FEDERAL COURT OF AUSTRALIA

Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150

MIGRATION – appeal from a judge of the Court – no error disclosed

PRACTICE & PROCEDURE – O 51A r 5 of the Federal Court Rules – order that application be dismissed – whether judgment interlocutory or final – nature of application before the Court – whether subject of remittal by the High Court a matter or part of a matter – whether application for constitutional writs or application for order nisi intended to be dismissed

PRACTICE & PROCEDURE – construction of judgment where judgment ambiguous– resort to reasons to resolve ambiguity

Judiciary Act 1903 (Cth) s 44

Federal Court Rules O 51A r 5

High Court Rules O 55 r 1 and r 2

Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 referred to

Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 considered

Applicants S61 of 2002 v Refugee Review Tribunal [2003] FCA 1274 referred to

Cam Mui Chi v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 14 referred to

Dinnison v Commonwealth of Australia (1997) 74 FCR 184 referred to

Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 referred to

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

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to

Prashar v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 197 referred to

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 57

Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1119 (FC) referred to

Re Australian Nursing Federation; Ex parte Victoria (1993) 112 ALR 177 cited

Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 referred to

Repatriation Commission v Nation (1995) 57 FCR 25 applied

SZ v Minister for Immigration & Multicultural Affairs (2000) 172 ALR 172 referred to

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 referred to

Short and Mellor, The Practice of the Crown Office 2^nd Ed

APPLICANTS S61 OF 2002 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2195 of 2003

MOORE, BRANSON AND EMMETT JJ

4 JUNE 2004

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the respondents other than the second respondent’s costs of and incidental to the notice of objection to competency.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

moore j

1                     I agree, for the reasons given by Branson J, that the appeal should be dismissed with costs.  I also agree that the judgment of the primary judge was final (and no question of leave arises) and, subject to the following observation, I agree with her Honour's reasons.

2                     Order 55 of the High Court Rules contemplates that, except in three specified circumstances, an application for a constitutional writ is to be dealt with initially as an ex parte application for an order nisi where it will be granted or refused.  So much is apparent, in my opinion, from O 55 r 1(2) which directs that, ‘in the first instance’, the application is to be for an order nisi.  The three circumstances are an application by a Law Officer for specified relief (O 55 r 1(3)), when a judge decides to make an order absolute where it appears necessary for the advancement of justice (O 55 r 1(4)) and when the application is heard on notice (to the respondent) by a judge or a Full Court (O 55 r 2).

3                     That scheme is not mirrored in O 51A r 5 of the Federal Court Rules.  One possible issue which arises is the role of O 55 of the High Court Rules in this Court and the interaction between that order and O 51A r 5 of the Federal Court Rules.  There have been observations in cases concerning time limits, that the High Court Rulesapply in this Court in cases remitted from the High Court: see Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22]-[25] and Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 at [6].  However the better view, in my opinion, is that expressed by Dowsett and Lander JJ in Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 at [19] (though in citing this passage I do not intend to express an opinion about whether a rule imposing time limits, whether the subject of a direction or otherwise, is procedural only):

‘Clearly, in the absence of a direction to the contrary, the Federal Court Rules will apply to any matter remitted to this Court pursuant to s 44 of the Judiciary Act.’ 

Their Honours’ views are consistent with the principle that once a matter is remitted it becomes a proceeding in this Court to be determined, in all respects, in accordance with this Court's procedures: see Dinnison v Commonwealth of Australia (1997) 74 FCR 184 at 188-189; Cam Mui Chi v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 14 at 37-39 and SZ v Minister for Immigration & Multicultural Affairs (2000) 172 ALR 172 at [8].  Accordingly, whatever may have been the procedural requirements deriving from the High Court Rules, they have no relevance (subject to any direction that may have been made by the remitting High Court judge) and it is open to a judge of this Court to deal with the matter under O 51A r 5.

4                     One final observation is that O 51A r 5 is, in some respects, misleading as it might be thought to suggest that what would ordinarily be remitted, and would be before this Court, was an application for an order nisi rather than an application for constitutional writs.  As Branson J has demonstrated in this case (which experience suggests is the usual case), what was remitted was the application for constitutional writs reflecting the justiciable controversy constituting the ‘matter’.

Associate:

Dated:              4 June 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

branson j

INTRODUCTION

5                     Once again it has proved necessary for consideration to be given to whether a judgment pronounced by a Judge of the Court is an interlocutory or a final judgment having regard to the terms of O 51A r 5 of the Federal Court Rules.

6                     The purported appellants filed a notice of appeal, and subsequently in compliance with a direction given at the Full Court call‑over, an amended notice of appeal, from a judgment of Lindgren J pronounced on 11 November 2003 (see [2003] FCA 1274).  The judgment of Lindgren J was given in a proceeding that had been commenced in the High Court of Australia.  The appellants had applied to the High Court pursuant to O 55 of the High Court Rules for writs of certiorari and mandamus.  As required by O 55 r 1(2), the application was in the first instance for an order calling on the proposed respondents to show cause why the writs should not be issued (ie for an order nisi).  The proceeding was remitted to the Federal Court by an order of Gaudron J made on 25 November 2002.  The first respondent filed a submitting appearance.  The critical order ultimately made by Lindgren J after a hearing at which the appellants and the second respondent were heard was:

‘The application be dismissed.’

7                     The second respondent (‘the Minister’) filed a notice of objection to the competency of the appeal.  The Minister contended that the judgment of Lindgren J was interlocutory and that leave to appeal from the judgment had not been sought or obtained.  The Minister also contended that the reasons for judgment of Lindgren J disclosed no error so that any application for leave to appeal should be refused, or if leave were granted, the appeal should be dismissed.

8                     The appellants enjoyed the benefit of legal representation before the learned primary judge but not before this Court.  Understandably they were not able to assist the Court with argument concerning the true character of the judgment of the primary judge.

background

9                     This background information is taken principally from the reasons for judgment of Lindgren J.

10                  The appellants are citizens of India.  They arrived in Australia on 15 November 1997.  On 12 December 1997 they lodged with the Department of Immigration and Multicultural Affairs (‘the Department’) an application under the Migration Act 1958 (Cth) (‘the Act’) for protection visas.  On 30 March 1998 a delegate of the Minister (‘the Delegate’) refused to grant the visas.

11                  On 30 April 1998 the appellants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision of the Delegate.  The appellants gave oral evidence before the Tribunal.  On 18 September 2000 the Tribunal decided to affirm the decision of the Delegate.  Its decision was handed down on 5 October 2000.  The delay of more than two years in the Tribunal’s processes is not explained by any material before this Court.

12                  On 1 November 2000 the appellants applied to the Federal Court pursuant to s 476 of the Act as it then was for judicial review of the decision of the Tribunal.  The grounds of review upon which they relied were that the decision involved an error of law and was induced or affected by actual bias.

13                  On 7 February 2001 Madgwick J ordered that the application for judicial review be dismissed with costs ([2001] FCA 57).  His Honour concluded that the Tribunal’s finding that relocation in India was reasonably available to the appellants was ‘legally unassailable’ and ‘decisive of the case’ in so far as it turned on the ground of error of law.  His Honour further concluded that actual bias in the Tribunal had not been demonstrated.

14                  The appellants instituted an appeal from the judgment of Madgwick J but did not appear when the appeal was called for hearing.  The Full Court (Moore, Sackville and Kiefel JJ) dismissed the appeal ([2001] FCA 1119).  The appellants filed a notice of motion seeking an order that the order dismissing their appeal be set aside.  That motion was dismissed by a differently constituted Full Court (Branson, Mansfield and Katz JJ) on 7 November 2001.  The reasons for judgment of the Full Court are published at 115 FCR 197.  Branson and Mansfield JJ agreed with Katz J that, assuming that the order of the earlier Full Court were set aside, the appellants’ appeal against the judgment of Madgwick J would not be reasonably arguable.

15                  On 18 March 2002 the appellants commenced in the High Court the proceeding that ultimately came before Lindgren J.  As is mentioned above, on 25 November 2002 Gaudron J made an order of remittal to this Court.  The draft order nisi filed by the appellants in the High Court identified two grounds.  These grounds were similar to those that were considered by the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin and Lie’).  Before Lindgren J the appellants were given leave to rely on two further grounds said to demonstrate jurisdictional error on the part of the Tribunal.

Reasons of Lindgren J

16                  Mr Zipser, counsel for the appellant before Lindgren J, contended that eight issues arose for his Honour’s determination.  His Honour gave careful consideration to each of the issues identified by Mr Zipser.  The first issue concerned whether the appellant on the one hand or the respondents on the other carried the onus on a particular evidentiary issue.  His Honour concluded that both the legal and evidential burdens rested on the appellants.  Most of the other issues were premised on the appellants’ case not being distinguishable from Muin and Lie.  His Honour concluded that the appellants’ case was distinguishable on the facts from Muin and Lie and that they had not been denied procedural fairness of the kind identified in Muin and Lie.  Further his Honour found that the appellants had not been denied procedural fairness by the Tribunal in any other respect.  Additionally, his Honour accepted the submission of the Minister that the principle recognised in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 (‘Anshun’) applied to defeat the appellants’ claims since they could have raised the claims before Madgwick J and it was unreasonable for them not to have done so. 

17                  The final paragraph of his Honour’s reasons for judgment reads:

‘For the above reasons the proceeding should be dismissed with costs.’

18                  The formal orders pronounced by his Honour, and subsequently entered, are in the following terms:

‘THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The two applicants who have attained the age of eighteen years and who are the parents of the remaining applicant, pay the respondent’s costs.’

The Intended Operation of O 51A r 5

19                  Order 51A r 5 of the Federal Court Rules 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.’

20                  In considering the intended operation of O 51A r 5 it is necessary to refer to s 44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), which authorises the High Court to remit an application for a constitutional writ to this Court, and O 55 of the High Court Rules pursuant to which any remitted application will have been made.

21                  Section 44 of the Judiciary Act recognises that federal jurisdiction is jurisdiction concerning matters.  The authority which s 44 vests in the High Court is an authority to remit any matter, or any part of any matter, that is at any time pending in the High Court to another court that has jurisdiction with respect to the subject-matter and the parties.

22                  Order 55 of the High Court Rules governs the practice of the High Court where an application is made for what was traditionally known as a prerogative writ, namely a writ of mandamus, prohibition, certiorari, habeas corpus or quo warranto.  These were originally writs of the Crown issued through the Curia Regis of which, it seems, the Court of Queen’s (or King’s) Bench was originally a committee (Short and Mellor, The Practice of the Crown Office 2^nd Ed (‘Short and Mellor’) at p 1).

23                  Order 55 of the High Court Rules relevantly provides ‑

‘1         (1)        An application for:

(a)               a writ of habeas corpus;

(b)               an order for the production of a person in confinement for the purpose of examination or trial;

(c)                a writ of certiorari, mandamus or prohibition, or for leave to exhibit an information of quo warranto; or

(d)               relief of like nature to mandamus or quo warranto;

            may, subject to sub‑rules (5) and (6) of this rule, be made to the Court or a Justice ex parteand shall be supported by affidavit.

            (2)       Subject to sub‑rules (3) and (4) of this rule, the application shall, in the first instance, be for an order calling on the proposed respondent to shew cause why the writ or order should not be issued or made, the information filed or other relief given.

            (3)       In the case of an application by a Law Officer ex officio for a writ of certiorari or for leave to file an information of quo warranto, the order shall, if so sought, be absolute in the first instance.

            (4)       The Court or Justice may, in its or his discretion, in a case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of habeas corpus, certiorari, mandamus or prohibition, or for the production of a person.

2          When application is made to a Justice in Court or in Chambers, or otherwise, he may, if he thinks fit, direct that the application be made by notice of motion to a Justice in Court or to a Full Court, and may adjourn the application so that notice of the application may be given accordingly.

3          When application is made to a Full Court, the Court may adjourn the application so that notice of the application may be given.

4          An order to shew cause shall be to shew cause before a Full Court, unless the matter appears to be one of urgency, in which case the Court or Justice may make the order returnable before a single Justice in Court or Chambers.

….’

24                  Order 55 r 1 reflects in a general sense the old Crown Practice concerning prerogative writs. This practice survived the Judicature Acts little changed (see Short and Mellor generally).  An application under O 55 r 1 is an application for one or more of the writs with which the rule is concerned.  Subrule (1) provides that the application may be made ex parte.  Subrule (2) has the effect that most, but not all, applications must be made, in the first instance, by an application for an order calling on the proposed respondent to show cause why the writ should not be issued (ie an order nisi).  However, even where an application for an order nisi has been made but not determined, the ‘matter’ pending in the High Court, within the meaning of s 44 of the Judiciary Act, is, in my view, not simply the application for an order nisi.  The relevant ‘justiciable controversy’ is, or at the least includes, the prosecutor’s entitlement to the writ for which he or she has applied.

25                  The above conclusion receives support from the structure of O 55 considered as a whole.  Even where an application has been made for an order nisi as required by O 55 r 1(2), that application may be overtaken by an order made under O 55 r 2 without any fresh proceeding being instituted.  Order 55 r 2 allows a Justice to direct that the application for a writ be made by notice of motion.  Where it is so directed no order nisi will ever issue but rather an inter partes application will be made for the issue of the writ following the service of the notice of motion.  This is the course that was followed in Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 where Brennan J at 42 issued a direction under O 55 r 2 that the Professional Radio and Electronics Institute of Australia apply by notice of motion to a Full Court for the issue of writs of prohibition and certiorari.

26                  The intended effect of O 51A r 5 of the Federal Court Rules is, in my view, to be determined against the background provided by s 44 of the Judiciary Act and O 55 of the High Court Rules.  Order 51 r 5 is plainly designed to allow the two stage process of an ex parte application for an order nisi followed, assuming the initial application to be successful, by an inter partes application for an order absolute, to be avoided in appropriate cases.  By authorising the Court to hear all parties and to proceed directly to make an order absolute where satisfied that such an order should be made the rule, in my view, authorises the Court to hear and determine the application for the writ sought by the prosecutor (“applicant”).  That is, the rule in this respect achieves substantially the same outcome as that provided for by O 55 r 2 of the High Court Rules.  The requirement to obtain in the first instance an order nisi may be avoided in an appropriate case.

27                  If an order is made under O 51A r 5(2) that no part of subrule (1) applies, it would seem that the applicant must first satisfy the Court that he or she is entitled to an order nisi.  While an application for an order nisi is traditionally made ex parte, if the respondent is in Court and wishes to be heard on the application, there would seem to be no reason why the Court should not hear the respondent on the question of whether the applicant is entitled to an order nisi.  If the applicant succeeds in satisfying the Court that he or she in entitled to an order nisi, the Court would presumably ordinarily move immediately to consider whether the order nisi should be made absolute.  The respondent would be present and on notice of the application.

28                  However, where no order has been made under O 51A r 5(2), the Court will nonetheless have before it both the applicant and the proposed respondent.  This is because the effect of O 51A r 5(1) is that the Court will hear at the same time both the application for an order nisi and argument as to whether, if the order nisi were made, it should be made absolute.  In practice this will mean that the parties address the Court on the merits of the applicant’s case for the writ or writs sought by him or her.  The purpose intended to be served by an order nisi, namely of avoiding the necessity for the proposed respondent in plainly unmeritorious cases to attend court to show cause why the writ should not issue, will largely have been subverted.

29                  Order 51A r 5 makes it plain that the Court may move directly to make an order absolute when it is satisfied that an order absolute should be made.  For the reasons given above, it seems to me that the effect of the rule is to authorise the Court, should it consider it appropriate to do so, to entertain on an inter partes basis the applicant’s application for the writ or writs sought by him or her.  Looked at in this way, the power to grant the relief sought necessarily includes the power to dismiss the claim for that relief.

30                  Of course, in a particular case the Court might not be satisfied that the applicant has met the test for the making of an order nisi.  Nothing in O 51A r 5, in my view, prevents the Court in such circumstances from dismissing the application for an order nisi without proceeding to give consideration to whether an order absolute should be made.  However, in a case that appears plainly unmeritorious on the papers, the preferable course might be for an order under subrule (2) of O 51A r 5 to be made at an early stage so as to avoid cost and inconvenience to the proposed respondent.

Effect of the Order of Lindgren J

31                  In considering the effect of the order of Lindgren J it is necessary first to identify the subject matter of the order of remittal made by Gaudron J.  That is, did her Honour remit to this Court the matter before the High Court or only part of that matter?  The critical orders made by her Honour were that: 

‘(1)      The further proceedings in this application for an order nisi for a writ of mandamus and a writ of certiorari be remitted to the Federal Court of Australia.

(2)        The application for an order nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.’

32                  In my view, her Honour plainly intended that all further proceedings in the matter that had given rise to the application for an order nisi should be taken in this Court.  Nothing in her Honour’s order suggest that she intended that the matter should revert to the High Court should the application for an order nisi succeed.  I conclude that the subject matter of the order of remittal made by Gaudron J was the matter then before the High Court, not merely part of that matter.  That matter was the appellants’ claim to be entitled to writs of certiorari and mandamus.

33                  As is mentioned above, Lindgren J ordered that ‘[t]he application be dismissed’.  His Honour’s order is ambiguous.  It may be that the effect of the order is to dismiss the application for an order nisi for writs of certiorari and mandamus which the applicant made under O 55 r 1(2) of the High Court Rules.  Alternatively, its intended effect may have been to dismiss the applicant’s application under O 55 r 1(1) for writs of certiorari and mandamus which O 55 r 1(2) requires to be made in the first instance by an application for an order nisi.

34                  In Repatriation Commission v Nation (1995) 57 FCR 25 (FC), Beaumont J, with whom Black CJ and Jenkinson J agreed, at 33-34 observed:

‘The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury's Laws of England, 4th ed), Vol 26, p 273).  Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity  (see Gordon v Gonda [1955] 2 All ER 762 at 765, 768).

A similar approach has been taken in this country.  If, as in the case of a “speaking” order (see, eg, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves.  If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Windeyer J. at 503;  McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311-2;  cf. Kwikspan Purlin System Pty Ltd v Commissioner of Taxation (Cth)(1986) 86 ATC 4,602 at 4,605;  Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232;  Sharpe v Goodhew, (unreported, Federal Court, Drummond J, 11 December 1992), at pp 10-12;  Australian Securities Commission v Skase (unreported, Federal Court, Drummond J, 13 January 1993), at pp 16-17.  Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty. Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 per Mason J at 352).’

35                  In my view, resort to the reasons for judgment of Lindgren J dispels the ambiguity inherent in his Honour’s order.  His Honour’s reasons for judgment contain nothing that suggests that his Honour proceeded on the basis that he was entertaining an application for an order nisi.  Not only does his Honour not refer to a claim for an order nisi, he gives no consideration to the appropriate test for the grant of an order nisi.  The test for the grant of an order nisi is that the applicant can show an arguable case for final relief (Re Australian Nursing Federation; Ex parte Victoria (1993) 112 ALR 177 at 183 per McHugh J).  His Honour’s reasons for judgment make it plain that his Honour gave consideration to whether the appellants had established a case for the issue of writs of certiorari and mandamus and determined that they had not.

36                  The application that his Honour intended to dismiss, I conclude, was an application for writs of certiorari and mandamus.  That is, his Honour dismissed the application for writs of certiorari and mandamus that the appellants had commenced in the High Court, pursuant to O55 r 1(1) of the High Court Rules, by applying in the first instance, as O 55 r 1(2) requires, for an order calling on the proposed respondent to show cause why the writs should not be issued.

37                  In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 (‘NAHQ’) Whitlam and Keifel JJ considered a purported appeal against a judgment relevantly identical to the judgment the subject of this appeal.  Their Honours at [2] noted that the primary judge did not advert to O 51A r 5 and concluded that ‘it may be accepted that he heard the application as if it were an application for final relief’.  However, at [3] their Honour’s said:

‘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.’

The third member of the Full Court in NAHQ, Moore J at [6] said:

‘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.’

38                  In Applicant S422 of 2002 v MIMIA [2004] FCAFC 89 (‘Applicant S422’) Dowsett and Lander JJ, North J preferring not to express a view on the issue, at [35]-[36] said:

‘One further matter requires comment.  Counsel for the Minister submitted that if the appellant did not require an extension of time in which to appeal, the order under appeal should be treated as an order refusing an application for an order nisi.  Such orders have traditionally been considered to be interlocutory, therefore necessitating leave to appeal.  See Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd  (1993) 67 ALJR 389 at 390.  It occurred to us in the course of argument that the terms of O 51A r 5 of the Federal Court Rules may have changed the nature of an application for an order nisi remitted to this Court by the High Court.  That order 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.”

We were referred to the Full Court decision in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297.  The majority (Whitlam and Kiefel JJ) concluded that notwithstanding the provisions of O 51A r 5, a decision refusing an order nisi in a remitted matter was an interlocutory judgment and therefore not subject to appeal as of right.  In the absence of any submissions to the contrary, we should follow that decision.  Nonetheless we see some substance in the doubts expressed by Moore J in his reasons for judgment in NAHQ.’

39                  In view of the different views given expression in NAHQ and Applicant S422, this Full Court is not, as it seems to me, restrained by the usual rule of deference from giving effect to its own view as to whether the judgment sought to be appealed from in this case is an interlocutory judgment or a final judgment.

40                  As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants’ application for writs of certiorari and mandamus.  In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour.  It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion.  However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.

41                  I would reject the objection to competency of the appeal.

Merits of the Appeal

42                  The only ground of appeal included in the appellants’ amended notice of appeal is that the decision of the primary judge ‘involved an error of law, being an error involving a denial of procedural fairness’.  Lindgren J gave careful consideration to all submissions made to him on behalf of the appellants who then had the benefit of representation by counsel.  As is mentioned above, his Honour found that the appellants’ circumstances were distinguishable from those considered by the High Court in Muin and Lie.  Having considered the evidence of the appellant wife, his Honour found that it was, at the relevant time, a matter of no consequence to the appellants whether the Secretary of the Department had or had not forwarded to the Registrar of the Tribunal documents relevant to the review of the Delegate’s decision.  His Honour rejected on the facts the other claims of denial of procedural fairness made before him.  Further his Honour noted that the claims made before him could, and should, have been advanced before Madgwick J and that the Anshun principle provided a further ground on which the application before him should be dismissed.  In my view, no error can be identified in his Honour’s consideration of the submissions made to him.

43                  The appeal should, in my view, be dismissed with costs.  However, the second respondent is not entitled to her cost of and incidental to the notice of objection to competency.

Associate:

Dated:              4 June 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

emmett j

44                  I have read the reasons of Branson J in draft form and agree with her Honour’s conclusions and her Honour’s reasons for those conclusions.  I agree that the appeal should be dismissed with costs.  The Minister is not entitled to the costs of the objection to competency.

Associate:

Dated:              4 June 2004