FEDERAL COURT OF AUSTRALIA

FBS18 v Minister for Home Affairs [2019] FCAFC 196

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is granted.

2.    The application for leave to appeal is refused.

3.    The applicant pay the costs of the first respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant applies for an extension of time to seek leave to appeal, and for leave to appeal, from the judgment of a judge of the Federal Circuit Court of Australia given on 14 June 2019: FBS18 v Minister for Home Affairs (No 2) [2019] FCCA 1655.

2    An extension of time is required because the applicant filed his application for leave to appeal four days late. Leave to appeal is required because the judgment of the primary judge is interlocutory: see ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    The Minister does not oppose the grant of an extension of time but does oppose the grant of leave to appeal, on the basis that the decision of the primary judge is not attended by sufficient doubt to warrant its reconsideration on appeal. If the Court were minded to grant leave to appeal, the Minister opposes the substantive appeal on the same arguments.

4    On each side the hearing was conducted on the basis that if an extension of time were granted and leave to appeal given, the appeal itself would be heard and determined.

Background in summary

5    The following is taken from the applicant’s written submissions, which the Minister in his written submissions does not dispute.

6    The applicant is a national of Sri Lanka, arriving in Australia on 26 May 2013 as an unauthorised maritime arrival. In February 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV). His protection claims included a fear of harm as a Tamil Hindu from the northern province of Sri Lanka, as a former Liberation Tigers of Tamil Eelam combatant and as a failed asylum seeker returning from a Western country after fleeing from Sri Lanka illegally.

7    On 27 April 2018, a delegate of the first respondent Minister refused to grant a SHEV to the applicant. On 30 April 2018, the applicant was automatically referred to the Immigration Assessment Authority (IAA). On 24 August 2018, the IAA affirmed the decision not to grant the applicant a protection visa.

8    On 28 September 2018, the applicant filed in the Federal Circuit Court an application for judicial review alleging error by the IAA and an accompanying affidavit. On 3 April 2019, the applicant filed an amended judicial review application.

9    As will appear in more detail below, on 17 May 2019 the primary judge dismissed the applicant’s application, by reason of his non-appearance.

10    On 22 May 2019, the applicant applied for his application to be reinstated, and on 14 June 2019 the primary judge dismissed that application.

The statutory provisions

11    Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) relevantly provided:

13.03C    Default of appearance of a party

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

…

(c)     if the absent party is an applicant—dismiss the application;

…

12    Rule 16.05(2)(a) of those rules relevantly provided:

16.05    Setting aside or varying judgments or orders

…

(2)    The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party;…

The grounds

13    The proposed grounds of appeal are to be found in the draft notice of appeal accompanying the applicant’s amended application dated 13 September 2019 and are as follows:

1.    The Honourable Federal Circuit Court erred in the exercise of its discretion or misapplied Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by:

a.    Failing to consider one or more relevant considerations, including any prejudice to the first respondent: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7]-[10]; Barbey & Tuttle [2013] FamCAFC 44 (Barbey) at [48], [54], [71] & [90]; and/or

b.    Failing to balance the relevant considerations: MZYEZ at [7]; Barbey at [90].

14    The orders sought in the draft notice of appeal are as follows:

1.    In proceedings SYG 2772/2018:

a.    Order 1 of the orders made on 17 May 2019 in FBS18 v Minister for Home Affairs & Anor [2019] FCCA 1315; and

b.    Order 2 of the orders made on 14 June 2019 in FBS18 v Minister for Home Affairs & Anor (No 2) [2019) FCCA 1655

be set aside and vacated.

2.    The appellant’s Application in a Case filed on 2 May 2019 in proceedings SYG 272/2018 (sic) be granted.

3.    The substantive application for review of a migration decision filed on 28 September 2018 by the appellant in proceedings SYG 2772/2018 be reinstated.

 4.    Proceedings in SYG 2772/2018 be listed for a final hearing.

 5.    The first respondent pays the appellant’s costs of proceedings NSD 1051/2019.

In these circumstances it is necessary to consider not only the judgment and orders the subject of the applications to this Court but also the earlier judgment made by the primary judge on 17 May 2019: FBS18 v Minister for Home Affairs [2019] FCCA 1315.

Proceedings in the Federal Circuit Court

15    In the earlier judgment, given on 17 May 2019, the primary judge said as follows in his reasons:

1.    In this matter, there has been no appearance by or on behalf of the applicant when the matter was called. The matter was listed for a show cause hearing at 9.30m but the applicant did not attend at that time. I stood the matter in the list until 11.00am but the applicant had still not appeared. The matter has been called twice at 11.08am and again at 11.33am, and on each occasion there was no answer to the call by the applicant.

2.    On the basis of a telephone conversation between the Minister’s solicitor and a person in the offices of the Minister’s solicitors at about 9.30am, it appears that the applicant visited the solicitors’ office at that time and was advised to attend at 80 William Street. Exhibit A1 is a letter which was provided to the applicant at that time.

3.    At around 10.15am, my associate was successful in contacting the applicant on his mobile telephone with the assistance of the interpreter at which time the applicant stated that he was on his way home, having had a conversation with someone at the offices of the Minister’s solicitors, which he did not understand. The applicant was requested to attend the Court at 80 William Street. He agreed to do so. In that conversation, the applicant also stated that he had attended the Court at 80 William Street at around 8.00am this morning, but finding no one here, he left. He was reminded that the hearing had been listed at 9.30am.

4.    At 11.10am, my associate received the document marked as exhibit C1, being an email from the registry, stating that the applicant was at the registry at Queens Square and had been told once again to attend here at 80 William Street.

5.    Having waited for the applicant to make his way from Queens Square to the Court, there has again been no appearance. In the circumstances, the Minister seeks the dismissal of the application on account of the applicant’s non-attendance. I agree that that is the appropriate course. There can be no real doubt that the applicant knew where to attend for his hearing and, indeed, when to attend. His visits to various other locations this morning are at best curious.

16    The primary judge made the following interlocutory orders, so far as relevant:

(1)    Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

(2)    The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,400.

(3)    The Court directs that the Minister is to cause a sealed copy of these orders to be served on the applicant at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

…

17    By application in a case dated 22 May 2019 and filed on that day in the Federal Circuit Court, the applicant sought the following orders:

  1.    To reinstate the application SYG2772/2018.

2.    To set aside the order of the Honourable Federal Circuit Court Judge dated 17 May 2019 in application SYG2772/2018.

3.    To the Court to proceed pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001.

  4.    Costs.

18    That application was supported by an affidavit affirmed by the applicant dated 22 May 2019. The applicant was cross-examined on that affidavit in the course of the hearing on 14 June 2019.

19    In his second reasons for judgment, on the application for reinstatement, the primary judge said as follows:

1.    I have before me an Application in a Case filed on 22 May 2019. The applicant seeks to set aside or vacate orders I made on 17 May 2019. I ordered that the substantive application be dismissed on account of the applicant’s non-attendance and also made a costs order.

2.    The application is supported by an affidavit by the applicant filed with it. The applicant was cross-examined at some length on that affidavit.

3.    The application is opposed by the Minister. The Minister relies upon the affidavit of David Baddeley made on 12 June 2019 and the affidavit of Jami Daddo made on the same day. The applicant required both of those deponents for cross-examination.

4.    The circumstances in which the application was dismissed on 17 May 2019 are somewhat unusual. Those circumstances are detailed in my judgment reported as FBS18 v Minister for Immigration & Anor [[2019] FCCA 1315]. That decision reflected my understanding of the circumstances at that time. Essentially, it appeared to me at that time that the applicant was, for some reason, avoiding attending court.

5.    In his affidavit, the applicant asserts, essentially, that he failed to attend court because it was unclear to him where he needed to go. Unfortunately for the applicant, his evidence has been established to my satisfaction to be substantially untruthful.

6.    My decision on 17 May 2019 was based upon what I had been told about various conversations with the applicant and related events. The affidavits on either side, for the most part, provide only indirect evidence of relevant conversations. However, one conversation was recorded on the Court recording system because it occurred in court while I was not on the bench. That was a conversation between the applicant and the interpreter booked for the hearing which occurred between 10.21am and 10.24am on 17 May 2019. That recording was played in court twice and I took evidence from the interpreter booked for today’s hearing as to what was said in it in the Tamil and English languages.

7.    I gave the applicant the opportunity in chief to amend his affidavit in the light of that conversation as played to him. He declined to make any changes. In essence, the applicant’s account as augmented under cross-examination is that on 17 May 2019, because he was uncertain as to the location of the Court he should attend, he went first to the Court registry at Queen’s Square. He was told there that that was not the right place and he went from there to the office of the Minister’s solicitors, which address he had. He says he then spoke to a female who told him that his application had been dismissed. He then went to Wynyard Station at about which time he had the conversation I have referred to with the interpreter. His intention was to return home, but on being told that he could still attend court, he undertook to come to court in around 10 minutes.

8.    In his affidavit, the applicant denied being told by the interpreter of the location of the Court. Under cross examination, he admitted that the location was given, but maintained that it was unclear. On the applicant’s account, on being told he could come to court, he returned to the registry at Queen’s Square and was eventually given the address of the Court in writing. He then proceeded to Court only to find that his application had been dismissed.

9.    The applicant’s evidence has been established to my satisfaction as untruthful on several bases. First, he admitted being given a copy of orders made by a registrar at the first court date which provided the correct location of the Court. Secondly, despite what was in his affidavit, he admitted in response to questions from me that he received an email from my Deputy Associate on 1 May 2019 providing a variation of the registrar’s orders and repeating the location of the Court. Thirdly, I accept the evidence of Ms Daddo that when she spoke to the applicant at the office of the Minister’s solicitors, she told the applicant of the correct address of the Court and provided him with a letter which had previously been sent to him confirming that location.

10.    Further, exhibit C1 is an email from the Court registry to my Associate at 11.09am on 17 May 2019. That email relevantly states that the applicant had attended the registry and was advised that he should be at 80 William Street. He walked out without saying anything. On his account, it then took him the greater part of an hour to walk the short distance from Queen’s Square to William Street.

11.    These facts confirm my suspicion as at 17 May 2019 that the applicant was, for some reason, determined to see his application dismissed on account of his non-attendance. Those circumstances are corroborated by the affidavit of the Minister’s solicitor, Mr Baddeley.

12.    The applicant has been foolish, because there was a serious issue to be tried in his substantive application. Because I accepted there was a serious issue to be tried, I had made orders on 1 May 2019 dispensing with a show cause hearing and listing the matter for a final hearing. If the applicant had given a truthful account of the circumstances of his non-attendance, I would have been minded to reinstate his application. However, the Court cannot and will not reward mendacity.

13.    In my view, the applicant got what he wanted, which was the dismissal of his application for non-appearance. The interests of the administration of justice do not call for a reinstatement of his application in these circumstances.

20    The primary judge ordered that the application in a case filed on 22 May 2019 be dismissed, with costs.

The evidence

21    The applicant read only [25]-[26] of an affidavit affirmed by him on 1 July 2019. We would have rejected any attempt by the applicant to put before this Court factual contentions as to what occurred on 17 May 2019 which had been dealt with by the primary judge and were not the subject of the draft notice of appeal

22    The respondent Minister filed but did not seek to read an affidavit affirmed by Mr David Baddeley, solicitor, on 11 October 2019, which annexed the transcript of the proceedings before the primary judge on 14 June 2019. See our observation at [65] below as to the inappropriateness, given the limited proposed grounds of appeal, of adding to or qualifying the reasons for judgment of the primary judge by reference to what was said on the transcript.

The submissions of the parties

23    The applicant submitted that he should be granted an extension of time on the basis that he attempted to file the relevant papers in the Federal Court within time on 28 June 2019 but was unable to do so. He was four days late. In these circumstances, noting that the Minister does not oppose the extension of time, and having regard to the evidence at [26] of the applicant’s affidavit affirmed 1 July 2019 as to his difficulty in filing a particular form, we would grant that extension.

24    The applicant referred to the statement in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J as follows:

In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement (sic)

(Ryan J’s emphasis.)

25    The applicant also referred to two decisions of the Full Court of the Family Court: Barbey & Tuttle [2013] FamCAFC 44, which at various points makes reference to issues of prejudice, delay and the conduct of the applicant (as to which see [52] below), and Malak & Malak [2016] FamCAFC 114.

26    The applicant submitted that in the first limb of ground 1 of his draft notice of appeal, he contended that the primary judge did not consider all of the required matters. Instead, he submitted, the primary judge concluded that the interests of the administration of justice did not call for reinstatement of the applicant’s judicial review application in these circumstances, referring to the primary judge’s reasons at [13]. The applicant accepted that overarching consideration ought to have been given to that issue at a broad level of generality. He submitted that there were also underpinning considerations including the principle of the finality of litigation and the public interest in court efficiency. The applicant only sought a reasonable opportunity, in all of the circumstances, to participate in proceedings, he submitted.

27    There were specific factors, the applicant submitted, which the Court was required to take into account when determining whether to set aside orders previously made dismissing an application by reason of an applicant’s non-appearance. The applicant referred to what Mortimer J said in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]:

As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

28    The applicant submitted that r 16.05(2)(a) of the Federal Circuit Court Rules required the primary judge to turn his mind to specific factors and not only the interests of justice as an all-encompassing consideration.

29    The applicant submitted that the primary judge did not expressly identify in his reasons for judgment the issue of the reasonableness of the applicant’s proffered explanation or excuse for his non-attendance but that he was willing to accept that the primary judge implicitly considered this factor, inasmuch as the primary judge concluded that the applicant’s excuse was untruthful. The applicant did not challenge the primary judge’s findings in this respect.

30    The applicant also accepted that the primary judge considered whether or not he had an arguable case for the relief he sought and noted that the primary judge did conclude that there was a serious issue to be tried in the applicant’s substantive application.

31    The applicant submitted that the primary judge did not expressly or implicitly consider the existence and nature of any prejudice to the Minister. The respondent Minister made no submissions that any prejudice might flow from reinstatement such that this factor could be assumed to be made out in the applicant’s favour. Even assuming that there was no prejudice to the respondents in the present case, the applicant submitted, that was still a factor which the Court had to take into account. Here, the applicant submitted, there was no consideration by the primary judge of possible prejudice at the hearing and no relevant findings or reasons addressing this factor in the judgment.

32    The applicant also referred to the consideration of whether or not he disregarded the opportunity to appear at and participate in his trial and accepted that the primary judge considered this factor and decided it adversely against him.

33    In relation to the consideration of delay, and his conduct after the dismissal for non-appearance, the applicant submitted that it was open for these factors to have been weighed in his favour. He submitted that he lodged his reinstatement application on 22 May 2019 within a very short period of time after the dismissal of his application for non-attendance on 17 May 2019, such that any delay was very modest.

34    Turning to the second limb of his proposed ground, the applicant contended that when exercising his discretion the primary judge failed to conduct the required balancing exercise. The applicant submitted the various factors were to be weighed in the balance with no one factor being necessarily and of itself determinative. Here, the applicant submitted, the reasons for judgment did not evidence that the primary judge undertook the required balancing exercise, by virtue of the absence of consideration by the primary judge of the matters in proposed ground 1(a), that is, that there was no delay and no prejudice to the respondent.

35    The applicant submitted that the Court enjoyed a broad discretion under r 16.05(2) which nevertheless had to be exercised judicially. He submitted that the primary judge appreciated the “dilemma” before him, referring to the primary judge’s comments during the reinstatement hearing that there was “a serious issue which deserved a final hearing” as against “how could [the Court] reward [the applicant’s] behaviour, given that you were seeking to avoid a hearing?” The applicant also referred to the primary judge’s statement, at [12], that if the applicant had given a truthful account, the Court would have been minded to reinstate the application but it “cannot and will not reward mendacity” and to the statement, at [13], that in the primary judge’s view the applicant “got what he wanted”. The applicant submitted that an evaluation of the reasonableness of the applicant’s explanation was not the only factor to be considered, but could be a weighty factor. The applicant accepted that his explanation was assessed against material arguments suggestive of a different outcome. But these two factors were not the only ones, he submitted: other factors required consideration and balancing in the exercise of the Court’s discretion. The applicant submitted that the primary judge was required to conduct a balancing exercise which was not apparent or, alternatively, that exercise was limited to only assessing the reasonableness of the applicant’s explanations and did not include material arguments available to the applicant which favoured a different outcome.

36    The applicant submitted that the discretion under r 16.05(2)(a) was to be exercised judicially having regard to all of the circumstances. He submitted that the reference at [13] of the primary judge’s reasons to “these circumstances”, read in context, was primarily to the truthfulness of the applicant’s account. By focusing almost exclusively on that factor, the primary judge overlooked several other factors, the applicant submitted. The applicant contended that the discretion of the primary judge thereby miscarried.

37    The respondent Minister submitted that there did not appear to be any dispute about the evidence before the primary judge, and that no allegation was made by the applicant that the findings of fact made by the primary judge were not open, or available to be made on the evidence.

38    The Minister submitted that the primary judge had the advantage in assessing the applicant’s credit, having seen him give evidence. Accordingly, the Minister submitted that the applicant’s concessions – with respect to the primary judge’s conclusions regarding the reliability or truthfulness of the applicant’s evidence, findings as to the merits of the judicial review proceedings, and determining against the applicant the issue whether he disregarded the opportunity to appear and participate – were appropriate. The Minister submitted that those findings ought not to be impugned when, on a fair reading of the reasons of the primary judge, they were based on an assessment of the credibility of the applicant’s evidence, formed with the benefit of seeing him in cross-examination.

39    The Minister submitted that the decision whether or not to reinstate a proceeding was a discretionary one, and so attracted the application of the principles stated by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-5. The Minister submitted that the primary judge did not act upon a wrong principle, allow extraneous or irrelevant matters to guide or affect him, or fail to take into account some material consideration. There was no proper basis for this Court to interfere with, or set aside, the exercise of the primary judge’s discretion, it was submitted.

40    The Minister submitted that the discretionary power in r 16.05(2)(a) was “unfettered”, referring to Barbey & Tuttle at [90] and AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [42]. He submitted that the Federal Circuit Court rules (in r 16.05, or otherwise) did not circumscribe the discretion or set out matters that must (or must not) be considered—but the discretion must be considered judicially, the Minister submitted, referring to AHN17 at [42], Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [9] and 3D Funtimes Ltd v lntellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [5]-[6].

41    The Minister submitted that many of the cases of applications to set aside orders made in the absence of a party were determined by identifying and considering a number of different factors. However, the Minister submitted, those cases did not attempt to state definitively matters that must in all cases be considered, with the result that a failure to consider them amounts to legal error; nor did they have that effect. Rather, the Minister submitted, the cases identified factors that were usually or commonly to be considered. In this respect the Minister referred, for example, to White J’s judgment in Lal at [9] (also citing 3D Funtimes at [6]) and noted that, as McKerracher J held in AHN17 at [42]:

… the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant.

42    In fact, the Minister submitted, the applicant conceded (by his reference to CAL15 at [4]) that the factors referred to at [25] of his written submissions were “not statutory preconditions or a legislative checklist”. The Minister also referred to AHN17 at [32] where, he submitted, McKerracher J cautioned against impermissibly elevating “guidelines” developed in the case law “to the status of binding legal principles which a court must consider in the exercise of its discretionary power”.

43    The Minister submitted that in AHN17 at [18], like in the present case, the applicant alleged that the primary judge had erred in refusing to set aside an order made in the absence of a party because the primary judge had “failed to consider the applicant’s lack of delay in making the application”, had “failed to consider whether the [Minister] would be prejudiced” and had “failed to weigh the issues of delay and prejudice to the [Minister] against the assessment of the merits of the substantive application”. Justice McKerracher rejected those arguments. Significantly, the Minister submitted, his Honour referred, at [41], to MZYEZ at [7] per Ryan J (relied on by the applicant in this case) and then said, at [42], that although the primary judge in that case did not expressly consider prejudice and delay and that the absence of those factors might weigh in favour of the applicant this did not disclose error for a number of reasons. Additionally, the Minister relied on what McKerracher J said at [33].

44    The Minister submitted that the factors identified by the applicant were not matters that must be considered in every case and further contended that the primary judge did not, in any event, fail to consider the matters complained of in the applicant’s written submissions, being prejudice to the Minister and delay in bringing the application to set aside the dismissal for want of appearance.

45    As to prejudice, the Minister submitted that the better view was that the primary judge did not see prejudice (or a lack of prejudice) as a matter which was material to the exercise of his discretion in the present case. As to delay, the Minister submitted that the primary judge was plainly aware of the chronology of the matter, including the dates on which the application was dismissed for non-appearance and the time at which the interlocutory application for reinstatement was filed. He had not long before presided at the first hearing and he set out the relevant chronology at [1]-[4] of his reasons. It should not be inferred that the primary judge ignored these facts in the exercise of his discretion.

46    As to the alleged failure to balance relevant considerations, the Minister submitted that on a fair reading of the reasons of the primary judge no failure to balance competing factors was shown. The Minister referred to the reasons at [12]-[13] and submitted that these paragraphs were indicative of the weighing up and balancing of the factors the primary judge expressly saw as determinative in the exercise of his discretion. That weighing up process, the Minister submitted, ultimately led to the primary judge placing greater weight in this case upon the applicant’s “mendacity” and his lack of reasonable explanation for non-attendance (indeed, his intention to have the matter dismissed for non-attendance) than upon the merits of his application which would otherwise have caused the primary judge to decide the application in a case in the applicant’s favour. The Minister submitted that it was not shown that the matters now urged by the applicant as needing to have been weighed were considered material by the primary judge, or that they were not taken into account, rather than being considered and seen as nonetheless leaving the contest between the competing considerations expressly identified by the primary judge. The onus remained on the applicant to establish appealable error, the Minister submitted.

47    The Minister submitted that certain paragraphs of the applicant’s written submissions (summarised at [35]-[36] above) acknowledged that the weight to be attributed to various factors was for the primary judge. The Minister submitted that was plainly correct and that, as shown in House v The King and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [35]-[50] per Gageler J, an appeal court should not disturb the primary judge’s exercise of discretion simply because (if it be the case) it might have weighed matters differently and thus come to a different conclusion.

48    The applicant’s claim that the balancing process miscarried because the primary judge failed to consider and balance “other factors” must be rejected, the Minister submitted, for the reasons identified in relation to the first ground of the proposed appeal. The Minister submitted that the discretion was “unfettered”, and that there was no fixed list of factors that must be considered in every case. Here, the Minister submitted, the primary judge identified the factors which he saw as material to his exercise of discretion in the present case and explained how he reached the decision he did. The Minister submitted that the primary judge was not shown to have “overlooked” other factors that he was required to consider, especially in relation to prejudice and delay, which were not matters expressly relied on before the primary judge by either party as relevant to the exercise of discretion.

Consideration

49    It will be noted that the applicant does not seek to challenge the findings of fact of the primary judge, the relevance of what the primary judge found to be the applicant’s untruthfulness, or any aspect of the procedure adopted before the primary judge.

50    In our opinion the primary judge was required to consider whether or not it was in the interests of justice to reinstate the applicant’s application. This is what his Honour did, by reference to the particular factors which he considered to be significant. We would infer that the absence of any explicit consideration of other factors meant that the primary judge did not consider them to be material.

51    In House v The King the relevant principles were stated as follows by Dixon, Evatt and McTiernan JJ, 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.

52    We derive no present assistance from what the primary judge in Barbey & Tuttle described as the “usual, but not exclusive considerations” by reference to Clifford & Mountford at [34], on which the present applicant relies, as follows:

From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):

a)    The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.

b)    There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:

i)    a reasonable explanation for the applicant’s absence at the trial or hearing;

ii)    material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and

iii)    no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.

c)    Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:

i)    Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;

ii)    Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;

iii)    the conduct of the applicant since the judgment or order sought to be set aside was made.

(Emphasis added.)

We do not accept the applicant’s submission, as we understood it, that these matters are mandatory relevant considerations. Without an analysis of the reasons for judgment and the contentions put before the primary judge, it is not possible, or desirable, to treat a mere failure expressly to refer to a matter on any such list as involving a House v The King error.

53    The factors that are often considered are not mandatory relevant considerations but potential aspects of what is in the interests of justice in a particular case. In our opinion, insofar as such factors are listed in judgments in each case they are to be taken as qualified by the notion of relevance: they may be considered so far as relevant.

54    In contrast to the position being discussed in Clifford & Mountford, in the present case the primary judge decided not to set aside his earlier judgment or order. In so deciding, the primary judge took into account the strength of the applicant’s underlying case but also his untruthful account of the circumstances of his non-attendance. That is, the primary judge took into account that the applicant had provided no reasonable explanation for his absence from the first hearing, and also that he then gave untrue evidence at the hearing of his interlocutory application to reinstate his application for judicial review.

55    We agree with McKerracher J, who said in AHN17 at [32] that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05. The applicant’s contention impermissibly elevates “guidelines” developed in earlier decisions to the status of binding legal principles which a court must consider in the exercise of its discretionary power.

56    We also agree with McKerracher J that a judge is not required expressly to consider the length of the delay between the failure of a party to appear and the bringing of an application to set aside the orders made in the absence of that party, and that the question of prejudice to the Minister is in the same category. The absence of any reference to delay or prejudice in the primary judge’s reasons suggest that the primary judge did not consider those to be factors that weighed against (or, indeed, for) the applicant. Further, there is no prescriptive requirement that a judge considering the exercise of discretion must make a specific finding in respect of each potentially relevant but, in the result, irrelevant consideration.

57    It must also be borne in mind that it is generally unlikely that an exercise of judicial discretion will have miscarried merely because no express consideration is given to an argument which was not raised before the judge. In the present case that applies both to any issue of delay and to any issue of prejudice to the respondent Minister.

58    We also agree with McKerracher J at [42] that the statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant.

59    We would not regard McKerracher J’s description of the discretion as “unfettered” as meaning anything more than not being conditioned by express statutory limitation. In oral argument, the parties appeared to accept this. Discretionary powers are rarely, if ever, truly unfettered: see the discussion in Aronson M, Groves M and Weeks G, Judicial Review of Administration Action and Government Liability (6th ed, Lawbook, 2017) at [3.30]. That is true even of those conferred on courts: see House v The King above.

60    We consider there to be nothing in MZYEZ at [7] inconsistent with our reasons or conclusion: we do not consider that Ryan J was setting out mandatory relevant considerations for the exercise of the discretion to reinstate which require specific reference in all cases. Neither, in our view, did the Full Court do so in BVG17 v BVH17 [2019] FCAFC 17 at [34] where the Full Court again referred to whether an order (for an extension of time) was in the interests of justice.

61    As to balancing, ground 1(b) as set out at [13] above, the applicant in oral submissions confirmed that this ground was consequential on the contended for absence of consideration of the two factors, delay and prejudice. This ground therefore fails in light of the failure of ground 1(a).

62    We are not persuaded that what was done by the primary judge amounted to a failure to exercise the discretion entrusted to him: see SZVFW at [37] per Gageler J.

63    For these reasons, in light of the narrow basis on which the applicant seeks leave to appeal, we are not persuaded that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal. We note that the applicant confirmed in oral argument that he did not raise as a ground that the primary judge did not give adequate reasons for his decision.

64    This conclusion makes it unnecessary to consider or deal with the issue of substantial injustice if leave were refused, supposing the decision to be wrong, since that second element of the generally applicable test in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397 is cumulative on the first element.

65    We make the following concluding observation. In our view it is not permissible in a case such as this to treat what the primary judge said in the transcript of the hearing as if it formed part of his reasons for judgment. The applicant did this on more than one occasion, particularly at [35] of his written submissions. We deprecate this practice. There may be instances where the transcript of hearing is relevant, for example where there is a claim of denial of procedural fairness or a dispute about what was or was not put before the primary judge, but this is not such a case.

Conclusion and orders

66    For these reasons, we would grant the extension of time but refuse the application for leave to appeal. The applicant must pay the costs of the Minister, as agreed or assessed.

Associate:

Dated:    8 November 2019