FEDERAL COURT OF AUSTRALIA

SZFOG v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1374

PRACTICE & PROCEDURE – application for leave to appeal against dismissal of proceedings as abuse of process – whether discretion miscarried

ABUSE OF PROCESS – where applicant applied to Federal Court for review of Refugee Review Tribunal decision – where application discontinued by consent – where applicant filed fresh application – whether seeking to re-litigate issues disposed of in earlier application – whether abuse of process

Federal Court Rules O 22 rr 2, 7

Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 572, cited

Botany Municipal Council v Department of Arts, Sport and Environment (1992) 34 FCR 412, cited

FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9, cited

Applicants S503/2003 v Minister for Immigration [2005] FCAFC 133, distinguished

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, distinguished

Re The Kronprinz (1887) 12 App Cas 256, referred to

House v The King (1936) 55 CLR 499, applied

Niemann v Electronic Industries Ltd [1978] VR 431, applied

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited

Walton v Gardiner (1993) 177 CLR 378, distinguished

Reichel v Magrath(1889) 14 App Cas 665, distinguished

Connelly v Director of Public Prosecutions[1964] AC 1254, distinguished

Williams v Spautz (1992) 174 CLR 509, cited

SAAP (2005) 215 ALR 162, referred to

SZFOG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1298 OF 2005

EDMONDS J

30 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The applicant have leave to appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Edmonds J:

Introduction

1                     This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Raphael FM) delivered on 26 July 2005:  [2005] FMCA 1081.  The applicant filed his application for leave on 2 August 2005, within the time prescribed by O 52 r 5 of the Federal Court Rules.  There is a suggestion in the respondent’s submissions that O 52 r 15 applies to this application.  That rule, which is the counterpart rule to O 52 r 5 in relation to appeals which do not require leave or where leave has been granted, does not apply to an application for leave to appeal.  The submissions based on the provisions of that rule are of no relevance in determining this application.

2                     The history of these proceedings is set out in an affidavit of Mr M W Clisby, filed in the Federal Magistrates Court but to which reference was made in the respondent’s oral submissions on the hearing of this application.  Mr Clisby is a solicitor who practises in South Australia and was retained by the applicant on 30 June 2003 through a referral from the applicant’s then migration agent.  Mr Clisby was instructed to file an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) and did so on 1 July 2003 in the South Australian District Registry of this Court.

3                     On 10 October 2003, the applicant instructed Mr Clisby to attend a directions hearing before Mansfield J and to request that the matter be transferred to the Federal Magistrates Court at Sydney.  On 11 November 2003 Mr Clisby advised the applicant, inter alia:

‘As we cannot find any arguable error of law in the Decision of the Refugee Review Tribunal, we have to advise you that the Court will not transfer a matter that has no reasonable chance of success.’

4                     Mr Clisby set out the basis of his opinion and then wrote, ‘As a result of this opinion, we cannot continue to act in this matter.  It is our advice that you discontinue the matter’.  On 14 November 2003 Mansfield J refused the applicant’s motion for transfer to Sydney.  On 4 February 2004, Mr Clisby was instructed to discontinue the proceedings, and he purported to do so by filing a notice of discontinuance that day, some eight days prior to the proposed hearing on 12 February 2004.

5                     It may be noted that O 22 r 2 of the Federal Court Rules provides, insofar as is relevant:

‘2 Discontinuance — Form 29

(1)     Subject to subrules 2 and 3 a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with Form 29:

(a) at any time before the directions hearing appointed in the application — without the leave of the Court or the consent of any other party;

(b) where after the directions hearing the proceeding continues on pleadings but the pleadings are not closed — without the leave of the Court or the consent of any other party;

(c) where judgment has not been entered — with the consent of all the parties; and

(d) at any time — with the leave of the Court.’

6                     Accordingly, as at 4 February 2004, the applicant required the respondent’s consent or the leave of the Court to discontinue.  On 6 February 2004 the Minister’s solicitors prepared ‘consent orders … for the matter to be discontinued and the applicant to pay the respondent’s costs fixed in the amount of $3000.00’.  Mansfield J made the consent orders on 12 February 2004.  It follows that the respondent had the opportunity to condition her consent upon such terms as she thought appropriate.  Alternatively, she could have withheld her consent and opposed the grant of leave or made submissions as to any terms which ought to attend any grant of leave: see Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 572, 577; Botany Municipal Council v Department of Arts, Sport and Environment (1992) 34 FCR 412; and O 22 r 7 of the Federal Court Rules, infra.  There is even authority to the effect that the Court may dismiss the application rather than grant leave to file a notice of discontinuance:  FAIRA Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 9.   The respondent chose not to take any of these courses; on the contrary, the respondent chose to give her consent to the discontinuance.

Second Application for Review

7                     On 24 January 2005 the applicant filed an application in the Federal Magistrates Court at Sydney seeking review of the same Tribunal decision.

8                     The respondent submits that this second application constituted an abuse of process, a submission which the Federal Magistrate ultimately accepted.  The respondent submits there was no error in the Federal Magistrate’s approach.  At [8] of his reasons for judgment his Honour writes:

‘In relation to the application I think it is clear that the bringing of another case in this court seeking review of the same decision of the Refugee Review Tribunal that has already been considered by the Federal Court and voluntarily discontinued is an abuse of process.’   

9                     In addition, the respondent explained the nature of her case in oral submissions on the hearing of this application as follows:

‘The respondent’s position is that it is an abuse of process to commence proceedings, have them run all the way to the day of the hearing, discontinue them, and then refile 11 months later.  It is not a requirement that the applicant acted in bad faith.  There must be finality to litigation.  The learned Federal Magistrate must [sic: was] not unsympathetic to the facts that the applicant presented to him.  He gave careful consideration to the material that was before him.  He did not fall into the error of believing that the matter had been finally determined.  He considered that this was an attempt to litigate anew a case which had been disposed of by earlier proceedings, not determined but disposed of.’

The Federal Magistrate’s Reasoning

10                  It is convenient to first consider the Federal Magistrate’s reasoning.  After the extract referred to in [8] above, his Honour said:  ‘This is the situation that pertained in Applicants S503/2003 v Minister for Immigration [2005] FCAFC 133’.  His Honour set out quotations from [4] and [5] of that case.

11                  In that case the appellant had received an unfavourable decision from the Tribunal and had brought proceedings under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court.  Federal Magistrate Driver dismissed the application ‘and gave detailed reasons for that decision’.  The appellant appealed but subsequently discontinued the appeal: [4].

12                  The appellant then commenced proceedings in the High Court seeking constitutional writs and those proceedings were remitted to Jacobson J.  It was clear that the application before Jacobson J was precluded, as the Minister submitted in that case, by the principles of res judicata, issue estoppel and abuse of process.  At [5] the Court said:

‘Not surprisingly, it was contended on behalf of the Minister that the application was precluded by the principles of res judicata, issue estoppel and abuse of process.  There could not be a clearer case for the application of those principles (including Anshun estoppel).  There is no hint of any basis for avoidance of them.  It is sufficient to refer to the decision of the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]–[39] (special leave refused 4 February 2005).  This proceeding is a transparent attempt to relitigate the same matter that was previously litigated.  The attempt should not have gone as far as it did.’

13                  The important difference between Applicants S503/2003 and the present case is that in Applicants S503/2003 Federal Magistrate Driver had heard and determined the merits of the applicant’s case.  There has been no determination of the merits in the present case and the respondent conceded as much.  What the applicant did was discontinue his application.

14                  If there were any doubt about what the Court decided in Applicants S503/2003 it may be resolved by reference to the relevant passages in Wong, to which the Court in that case referred.  In Wong the Court said, commencing at [36]:

‘36       The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (“a person ought not to be vexed twice for one and the same cause”) and interest reipublicae ut sit finis litium (“it is in the interests of the State that there be an end to litigation”).  It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court.  Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter.  The resources of the community ought not to be expended in the litigation, more than once, of the same issue.

37        A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602.  Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding.  In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602.

38        Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf. the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis).  As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding.  The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558.  However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30].  What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see also Bryant v Commonwealth Bank (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.

39        Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson (2000) 100 FCR 150, at 156-157, per Madgwick J.  However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.’

15                  These paragraphs from Wong do not support the interpretation of Applicants S503/2003 which the Federal Magistrate has adopted.  Indeed, the Court in Wong was called upon to consider applicability of the Ashun principle precisely because there had been a prior hearing on the merits.  As the distinguishing feature of this case from Applicants S503/2003 is that there has been no consideration of the merits in this case by reason of its discontinuance, it is necessary to establish the effect of the discontinuance.

Effect of Discontinuance

16                  One is reminded of the effect of the discontinuance of proceedings by the provisions of O 22 r 7 of the Federal Court Rules:

‘Effect of discontinuance

7          A discontinuance under this Order as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to a proceeding for the same, or substantially the same, cause of action.’

17                  See, too, Re The Kronprinz (1887) 12 App Cas 256 where counsel for the appellants in that case was ‘compelled to admit that an order for discontinuance does not of itself operate as a release or an extinguishment of the claims, or in any other way bar further proceedings’:  at 262, a proposition which was embraced by the House of Lords in that case: esp. at 262 per Lord Bramwell.  It follows that no estoppel has arisen and that no plea in bar is available to the respondent in the present case.

18                  In contrast, in Applicants S503/2003 an issue estoppel had been created by Federal Magistrate Driver’s determination of the application on its merits and a plea in bar was available to the respondent.  Moreover, as the Court in that case and in Wong make clear, the principle in Ashun also fell to be applied.  The difference between Applicants S503/2003 and the present case is that in Applicants S503/2003 the application before Driver FM had not been discontinued; it was the appeal that had been the subject of discontinuance.  It follows that the Federal Magistrate’s conclusion in the present case finds no support in the decisions of Applicants S503/2003 or Wong.

19                  The respondent submitted that the Federal Magistrate’s judgment involved an exercise of discretion and that ‘it is not sufficient for this court to come to a different conclusion about how it would have assessed the facts as found by that court’.  The facts found by the Federal Magistrate to support the conclusion stated at [8] of the reasons for judgment were that the applicant was bringing a fresh application for review of the same Tribunal decision as had been the subject of proceedings which he had discontinued.  His Honour concluded, applying Applicants S503/2003, that this constituted an abuse of process.  The respondent’s submission appears to be grounded in what Dixon, Evatt and McTiernan JJ said in House v The King (1936) 55 CLR 499 at 504 to 505:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’

20                  In the present case it appears that the Federal Magistrate made an error in the exercise of the discretion in that he acted upon a wrong principle.  Moreover, as this is an application for leave to appeal, the test enunciated in Niemann v Electronic Industries Ltd [1978] VR 431 and endorsed by the Full Court in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397applies.  That is, the Court should consider:

1.         Whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered; and

2.         Whether substantial injustice would result if leave were refused supposing the decision to be wrong.

21                  It seems to me that the Federal Magistrate’s decision is incorrect, or at least attended with sufficient doubt so as to warrant reconsideration by an appellate court.  Moreover, the applicant will suffer substantial injustice in that he will not have an opportunity to have the merits of his application determined without the leave of the Federal Magistrates Court.  In light of the Federal Magistrates reasoning at [8] it is very difficult, if not impossible, to conceive of a situation in which such leave would be granted.

Walton v Gardiner

22                  It is convenient now to return to the respondent’s oral submissions, where the respondent sought to support the Federal Magistrate’s conclusion.  In particular, the respondent relied on what the majority of the High Court said in Walton v Gardiner (1993) 177 CLR 378. 

23                  That case concerned disciplinary proceedings in a ‘Medical Tribunal’ which had been established pursuant to the Medical Practitioners Act 1938 (NSW).  Each of the three respondents was a medical practitioner and the appeal concerned allegations of misconduct against each of them.  At 384 Mason CJ, Deane and Dawson JJ set out a distinction between the two sets of proceedings relevant to the appeal.  The first set of proceedings came before the Medical Tribunal pursuant to a referral in March 1986.  The NSW Court of Appeal ordered that there be a permanent stay of those proceedings on the ground that, ‘by reason of the prolonged delay after relevant facts had become known, the institution and continuation of the proceedings were an abuse of the right to lodge a complaint’ (384 – 385).  Their Honours referred to those proceedings as the ‘earlier proceedings’.

24                  In staying the earlier proceedings, McHugh JA (as he then was) made findings about delay and actual prejudice caused by the delay.  The two relevant respondents would have been ‘significantly prejudiced in defending the earlier proceedings against them in the [Medical Tribunal]’ (at 385).

25                  In 1991, after the ‘Chemsford Royal Commission’, a second set of proceedings was instituted in the Medical Tribunal against the respondents.  These proceedings were founded on new complaints, which were not the same complaints that were previously stayed, but which arose out of the same pattern of professional conduct as gave rise to the earlier complaints (at 389).

26                  The Court of Appeal heard an application to grant a stay in respect of the new complaints.  It was submitted on behalf of the NSW Department of Health, that the Court’s supervisory jurisdiction to order a stay of proceedings in the Medical Tribunal was ‘confined to cases where the court is satisfied either that any hearing before the [Medical Tribunal] would necessarily be unfair or that the proceedings in the [Medical Tribunal had] been brought for an improper purpose’ (392).

27                  At 392 – 393 Mason CJ, Deane and Dawson JJ said:

‘None of the members of the Court of Appeal accepted the Department’s narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds.  Gleeson C.J. and Kirby P. considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process.  Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case.  Mahoney J.A. adopted a similar approach, while formulating the appropriate test in slightly different words.  His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the [Medical Tribunal] would involve unacceptable injustice or unfairness.  In our view, the approach adopted by the members of the Court of Appeal was correct.

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedure of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice and unfairness.’  (Emphasis, footnotes omitted.)

28                  Even without reference to the fact that the respondent gave her consent to the discontinuance in the present case, the respondent has adduced no evidence of any oppression or unfairness which she has suffered by the institution of fresh proceedings.  Nor was there any suggestion that this is an ‘exceptional or extreme case’.  The respondent’s submissions were grounded in the delay of some nine months in the filing of the first application and its discontinuance shortly before the hearing, together with the further 11 month delay in the bringing of fresh proceedings.  It is said is that ‘there must be finality to litigation’.  I would suggest that that does not even come close to the requirements which the majority endorsed in the above extract from Walton.

29                  Rather, the respondent placed particular reliance on the following passage at 393 of the majority judgment:

‘Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of in earlier proceedings (38).

(38)  See, e.g. Reichel v Magrath(1889), 14 App. Cas. 665 at p. 668; Connelly v Director of Public Prosecutions, [1964] A.C. 1254 at pp. 1361-1362.’

30                  It was submitted that this principle was applicable to the present case.  ‘That must be so otherwise parties to court proceedings could frustrate the process by simply withdrawing from proceedings and recommencing at any time in the future’.  This submission suffers from a number of difficulties to which I will return.

31                  It is necessary to first examine the cases cited by the majority judges in Walton to identify the principle which is set out in the above quotation with particular attention to the meaning of the phrase ‘disposed of in earlier proceedings’.  The respondent submitted that the majority in Walton drew a distinction between cases which had been ‘determined’ and cases which had been ‘disposed of’.  Indeed, it is a distinction upon which the respondent’s claim depends, for three reasons.  The first is that, as indicated above, the respondent conceded that the merits of the applicant’s application have never been determined.  Second, the respondent eschewed any reliance on what might be seen as an attempt to avoid the consequences of Mansfield J’s refusal to transfer the proceedings to Sydney:  see Williams v Spautz (1992) 174 CLR 509.  Third, as I have suggested, there is no evidence of any oppression or prejudice to the respondent in the present case; indeed the consent orders made by Mansfield J included an order that the applicant pay the respondent’s costs.

32                  The first case cited by the majority in Walton is Reichel v Magrath.  That case concerned whether there was inherent jurisdiction in the High Court of England to strike out a statement of defence which was frivolous and vexatious and an abuse of process.  The appellant had unsuccessfully brought an action for a declaration that a certain instrument of resignation he had executed was void.  Later, when the appellant refused to give up possession of the parsonage house and glebe lands, which he had enjoyed prior to his resignation, his successor brought an action to gain possession and a declaration that he was entitled to the benefits of the position.  The appellant set up as a defence the same case as that on which he had failed in his previous action.  The Court of Appeal found that, notwithstanding that there was no estoppel, the court had jurisdiction to strike out the defence and enter judgment against the appellant on the ground that to set up the defence and attempt to prove it was an abuse of process.

33                  Lord Halsbury L.C. said:

‘My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the vicarage is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.

I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.’  (Emphasis.)

34                  Lord Watson said: 

‘My Lords, this is an attempt by the appellant to retain the temporalities of the benefice of Sparsholt by re-trying, with his successor in the benefice, the same issues which have already been conclusively decided against him in a question with his proper contradictor. The Court must, in my opinion, have jurisdiction to forbid any such abuse of its process.’  (Emphasis.)

35                  Lords Fitzgerald and MacNaughton concurred and Lord Herschell delivered a speech agreeing with the majority.

36                  Contrary to the respondent’s contention, their Lordships seem to use the words ‘disposed of’ interchangeably with the words ‘decided against’ and any doubt may be resolved by reference to the ‘defeated litigant’ and the ‘re-trying’ of the same issues.  The case did not concern the effect of a discontinuance of proceedings.  Nor did it concern a case in which the merits had never been considered. 

37                  The second case is Connelly v Director of Public Prosecutions where Lord Pearce explained at 1361 – 1362 that the pleas in bar of autrefois acquit and autrefois convict evolved from the court’s inherent power to prevent the re-litigation of criminal matters.  However, his Lordship said ‘there is no reason why these two pleas should exhaust the inherent power of the court’ and ‘It is clear from several cases that the court in its criminal jurisdiction retained a power to prevent a repetition of prosecutions, even when it did not fall within the exact limits of the pleas in bar’.  His Lordship then discussed (at 1363 – 1364) a number of cases, all of which concerned prosecutions where the merits had been considered in previous proceedings.  None of the cases concerned the entry of a nolle prosequi, which may be loosely regarded as the equivalent in the criminal jurisdiction to the discontinuance of proceedings in the civil jurisdiction. 

38                  Returning to the proposition put by the respondent that the principles in Reichel v Magrath and Connelly must nevertheless be applicable in the present case ‘otherwise parties to court proceedings could frustrate the process by simply withdrawing from proceedings and recommencing at any time in the future’.  There are two answers to this complaint.  The first is that, in the present case, the respondent chose to give her consent to the discontinuance, with the usual order as to costs, rather than to ask for any terms which might protect her from precisely the position in which she now finds herself.  Second, the issue of delay is a matter which the Court will take into account in exercising any discretion to grant prerogative relief.  As McHugh J said in SAAP (2005) 215 ALR 162 at [80]:

‘The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.’  (Footnotes omitted.)

39                  Nothing in the respondent’s submissions removes or reduces the doubt attending the Federal Magistrate’s judgment.  This is an appropriate case for the grant of leave to appeal and accordingly I grant the applicant leave.

Associate:

Dated:              30 September 2005