Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2005) 146 FCR 10
Outcome: applied
The Anshun estoppel principles have recently been considered by the Full Court of this Court in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2005) 146 FCR 10 ('Wong') . The Full Court said that the doctrines of res judicata and issue estoppel are founded on the broad rules of public policy that a person ought not to be vexed twice for one and the same cause and that it was in the public interest that there be an end to litigation. At 17-18, at [36]-[37] the Full Court went on to say: '...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. 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] HCA 45 ; (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 proceedings between the parties: Anshun at 602.' 69 What will be sufficient to constitute 'special circumstances' is not fixed and may involve a range of factors that bear upon the general discretion of the Court where justice requires the non-application of the general principle ( Wong at 18). 70 I do not accept the applicant's argument that the Anshun estoppel principles do not apply because the claims made in his current application would not conflict with any existing judgment as both of the decisions of Lee J in his favour were overturned on appeal. In my view, it is irrelevant to the operation of Anshun estoppel principles that the two first instance decisions were overturned on appeal. It does not follow that there are now no judgments with which the claims would conflict. Both of the Full Court decisions, and indeed, the decisions of Lee J, are based on findings of fact that during the period from the date of the sequestration order to 6 April 1993 at the earliest, there was no attempt made by the applicant to file a statement of affairs. As previously mentioned, this finding is central to the Full Court's decision in 2000. The claims made by the applicant in the application are directed at asking the Court to make factual findings which are directly contrary to the factual findings made in the previous proceedings, and to grant relief (previously denied) on the basis of that conflicting finding in the fact. 71 In my view, this is a circumstance where the Anshun estoppel principles are capable of applying.