Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: applied
The decision by Raphael FM to dismiss the appellant's case as an abuse of process was an exercise of discretion by his Honour. Accordingly, I must be guided by the principles expressed in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 in relation to an appeal from an exercise of discretion. In that case, Dixon, Evatt and McTiernan JJ said (at 504-5): '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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 19 The appellant's notice of appeal and his submissions relate primarily to the substantive merits of his judicial review application, rather than to the question whether the dismissal as an abuse of process was an error of law, which is the proper question in this appeal. However, the correct issue was squarely raised in the judgment of Edmonds J relating to leave to appeal and has been dealt with in the submissions of the first respondent. In view of the fact that the appellant is unrepresented and does not speak English, and of the importance of the matters in dispute, I consider it appropriate that the Court consider this issue, even though it has not been specifically raised in the notice of appeal. 20 At this hearing, the appellant provided some evidence relating to the reasons for discontinuing the Adelaide proceedings and for the delay in instituting these proceedings. However, whilst I consider the appellant to have been a generally reliable witness, I do not consider that I can take fresh evidence on these matters into account in determining whether his Honour's discretion miscarried. 21 There are two questions of principle which I consider are raised by the judgment of Raphael FM. The first is whether his Honour misinterpreted the authorities in respect of dismissal for abuse of process in determining that the application should be dismissed. The second is the question of whether Raphael FM could properly take into account the fault of the migration agent (if proven) in determining how to exercise his discretion. 37 It is clear from House v The King that, having found that Raphael FM's discretion miscarried, I may re-exercise the discretion if in a position to do so: see the passage reproduced at [18] above. Given that the transcript of the proceedings before Raphael FM is in evidence and based upon his Honour's factual findings contained in his reasons for judgment, I consider that I am in a position to do so. 38 Raphael FM did not make any specific factual finding in respect of the behaviour of the appellant's migration agent. However, as referred to at [36] above, it is clear from his Honour's reasons that he was concerned by the appellant's evidence about the agent. His Honour considered these allegations of misconduct were sufficiently credible to warrant a referral of the file and the transcript to the Migration Agents Review Panel. In my opinion, his Honour's concerns should weigh against the striking out of the appellant's application as an abuse of process. 39 I also consider the fact that the appellant has not had a merits hearing to be significant. This is a factor which, as discussed above, was not fully taken into account by Raphael FM in his consideration. In my opinion, this is also a significant factor weighing against the striking out of the application. 40 A third factor to consider is the appellant's delay in bringing his application for a review of the Tribunal's decision. The current application was filed in January 2005, over 26 months after the Tribunal's decision was handed down. On its face, this period of delay is significant and in some circumstances, with no justification, might be sufficient of itself to warrant a dismissal. However, if the appellant's claims are believed, the delay attributable to the misconduct of the migration agent would account for at least 18 months. Raphael FM did not make any specific findings on the credibility of the appellant. The respondent has pointed to an exchange between the appellant's migration agent and Raphael FM contained in the transcript as follows: 'MIGRATION AGENT: This is as well actually, that's why I don't think it's an abuse of process here because the person was clearly unaware of the failure of his application ... HIS HONOUR: He said he was but he's been cross-examined at some length and I'm afraid I don't really quite believe him but I don't know whether he was cheated by the other migration agent or he wasn't and I am going to refer the matter to the MARA people and they can sort it out ...' This statement is ambiguous and no adverse finding is recorded in his Honour's reasons. Further, his Honour clearly believed enough of the appellant's evidence to refer the matter to the Migration Agents Review Panel. Given these circumstances, I do not think the above exchange can be considered determinative, and I consider the appellant should be given the benefit of the doubt. 41 In all of the circumstances, I do not believe that this is a case which warrants dismissal as an abuse of process. Given the allegations of misconduct by the appellant's migration agent, which appear to me, and which evidently appeared to Raphael FM, to have some substance, and given that the appellant has not had the opportunity to have the merits of his appeal heard, I consider that the matter should be allowed to proceed. Accordingly, I will order that the respondent's notice of motion seeking strike out of the appeal be dismissed, and that the matter be remitted to the Federal Magistrates Court for determination. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 September 2006 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 14 July 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1170.html