'Anshun' estoppel
87 However, the respondent contends that the order made by the docket judge in proceedings NSD 117 of 2005 dismissing the application in that matter on 21 March 2006 gave rise to an 'Anshun' estoppel which precluded the applicant from bringing the present proceedings in which relief is sought under s 39B of the Judiciary Act.
88 Plainly an attempt to re-litigate an issue which is res judicata or one which is affected by issue estoppel or by 'Anshun' estoppel would constitute an abuse of process of the Court. However, in my opinion, no relevant estoppel arises from the making of the order of dismissal in proceedings NSD 117 of 2005 on 16 March 2006 in the circumstances in which that order was made.
89 It seems clear that the relevant order was made under Order 35A rule 3(1) of the Federal Court Rules. Order 35A rules 2 and 3 relevantly provided:
'2(1) For this Order, an applicant is in default if the applicant:
…
(b) fails to attend a directions hearing; or
…
3(1) If an applicant is in default, the Court may order that:
(a) the proceeding be … dismissed as to the whole or any part of the relief claimed by the applicant; or
…'
90 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs 146 FCR 10 ('Wong') a Full Court comprising Emmett, Conti and Selway JJ stated the relevant legal principles at [36] - [39] as follows:
'The relevant legal principles
36 The doctrines of res judicataand issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium(it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
37 A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun 602
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 judicataand 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 and Multicultural Affairs [2002] FCAFC 221 at [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 and Multicultural Affairs (2001) 67 ALD 60 (Sackville J) at [50] referring to Port of Melbourne v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
39 Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, insofar as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-356 and 365; Stuart v Sanderson (2000) 100 FCR 150 at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance."
91 Later, their Honours found that a failure by the Minister to comply with an obligation under the Migration Act 1958 (Cth), which was based upon a mistaken view of the Act and was not contumelious, did not constitute 'special circumstances' which would take a case outside the principle of 'Anshun' estoppel even though the legislative policy reflected in the relevant provision of the Act was frustrated as a consequence. At [52]-[53] they said:
'52 … If it were the case that a failure by a Minister to comply with a positive duty constitutes "special circumstances" then it would seem every such failure would be sufficient to invoke the special circumstances exception, requiring the full ventilation of argument on the issue that would otherwise be estopped. Those circumstances alone, do not constitute the requisite special circumstances, such that it would not be an abuse of process for Mr Wong to ventilate issues that it was unreasonable for him not to have raised in either the First Proceeding or the Second Proceeding.
53 …
… There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be "vexed" in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the executive government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action (at [39]).'
92 As indicated in Wong at [37], 'Anshun' estoppel occurs when an applicant puts forward in a later proceeding matters which might have been put in the earlier proceeding. In Henderson v Henderson (1843) 3 Hare 100 at 115 Sir James Wigram VC expressed the principle in these terms:
'where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'
93 For 'Anshun' estoppel to arise, there must have been a matter which was the subject of 'adjudication' in the earlier litigation.
94 What may come within the 'special circumstances' exception to a finding of 'Anshun' estoppel was dealt with by the Full Court in Wong. Those circumstances need to be 'exceptional' (see also BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 ('BC') at [31] - [33] and [38] and Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222at 237,[52] - [53].)
95 In Spencer Bower, Turner and Handley's'The Doctrine of Res Judicata' (3rd edition 1996) the learned author of the third edition, Justice Handley, said in respect of 'Dismissal for want of prosecution' at paragraph 35:
'A judgment or order dismissing proceedings for want of prosecution is an interlocutory and not a final order, it does not involve any decision on the merits of the case, and does not give rise to a res judicata. …'
96 Later, at paragraph 46, reference was made by his Honour to Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 ('Linprint') at 517-518 as authority for the proposition:
'46 A judgment or order obtained by default, like one obtained by consent, will, unless and until set aside, conclude between the parties the matters expressly decided by its operative and declaratory parts.'
97 In Linprint Clarke JA, with whose reasons Samuels JA agreed, was concerned to determine the effect of an order that a counter-claim be dismissed, such order having been made by a County Court Judge in Victoria on 27 July 1982 following the counter-claimant's withdrawal from the case after an application for adjournment of the trial had been refused on the previous day.
Clarke JA considered that the case should be judged solely upon the basis that the counter-claim was dismissed for want of appearance of the counter-claimant at the trial.
Under s 73 of the County Court Act 1958 (Vic) ('County Court Act') '[e]very judgment and order made in any action or matter by the court or a Judge, except as in this Act provided, shall be final and conclusive between the parties'. There being no contrary provision in the County Court Act, Clarke JA found that the order dismissing the counter-claim was, by virtue of s 73 'final'. Later, at 526-527 his Honour concluded:
'… if a plaintiff withdraws from the trial and an order is made in its absence dismissing its claim than that order will, unless set aside or successfully appealed from, ground a later plea of res judicata in the event that a later attempt is made to litigate the same case. The position is no different than that which arises under a default judgment: Spencer-Bower (at 158).'
98 In his reasons for judgment, Kirby P, as his Honour then was, said at 518:
'… It may be understood that if a judgment, on its face, is contingent or provisional, it will not have that element of finality which it is the purpose of the law of res judicata to defend. But where the judgment is on its face final, the mere fact that a party has a privilege to apply to have that judgment set aside cannot convert it to a contingent or provisional judgment forever flawed and incapable of giving rise to res judicata.'
99 It is important to observe that the relevant default order in Linprint was made in the absence of the counter-claimant at the trial, not simply at a directions hearing.
100 The relevant principles in relation to 'Anshun' estoppel were considered in some detail by Lander J in Applicant A184 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 543 ('A184'). An application for review of a decision of the Refugee Review Tribunal came before Hely J in this Court. The applicant did not appear on the first return of the application but was represented by a solicitor. The matter was adjourned because the solicitor's instructions were withdrawn. The applicant was advised in writing of the adjourned hearing. However, when the matter came on again before Hely J his Honour was not sure that the applicant was aware of the hearing date. Nevertheless, on that day Hely J dismissed the application and ordered the applicant to pay the respondent's costs. In doing so his Honour adopted the procedure in Order 32 rule 2(1)(c) of the Federal Court Rules. His Honour did not deal with the matter under Order 32 rule 2(1)(d).
Order 32 rule 2 relevantly provided:
'2(1) If, when a proceeding is called on for trial, any party is absent, the court may:
(a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct;
(b) adjourn the trial;
(c) if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or
(d) proceed with the trial generally or so far as concerns any claim for relief in the proceeding.
(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court may set aside or vary the order, and may give directions for the further conduct of the proceeding.
…'
101 Lander J was clearly of the opinion that Hely J had, by dealing with the matter under Order 32 rule 2(1)(c) rather than rule 2(1)(d), refrained from embarking upon a consideration of the merits of the applicant's case.
102 It is clear from the circumstances of the present case that the docket judge did not at any stage embark upon a consideration of the merits of the applicant's case. She dismissed the application as a result of the applicant's non-attendance at a directions hearing. The matter had not even reached the stage where a date for trial had been fixed.
103 In A184 Lander J did not finally determine the status of Hely J's order of dismissal. However his Honour did say at [112]-[113], [116] and [119]:
'[112] In this case, the dismissal of the application before Hely J did not establish any fact or point of law. All it established was that the applicant, for unascertained reasons, did not attend before the court. It might be that he did not receive notice of the hearing. He was not present when the matter was set down.
[113] This is not the same as a defendant who allows judgment to be entered against him because a defence was not entered. That might indicate a consent or acquiescence. This was simply an order entered for an undisclosed failure to attend a hearing of which the applicant might or might not have had notice. …
[116] I do not think any issue estoppel could arise by reason of Hely J's order. The procedure adopted by his Honour meant that no findings of fact were made or issues decided.
…
[119] Because I think the issues were the same, I do not think the Anshun principle applies. …'
104 In my opinion the applicant's intimation of 14 March 2006 in the proceedings before Stone J that he had decided to 'discontinue' his appeal did not constitute consent to or an acquiescence in an order of dismissal being made.
105 Before reaching his conclusions in A184 Lander J gave consideration to a number of cases including Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 ('Rogers') where the Full Court of the Supreme Court of South Australia held that summary dismissal of a claim for damages did not bar the appellant from bringing further proceedings for breach of statutory duty, negligence and misfeasance in public office (at [100]).
106 His Honour repeated part of what he had said in his judgment in Rogersat 594-595, with which Cox and Prior JJ had agreed, (at [101]) namely:
'So also does an action that is dismissed stand in a different position to an action in which judgment has been given after a hearing on the merits. As to whether or not the dismissal of an action gives rise to a matter capable of being pleaded as res judicata, that may depend upon whether the dismissal of the action is seen to have necessarily involved a determination of any particular issue or question of fact or law. If it does not, then the dismissal decides nothing, except the dismissal of the action itself.'
107 I do not consider that any 'Anshun' estoppel arises from the order made by Stone J in proceedings NSD 117 of 2005 on 16 March 2006 in relation to the claims now propounded by the applicant for relief under s 39B of the Judiciary Act with respect to the discretion conferred on the Commissioner by s 227(3) of the Assessment Act.
108 Furthermore, in my opinion no question of 'Anshun' estoppel arises by reference to the default judgment obtained by the Deputy Commissioner of Taxation against the applicant in the recovery proceedings in the Supreme Court of New South Wales on 2 March 2006.
109 The present case bears some similarity to the facts in Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 ('Jewiss'). In that case Mansfield J had before him a motion seeking relief under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and Order 20 rule 2 and Order 16 rule 11 of the Federal Court Rules in a taxation appeal against certain appealable objection decisions. His Honour held that it would be an abuse of the Court's process to permit Mr Jewiss to re-litigate in the proceedings before him the same matters as had previously been determined against him in the South Australian District Court. His Honour considered that, because the issues which Mr Jewiss sought to raise before him were 'the same issues as those he sought to raise in the District Court proceedings and upon which an adjudication adverse to those claims' had been made, there was no scope for the principle of 'Anshun' estoppel to be applied. His Honour said at [51]:
'It is not a matter of him raising matters now which he did not, but could have, raised in the earlier proceedings.'
110 His Honour proceeded to order that the amended application and the amended statement of claim before him be dismissed.
111 Jewiss was an unusual case in that the recovery proceedings brought against the taxpayer in the District Court of South Australia had been defended and Hickman issues had been raised, on the voir dire, upon a tender of Notices of Assessment or copies thereof which met the requirements of s 177(1) of the Assessment Act. The District Court judge had ruled that the allegations of bad faith which had been advanced had not made out, so that the Notices of Assessment were admissible.
In his defence the taxpayer had alleged that he was not liable to pay the outstanding taxation debts, inter alia, because the Commissioner had made the assessments without proper investigation and had fraudulently relied upon certain documentation obtained in his absence; that the Commissioner by issuing the assessments had abused the processes prescribed under the Assessment Act; and that the notices were knowingly false, fraudulent and erroneous.
In his final judgment, the District Court judge confirmed that he rejected the defence of impropriety in the making of the assessments. An appeal to the Full Court of the Supreme Court of South Australia was dismissed and an application for special leave to the High Court to appeal from the Full Court was also dismissed.
Mansfield J pointed out at [47] that on the hearing of the appeal the Commissioner was 'content to allow the appeal to proceed on the assumption that there was a limited right to challenge the admission of the notices of assessment on the ground that the assessments were an abuse of power and were made for improper purposes'.
None of the issues which the applicant in the present proceedings wishes to raise in his proceedings under s 39B of the Judiciary Act were the subject of determination in the Supreme Court recovery proceedings. At least insofar as the applicant seeks prohibition against the respondent in relation to the Commissioner's exercise of, or his failure to exercise, his discretion under s 227(3) of the Assessment Act, it seems clear to me that the Supreme Court of New South Wales did not, in the recovery proceedings, have jurisdiction to grant relief in the form of a writ of prohibition against the Commissioner had the applicant filed a cross-claim asserting that the Commissioner's exercise or failure to exercise his discretion under s 227(3) of the Assessment Act was open to challenge because one or other of the Hickman provisos had not been satisfied.