunciated in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 at [176] that while it is for the applicant to adduce evidence that puts in issue the legality of detention, once that occurs the burden shifts to the respondent to show on the balance of probabilities that the detention is lawful. But there is no reason why it follows from this principle that going from judge to judge with multiple habeas corpus applications is unconstrained by res judicata, Anshun estoppel or abuse of process. The onus is one thing; whether the issues in question were determined in a previous proceeding, or should have been raised in it but were not, is another.
32 Mr Bethell argued that habeas corpus, like bail, allowed 'an applicant to explore with another Judge the elements in the case that the presiding judge; did not properly turn his mind' [sic]. This was, once again, based on the assertion that it was for the respondent to prove the legality of detention, not the applicant to prove its illegality. But even if that proposition (oversimplified as it is) is correct, it does not follow that repeated habeas corpus applications are permissible where no relevant circumstances have changed.
33 Mr Bethell also pointed to arguments which found favour with Edmonds J which arose from the nature of Vasiljkovic as an extradition proceeding. But that does not mean that his Honour did not also deal with the arguments about habeas corpus. The Full Court cited, without disapproval, Edmonds J's characterisation of the principal relief in the proceeding as an order in the nature of habeas corpus: Vasiljkovic FC at [13]. Mr Bethell was unable to articulate how the fact that the detention in Vasiljkovic concerned extradition, rather than immigration detention, affected the overarching principle that the doctrines of res judicata, Anshun estoppel and abuse of process applied to habeas corpus applications.
34 Finally, Mr Bethell sought to rely on differences between the statutory provisions bearing on habeas corpus in New South Wales and Queensland, submitting that in New South Wales there was a provision, s 71 of the Supreme Court Act 1970 (NSW), which effectively prevented an applicant for habeas corpus from 'going from judge to judge'. But Vasiljkovic was a federal matter concerning the Commonwealth extradition legislation, and Edmonds J made no mention of the New South Wales legislation.
35 All that said, the fact that the judges in the Vasiljkovic decisions were not taken to the Eshugbayi Eleko line of authority means that I would prefer to rest my decision in this case on the ground of abuse of process. The availability of that doctrine in a case like the present is confirmed by Censori v Adult Parole Board of Victoria [2015] VSCA 254; (2015) 254 A Crim R 455. That case concerned a provision of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) rules which modified the 'old rule'. However the Court of Appeal recognised at [60] that even setting that statutory provision to one side, considerations of abuse of process may still come into play, 'albeit that allowances are to be made for the fact that the proceeding involves the liberty of the subject'. With respect, that view is consistent with first principles. The power of the courts to suppress any abuses of its process is inherent in the court's powers to act effectively within its jurisdiction: see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 quoted with approval in Williams v Spautz (1992) 174 CLR 509 at 518. As the court noted in Censori, derogation from the court's inherent powers to protect its own processes would require statutory words of the utmost clarity (at [60]). At [62] the Court of Appeal approved Vasiljkovic 1st Instance.
36 In short, I consider that any proposition that habeas corpus is in some special category which prevents the court from restraining abuses of its process to be incorrect.
37 In Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [24]-[26] the High Court explained the principles applicable under the doctrine of abuse of process in situations of this kind (footnotes omitted).
To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
38 Applying these principles, it appears to me that this proceeding is an abuse of process. In my view, that is clear enough to negative any serious question to be tried, even allowing for the fact that the proceeding concerns the liberty of an individual. Mr Bethell lost an application for habeas corpus on 17 June 2021 and tried to commence a new one on 18 June 2021. It is hardly to be supposed that any new facts have emerged in the day (or less) between the two applications, and Mr Bethell did not suggest that any did. To the extent that any of the matters on which he now seeks to rely were already raised in QUD 95 of 2021, to try to relitigate them now - almost immediately after they were decided against him, with no change in position or new facts coming to light - is an abuse.
39 The use of a court's procedures in that way is unjustifiably oppressive to the Minister. The oppression is compounded by the fact that this is the third interlocutory injunction application seeking to restrain the Minister from removing Mr Bethell from Australia that this court and the Federal Circuit Court have heard within the space of a week.
40 If this proceeding continues to its conclusion there is also a risk that there will be inconsistent decisions, which may erode public confidence in the administration of justice by generating conflicting decisions on the same issue: see Rogers v The Queen (1994) 181 CLR 251 at 256-257 (Mason CJ), 280 (Deane and Gaudron JJ). Mr Bethell submitted that they would not be inconsistent because he was seeking to pursue different grounds to those he pursued before Rangiah J. But ultimately, on the present hypothesis, this court will have made two decisions about the same issue - the lawfulness of Mr Bethell's detention - when no relevant circumstances could possibly have changed.
41 To the extent that the matters on which Mr Bethell now seeks to rely were not raised, it is an abuse to seek to do so now. Since no circumstances have changed, Mr Bethell is raising issues which ought reasonably to have been made or raised for determination in QUD 95 of 2021. Worse, they were raised, after a fashion. Mr Bethell was represented by Anthony Morris QC, acting pro bono, in that proceeding. In his written submissions dated 5 May 2021 at paras 2 and 3, Mr Morris said:
2. At the same time, it must be understood that, having accepted the responsibility of representing Mr Bethell, the undersigned also has a responsibility to the Court. That responsibility:
(a) precludes advancing any argument or contention which the undersigned, exercising his independent judgment, regards as having no real prospect of success; and
(b) requires that the evidence and material before the Court be limited to that which is relevant to arguments and contentions which the undersigned, exercising his independent judgment, regards as having some prospect of success.
3. It necessarily follows that this outline, and the oral submissions on behalf of Mr Bethell, will not necessarily traverse every argument or contention which Mr Bethell, if unrepresented, would wish to advance on his own behalf. Should the Court wish to hear submissions in respect of such arguments or contentions, the undersigned will do his best to assist the Court by presenting them with appropriate frankness and candour. Alternatively, the Court may choose to accept that the arguments and contentions advanced by the undersigned represent the only arguments and contentions which can properly be advanced on Mr Bethell's behalf, consistently with the obligations of the undersigned pursuant to subsection 37N(2) of the Federal Court of Australia Act 1976, as well as his ordinary professional and ethical duties.
42 At the hearing before Rangiah J on 16 June 2021, Mr Morris said:
… your Honour will have read the disclaimer at the beginning of my submissions that I'm in an awkward position choosing to make only those submissions that I regard as having a foundation. My client wishes to make the point that he is - should not be regarded as an unlawful non-citizen because the decision to revoke his visa was itself unlawful in that the Minister - that the wrong Minister made it and, in any event, was made on the basis of erroneous information. I highlight that that is a submission that my client wishes to make, and I say nothing further about it.
Plainly Mr Morris was indicating that, consistently with his obligations to the court not to advance matters which have no proper foundation, he was not advancing the principal argument Mr Bethell now seeks to advance.
43 This does not support Mr Bethell's current position. Whether Mr Morris was correct to discount the argument or not (and for reasons expressed below, I respectfully consider that he was correct), Mr Bethell must be held to the choice that his counsel made. It is a cardinal principle of adversarial litigation that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [9] (Gleeson CJ). If the argument was reasonably capable of being advanced before Rangiah J, then it should have been, and it was not.
44 Mr Bethell sought to meet this point by saying that he put his hand up at the end of the hearing and caught Rangiah J's eye, so that his Honour must have known that he wanted to make further submissions of his own. But that is not to the point. It is fundamental to the proper and efficient conduct of the business of the courts that if a party is represented by counsel in a proceeding (whether pro bono or not), the court may proceed on the basis that all the arguments that the client wishes to put that can properly be put are put by counsel. There is not necessarily any unfairness in the court preferring the submissions of a party's counsel over any submissions that that party may wish to make contrary to counsel: see e.g. Mansour v Jamil [2002] NSWCA 48 at [54] (Sheller JA, Stein and Hodgson JJA agreeing). Unless Mr Bethell took the extraordinary step of terminating Mr Morris's retainer before submissions had closed (which he did not), he had no right to put further arguments of his own.
45 As a result, for Mr Bethell (through counsel) to decline to put an argument in a proceeding, and then try to raise it (self-represented) when seeking identical relief within a matter of days of the first proceeding ending, is a clear abuse of process. For that reason alone, there is no serious question to be tried here.
46 Mr Bethell sought to argue that Mr Morris's retainer, or at least his ability to put arguments, were somehow limited by the fact that he did not have sufficient time to prepare all the arguments he might otherwise have made. That is an assertion unsupported by evidence. Mr Morris filed written submissions dated 5 May 2021 and the hearing at which he appeared was not for another six weeks, on 16 June 2021. There is no reason to think he could not prepare sufficiently. As his submissions quoted above indicate, the true reason he did not put the other arguments is because he did not consider that they had sufficient merit. For the reasons about to follow, indeed they did not.