FEDERAL COURT OF AUSTRALIA

NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 297

PRACTICE AND PROCEDURE – whether order dismissing application for an order nisi is interlocutory – whether leave to appeal is required

Federal Court Rules O 51A r 5

NAHQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 673 OF 2003

WHITLAM, MOORE and KIEFEL JJ

SYDNEY

17 DECEMBER 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal is dismissed as incompetent.
2. Leave to appeal from the orders made by Wilcox J on 20 May 2003 is refused.
3. The appellant is to pay the respondent’s costs of this proceeding.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WHITLAM and KIEFEL JJ

1                     The applicant in proceeding N 12 of 2003 has filed a notice of appeal from a judgment in that matter (NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 474) given on 20 May 2003 dismissing with costs his application remitted by the High Court for an order nisi for a constitutional writ.  (The application for the order nisi related to a decision of the Refugee Review Tribunal made on 27 November 2000.)  The notice of appeal was filed on 5 June 2003.  The respondent objects to the competency of the appeal.

2                     Counsel for the appellant does not accept that the orders made by the primary judge (Wilcox J) were interlocutory.  He relies on O 51A r 5 of the Federal Court Rules, which provides:

‘(1)      Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

(a)               will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

(b)               if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2)       In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’

Wilcox J did not advert to that rule, and it may be accepted that he heard the application as if it were an application for final relief.

3                     Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order.  An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180.  The order pronounced by Wilcox J can only be regarded as such an order.  The High Court has again recently emphasized that an order’s legal effect determines whether it is interlocutory: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70.  The appeal is thus incompetent.

4                     Counsel for the appellant accepted that, if the appeal were incompetent, his client required leave to appeal out of time.  Somewhat reluctantly, he made such an application orally.  Nothing that he said cast the slightest doubt on the correctness on any part of Wilcox J’s reasons for judgment.  A grant of leave would be futile because an appeal would have no prospects of success.

5                     The appeal should be struck out as incompetent, leave to appeal should be refused, and the appellant should pay the respondent’s costs of this proceeding.

Associate:

Dated:              17 December 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MOORE J

6                     I entertain some doubts whether the judgment to which this appeal relates, was interlocutory.  Existing authorities concern procedures which do not correspond with O 51A r 5 of the Federal Court Rules.  That rule results in the determination of a claim for constitutional writs even though it is in the procedural context of an application for an order nisi.  However, as Whitlam and Kiefel JJ have concluded it was an interlocutory judgment, it is probably sufficient for me to say that if leave was necessary, I would refuse leave for the reasons given by their Honours.  If it was not necessary, I would dismiss the appeal for the same reasons.

Associate:

Dated:              17 December 2003