Tran v Singh

First application 14 The first application is the same as the application determined by Gleeson J on 12 October 2018, namely an application to extend the time to "appeal" the Tribunal's decision to this Court. 15 Subsections 37M(1) to (3) of the FCA Act provide: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. 16 These objectives are not met if a litigant is permitted, in the absence of good reason, to re-litigate interlocutory applications which have already been the subject of judicial determination. Whether a second or subsequent interlocutory application can or should be entertained inevitably turns on the precise nature of the interlocutory application, the issues determined and the particular circumstances. 17 For the reasons set out below, I would dismiss the first application on the basis that it would be an abuse of process for this Court to entertain the application for a second time. While it is not necessary to decide, I would also have dismissed the application on the basis that the orders of Gleeson J gave rise to an issue estoppel. In any event, I would also have dismissed the first application because the proposed appeal has no prospect of success. In this respect I agree with the reasoning of Gleeson J.

Abuse of process 18 In D A Christie Pty Ltd v Baker [1996] 2 VR 582, although their reasoning diverged, Brooking and Hayne JJA both concluded that a second application under s 23A of the Limitation of Actions Act 1958 (Vic) for an order extending time in which to commence an action for recovery of damages for personal injuries was an abuse of process where the second application relied on additional material which was not "fresh", and where there had been no fraud. It follows that their Honours would have concluded, a fortiori, that a second application made on the same evidence would have been an abuse of process. 19 Hayne JA's reasons included (at 604): If an applicant for an extension of time were to fail in one application but then at once institute a second application relying on precisely the same material, there would appear to be powerful reasons to conclude that the second application was vexatious. On its face the application would be no more than an attempt to re-litigate a matter that had already been determined once. Of course, that is not the present case. The applicant in this matter, Baker, filed further material intended to deal with a gap in the material that had been identified by the judge in his reasons for judgment dismissing the first application. Nevertheless, I am of the view that the second application was properly classed as an abuse of process. The additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why that material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect. 20 Charles JA dissented, adopting a less stringent approach. His reasons included (at 610-611): I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the "fresh evidence" rule. My reasons are as follows: 1. Hall [v Nominal Defendant (1966) 117 CLR 423] stands as authority for the proposition that if the first order was interlocutory, rather than final, a second application may be made. Taylor and Owen JJ expressly say so. Carr [v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246] does not depart from, indeed accepts, this proposition. … 4. Hall and Carr both stand for the proposition that what differentiates an interlocutory from a final order, is that the unsuccessful applicant is in a position to make a further application. 5. The proposition that an unsuccessful applicant under s 23A can only make a second application on the basis of fraud or additional facts that satisfy the rules relating to 'fresh evidence': (a) treats the order on a first application under s 23A on the same footing as if it were a final decision on the merits, removes the element which the High Court has said established the interlocutory nature of the order and is, I think, therefore inconsistent with Hall and Carr; (b) not only effectively deprives the applicant of any right to make a second application save on the basis of fraud or additional facts which amount to fresh evidence, but in so doing makes it more difficult for the applicant to bring forward additional facts on the second application than if the applicant had simply appealed the dismissal of the first application, and had sought to adduce that evidence on the appeal with leave of the court. For these reasons I conclude that it is not possible for this Court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent. 21 In Nominal Defendant v Manning (2000) 50 NSWLR 139, a plaintiff's first application for an extension of time under s 52(4) of the Motor Accidents Act 1988 (NSW) was dismissed for lack of adequate explanation for his delay. The plaintiff made a second application, before a different judge, and adduced evidence which had not been adduced - but which, with reasonable diligence, could have been adduced - on the first application. 22 On the question of abuse of process, Mason P (in dissent) held that it was an abuse of process to bring a second interlocutory application on the basis of evidence which could reasonably have been adduced in the first application. Foster AJA (with whom Heydon JA agreed) held that it was not necessarily an abuse of process for an applicant to make a second interlocutory application in such circumstances. At [121] to [122], Foster AJA agreed with the reasoning of Charles JA in D A Christie set out above. He concluded, at [123]: In the present case, although the failure of the respondent's legal advisers to produce the evidence explaining delay in the first application must necessarily be severely criticised, I, for my part, do not regard the making of the second application, with the inclusion of that material, as constituting, relevantly, an abuse of the Court's process. The exercise by the primary judge of a discretion to admit and consider this evidence was not flawed. It was not necessary, for its admission, that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view, sufficiently apparent from the passage already cited, that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate costs order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course. 23 Heydon JA also declined to apply the view of the majority in D A Christie and stated that it was not desirable to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings. In other words, his Honour did not consider (contrary to the conclusion of the majority in D A Christie) that a second application was necessarily an abuse of process unless the applicant established that the subsequent application was based on "fresh" evidence or that there had been fraud. 24 None of this should be taken as suggesting any permissive or relaxed attitude of a court to the bringing of more than one interlocutory application for the same order: National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at [17] (Palmer AJA, with whom Mason P and Santow JA agreed). Indeed, such a course is the exception, not the rule. The overarching principle governing whether a second or subsequent interlocutory application should be entertained (assuming there is no issue estoppel) is that the Court should do whatever the interests of justice require in the particular circumstances of the case: Manning at [46]; National Parks at [19]. Of course, the question turns on the specific terms of the statute authorising the extension of time. 25 Mr Tran seeks to re-argue the application he argued before Gleeson J. Perhaps he seeks to do so because he failed to file an appeal or an application for leave to appeal within the prescribed time (the latter being the appropriate course to have taken). It is not suggested that there is any new evidence, whether "fresh" or otherwise. In any event, such evidence would presumably only go to the question of delay and Gleeson J dismissed his application on the basis of lack of merit, not inadequate explanation for delay: at [16], [60]. Mr Tran has not identified any arguable error in her Honour's approach or reasoning. He has not suggested that the grounds of his proposed appeal from the decision of the Tribunal have changed. He has not pointed to anything which indicates that justice requires that the matter be revisited. 26 The first application - to extend time to start an appeal under s 44(1) - is no more than an attempt to re-litigate a matter which has already been judicially determined. It must be dismissed as an abuse of process.

Issue estoppel 27 Given my conclusion above, it is not necessary to decide whether the first application is barred by an issue estoppel. Nevertheless, I will address that question briefly. 28 In Inasmuch Community Inc v Bright [2006] NSWCA 99 at [60]-[61], Beazley JA (with whom Mason P and McColl JA agreed) observed: 60. ... A final determination of an issue would create an issue estoppel. In Santos v. Delhi Petroleum Pty. Ltd. [2002] SASC 272 Lander J (Williams and Besanko JJ agreeing), considered whether an issue estoppel could arise in respect of an issue determined in interlocutory proceedings. His Honour concluded that the answer depended not so much on the nature of the proceedings but whether the determination itself was final. As he observed at [399]: "There is no reason in principle why an issue might not be finally determined in interlocutory proceedings. Some interlocutory applications do finally dispose of the parties' rights. Hall v Nominal Defendant (1966) 117 CLR 423 per Owen J at 440-441 and Windeyer J at 444; Licul & Ors v Corney (1976) 180 CLR 213." 61. Hall was concerned with the question whether an order for extension of time was an interlocutory or final order, the issue being whether leave to appeal was required. Licul involved a similar issue, the question in that case being whether an order for substituted service was interlocutory or final. In each case the Court held the order made was interlocutory. In Licul, Barwick CJ said, at 200, that the order was not a final order disposing of the action between the parties and settling their substantive rights. Gibbs J said, at 225, that on the approach which had been followed in Australia the test was: "Does the judgment or order, as made, finally dispose of the rights of the parties?" [Emphasis in original] 29 Her Honour continued at [62], quoting Hayne JA in DA Christie at 599: … [T]o determine whether there is … any issue estoppel, it is necessary to identify whether there has been a final determination as between the parties … of a particular issue. The question whether there is any issue estoppel turns, in part, upon whether there has been a final determination of any issue between the parties. If all that the dismissal of the first application means is that the court has concluded that on the material then advanced no order for extension should be made, it is apparent that an order dismissing the application determines no issue between the parties that is raised on the second application for on that second application the issue would be different - whether any extension of time should be made on the new and different material then before the court. If, however, the true characterisation of the order dismissing the first application is that it is a determination of whether an extension of time should be granted to the applicant within which that applicant might bring an action complaining of a cause of action otherwise statute barred, it might perhaps be said that the dismissal of the application finally determined an issue which would arise in the course of the second application. Just as the classification of an order dismissing the application as final or interlocutory proceeds from the premise that a fresh application can be made, so too may the application of principles of issue estoppel be determined by the logically prior step of deciding what it is that the first court has determined - the narrow question whether an extension of time should be granted on the material then put forward, or the broader question whether any extension of time should be granted. 30 The decision of Gleeson J turned on an assessment of the merit of Mr Tran's proposed appeal. Her Honour's reasons at [16] and [60] make clear that an extension of time was refused on the basis that Mr Tran's proposed appeal lacked any prospect of success with the consequence that it would be futile and contrary to the interests of justice to allow the extension. This conclusion was expressly independent of any consideration of Mr Tran's explanation for his delay in bringing the proposed appeal. It was also independent of any consideration of the length of the delay, the prejudice to the respondent or any other factor which might militate for or against granting an extension. The lack of merit of the proposed appeal from the Tribunal was dispositive of the application. 31 Mr Tran has not raised any issue on the first application which has not already been dealt with by Gleeson J. Accordingly, I would have dismissed the first application on the basis that there is an issue estoppel, notwithstanding that her Honour's decision was "interlocutory".

Second application 32 The second application is an application to extend the time in which to file a notice of appeal from the decision of Gleeson J, which her Honour made under s 44(2A) of the AAT Act, not to extend the time in which to institute an "appeal" from the Tribunal's decision under s 44(1). That application for extension of time was brought in this Court's original jurisdiction. Her Honour exercised that jurisdiction by dismissing the application. 33 Section 24 of the FCA Act relevantly provides: Appellate jurisdiction (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; … (1AA) An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is: (a) a determination of an application of the kind mentioned in subsection 20(3); … (1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. 34 Section 20(3)(b) of the FCA Act provides: Exercise of original jurisdiction … Applications: … (b) for an extension of time within which to institute proceedings in the Court; … must be heard and determined by a single Judge unless: (e) a Judge directs that the application be heard and determined by a Full Court; or (f) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 35 The application made by Mr Tran, and dismissed by Gleeson J, fell within paragraph (b) of s 20(3) as an application "for an extension of time within which to institute proceedings in the Court". 36 Sections 24(1AA)(a) and 20(3)(b) have the effect that, if an extension of time within which to appeal were to be granted, the appeal would be incompetent - see: WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [4]; FEZ17 v Minister for Home Affairs [2018] FCA 1689 at [7]; Zetta Jet Pte Ltd v The Ship "Dragon Pearl" [2018] FCAFC 99 at [39]; Torres Strait Regional Authority v Akiba on Behalf of the Torres Strait Regional Sea Claim [2018] FCA 601 at [5]; Rana v Google Inc [2017] FCA 542 at [21]. 37 There is no provision which qualifies s 24(1AA) by, for example, permitting an appeal by leave notwithstanding the prohibition contained in s 24(1AA). 38 Section 24(1A) contemplates that an appeal might be brought from an "interlocutory decision" if leave is given. Section 24(1A) must be read with s 24(1AA). Section 24(1AA) clearly evinces an intention that determinations or decisions of the kind there described not be the subject of appeal, with or without leave. That provision cannot be sidestepped on the basis that the determination or decision can be characterised as an "interlocutory decision" which would otherwise be amenable to appeal if leave were obtained in accordance with s 24(1A). Indeed, if s 24(1A) had that effect, s 24(1AA) would be rendered practically ineffective. 39 If this Court extended the time for Mr Tran to institute an appeal from the decision of Gleeson J pursuant to Mr Tran's application under r 36.05, the appeal would be incompetent. Accordingly, the extension of time is refused. 40 If Mr Tran had applied under r 35.14 to extend time in which to seek leave to appeal, that application would also have been dismissed for the same reasons. 41 It follows that the application must be dismissed.

Costs 42 The second respondent applies for costs. Mr Tran made submissions which, in substance, explained that the delay (at least after Gleeson J's decision) in making this application was short and involved first seeking to make an application in the High Court and then being referred to this Court. I accept Mr Tran's explanation for the short delay in making the present application. The Court is sympathetic to Mr Tran's position, especially having regard to the fact that he is self-represented. However, the explanation for delay does not provide a sufficient reason for disturbing the usual position in relation to costs, namely that the successful party is ordinarily entitled to an order for costs. Mr Tran made no other submission as to why costs should not follow the event. 43 It is appropriate to order that Mr Tran pay the second respondent's costs as agreed or assessed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.