Singh v Secretary, Department of Family and Community Services

Federal Court of Australia|2006-03-08|Before: Gray J, Ryan J

REASONS FOR DIRECTING NON-ACCEPTANCE OF PROCESS 1 On 6 February 2005, Mr Mohinder Singh lodged for filing in the Victoria District Registry of this Court a notice of motion seeking the following relief; '1. The Honourable Court set aside the reasons for judgment and orders made in respect to the appeal No V1121/2003 on 23 December 2004 under Order 35 Rule 7 Subrules 2 and 4 of the Federal Court Orders and Rules.

2 The judgment and orders made on 23 December 2004 were those of Gray J who gave extensive reasons for dismissing an appeal by Mr Singh from a decision of the Federal Magistrate's Court given on 9 September 2003. Mr Singh subsequently sought special leave from the High Court to appeal from Gray J's order of 23 December 2004. That application for special leave was refused on 9 September 2004. Thereafter Mr Singh applied, again to Gray J to: '1. Honourable Court set aside the reasons for judgment and orders made in respect to the appeal No V1121/2003 on 23 December 2004.

3 His Honour refused that application on the grounds that no basis had been established under either O 35 r 7(2) or r 7(3) of the Rules of this Court for setting aside his original order of 23 December 2004. 4 Mr Singh has, on 5 February 2006, sworn a lengthy affidavit in support of his present application and has, on 6 February 2006 sworn a short supplementary affidavit in an attempt to demonstrate why the longer affidavit makes the proposed motion on notice justiciable by this Court. In the latter affidavit it is deposed; '1. The previous affidavit before the Federal Court on 30 September 2005 was made on the basis of law and the current affidavit supporting the Notice of Motion is on the basis of the facts.

As a result of my mental incapacity, I was unaware that the argument can be made on the basis of facts.

No relevant documents were referred to in my earlier affidavit. I did not contend the facts because I was unaware of the facts at the time.

This affidavit is supported by new evidence previously unavailable to the Court.' (original emphasis)

5 Section 25(1AA) of the Federal Court of Australia Act 1976 (Cth) makes it clear that only one appeal lies to this court from an order of the Federal Magistrates Court whether that appeal is heard by a single Judge or a Full Court. The orders made on such an appeal attract the doctrine of res judicata so that a party to the appeal is precluded from raising again any issue which is taken to have been determined by that appeal. Moreover, the application of the principles laid down by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 precludes a party to an earlier action from later relying on any issue which would be expected to have been raised in the earlier action. It is no answer to these objections to contend that the proposed new proceedings raise questions of fact which were not agitated before Gray J. The proceedings in the Federal Magistrates Court in which Mr Singh appealed to Gray J were by way of appeal from a decision of the Administrative Appeals Tribunal, which appeal is confined to a question of law; see s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 6 Moreover, the conclusion that Mr Singh has exhausted his remedies in respect of the issues raised by the proceedings in the Federal Magistrates Court and on appeal to Gray J is reinforced by the refusal of his application for special leave to appeal to the High Court. 7 It is for these reasons that I have given a direction to the Registrar to refuse, pursuant to O 46 r 7A of the Rules of this Court, to accept or issue the proposed notice of motion as an abuse of process. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Directing Non-Acceptance of Process herein of the Honourable Justice Ryan.

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