ESTOPPEL
108 The only ground of appeal stated in the notice of appeal is that the primary judge should have held that the reasoning of the Tribunal was not supported by logical grounds or probative material and that, in the absence of such logical grounds and probative material, the Tribunal failed, or constructively failed, to exercise or to attain jurisdiction and the Tribunal's Decision was therefore void for jurisdictional error. That is clearly the jurisdictional unreasonableness argument.
109 In written submissions, the appellant also sought to rely on an additional ground, namely, that the Tribunal's reasoning depended on an explicit requirement that the appellant conceal the part of his personal history that exposed him to a risk of persecution on a Convention ground, even to the extent that he should live in some parts, but not other parts, of his country of origin ('the S395 argument'). The S395 argument was based on the decision of the High Court in S395 of 2002 v Minister (2003) 216 CLR 473 ('S395') at [72]-[88].
110 Counsel for the appellant frankly acknowledged that he had not thought of the jurisdictional unreasonableness argument until after the decision of 16 March 2001 in N24 of 2001 had been made (see [2001] FCA 1669 at [44]). It is also apparent that the S395 argument was not thought of until after the reasons of the High Court's decision in S395 had been published.
111 Neither of the grounds that the appellant now seeks to rely upon was ventilated in proceeding N24 of 2001. Hence, on 14 February 2005, the Minister filed notice of contention in this appeal, asserting that 'there is an Anshun in estoppel arising from [proceeding N24 of 2001] which precludes [the appellant] from maintaining the present proceedings'. It is necessary to deal with the Minister's contention before considering the merits of the appellant's grounds of appeal. If the Minister's contention were to be upheld, it would be unnecessary to deal with the substantive arguments of the appellant.
112 A distinction is to be drawn between the doctrine of res judicata (or cause of action estoppel), on the one hand, and the doctrine of issue estoppel, on the other hand. Under the first doctrine, the very right or cause of action claimed passes into judgment in an earlier proceeding, such that it no longer has an independent existence and cannot be sued upon in a subsequent proceeding. Under the second doctrine, a party will not be permitted to allege or deny, in a later proceeding between the same parties, a state of fact or proposition of law that was, as a matter of necessity, determined by a prior judgment or order in an earlier proceeding between those parties (see Blair v Curran (1939) 62 CLR 464 at 532).
113 There is an extension of the latter doctrine to the effect that a party will also be estopped from raising in a subsequent proceeding a contention that could have been raised in an earlier proceeding and which it was unreasonable, in all the circumstances, not to have raised in the earlier proceeding (see Anshun at pp 598 ff). However, there is an exception to that extension that, in exceptional circumstances, a party may be permitted to raise in a subsequent proceeding a contention that it was reasonable not to have raised in an earlier proceeding (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242).
114 The question before Madgwick J in proceeding N24 of 2001 was whether, on one of the grounds set out in s 476(1) of the Act as then in force, the Tribunal's Decision should be quashed or set aside and the matter referred back to the Tribunal for further consideration. That cause of action passed with proceeding N24 of 2001. As a consequence, res judicata could be raised as an answer to any further application for review under Part 8. Further, the dismissal of proceeding N24 of 2001 gave rise to an issue estoppel in relation to any question that was necessarily determined in reaching the conclusion reached by Madgwick J. Anshun estoppel would also arise in any subsequent proceeding in relation to any question that it was unreasonable not to have raised in proceeding N24 of 2001, even though that question was not raised, unless there were special circumstances that would justify a subsequent court permitting that question to be raised in the subsequent proceeding.
115 There has been a determination, as between the Minister and the appellant, that it was unreasonable not to have raised the jurisdictional unreasonableness argument in proceeding N24 of 2001, but that there were special circumstances that permitted it to be raised in proceeding N1075 of 2001. However, the jurisdictional unreasonableness argument having been raised, the Full Court dealt with it and rejected it on the basis of the decision in Gamaethige, perhaps albeit incorrectly, as the High Court subsequently determined in S20. That disposition of the jurisdictional unreasonableness argument could be relied on by the Minister as an issue estoppel answer in any subsequent proceeding in which the appellant sought to litigate the question of whether the Tribunal's decision could be quashed or set aside on the basis of the jurisdictional unreasonableness argument. Thus, the Minister may have been entitled to rely on an issue estoppel answer in proceeding N599 of 2004.
116 However, Moore J observed that the Minister did not contend that the judgments in the earlier proceedings either gave rise to res judicata or created some form of estoppel. The Minister's contention appears to have been limited to the assertion that proceeding N599 of 2004 was an abuse of process, in the light of the earlier proceedings. It is curious, therefore, that the notice of contention in this appeal seeks to raise Anshun estoppel rather than abuse of process. The Minister does not seek to support the decision of Moore J on the ground rejected by his Honour, namely that, because of the litigious history of the dispute between the appellant and the Minister concerning the Tribunal's Decision, it was an abuse of process for the appellant to raise the jurisdictional unreasonableness argument in proceeding N599 of 2004.
117 Had the Minister relied on Anshun estoppel before Moore J, it would have been necessary for his Honour to make a determination as to whether it was unreasonable for the appellant not to have raised the jurisdictional unreasonableness argument and the S395 argument in proceeding N24 of 2001. That would have involved questions of fact that were not explored before Moore J. In those circumstances, it is difficult to see how the Minister can now rely on an Anshun estoppel arising out of proceeding N24 of 2001 in relation to the jurisdictional unreasonableness argument, as she seeks to do.
118 However, in relation to the S395 argument, the Minister did not raise res judiciata, issue estoppel, Anshun estoppel or abuse of process as an answer because the S395 argument was not itself raised before Moore J in proceeding N599 of 2004. The S395 argument was raised for the first time in submissions in the present appeal. The need for a factual enquiry, in order to determine whether there was such an answer available, is a good reason why the appellant should not be given leave to rely on the S395 argument at this stage. Since the question before Sackville J in proceeding N1075 of 2001 and the Full Court on appeal from Sackville J's orders was whether the Tribunal's Decision should be quashed or set aside on grounds (a), (b) or (c) in the draft order nisi of 8 June 2001, it may be arguable that there was no res judicata. However, there appears to be no reason why the S395 argument could not have been raised in proceeding N24 of 2001. Anshun estoppel, therefore, would be a good answer to the S395 argument, if the appellant were permitted to raise it. The appellant should not be given leave to raise the S395 argument for the first time on appeal.