Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134
Outcome: followed
In NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 I gave my views as follows (at [162]-[166]), Conti J generally agreeing: 'Quite apart from a power to receive new evidence, what is the position of an appellate court rehearing a matter as to questions of law available on the materials before the trial judge but not raised at first instance? An appellant wishing to raise fresh legal questions cannot, in the first place, be in a worse position than one seeking to augment the evidence itself. Secondly, a party victorious at first instance is, in any case, liable to be defeated by a change in the law occurring before the appeal is heard; that, indeed, is conventionally given as the main practical difference between a "strict" appeal and one by way of rehearing. The result of a new legal point being successfully raised is no harder for the litigant thereby defeated than if the defeat follows from some legal point newly raised. Thirdly, however, there is undoubtedly great, general value in considerations of finality of litigation acting as a brake on appellate intervention, thereby preserving the integrity of the trial as the normal arena for final disposition of that case. As a general statement of principle there is no conflict between what the Full Court approved in Branir and the approach in the cases next referred to. In my respectful view, the correct approach, and the one generally adopted in practice in this Court, is that succinctly expressed in VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 (" VUAX ") by Kiefel, Weinberg and Stone JJ (at [46] [48]): "Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310; H v Minister for Immigration &amp; Multicultural Affairs ; and Branir ... at [20]-[24] and [38]. In Coulton ..., Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7 : 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused." (Emphasis added.) To similar effect, in Iyer ... Heerey, Moore and Goldberg JJ said (at [22] [24]): "... We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant. Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the [Tribunal] to make it clear from the outset what are the substantive grounds of review relied upon .... However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised . That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge ." (Emphasis added.) ... Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?' (Original emphasis).