FEDERAL COURT OF AUSTRALIA

SZAQY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1382

ADDENDUM

SZAQY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1050 OF 2005

TAMBERLIN J

SYDNEY

27 SEPTEMBER 2005 (ADDENDUM DATED 21 NOVEMBER 2005)

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

ADDENDum

TAMBERLIN J:

ABUSE OF PROCESS

1                     The respondent made an alternative and independent submission which was not dealt with by his Honour below, namely, that the application for review was an attempt to re-litigate a case already disposed of by previous proceedings and should therefore be dismissed as an abuse of process. 

2                     The submission is that, on 26 May 2003, the appellant filed an application for review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court and this was dismissed by a Registrar for failure of the appellant to appear at a directions hearing.  The substance of the argument is that, rather than applying under r 16.05 of the Federal Magistrates Court Rules to have the order set aside, the appellant commenced the present proceedings on 11 February 2005.  It is said that, even if res judicata or issue estoppel does not apply in the circumstances because there has been no final judgment on the merits, the application is an attempt to re-litigate a case already disposed of by previous proceedings and should be dismissed as an abuse of process.  In support of its claim, the respondent refers to the decision in Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ, and Chu Sing Wun v Minister for Immigration and Indigenous Affairs (1997) 78 FCR 314 at 323-326 per Carr, Kiefel and Sundberg JJ.  The respondent relies on the importance of finality in litigation.  As noted above, the Federal Magistrate did not deal with the submission that the proceeding was an abuse of process because he formed the view that the appeal failed on the merits, however, the submission is persisted in by the respondent on appeal.

3                     In Walton at 393, Mason CJ and Deane and Dawson JJ note that the inherent jurisdiction of a Court to stay proceedings on the ground of abuse of process extends to all categories of case in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.  Their Honours continued at 393:

“… 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 by earlier proceedings.”

4                     The Court has an inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right thinking people.

5                     In the present case, the application for review has not been finally disposed of by earlier proceedings.  Nor has it been litigated previously.  In view of the fact that the appeal has succeeded, it cannot be said that the appeal or the application are doomed to failure. 

6                     In my view, Chu should be distinguished because, in that case, as counsel for the appellant points out, the appellant had made three prior applications to the Court for review of the decision and was appealing against the primary Judge’s refusal to re-open matters decided upon by a Judge of the Court in one of the earlier applications.  The extent to which there have been other proceedings is an important discretionary factor in deciding whether to dismiss a meritorious case on the ground of abuse of process.

7                     In this case, the reason why there was no appearance before the Registrar when the earlier application was dismissed was because the appellant had instructed her migration agent to lodge the application with the Court and had attempted to contact the agent on several occasions.  It was only when the appellant was taken into detention and she instructed a solicitor to make inquiries that she was advised that there was, at that time, no application before the Court.  Thereafter, an application was made for judicial review.  This is a reasonable explanation.

8                     In the present case, as a matter of discretion, I am not prepared to dismiss this appeal on the basis that the application before the Federal Magistrate was an abuse of process.  Indeed, I do not consider that it was an abuse of process and I accept the explanation which has been proffered by the appellant as a reasonable one.  Therefore, I reject the submission by the respondent that there has been an abuse of process.

I certify that this is a true copy of the

Addendum to the Reasons for Judgment

of the Honourable Justice Tamberlin.

Associate:

Dated:                          21 November 2005