The Minister accepts, however, that the principle ('Anshun estoppel') recognised in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ('Anshun'), on which he relies on the final hearing in respect of grounds (h) and (i) in N 297/03 and in respect of ground (d) in N 298/03, and in respect of any of the other grounds which I may conclude, contrary to his submission on the motions, are not barred by res judicata or issue estoppel, does involve a discretionary element.
40 Mr Wong submits on the Minister's motions that it is arguable that res judicata and issue estoppel do not apply where the earlier proceeding was in the nature of an application for judicial review of an administrative decision. The artificiality to which I referred at [38] above is illustrated by the fact that, if I were to accept this submission, I would nonetheless be faced with the question whether they do or do not apply in such circumstances, as on the final hearing on which I am embarked. Mr Wong further submits that in any event I have a discretion not to apply res judicata and issue estoppel.
41 I have come to the conclusion that, sitting as I am as a single judge, I am bound to accept that res judicata and issue estoppel do apply where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, and that they apply independently of any exercise of discretion. In the alternative, that is to say, if I am not so bound, I have concluded that even on the present motions for summary dismissal, there is a course of decision in the Court to the effect mentioned, which I should follow unless convinced it is clearly wrong, and I am not so convinced.
42 In support of the applicability of res judicata and issue estoppel where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, as well as of the non-discretionary nature of those doctrines, the Minister relies on the Full Court decision of this Court in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ('Taylor v Ansett') at 354-6 per Fisher J, 365 per Ryan J, and on the judgments of Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 ('Somanader'); Sackville J in BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 ('BC'); Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 ('LX'), and Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 ('Thayananthan').
43 I need not discuss res judicata or issue estoppel at length. (The expression 'res judicata' is sometimes used to include issue estoppel as one form, and merger of cause of action in judgment as a different form, but, consistently with the cases to be discussed below, I will use it here to refer to the form of estoppel which arises from the establishment, or failure to establish, a cause of action, by reason of a judgment.) For res judicata to operate:
· there must have been a final judgment (albeit appealable) within its jurisdiction, by a judicial tribunal, based on the establishment or failure to establish a cause of action;
· the later proceeding must raise the same cause of action; and
· except where the prior judgment was in rem, the parties to the two proceedings must be the same: cf Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at 1-3; Campbell, 'Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation' (1994) 20 Mon U L Rev 21 at 21-22, and cases cited in both works.
44 For issue estoppel to apply, an issue of fact or law which is raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding, and, again, except where the prior judgment was in rem, there must be identity of parties: Spencer Bower, Turner and Handley, chs 8, 9; Campbell at 22-23, and cases cited in both works.
45 In Blair v Curran (1939) 62 CLR 464, Dixon J distinguished between res judicata and issue estoppel on the basis that in the case of res judicata the cause of action itself has 'passed into judgment, so that it is merged and has no longer has an independent existence', whereas, in the case of issue estoppel, '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' (at 532 - the passage was adopted in Anshun by Gibbs CJ, Mason and Aickin JJ at 597).
46 Where the earlier proceeding is dismissed in so far as it is based on a particular cause of action, that cause of action does not merge in the judgment: cf Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 ('Macquarie Bank') at 556 per Clarke JA, with whom Priestley JA agreed; BC (at [19] per Sackville J).
47 Reliance on the same cause of action in successive proceedings will ordinarily raise the same issues, so that if a litigant is defeated by res judicata, an issue estoppel will also be present. But the converse is not necessarily true: an issue estoppel may defeat a litigant without res judicata doing so; cf the passages from the judgment of Dixon J in Blair v Curran set out in [45] above.
48 The expression 'cause of action' can bear different meanings, and Brennan J observed in Anshun (at 610-611) that the imprecision in its meaning 'tends to uncertainty in defining the ambit of the [res judicata] rule'.
49 'Anshun estoppel' applies 'to every point which properly belonged to the subject of [earlier] litigation, … which the part[y], exercising reasonable diligence, might have brought forward at the time [of the earlier proceeding]': Henderson v Henderson (1843) 3 Hare 100 (67 ER 313) ('Henderson') at 115 (ER 319) (itself an instance of res judicata). The principle was identified by Gibbs CJ, Mason and Aickin JJ in Anshun itself as operating where 'the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it' (at 602). The Minister accepts that where the Anshun estoppel test is met, the Court, nonetheless, has a discretion, where 'special circumstances' exist, to allow the later proceeding to continue.
50 I turn now to the cases relied on by the Minister. In Taylor v Ansett, the appellant ('Taylor') was the Secretary of the Department of Aviation. He had made a decision under cl 6(1)(c) of the 'Airlines Agreement' which was contained in a Schedule to the Airlines Agreement Act 1981 (Cth). The respondent, Ansett, applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') for review of the decision. Taylor filed a notice of objection to competency, asserting that the decision was not 'of an administrative character' and was not made 'under an enactment' within the definition of the expression 'decision to which this Act applies' in s 3(1) of the ADJR Act.
51 These questions had been determined in an earlier proceeding. Prior to the earlier proceeding, Ansett had requested Taylor to provide a statement of findings and reasons relating to the decision. Following his refusal, Ansett launched the earlier proceeding. After a hearing, Lockhart J declared under s 13(4A) of the ADJR Act, that Ansett had been entitled to make the request. In making that declaration, his Honour found that Taylor's decision was one 'of an administrative character' and made 'under an enactment'. Taylor appealed. The appeal was still pending when Lockhart J gave the further decision referred to below. The appeal was subsequently discontinued.
52 On the objection to competency in Ansett's later application for review under the ADJR Act, Taylor adopted, without repeating, the submissions he had made in the earlier proceeding. Lockhart J overruled the objection to competency for the reasons he had given in the earlier proceeding. The question of issue estoppel was not raised before his Honour. On appeal (with leave) from this interlocutory judgment of Lockhart J, all three members of the Full Court (Northrop, Fisher and Ryan JJ) agreed that the appeal should be dismissed on the grounds that Taylor's decision was, indeed, a decision of an administrative character made under an enactment. But Fisher and Ryan JJ (Northrop J dissenting) also held that Taylor's objection to competency must be overruled because of an issue estoppel arising from what Taylor conceded to be a 'final decision' in the form of Lockhart J's declaration in the earlier proceeding.
53 Fisher J (at 354-6) distinguished the decision of the Queen's Bench Division in R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1983] 1 WLR 524 ('Hackney LBC'), in which it was held that issue estoppel does not apply where the earlier proceeding was an application for judicial review. Ryan J (at 364-5) agreed with Fisher J. Northrop J's dissent was based on 'the peculiar facts of [the] appeal' (at 346), and his Honour refrained from expressing an opinion as to 'whether in an appropriate case, estoppel could be raised as a defence to an application under the Judicial Review Act'.
54 Even though the Full Court's decision was also sustainable on another ground which commanded unanimous assent, I am bound to follow the view expressed by the majority in Taylor v Ansett, because that view was, and was intended by the majority to be, an independent reason, sufficient alone to support the Court's decision: cf New South Wales Taxation Commissioners v Palmer [1907] AC 179 at 184; Jacobs v London County Council [1950] AC 361 at 378; Re Martin, Deceased [1953] St R Qd 37 at 45; Burt v Barry & Roberts Ltd; Ex parte Barry & Roberts [1956] St R Qd 207 at 218 per Mack J.
55 In Somanader,Merkel J thought that res judicata, alternatively, issue estoppel, defeated the applicants. The applicants had applied to this Court for review under Pt 8 of the Act, in its then form, of a decision of the Refugee Review Tribunal ('RRT'), affirming a decision of a delegate of the Minister not to grant them protection visas. By consent, their application was dismissed. Later they commenced a proceeding in the High Court seeking constitutional writs in respect of the RRT's decision. The High Court remitted to this Court that part of the matter which related to claims that had been made in the earlier Pt 8 proceeding in this Court.
56 Merkel J held, referring to Taylor v Ansett, that res judicata barred the reagitation of the same claims. It did not matter that the successive proceedings, were like those in the present case, different in form, because the question whether they resolved the same causes of action was a question substance, not of form.
57 In applying res judicata, Merkel J observed (at [65]) that there was 'commonality of the causes of action', and continued:
'The substratum of facts giving rise to the right to review are exactly the same. The factual circumstances relied upon to establish the right to relief are the same. The substance of the two proceedings is the same. The right to relief in each case is informed by the same substantive law principles. It is not contended that the parties to the two sets of proceedings differ in any material respect. Thus, the dismissal orders finally determined the issue of whether the RRT committed an error amounting to a constructive failure to exercise jurisdiction or an error of law in the interpretation and application of the Convention in the present case.'
Merkel J also held (treating it as something different) that issue estoppel operated to defeat the applicants. His Honour did not need to address Anshun estoppel.
58 Merkel J's observations set out in the preceding paragraph are applicable, with necessary formal adjustments, in the circumstances of the present case, in so far as those circumstances concern the overlapping grounds mentioned earlier.
59 In BC, the earlier proceeding was, as in Somanader, an application to this Court under Pt 8 of the Act for review of a decision of the RRT. Also as in Somanader, the later proceeding began as an application in the High Court under s 75(v) of the Constitution for constitutional writs in respect of the same decision. The High Court remitted part of the matter pending in that Court to this. The earlier application under Pt 8 had been dismissed by Madgwick J following a hearing. The applicant did not appeal from Madgwick J's judgment.
60 The Minister relied on res judicata and Anshun estoppelbut Sackville J noted that the Minister's written submissions also referred to issue estoppel. His Honour understood that the applicant did not suggest that, in the circumstances of case, issue estoppel would apply if res judicata did not.
61 Sackville J noted that counsel for the applicant did not dispute the correctness of Merkel J's holding in Somanader that res judicata could operate where the earlier proceeding was in the nature of an application for judicial review. In the event, his Honour held that res judicata did not bar the applicant from pursuing the remitted proceeding because the ground relied on in remitted proceeding, jurisdictional unreasonableness, had not been relied on in the earlier proceeding before Madgwick J. Sackville J held, however, that Anshun estoppel defeated the applicant, and, in particular, that there were no special circumstances which should preclude that result. His Honour also gave an alternative ground for dismissing the application.
62 An appeal from Sackville J's decision was dismissed on that alternative ground (BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221). In relation to the Anshun estoppel point, although unnecessary for the decision, the Full Court offered the opinion that some of the circumstances relied on by the appellant, when taken cumulatively, amounted to special circumstances as to why Anshun estoppel did not defeat the appellants. I derive little assistance from the BC proceeding on the present issue because the applicability of res judicata in the context of judicial review of administrative decisions was conceded rather than determined.
63 In LX,Heerey J adopted Merkel J's analysis in Somanader. In LX, as in Somanader, the proceeding before this Court was a remitted application in the High Court for constitutional writs in respect of a decision of the RRT, whereas the earlier proceeding had been an application to this Court under Pt 8 of the Act, as it then was, for review of that decision. Heerey J concluded that the passage set out at [57] above from Merkel J's judgment in Somanader was applicable in the circumstances of the case before him. As to one ground (actual bias) which had not been raised in the earlier proceeding, Heerey J decided that Anshun estoppel applied to defeat the applicants.
64 Finally in this line of cases, Merkel J applied his reasoning in Somanader in Thayananthan. Thayananthan, like Somanader, involved successive applications for judicial review under Pt 8 of the Act and for constitutional writs under s 75(v) of the Constitution. As in Somanader, his Honour held that res judicata barred the applicants.
65 Senior counsel for Mr Wong submits that I should not accept that res judicata or issue estoppel has any role in the circumstances of the present case. He submits that the case should be seen as raising an issue of Anshun estoppel alone, and, therefore, as raising a discretionary issue which is to be resolved by answering the question whether it is an abuse of the Court's process for Mr Wong to relitigate the 'overlapping grounds'.
66 Senior counsel for Mr Wong makes the following submissions:
- Taylor v Ansett is distinguishable because the successive proceedings there were both under the ADJR Act (strictly, this is not correct: the declaration of entitlement to request a statement of reasons was not made in the course of the judicial review proceeding), whereas in the present case the First Earlier Proceeding and the Second Earlier Proceeding were both applications in this Court under s 39B of the Judiciary Act, while the later (present) proceedings (N 297/03 and N 298/03) are remitted applications, commenced in the High Court, for constitutional writs.
- It is only the decisions of Merkel J in Somanader and Thayananthan which provide authority for the proposition that res judicata can bar a later application for constitutional writs.
- There is respectable support for the view that where an earlier proceeding is for certiorariand other prerogative remedies, the court has not finally determined the validity of the administrative decision as between the parties, but has decided only whether there was a plain excess of jurisdiction; senior counsel for Mr Wong referred to Wade and Forsyth, Administrative Law (8th ed, 2000) at 255; Hackney LBC (and, on appeal, at [1984] 1 WLR 592); R v Home Secretary; Ex parte Momin Ali [1984] 1 WLR 663 at 669-670; Campbell op cit at 26-33.
- Res judicata and issue estoppel do not 'automatically' apply in public law litigation; 'the extreme view' adopted in Hackney LBC, said by senior counsel for Mr Wong to be that those principles have no application at all to judicial review of administrative decisions and that it is a case of 'discretion or nothing', should be rejected; it should be accepted that the doctrines apply where the earlier decision is against the Minister; otherwise, however, the doctrines can apply to judicial review of administrative decisions only with some modifications, one of which is that they cannot be applied so as to prevent effect being given to a mandatory statutory provision, such as that found in s 501C(3) of the Act.
- There is, in any event, a 'special circumstances' exception to the operation of issue estoppel, and an illustration occurs where further material becomes available which was relevant to the correct determination of the issue in question in the earlier proceeding, which could not, by reasonable diligence, have been brought forward in that proceeding: Arnold v NatWest Bank Plc [1991] 2 AC 93, esp at 108-109 per Lord Keith of Kinkel, with whom the other members of the House of Lords agreed.
67 With respect, I find persuasive Professor Campbell's criticisms of the grounds on which Hackney LBC was distinguished in Taylor v Ansett. But I do not accept Mr Wong's submission that the opinion of the majority in that case is binding authority only in relation to proceedings to proceedings under the ADJR Act. I see no distinction of principle in the present respect between the earlier application for judicial review under the ADJR Act in Taylor v Ansett and the earlier applications under s 39B of the Judiciary Act in the present case.
68 Spencer Bower, Turner and Handley states (at 200):
'Res judicata is so fundamental that it is hard to think why an order granting judicial review should not give rise to res judicata estoppels.'
More generally, the learned authors note (at 202) that Australian authority supports the existence of res judicata in judicial review proceedings, citing Taylor v Ansett, and referring to Vitosh v Brisbane City Council (1955) 93 CLR 622. In the case last mentioned, an attempt was made to bar a later action for a declaration on the basis of an issue estoppel said to arise from an earlier decision refusing mandamus, and although the action failed on the facts, it was not suggested that the issue estoppel could not arise because of the nature of the earlier proceeding.
69 Professor Campbell concludes (at 33) that '[n]o convincing reasons … have been given for exempting judicial review proceedings, or public law litigation generally, from the operation of estoppel principles'. The question raised by the learned author is whether, and if so what, modifications should be imposed in the application of the principles in public law litigation. With respect, it seems to me that a difficulty in the learned author's suggestion is that it seems to make the application of estoppel principles discretionary, like Anshun estoppel, yet their non-discretionary nature is well-established as distinguishing them from Anshun estoppel; cf Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 504-505 per Brennan J; 510-511 per Deane, Toohey and Gaudron JJ; 512 per Dawson J.
70 The ultimate question posed by the Minister's motions is whether it is an abuse of process within O 20 r 2(1)(c) of the Federal Court Rules for Mr Wong to pursue the claims for relief made in N 297/03 and N 298/03 on the very grounds he relied on in the First Earlier Proceeding and the Second Earlier Proceeding respectively. The overlapping grounds as between the First Earlier Proceeding and N 297/03, and the overlapping grounds as between the Second Earlier Proceeding and N 298/03, are identical. In my opinion, I am constrained by the decision in Taylor v Ansett, in which Hackney LBC was, rightly or wrongly, considered and distinguished by a majority of the Full Court of this Court, to accept that in the circumstances mentioned, Mr Wong is barred by an issue estoppel from pursuing the overlapping grounds, and to hold that for this reason it would be an abuse of process for him to do so. It is for a Full Court to consider whether to overrule the holding of Fisher J and Ryan J in Taylor v Ansett.
71 Moreover, I would follow Merkel J in Somanader and Thayananthan and Heerey J in LX unless I thought their Honours were clearly wrong in holding that res judicata can operate as a bar where the earlier proceeding was in the nature of a judicial review of an administrative decision. In my opinion, treating the reference to res judicata as including a reference to the estoppel which arises from the earlier dismissal, I do not think they were clearly wrong. Indeed, I did not understand senior counsel for Mr Wong to submit that they were. Therefore, in dealing with the Minister's motions, I would follow their Honours. It is for a Full Court to consider whether to overrule them.
72 If I did not hold the views expressed in the last two paragraphs, I would, according to Mr Wong's submission, be required to consider whether there are 'special circumstances' permitting me not to allow issue estoppel to have its ordinary operation. It is not clear, however, that there is, in Australia, a 'special circumstances' exception to the operation of issue estoppel; cf O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258 per Brennan J; Linsley v Petrie [1998] 1 VR 427 at 441-2 per Hayne JA, 449 per Smith AJA. Without deciding whether the exception does form part of Australian law, I will address the matters relied on by Mr Wong as amounting to special circumstances.
73 Mr Wong refers to the following circumstances, advanced and relied on by the applicant in BC ([2002] FCAFC 221 at [31]), as described in the Full Court's obiter dicta concerning Anshun estoppel:
'(a) the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings;
(b) the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants;
(c) review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court);
(d) the state of the authorities at the relevant time was such that it was reasonable not to rely on jurisdictional unreasonableness;'
74 Senior counsel for Mr Wong also relies on the reference by the Full Court in BC, with apparent approval, to certain passages from the judgment of Madgwick J in Stuart v Sanderson (2000) 100 FCR 150 ('Stuart v Sanderson'). In Stuart v Sanderson, the applicant had sought judicial review under the ADJR Act before Beaumont J of a decision of an authorised delegate of the Chief of the Army, confirming the decision of an Army reviewing authority, upholding three convictions of the applicant and her discharge from military service. The fact that the applicant had not had the benefit of legal representation during the military proceedings was referred to before his Honour but was not pressed as a ground of review. His Honour dismissed the application. The applicant then brought a fresh proceeding in the Court under s 39B of the Judiciary Act.
75 Madgwick J held that it was unreasonable, for Anshun estoppel purposes, for the applicant not to have relied, in the ADJR proceeding before Beaumont J, on the fact that she had not been legally represented in the earlier military proceedings. Madgwick J then considered whether, nonetheless, 'special circumstances' existed which displaced the operation of Anshun estoppel. His Honour thought they did. He referred to the non-application of Anshun estoppel in criminal proceedings in a manner which would prevent an accused person from asserting his or her innocence. He said that the applicant before him should not lightly be denied the opportunity to raise a question which could have been raised in the earlier proceeding, which, although civil, concerned the criminal process. According to the Full Court's summary in BC (at [35]), his Honour referred to the following as constituting 'special circumstances':
' • the applicant had been denied a then-existing, important right of every
soldier (to legal representation when charged with offences);
· the consequence of allowing her to take the point would not go beyond inconvenience and expense (albeit to a not insignificant degree); and
· the respondents could at least in part be compensated by a costs order, were litigants only in an official capacity, and were unlikely to feel the other pressures which often weigh on individuals who are litigants.'
76 In BC, Sackville J had distinguished Stuart v Sanderson on the basis that the applicant in BC was not exposed to the application of the criminal law or criminal sanctions, notwithstanding the possible serious consequences for him (following a final determination that the applicant was not entitled to a protection visa, removal from Australia under s 198 of the Act).
77 The Full Court in BC held that the four factors, (a) to (d), listed at [73] above constituted special circumstances. Senior counsel for Mr Wong submits that the circumstances described in (a), (b) and (c) apply in the present case. In addition, he relies on the late discovery, without fault on Mr Wong's part, of the fact that the information in the CNCC was not communicated to the Minister.
78 In my opinion, there are not present, in this case, special circumstances which would warrant the non-application of issue estoppel. On the evidence before the Court, this case is not concerned with the life or liberty of Mr Wong, and there is no analogy with criminal proceedings or criminal sanctions against him. One may speculate that more may be at stake than the non-renewal of a student visa in view of the number and cost of the various proceedings launched by Mr Wong, but I must put speculation to one side. On the evidence before the Court, the case concerns a refusal to renew a student visa, a visa which would, if granted, permit Mr Wong to do that which, without the visa, he would not be able to do, namely, to remain in Australia for a particular period for a particular purpose.
79 For the above reasons, subject to what is said below concerning sub-ground (c)(i) in N 297/03 and sub-ground (a)(i) in N 298/03, the motions for summary dismissal on the ground of abuse of process succeed.
80 I turn now to those new sub-grounds.
81 As noted earlier, the counterpart in the First Earlier Proceeding of the present ground (c) in N 297/03, did not contain the words emphasised by me in [7] above. Similarly, the counterpart in the Second Earlier Proceeding of the present ground (a) in N 298/03 did not contain the words emphasised by me in [12] above.
82 The Minister submits that the difference is only 'cosmetic'. In my opinion, however, the complaint now made in each new sub-ground is different from the related one made in the First Earlier Proceeding and the Second Earlier Proceeding. There, Mr Wong's complaint was that the Minister did not take into account Mr Wong's character since entering Australia. By the new sub-ground, however, Mr Wong claims that the Minister did not take into account the fact that Mr Wong had no history of conviction for any criminal offence. Dismissal of the First Earlier Proceeding and the Second Earlier Proceeding is consistent with the survival of the new sub-ground. That is to say, it does not follow from the fact of those dismissals that the Court necessarily must have taken into account and rejected as a ground of review that the Minister had not been advised that Mr Wong had no history of conviction for any original offence.
83 In my opinion, neither res judicata nor issue estoppel applies to defeat Mr Wong in respect of either new sub-ground. In this respect, the Minister's motions for summary dismissal fail.