Appeal: res-judicata and Anshun estoppel

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision?

Question 2: If the answer to Question 1 is 'yes', can it be said that "the question whether there is identity between the earlier cause of action and the ones raised in the proceeding said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded"?

Question 3: Was it the Minister, who raised Anshun estoppel, the party who bore the onus to prove the factual basis for the operation of Anshun estoppel?

Question 4: In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?

Question 5: Did the primary judge fail to "appreciate the exceptional nature of the existence of circumstances that would overcome the Anshun preclusion"?

Question 6: Did the Appellant and his advisors make "a forensic choice not to advance the ground the subject of the proceedings before" the primary judge? Or did the Appellant’s advisors simply "not conceive of the point at the time the proceeding was argued before" the primary judge?

Question 7: May there be "circumstances where an independent contention that a proceeding is an abuse of process might be accepted"?

Question 8: Do the "factors which have persuaded the Court to grant an extension of time, and to find special circumstances justifying the non-application of the Anshun principle, mean that it would not be appropriate to then find the proceeding to be an abuse of process"?

The FCAFC answered those questions as follows: