Re Minister of Immigration, Local Government and Ethnic Affairs v Veselko Kurtovic [1990] FCA 22

Re Minister of Immigration, Local Government and Ethnic Affairs v Veselko Kurtovic [1990] FCA 22 - FCA 1990 case summary — Zoe

[124]

"This matter comes before the Court as an application

to review the decision of the Parole Board of

24 January 1986 to withhold parole from the applicant.

The basis of the application is that the Administrative

Appeals Tribunal, in September of last year, recommended

to the Minister that a current deportation order should

be revoked. The Minister acted in accordance with this

recommendation and revoked the deportation order. It is

proposed to contend that the same reasons that led to

the recommendation to revoke the deportation order

should lead to the granting of parole. We should say

that we have the gravest concern regarding weight of

those reasons when considered in the context of the

entirety of the information in the papers before us.

The papers before the Court in this matter disclose

matters of grave concern regarding the justification

for the revocation of the deportation order. They

include material that was not before the Administrative

Appeals Tribunal. There are also subsequent

representations from persons who consider that they

are placed at risk in consequence of the prospect of

the applicant not being deported; these, and the other

material, are plainly of very significant relevance.

It seems to us that the matter is one in which the

Minister might well wish to reconsider his decision

revoking the deportation order, in the light of the

whole of the material in this file. There is a

compelling case for concluding, pursuant to s8 of the

Migration Act, that deportation would be appropriate

and for concluding that, in the entirety of the

circumstances, the acceptability of the recommendation

of the Administrative Appeals Tribunal should be

reconsidered by the Minister. Until that has taken

place it would seem to be preferable that the matter

be adjourned.

The applicant in fact seeks an adjournment on the

basis of difficulty in obtaining certain documents,

so that the adjournment in fact will both meet the

immediate difficulties concerning the applicant in

preparing the matter, but more importantly it will

afford the Minister an opportunity of considering

again the question of the applicant's deportation.

In order to assist the Minister in that regard,

we direct that the Minister be furnished with a

complete copy of the papers before the Court in

today's application, together with a copy of these

observations."

[137]

"A judicial determination directly involving an issue

of fact or of law disposes once for all of the issue,

so that it cannot afterwards be raised between the

same parties or their privies. The estoppel covers

only those matters which the prior judgment, decree

or order necessarily established as the legal

foundation or justification of its conclusion,

whether that conclusion is that a money sum be

recovered or that the doing of an act be commanded

or be restrained or that rights be declared. The

distinction between res judicata and issue-estoppel

is that in the first the very right or cause of

action claimed or put in suit has in the former

proceedings passed into judgment, so that it is

merged and has no longer an independent existence,

while in the second, for the purpose of some other

claim or cause of action, a state of fact or law is

alleged or denied the existence of which is a matter

necessarily decided by the prior judgment, decree

or order.

Nothing but what is legally indispensable to the

conclusion is thus finally closed or precluded.

In matters of fact the issue-estoppel is confined

to those ultimate facts which form the ingredients

in the cause of action, that is, the title to the

right established. Where the conclusion is against

the existence of a right or claim which in point

of law depends upon a number of ingredients or

ultimate facts the absence of any one of which would

be enough to defeat the claim, the estoppel covers

only the actual ground upon which the existence of

the right was negatived. But in neither case is the

estoppel confined to the final legal conclusion

expressed in the judgment, decree or order. In the

phraseology of Coleridge J. in R. v. Inhabitants

of the Township of Hartington Middle Quarter (1855) 4

E & B 780, at p 794 [1855] EngR 264; (119 ER 288, at p 293), the

judicial determination concludes, not merely as to

the point actually decided, but as to a matter which

it was necessary to decide and which was actually decided

as the groundwork of the decision itself, though not then

directly the point at issue. Matters cardinal to the

latter claim or contention cannot be raised if to raise

them is necessarily to assert that the former decision

was erroneous."

[195]

19. There was "an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise": Halsbury's "Laws of England", 1st Ed., Vol. 27, p 131. However, sub-s. 33 (1) of the Acts Interpretation Act 1901 (which was modelled upon sub-s. 32 (1) of the Interpretation Act 1889 (U.K.)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. This appears to have been the explanation given by the English Court of Appeal in Western Fish Products Ltd. v Penwith District Council (1981) 2 All ER 204 at 219; cf. Lever Finance Ltd. v Westminster (City) London Borough Council [1970] EWCA Civ 3; (1971) 1 QB 222. Another example may be found in the judgment of Windeyer J. in Brickworks Ltd. v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 at 577. In my view, this also is the basis upon which there rest two decisions upon which counsel for the respondent relied on this appeal, namely Livingstone v City of Westminster (1904) 2 KB 109 at 120, and In re 56 Denton Road, Twickenham (1953) Ch 51 at 56-57; that is how Eveleigh L.J. saw the matter when, in Rootkin v Kent County Council (1981) 2 All ER 227 at 234-235, he discussed Livingstone's Case.

[212]

34. In the United States, a distinction has been drawn expressed in terms of the "proprietary" as opposed to the "governmental" capacities of public bodies. The result is that if the public body is acting in its proprietary capacity, and if its representative has been acting within the scope of his authority, then an equitable estoppel may arise: United States v Georgia-Pacific Company [1970] USCA9 11; 421 F 2d 92 at 100-101 (1970); Air-Sea Brokers Inc. v United States 596 F 2d 1008 (1979). Recent decisions in the Courts of Appeals are divided on the question of whether such a distinction may still be drawn after the Supreme Court decision in Heckler v Community Health Services of Crawford County Inc. (supra). The Eleventh Circuit and the Federal Circuit have continued to apply the distinction and to allow estoppels (see Federal Deposit Insurance Corporation v Harrison [1984] USCA11 945; 735 F 2d 408 at 411 (1984), USA Petroleum Corp. v The United States [1987] USCAFED 343; 821 F 2d 622 at 625-7 (1987)) whilst the First Circuit has taken the contrary position (see Phelps v Federal Emergency Management Agency (supra); Federal Deposit Insurance Corp. v Roldan Fouseca 795 F 2d 1102 at 1108 (1986)). The planning or policy level of decision making wherein statutory discretions are exercised has, in my view a different character or quality to what one might call the operational decisions which implement decisions made in exercise of that policy; cf. the distinction drawn by Lord Wilberforce (albeit in a different context) in Anns v Merton London Borough Council [1977] UKHL 4; (1978) AC 728 at 754. Where the public authority makes representations in the course of implementation of a decision arrived at by the exercise of its discretion, then usually there will not be an objection to the application of a private law doctrine of promissory estoppel. It must, however, be recognised that it may be difficult, in a given case, to draw a line between that which involves discretion and that which is merely "operational". As Lord Wilberforce said in the passage referred to above:

[216]

36. The second case, Waverley Transit Pty. Ltd. v Metropolitan Transit Authority (Supreme Court of Victoria, 2/6/88, unrep.) appears to pose greater difficulties. The Metropolitan Transit Authority ("M.T.A.") was vested with authority under the Transport Act 1983 (Vic.) "to arrange with the State Transport Authority, transport operators or other persons or bodies for the provision of transport services and facilities": s. 16 (2). In exercising its powers, the M.T.A. entered into a number of "short-term contracts" with private bus operators, including the plaintiff. The plaintiff contended that officers of M.T.A. induced or encouraged the plaintiff to acquire another bus company and to upgrade the latter company's plant and equipment upon the implied promise that the plaintiff's "short-term contract" would be renewed. O'Bryan J., relying upon Waltons Stores (Interstate) Ltd. v Maher, supra, upheld the plaintiff's contention and ordered, inter alia, that the "short-term contract" be renewed. I say nothing as to whether the facts of this case presented the requisite inducement or encouragement of an expectation or assumption, necessary to give rise to an estoppel, or alternatively a lying by with knowledge of the other party's reliance. The difficulty which I perceive, with respect, in applying Waltons Stores (Interstate) Ltd. v Maher, supra, to these facts, is that decisions as to awarding and renewing contracts to private bus operators lay at the heart of the M.T.A.'s discretionary powers under the Transport Act 1983 (Vic.). These were "planning" or "policy", rather than merely "operational", decisions. Furthermore, the exercise of the M.T.A.'s powers was expressed to be subject to the direction of the Minister (s. 31) and it is not clear whether the Minister also would be bound by the estoppel. In a case such as this, the doctrine recognised in Waltons Stores (Interstate) Ltd. v Maher, supra has no application because of the need for the public authority to preserve its statutory discretion.

Parties

Applicant/Plaintiff:

# Re Minister of Immigration, Local Government and Ethnic Affairs

Respondent/Defendant:

Veselko Kurtovic \[1990\] FCA 22

Legislation Cited (56)

Probation and Parole Act 1983(NSW)

Interpretation Act 1901

Appeals Tribunal Act 1975

Decisions (Judicial Review) Act 1977

Local Government Act 1919

(N.S.W.) Probation and Parole Act 1983

(Vic.) Interpretation Act 1889

(U.K.) Pensions Appeal Tribunals Act 1943

(U.K.) Town and Country Planning Act 1968

(U.K.) Defence (General) Regulations 1939

Defence (General) Regulations 1939

Interpretation Act 1889

Town and Country Planning Act 1968

Statute (the Pensions Appeal Tribunals Act 1943

Probation and Parole Act 1983(NSW)

Interpretation Act 1901

Appeals Tribunal Act 1975

Decisions (Judicial Review) Act 1977

Local Government Act 1919

(N.S.W.) Probation and Parole Act 1983

(Vic.) Interpretation Act 1889

(U.K.) Pensions Appeal Tribunals Act 1943

(U.K.) Town and Country Planning Act 1968

(U.K.) Defence (General) Regulations 1939

Defence (General) Regulations 1939

Interpretation Act 1889

Town and Country Planning Act 1968

Statute (the Pensions Appeal Tribunals Act 1943

Probation and Parole Act 1983(NSW)

Interpretation Act 1901

Appeals Tribunal Act 1975

Decisions (Judicial Review) Act 1977

Local Government Act 1919

(N.S.W.) Probation and Parole Act 1983

(Vic.) Interpretation Act 1889

(U.K.) Pensions Appeal Tribunals Act 1943

(U.K.) Town and Country Planning Act 1968

(U.K.) Defence (General) Regulations 1939

Defence (General) Regulations 1939

Interpretation Act 1889

Town and Country Planning Act 1968

Statute (the Pensions Appeal Tribunals Act 1943

Probation and Parole Act 1983(NSW)

Interpretation Act 1901

Appeals Tribunal Act 1975

Decisions (Judicial Review) Act 1977

Local Government Act 1919

(N.S.W.) Probation and Parole Act 1983

(Vic.) Interpretation Act 1889

(U.K.) Pensions Appeal Tribunals Act 1943

(U.K.) Town and Country Planning Act 1968

(U.K.) Defence (General) Regulations 1939

Defence (General) Regulations 1939

Interpretation Act 1889

Town and Country Planning Act 1968

Statute (the Pensions Appeal Tribunals Act 1943

Cases Cited (31)

(1983) 152 CLR 406

(1988) 81 ALR 687

(1963) 108 CLR 568

(1989) 63 ALJR 306

(1989) 86 ALR 119

(1989) 86 ALR 681

(1977) 139 CLR 54

At a glance

Court

Decision date

Source

Judgment (282 paragraphs)

Re Minister of Immigration, Local Government and Ethnic Affairs v Veselko Kurtovic [1990] FCA 22 (7 February 1990)

Parties

Legislation Cited (56)

Cases Cited (31)