Egglishaw v Australian Crime Commission [2007] FCAFC 183 (28 November 2007)

ESTOPPEL – Anshun estoppel – where previous litigation in relation to lawfulness of the seizure and copying of a hard drive pursuant to a warrant issued under s 3E of the Crimes Act 1914 (Cth) – where present application concerns right to obtain a copy of seized material pursuant to s 3N of the Crimes Act 1914 (Cth) – whether unreasonable not to have pursued present claim in the previous proceeding – whether claim could have been raised in previous proceeding – whether present application arises out of substantially the same facts as previous application – whether risk of inconsistent judgments – whether special circumstances justifying decision not to stay present proceeding

PRACTICE AND PROCEDURE – appeal – leave to appeal – section 24(1A) Federal Court of Australia Act 1976 (Cth) – whether judgment dismissing or staying proceeding on ground of Anshun estoppel interlocutory or final

Egglishaw v Australian Crime Commission [2006] FCA 819 cited
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 applied
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 cited
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 cited
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 cited
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 cited
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; 132 FCR 222 cited
Gibbs v Kinna [1998] VSCA 52; (1999) 2 VR 19 followed
Bazos v Doman [2001] NSWCA 347 applied
Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 cited
Macquarie Bank Ltd v National Mutual Life Association (1996) 40 NSWLR 543 cited
Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286 cited
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 cited
Ling v Commonwealth (1996) 68 FCR 180 cited
Port of Melbourne Authority v Anshun Pty Ltd [No 1] [1980] HCA 41; (1980) 147 CLR 35 applied
Tampion v Anderson (1973) 3 ALR 414 distinguished
Re Luck [2003] HCA 70; (2003) 203 ALR 1 distinguished
MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 cited
SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 cited
NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 cited
SBFF v Minister for Immigration and Citizenship (2007) 158 FCR 49 cited
S1000 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 285 disapproved
SZDEG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 748 disapproved
SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 disapproved
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 referred to

PHILIP EGGLISHAW v AUSTRALIAN CRIME COMMISSION
VID 614 OF 2007

FINN, KENNY AND EDMONDS JJ
28 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 614 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PHILIP EGGLISHAW Appellant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGES:	FINN, KENNY AND EDMONDS JJ
DATE OF ORDER:	28 NOVEMBER 2007
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 614 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PHILIP EGGLISHAW Appellant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGES:	FINN, KENNY AND EDMONDS JJ
DATE:	28 NOVEMBER 2007
PLACE:	MELBOURNE

1 Mr Egglishaw seeks to set aside a judgment of this Court, which dismissed his initiating application on the basis of an Anshun estoppel. The application sought a copy of certain material obtained pursuant to a search warrant. For the reasons stated hereafter, we would allow the appeal and set aside the orders of the learned primary judge.

2 Philip Egglishaw filed the relevant application for judicial review on 27 October 2006, pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The subject of the application was said to be "the decision of the Australian Crime Commission ... dated 3 August 2006 to refuse a request ... dated 17 July 2006 to be provided with a copy of the Egglishaw hard drive pursuant to section 3N of the Crimes Act 1914 (Cth)". Section 3N provides:

3 On this occasion, we are not concerned with the merits of Mr Egglishaw’s application. We are primarily concerned with the question whether or not the primary judge erred in dismissing the application upon the basis that it was the subject of an Anshun estoppel. There is also a question as to whether Mr Egglishaw requires leave to appeal from the judgment of the primary judge. We deal with this matter at the conclusion of these reasons.

4 The circumstances in which these questions come before us are not seriously in dispute. On 14 February 2004, Mr Egglishaw was a guest of the Sheraton Towers Southgate in Melbourne. His room was the hotel’s presidential suite. On that day, Federal Agent Gail McClure held a warrant issued under s 3E of the Crimes Act 1914 (Cth) ("the Crimes Act") in relation to the presidential suite ("the warrant"). Federal Agent McClure was named in the warrant as the executing officer. Federal Agent McClure was a member of staff of the Australian Crime Commission ("ACC") and a "constable" within the meaning of the Crimes Act. We note, in passing, that she was not a party to this proceeding, notwithstanding the terms of s 3N of the Crimes Act. Nothing presently turns on this.

5 Mr Egglishaw was in the presidential suite when Federal Agent McClure and three other members of the ACC’s staff attended to execute the warrant on 14 February 2004. In the course of the search, Federal Agent McClure and the others assisting her found a Toshiba notebook computer ("the computer"). Pursuant to s 3K(2) of the Crimes Act, they took the computer to the offices of the ACC for examination by a forensic computer expert, in order to determine whether it could be seized under the warrant.

6 Mr Egglishaw was present at the offices of the ACC when the forensic expert examined the computer. In consequence of this examination, Federal Agent McClure seized the computer pursuant to the warrant. The ACC subsequently took a forensic image of the hard disk drive of the computer ("the hard drive") on two DVDs ("the DVDs") before returning the computer to Mr Egglishaw as he had requested.

7 Mr Egglishaw was attending a hearing at the offices of the ACC on 19 February 2004, when the ACC provided him with a copy of the DVDs and then served him with a notice to produce under s 29 of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The notice to produce in effect required him to produce a copy of the DVDs forthwith to the ACC ("the notice to produce"). Mr Egglishaw immediately produced the DVDs that had just been given to him.

8 In April 2004, Mr Egglishaw made arrangements for the hard drive of his computer to be copied and stored on a 100 Megabyte ZIP disk. In May 2004, he replaced his computer. Over a year later, in August 2005, he ascertained that the information on the ZIP disk was unreadable and that he could no longer retrieve this information.

9 Through his solicitors, Browne & Co, Mr Egglishaw asked the ACC for a copy of the information he had lost. On 1 September 2005, his solicitors emailed the ACC, asking for "a copy of the ‘Egglishaw Hard Drive’ taken from [Mr Egglishaw’s] computer". The email added that, if the request was denied, "we will have no alternative but to issue legal proceedings in the Federal Court". Browne & Co reiterated this request by letter dated 12 September 2005.

10 After several further requests from Browne & Co for an answer, the ACC informed Browne & Co, on 27 September 2005, that it had sought advice from external counsel. On 28 September 2005, Browne & Co again wrote to the ACC in part complaining about the delay and also reiterating its request for a copy of the hard drive. The ACC replied, on 30 September 2005, indicating that it hoped to reply by 21 October 2005, once it had counsel’s advice. There was further letter from Brown & Co to the ACC on 12 October 2005, which again foreshadowed legal proceedings. The ACC responded on 14 October 2005 and, on 1 November 2005, it advised that, on receipt of legal advice, it had formed the view that it was not obliged to supply the copy of the hard drive pursuant to s 3N of the Crimes Act.

11 At this point, Mr Egglishaw did not issue a proceeding seeking to vindicate his entitlement under s 3N of the Crimes Act for a copy of the hard drive. Instead, on 21 December 2005, he filed an application in this Court, under ss 39B(1) and (1A) of the Judiciary Act, in which, amongst other things, he challenged the validity of the warrant and the notice to produce ("the warrant proceeding"). The parties to the warrant proceeding were Mr Egglishaw, the ACC and Elizabeth Lamden (a magistrate and the issuing officer within s 3C of the Crimes Act). In the warrant proceeding, Mr Egglishaw sought, amongst other things, the delivery up of all documents and things obtained under the warrant and the notice to produce. The warrant proceeding did not include a claim that the ACC was obliged by s 3N of the Crimes Act to provide a copy of the hard drive to Mr Egglishaw.

12 In his statement of claim, Mr Egglishaw alleged, in substance, that the Crimes Act did not authorise the seizure and copying of the hard drive; and the ACC Act did not authorise the ACC to require the production of the DVD disks pursuant to the notice to produce. He further alleged that the Crimes Act did not authorise the making, issuing or executing of the warrant "for the purpose of assisting in connection with the ACC Special Investigation". In its Defence the ACC denied these allegations but it admitted that it had copied the hard drive onto a storage device and that it retained a copy of the hard drive. Subsequent amendments to the pleadings did not alter this broad outline of the case. The ACC’s admission led Browne & Co to write to the ACC, reiterating its request for a copy of the hard drive and stating that the effect of its pleading was to bring into operation s 3N "where it is obliged to provide a copy to person from whom the computer file or storage device information was taken". In its reply of 16 March 2006, the ACC noted that Mr Egglishaw’s computer was returned to him on 14 February 2004 and stated that, in this circumstance, it was not obliged to supply a copy of the hard drive pursuant to s 3N of the Crimes Act. Mr Egglishaw did not seek, in light of this, to amend his statement of claim in order to contest the ACC’s stated position.

13 Sundberg J heard the warrant proceeding on 1 and 2 June 2006. On 30 June 2006, his Honour delivered judgment, dismissing the application. His Honour stated (in Egglishaw v Australian Crime Commission [2006] FCA 819; (2006) 230 ALR 254 ("the warrant judgment") at [13]) that three issues fell for determination:

14 Sundberg J rejected (at [15]) Mr Egglishaw’s first point on the basis that he should follow the decision in A2 unless persuaded it was clearly wrong. He also rejected Mr Egglishaw’s two latter points: see [42] and [50]-[55]. Moreover, his Honour also said that, if he were wrong in rejecting Mr Egglishaw’s submissions on these issues, then he would have refused relief for discretionary reasons on account of Mr Egglishaw’s "inordinate delay": see at [57].

15 After the delivery of judgment, Browne & Co, for Mr Egglishaw, again asked the ACC for a copy of the hard drive. By a letter dated 3 August 2006, the ACC refused this request. On 25 September 2006, the ACC refused to provide a statement of reasons for its refusal.

16 As we have seen, about two and half years after the ACC had copied his hard disk, Mr Egglishaw commenced the present proceeding, which purported to challenge the decision, as communicated in the letter of 3 August 2006, to refuse to provide him with a copy of the hard disk ("the decision"). The parties to the application are presently only Mr Egglishaw and the ACC. Mr Egglishaw’s application, brought under ss 5 and 6 of the ADJR Act and s 39B of the Judiciary Act, in substance alleges that the decision is invalid because it is contrary to the obligation imposed by s 3N of the Crimes Act. The application also contains an allegation, in particulars, that the respondent erred "in deciding that an Anshun estoppel operated to prevent [him] from litigating [the] matter". In this proceeding, Mr Egglishaw seeks, amongst other things, an order "directing the Respondent to provide the Applicant with a copy of the Egglishaw hard drive".

17 The ACC filed a motion, notice of which was dated 20 December 2006, seeking orders pursuant to O 20 r 2 of the Federal Court Rules that Mr Egglishaw’s application be dismissed. The sole ground that the ACC advanced in support of this motion was that Mr Egglishaw was estopped from pursuing this application by an Anshun estoppel. In acceding to the motion, the primary judge held that "Mr Egglishaw’s claim based on s 3N properly belonged to the subject matter of the first proceeding and it was unreasonable for him not to have relied on it in that proceeding". In reaching this conclusion, he took into account that:

• the facts relevant to the first proceeding were the basis for the second proceeding. All that needed to be added was a reference to the making of a request for a copy of the hard drive and the refusal of that request;

• there was no substance to Mr Egglishaw’s argument that the decision under challenge was made on 3 August 2006 because the ACC’s letter that day was nothing more than a reiteration of the ACC’s position communicated as early as 1 November 2005;

• there was no merit in Mr Egglishaw’s contention that, if the warrant proceeding had been in Mr Egglishaw’s favour, there would have been no occasion to pursue the s 3N argument because a reasonable approach would have required him to formulate the first proceeding taking into account that he might fail on his challenge to the warrant;

• even if Mr Egglishaw’s entitlement under s 3N was clear, so too was the ACC’s refusal to provide the copy of the hard drive that was sought.

18 Further, the primary judge held that Mr Egglishaw had not established "special circumstances which would justify the non-application of the Anshun principle". In this connection, his Honour took into account:

• Mr Egglishaw’s argument that the ACC had obtained a copy of the hard drive by a device or trick to circumvent s 3N (through the s 29 notice to produce procedure) and that this was met by the fact that the ACC relied solely on arguments concerning the construction of s 3N;

• Mr Egglishaw’s suggestion that the ACC had led him to believe that he had no need to pursue his rights in litigation, which was unsustainable because the ACC had made it clear that it gave the DVDs to him in order to obtain production under s 29 of the ACC Act, not in performance of an obligation under s 3N of the Crimes Act;

• the absence of evidence that Mr Egglishaw would be significantly prejudiced if he did not obtain a copy of the hard drive or that the ACC would be prejudiced by having to provide him with one; and

• the public interest in the deciding the construction of s 3N; and that the case was not a test case but was unusual since the computer was returned soon after its seizure and this proceeding might never have been brought had Mr Egglishaw’s ZIP disk not been corrupted.

19 Mr Egglishaw appeals from the primary judge’s decision, on the grounds that the primary judge erred in concluding that he was estopped from pursuing his claim to be entitled under s 3N of the Crimes Act for a copy of the hard disk. This was because his Honour erred, so Mr Egglishaw contends, in holding that: (1) it was unreasonable for him not to include his s 3N claim in the warrant proceeding; and (2) special circumstances had not been established that would justify the non-application of the Anshun principle. The ACC argues, on the other hand, that there was no error in his Honour’s decision that they were entitled to the benefit of Anshun estoppel.

20 The reference to Anshun estoppel, or the Anshun principle, is a reference to the statement of principle accepted by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 ("Anshun"). The majority in Anshun (at 598) referred to this principle as "the extended principle expressed by Sir James Wigram V-C in Henderson v Henderson [(1843) 3 Hare 100; 67 ER 313]". The Vice-Chancellor relevantly said that:

21 The majority in Anshun reformulated the principle in light of its origin and development, holding, broadly speaking, that, save in special circumstances, there would be an estoppel against a claimant in a proceeding if it appeared that it was unreasonable for that claimant to have refrained from raising the claim (whether as a cause of action or defence) in an earlier proceeding: see Anshun at 602 per Gibbs CJ, Mason and Aickin JJ. In Anshun, the majority held (at 604) that the Port of Melbourne Authority was estopped from pursuing its contractual indemnity claim in a subsequent proceeding because it would have been a defence to the claim of the company in the first proceeding and it was "unreasonable for the Authority to refrain from raising its case of indemnity for disposition in the first action". That is, according to the majority (at 604):

22 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 ("Wong") and in BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 ("BC v Minister"), a Full Court of this Court applied Anshun in the context of judicial review of administrative action. There are also numerous other occasions in which judges of the Court have applied Anshun in this context: see, e.g, Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 at [28]- [29] per Goldberg J and Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; 132 FCR 222 at 237 per Merkel J. Whilst not, perhaps, a particularly helpful observation, it is plain enough from the cases on the issue that, whether or not a proceeding is subject to an Anshun estoppel, almost always depends on the particular circumstances of the case: compare Gibbs v Kinna [1998] VSCA 52; (1999) 2 VR 19 ("Gibbs v Kinna") at 26-27 per Kenny JA.

23 It is plain enough that Mr Egglishaw, through his legal advisers, knew, as early as 1 November 2005, that the ACC had determined that it was not obliged to provide him with a copy of the hard drive. As at 21 December 2005, it would have been open to him to have instituted a proceeding seeking to challenge this decision, if this is what it was, under s 39B of the Judiciary Act or under the ADJR Act (in the latter case, subject to an extension of time). It might also have been open to him to have instituted a proceeding seeking to challenge the decision, if that is what it was, communicated by the ACC’s letter of 16 March 2006, that it would not provide a copy of the hard drive. Mr Egglishaw did not adduce any evidence before the primary judge to explain why he had waited until after the conclusion of the warrant proceeding to seek to vindicate any entitlement he may have under s 3N of the Crimes Act. His submissions put forward some slight explanation. We do not think these circumstances alone are sufficient, however, to make out a claim of Anshun estoppel.

Whilst it would have been reasonable for Mr Egglishaw to have attempted to raise, in the warrant proceeding, his entitlement under s 3N of the Crimes Act to a copy of the hard drive, for the reasons that are now to be stated, it was not unreasonable for him to defer doing so.

25 There are several reasons that lead us to conclude that Mr Egglishaw was not estopped from bringing this proceeding. First, on one view, the claim he seeks to make could not have been raised in the previous proceeding. Secondly, we doubt that the same or substantially the same facts are relevant to the claims in both this and the previous proceeding. These two matters must first be positively established before it can be said that the failure to raise a cause of action in a previous proceeding was unreasonable: see Gibbs v Kinna at 27 per Kenny JA; Bazos v Doman [2001] NSWCA 347 ("Bazos v Doman") at [38]-[39] per Stein JA, Priestley and Beazley JJA agreeing.

26 On one view, there could be no Anshun estoppel because the decision in respect of which Mr Egglishaw sought judicial review was a decision made on 3 August 2006. This decision, if appropriately styled a decision for the purposes of judicial review proceedings, could not have been challenged in the warrant proceeding because it had not been made prior to the delivery of judgment on 30 June 2006. It may be, as the primary judge held, that the so-called decision, communicated by the 3 August 2006 letter, was not a decision at all, or at least not a decision of the relevant kind for the purposes of review proceedings. This is an issue that falls for determination in a hearing on the substantive merits of Mr Egglishaw’s application. It does not fall for determination on the question whether the present proceeding is to be stayed on account of Anshun estoppel.

27 We note too that, as at 21 December 2005, Mr Egglishaw was out of time in respect of any challenge under the ADJR Act to the decision communicated by letter dated 1 November 2005, not to provide a copy of the hard drive, even assuming that it was a decision capable of review under that Act: see ADJR Act, s 11(3)(b)(iii). This is, we think, of limited significance, however, because Mr Egglishaw was not out of time with respect to an application under s 39B of the Judiciary Act. Further, Mr Egglishaw may, perhaps, have sought to contest the further decision (if this be the correct description) communicated by the ACC’s letter of 16 March 2006 in or with the warrant proceeding.

28 Even if the communication in the letter of 3 August 2006 is regarded as merely a reiteration of an earlier decision, we are not persuaded that that the alleged facts on which Mr Egglishaw’s claims in the search warrant proceeding relied are properly regarded as the same, or substantially the same, as the alleged facts upon which his claimed entitlement under s 3N of the Crimes Act now depends. Plainly enough, both proceedings arise out of related events, in a broad sense, consequential on the execution of the warrant on 14 February 2004. Relevance is not, however, a particularly helpful concept in such a case as this. As Samuels JA observed in Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 ("Boles v Esanda") at 674, although the notion of relevance may be helpful in considering a defence that might have been raised in an earlier proceeding, it is not especially helpful when considering the failure to advance a claim: see also Gibbs v Kinna at 27. That is to say, the fact that proceedings may be closely related is insufficient to attract an Anshun estoppel: see Macquarie Bank Ltd v National Mutual Life Association (1996) 40 NSWLR 543 at 558 per Clarke JA and Bazos v Doman at [44].

29 As we have noted, the warrant proceeding was concerned with the validity of the warrant and the notice to produce. The warrant proceeding was concerned with Mr Egglishaw’s claims that the Crimes Act did not authorise the seizure and copying of the hard drive. It involved a claim that the Crimes Act did not permit the making, issuing or executing of the warrant "for the purpose of assisting in connection with the ACC Special Investigation". It also involved a claim that the ACC Act did not authorise the ACC to require the production of the DVD disks pursuant to the notice to produce. The amended statement of claim in the warrant proceeding demonstrates that the facts material to these claims related to the Special Investigation, the application for the warrant, the issuing of the warrant, execution of the warrant, seizure under the warrant of items, including the computer, the copying of the hard drive, the determination to give a notice to produce, the giving of the notice to produce, and the compulsory production by Mr Egglishaw of the DVDs holding a copy of the hard drive. The relief sought in this previous proceeding was that which would flow from findings of illegality relating to the warrant and the notice to produce.

30 The present proceeding raised only one issue – whether or not, by virtue of s 3N of the Crimes Act, Mr Egglishaw is entitled to a copy of the forensic image of the hard drive apparently in the ACC’s possession. In a sense, as senior counsel for Mr Egglishaw said, this proceeding takes off at the point where the previous proceeding stopped. The present proceeding does not involve an attack on the validity of the warrant or the notice to produce. Nor does it concern itself with matters that might be consequential on findings of invalidity of the warrant or notice to produce. Indeed, the warrant proceeding involved a wider factual inquiry than the present proceeding. The present proceeding requires consideration of the facts on which the operation of s 3N depends. These facts must be established before Mr Egglishaw can establish any entitlement under the provision. These facts fall within a narrow compass. Some may have fallen for consideration in the warrant proceeding, such as the fact that the computer was returned to Mr Egglishaw’s possession within three hours of its being taken from his possession. The ACC has already foreshadowed that it would rely on this fact in opposition to Mr Egglishaw’s claim. Not all the facts upon which s 3N depends were relevant in the previous proceeding. For example, only the present proceeding would require proof of a relevant request by the occupier. Further, a large part of the facts said to be material in the warrant proceeding would not, on any view, be material in this proceeding.

31 The two proceedings are very different in character. We do not consider that the facts that would fall for consideration in this proceeding are the same as in the warrant proceeding. Nor do we consider that the facts that would fall for consideration in this proceeding are substantially the same as those in the warrant proceeding. Furthermore, even the parties to the proceedings are not precisely the same, a point that might be more clearly seen if steps were taken to add the constable, referred to in s 3N of the Crimes Act, to the present proceeding.

32 It follows from this analysis that we would reject the proposition that this proceeding is subject to an Anshun estoppel. Indeed, there is a further factor strongly supportive of this conclusion. There is no risk of inconsistent judgments if the present proceeding proceeds to judgment. Mr Egglishaw is not seeking to pursue any claim that might give rise to a judgment or order conflicting with the orders made in the warrant proceeding. This is an important consideration in determining whether the failure to bring a claim in a previous proceeding was unreasonable. For good reason, the courts have treated the possibility of conflicting judgments as strongly indicative of unreasonableness: see Anshun at 603-604; Gibbs v Kinna at 21 per Phillips JA and 27-28 per Kenny JA; Bazos v Doman at [40]; and Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286 ("Redowood") at [47]-[48] per Hodgson JA, with whom Mason P and Bryson JA agreed. If it so happened in the present proceeding that the Court were invited to make findings of fact that were inconsistent with the findings that Sundberg J has already made, then the Court would be governed by the doctrine of issue estoppel: see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532 per Dixon J.

33 If we were satisfied that Mr Egglishaw’s s 3N claim could have been made in the earlier proceeding and that substantially the same facts would arise for consideration in the present proceeding as in the previous one, there would still be a question as to whether, conflicting judgments aside, the failure to bring the s 3N claim in the previous proceeding was unreasonable. At this stage in our deliberation, all the facts of the case would fall for consideration, including the nature of the proceeding, the pleadings, the length and complexity of a foreshadowed trial, and any explanation for the failure to raise the claim in the previous proceeding: see Anshun at 603; Boles v Esanda at 673; Ling v Commonwealth (1996) 68 FCR 180 at 182-183 per Wilcox J; and Gibbs v Kinna at 28. We have touched on the absence of any significant explanation for Mr Egglishaw’s failure to raise the issue of s 3N earlier. We have also referred to the nature of the respective proceedings and the pleadings or their equivalent. As we have seen, these latter matters militate in Mr Egglishaw’s favour. Additionally, we would bear in mind that this proceeding is designed to raise only one limited issue, namely, whether s 3N of the Crimes Act confers an entitlement on Mr Egglishaw to a copy of the hard disk. There would be no long trial in deciding this question. The question could be speedily determined with comparatively little burden on the parties or the court.

34 The relevant inquiry is not whether Mr Egglishaw might reasonably have pursued a s 3N claim earlier. The question is whether he acted unreasonably in failing to pursue the present s 3N claim in the previous proceeding. For the reasons stated, we do not consider that he did.

35 If we had reached a different conclusion, it would have been necessary to consider whether there were special circumstances that would justify a decision not to stay the present proceeding: compare BC v Minister at [30] and Redowood at [53]. As the Full Court said in Wong, at 17, "[a]s foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding". See also BC v Minister at [30] per Carr, Tamberlin and Conti JJ. In our opinion, at least one factor relevant to this question, though not necessarily determinative, was the fact that, if Mr Egglishaw were correct, the ACC had failed to discharge an important statutory obligation: compare Wong at 20 (no special circumstances arose where the Minister failed to perform a statutory duty) and BC v Minister at [31] and [38] (special circumstances arose where there were issues of life and liberty in a complicated review process in the context of uncertain authorities). The obligation that the legislature imposed was significant because it was designed to afford some protection to individuals affected by the exercise of compulsive powers of search and seizure under warrant. The vindication of this entitlement, if this is what it was, was not only important to an affected person, but it was also a matter of significant public interest. This circumstance, together with the fact the matter was capable of a speedy determination without the need for a lengthy hearing, clearly militated in favour of a decision not to stay the present proceeding.

36 Subject to the following, we would allow the appeal and set aside the decision of the primary judge.

37 We have left to last the question whether leave to appeal is necessary in this case. For the following reasons, we do not consider that it is.

38 The question whether it was necessary for Mr Egglishaw to seek leave to appeal from the judgment of the primary judge arose because of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the effect of which is that an appeal shall not be brought from an interlocutory judgment of a single judge unless the Court or a judge gives leave to appeal. Pursuant to O 52 r 10 of the Federal Court Rules, an application for leave may be made by notice of motion within 7 days after the judgment was given or within such further time as may be allowed.

39 The distinction between an interlocutory and a final judgment is not always easy to make. In this case, the motion upon which the primary judge gave judgment sought to have the proceeding dismissed on the ground of Anshun estoppel. In Port of Melbourne Authority v Anshun [No 1] [1980] HCA 41; (1980) 147 CLR 35 ("Anshun [No 1]") the High Court held that an order that a proceeding be stayed on this ground was a final, as opposed to an interlocutory, judgment, and an appeal lay as of right to the High Court. Gibbs J said (at 38, Mason and Murphy JJ agreeing):

It will be observed that the Court held that Tampion v Anderson (1973) 3 ALR 414 ("Tampion") was concerned with the status of an order staying an action on the ground that it was frivolous, vexatious and an abuse of the process of the Court and that it did not deal with an order staying an action on the basis of res judicata or estoppel of the present kind.

40 But for the judgment of the High Court in Re Luck [2003] HCA 70; (2003) 203 ALR 1 ("Re Luck"), there could be no room for argument that the judgment under appeal was final, since it too involved an appeal from an order consequent upon a decision that estoppel applied to prevent pursuit of a claim in a second proceeding.

41 The judges of this Court have differed as to the significance of Re Luck: contrast MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [7] per Kenny J; SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [11] per Tamberlin J; NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29]- [30] per Graham J; and SBFF v Minister for Immigration and Citizenship (2007) 158 FCR 49 ("SBFF") at 51 per Mansfield J with S1000 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 285 at [2] per Selway J; SZDEG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 748 at [8]- [9] per Branson J; SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 at [30]- [49] per Lander J.

42 Re Luck concerned an appeal against an order refusing leave to issue a writ of summons and a statement of claim. McHugh ACJ, Gummow and Heydon JJ held, at 2, that an order of Gleeson CJ refusing such leave was an interlocutory order, because it did not finally determine rights. Their Honours said, at 4:

43 We do not consider there is any inconsistency between the two decisions. Anshun [No 1] did not concern this kind of case. The difference between Re Luck and Anshun [No 1] flows from the difference between the judgments from which an appeal was brought or sought to be brought. Re Luck applied the rule in Tampion, to which, consistently with Anshun [No 1], the rule applied. Re Luck was not an estoppel or res judicata case. In Re Luck the Court held that the refusal of leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court would not finally determine the parties’ rights and, therefore, the consequential judgment was interlocutory. This conclusion is confirmed by the fact that Ms Luck retained the right to issue proceedings in due form.

We agree that there is nothing in Re Luck that seeks to qualify or overrule the Court in Anshun [No 1]. Furthermore, the Court in Anshun [No 1] recognized that there might well be a relevant difference between a case such as the present, where an earlier judgment or proceeding precludes a further judgment or proceeding, and the ordinary case, where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights. The latter case was the kind discussed in Tampion and Re Luck, but, as the judgment in Anshun [No 1] makes clear, Tampion and therefore Re Luck do not concern the former kind of case, with which we are concerned here.

45 For these reasons, we consider that the question of leave is governed by Anshun [No 1]. Leave was not required in this case.

46 In any event, if we are wrong, we would extend the time in which to apply for leave and grant leave. Having regard to the matters previously discussed, we are satisfied that the test laid down in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400 would be satisfied.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Kenny and Edmonds.

Counsel for the Appellant:	Mr A.G. Uren QC with Mr J. O'Bryan

Solicitor for the Appellant	Browne & Co

Counsel for the Respondent:	Ms S. Maharaj QC with Dr S. Donaghue

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	12 November 2007

Date of Judgment:	28 November 2007

Federal Court of Australia - Full Court Decisions

Egglishaw v Australian Crime Commission [2007] FCAFC 183 (28 November 2007)