FEDERAL COURT OF AUSTRALIA

Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694

ETILINA FIFITA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No N 1289 of 2001

SPENDER, FINN, MERKEL JJ

SYDNEY

14 NOVEMBER 2001

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

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

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

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

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from a judgment of a single judge of this Court, Hely J who dismissed a purported application for an order of review on the basis that the Court had no jurisdiction to entertain the application for an order of review. Hely J upheld a notice of objection to competency on the ground that Ms Fifita was not challenging a judicially reviewable decision within s 475 of the Migration Act 1958 (“the Act”). His Honour indicated that, to the extent that any relevant decision under the Act could be identified, it was one covered by s 475(2) and therefore the Court had no jurisdiction to hear the application.

2                     The respondent Minister filed a notice of objection to competency of Ms Fifita's appeal, submitting that the decision of Hely J was interlocutory and the appeal therefore incompetent, leave having neither been sought nor granted pursuant to the Federal Court of Australia Act 1976 s 24(1A). Ms Fifita appears for herself assisted by an interpreter. There is, in reality, no contradictor on the question of whether the decision of Hely J is interlocutory. It is appropriate to note that the authorities suggest that the decision in this case is interlocutory and therefore leave is necessary.

3                     In Taylor v Ansett Transport Industries Limited (1987) 18 FCR 342, Northrop J was concerned with a notice of objection to competency of an application for an order of review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act (Cth). His Honour said at 345:

“Where an application is made under s 5, the procedure by way of notice of objection to competency provided by O 54, r 4, is designed to bring the application to an end, in the appropriate case, before the parties incur unnecessary legal expense involved in a full hearing of the application. An order rejecting an objection to competency is interlocutory in nature and an appeal can be taken only by leave.”

4                     In Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169, Northrop J was concerned with a situation not where an objection to competency was overruled, but where the objection to competency was upheld. He said at 174:

“…[T]he objection to competency is upheld. The application should be dismissed –

…

In form, the orders to be made are interlocutory but they have the effect of bringing the application to an end. An appeal from an interlocutory order can be taken only with leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).”

5                     Minogue v Williams (2000) 60 ALD 366 was a case where a Full Court of the Federal Court (Ryan, Merkel and Goldberg JJ) was concerned with an application for leave to appeal from a decision of Weinberg J dismissing a proceeding brought by an applicant on the ground that the Court had no jurisdiction to entertain the proceeding. The Court refused leave to appeal and held that since the decision of Weinberg J at first instance to dismiss the action on the ground that it did not disclose a reasonable cause of action was an interlocutory judgment, it was necessary for the applicant to apply for leave to appeal.

6                     The Court said at 371:

“Whether a judgment is final as distinct from interlocutory, depends upon whether the judgment finally determines the rights of the parties to proceedings: Licul v Corney (1976) 180 CLR 213 at 225; 8 ALR 437; Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; 34 ALR 449.”

7                     The Court later said:

“Although Weinberg J dismissed the applicant's action or proceeding because of lack of jurisdiction, the judgment has not, in a legal sense, determined the rights of the parties that were in issue in that proceeding. Thus, the substantive claims of the applicant particularly in respect of s 47 of the Corrections Act, remain undetermined. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 at 1328; Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 92 FCR 101; Wickstead v Browne (1992) 30 NSWLR 1 at 11; Little v Victoria [1998] 4 VR 596.”

8                     In this case the dismissal of the proceedings on the ground that the Court had no jurisdiction to entertain the application of Ms Fifita means in a legal sense that her rights remain undetermined. It seems therefore that in these proceedings the decision sought to be appealed from is interlocutory and that leave would be required, and that in the absence of leave the appeal is incompetent. Because, however, the matter has not been the subject of a contradictor, it is preferable that the appeal not be dismissed on the technical ground that it is incompetent in the absence of leave, but that the substantial merits of the matter be looked at.

9                     In this particular case, the decision of Hely J is incontrovertibly correct and therefore, had leave been sought, leave would be refused because the foreshadowed appeal would enjoy absolutely no prospect of success. Therefore, since the decision under appeal is not attended with any doubt, it follows that leave would be refused.

10                  In my opinion the preferable course is to dismiss the appeal with costs rather than on the technical basis of the claimed incompetency.

FINN J:

11                  I agree.

MERKEL J:

12                  I also agree that the appeal should be dismissed with costs. I prefer to express no view on the question of whether the appeal is interlocutory or not. There is arguably some tension between two Full Court decisions on that issue, that is Minogue v Williams (2000) 60 ALD 366 at 371, and Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 79 FCR 71 at 80. In the light of the absence of any real contradictor in the present case it seems to me that that issue is best left for decision on another day.

SPENDER J:

13                  The order of the Court is that the appeal is dismissed with costs.

Associate:

Dated: