Case: Applicant A184 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1076 (2004) 210 ALR 543
Outcome: followed
The question, therefore, is whether a judgment given in default of appearance, without a hearing on the merits, is a final judgment of the kind giving rise to res judicata estoppel. This question was the subject of detailed consideration in Applicant A184 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1076 (2004) 210 ALR 543 at [97] - [114] . After a thorough examination of the relevant authorities, Lander J decided not to dismiss the application for leave to appeal that was before him on the res judicata ground, based on an earlier order of the Court dismissing an earlier application because of the failure of the applicant to appear when the matter was listed for trial. In the absence of evidence as to why the applicant had failed to appear at the earlier hearing, his Honour was not prepared to determine that the earlier order would support a claim of res judicata. It is clear from the reasoning in that case that, even though a consent judgment, or a judgment given against a respondent who fails to defend the proceeding, might be considered to be examples of final judgment giving rise to res judicata estoppel, a judgment given against an applicant in default of appearance, when the default is unexplained, is not to be regarded as a final judgment. Indeed, such a judgment would be regarded as an interlocutory judgment, from which leave to appeal would be required, and which could be set aside by the court giving it, upon application supported by material explaining the reason for the absence of the applicant. 63 In the present case, there has been no attempt to explore, and there is no evidence about, the reason for the appellant's failure to appear when his earlier case was called on for trial in the Federal Magistrates Court. The terms of order made on that occasion suggest that the proceeding was dismissed purely because the appellant had failed to appear, and without a determination of the merits. The order is therefore to be regarded as an interlocutory order, and not as a judgment finally determining the causes of action raised by the appellant in that proceeding. The earlier proceeding therefore constitutes no bar to the appellant proceeding in the present case, even if the cause of action on which he now desires to proceed is identical with the cause of action in the earlier proceeding. The Federal Magistrate therefore erred in dismissing the appellant's application on the basis that it was precluded by res judicata estoppel. 64 It follows from what I have said that the appeal must be allowed. With the exception of the order for costs, the orders of the Federal Magistrates Court, made on 27 August 2004, must be set aside. There should be substituted for those orders, orders giving the appellant the relief to which he was entitled, namely a writ of certiorari, directed to the Tribunal, removing its decision into the Court, for the purpose of quashing the decision, an order that the decision be quashed, and a writ of mandamus, directed to the second respondent, requiring it to hear and determine the application of the appellant, his wife and their son, for protection visas according to law. Counsel for the appellant conceded that, because the judgment of the Federal Magistrates Court is being overturned on a ground not raised in that court, the appellant could not invite this Court to set aside the order made at first instance, requiring the appellant to pay the Minister's costs, fixed at $6,500. 65 The orders I make must, of course, include the grant of leave to amend the notice of appeal by adding the grounds to which I have referred in [54], and by granting leave to the appellant to rely on the evidence in the affidavits of Mr Ganegoda and Mr Liyanage and the exhibits to those affidavits. 66 The question of the costs of the appeal also arises. When the hearing of the appeal was adjourned to enable the appellant to apply for leave to amend the notice of appeal, the appellant was ordered to pay the Minister's costs of the adjournment. That order will stand, and is sufficient compensation to the Minister for the fact that the appeal has succeeded on grounds not raised in the court below. Although counsel for the appellant are representing him as volunteers, pursuant to the scheme for legal referral found in O 80 of the Federal Court Rules , this does not preclude an order for the costs of the appeal in the appellant's favour. Order 80 r 9(2) provides that, if an order for costs is made in favour of a litigant assisted under the scheme, the legal practitioner who has provided the legal assistance is entitled to recover the amount of fees and disbursements that another party is required to pay under the order. There is therefore no reason not to apply the usual order, that costs follow the event. The first respondent will be ordered to pay the appellant's costs of the appeal. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 10 August 2007 Counsel for the appellant: C Gunst QC with S Moore (pro bono) Counsel for the respondent: R Knowles Solicitor for the respondent: Clayton Utz Date of Hearing: 30 November 2005 and 27 October 2006 Date of Judgment: 10 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1212.html