FEDERAL COURT OF AUSTRALIA

Fang v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1665

PROCEDURE – appeal – single judge exercising referred appellate jurisdiction - whether entered judgment or order can be set aside – whether order did not reflect intention of court – whether discretionary considerations favour reopening

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Federal Court Rules O 35 r 7

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 cited

Bailey v Marinoff (1971) 125 CLR 529 followed

CDJ v VAG (1998) 197 CLR 172 cited

De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 applied

Director of Fisheries (NT) v Arnhem Aboriginal Land Trust (2001) 109 FCR 488 applied

DJL v The Central Authority (2000) 201 CLR 226 applied

Donkin v AGC (Advances) Ltd [1995] FCA 696 cited

Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387 considered

Fox v Commissioner for Superannuation [No 2] (1999) 88 FCR 416 cited

Gamser v Nominal Defendant (1977) 136 CLR 145 cited

Miller v University of New South Wales (No 2) [2001] FCA 1198

Owston Nominees No.2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 applied

RD Werner v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 followed

State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 cited

Swire, Re; Mellor v Swire (1885) 30 Ch D 239 cited

Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 cited

BIN FANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W112 of 2004

RD NICHOLSON J

17 DECEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.                  The appellant’s motion dated 16 November 2004 be refused.

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

REASONS FOR JUDGMENT

1                     On 19 July 2004 the Chief Justice of the Federal Court, in reliance upon s 25(1A) of the Federal Court of Australia Act 1976 (Cth), determined that the appeal from a decision of a Federal Magistrate in this matter should be heard and determined by a single judge.  The hearing took place on 25 October 2004 and judgment was delivered with reasons on 29 October 2004:  Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387. 

2                     On 16 November 2004 the appellant lodged a motion seeking that the orders made on 29 October 2004 dismissing the appeal be set aside to enable the Court to reconsider and
re-determine the appeal. 

3                     As authority to bring the motion the appellant relies upon the provisions of O 35 r 7 of the Federal Court Rules (‘FCR’) and alternatively upon the Court’s inherent jurisdiction.  It is not contended by the respondent that, by reason of its judgment given on 29 October 2004, this Court lacks jurisdiction to consider and determine the motion.

FCR O 35 r 7

4                     Order 35 r 7 reads as follows:

‘7(1)    The Court may vary or set aside a judgment or order before it has been entered.

 7(2)    The Court where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:

(a)         the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

(b)         the order was obtained by fraud;

(c)          the order is interlocutory;

(d)         the order is an injunction or for the appointment of a receiver;

(e)          the order does not reflect the intention of the Court; or

(f)           the party in whose favour the order was made consents.

 7(3)    A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.

 7(4)    Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order’.

5                     The first question which arises in consideration of whether r 7(2) is applicable in the circumstances is the effect of the qualifying words ‘where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act …’. 

6                     The appellant contends that these words are to be understood as ‘intended to describe the court when it is actually hearing an appeal’:  RD Werner & Co v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389.  It is contended that as this application is separate from the hearing of the appeal, the rule is not precluded from application. 

7                     For the respondent it is submitted that in Werner the Court was considering its power to vary an interlocutory order for security for costs made before the appeal.  There at 396 Woodward and Foster JJ said:

‘It was argued, both before his Honour and in this Court, that both Ryan J and his Honour were exercising the appellate jurisdiction of the court when they respectively made an order for security for costs in an appeal and considered whether that order should be varied.

We are prepared, for present purposes, to assume that that submission is correct.  Order 52, r 20 (supra) provides that the Court constituted by a single judge has power to make the relevant type of orders; but since the matter only comes before the Court as an appeal from another court, it is difficult to avoid the conclusion that a single judge so acting is exercising part of the Court’s appellate jurisdiction.

Nevertheless, in our view, Northrop J was right when he held that, however this may be, the reference in O 35, r 7(2) to situations where the Court is not “exercising its appellate or related jurisdiction under Division 2 of Part III of the Act” is intended to describe the Court when it is actually hearing an appeal (or a related proceeding akin to an appeal) and is not apt to cover the present situation. If it were not so, neither a Full Court nor a single judge making orders preliminary to a Full Court hearing, could vary an interlocutory order after it had been entered – a ridiculous situation.  It is clear that the intention of the exception is to avoid adding an unfettered discretionary element to well-recognised grounds of appeal against interlocutory orders.’  (see also Wati v Minister for Immigration & Multicultural Affairs 78 FCR 543 at 549 – 550).

The respondent submits that their Honours clearly drew a distinction between an interlocutory order which did not dispose of the matter before the court, and an order made on appeal.  The respondent contends this is exemplified in their Honours’ reference at 397 to Bailey v Marinoff (1971) 125 CLR 529.  In Bailey, Menzies J said at 531 – 532:

‘This appeal is not concerned with the power of a court to alter orders in pending litigation.  It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court.  To recognise the problem is, I think, to solve it.  However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend [to] the making of orders in litigation that has been brought regularly to an end.’

8                     In my opinion their Honours in Werner drew a clear distinction between interlocutory orders and orders made on appeal.  Furthermore they expressly referred to the distinction relating not only to the Court hearing an appeal but also to ‘a related proceeding akin to an appeal’.  This application is just such a proceeding akin to an appeal.  Therefore I consider that the qualifying and limiting words in question in FCR O 35 r 7(2) preclude the application of that rule on the present application.  It is not a source of power under the FCR to set aside the orders once they have been entered.

FCR O 35 r 7(2)(e)

9                     Alternatively, if the power to set aside the orders does exist by reason of the FCR, the appellant contends that the O 35 r 7 applies because of the application of r 7(2)(e), namely, that the order does not reflect the intention of the Court.  It will be observed that r 7(2), like r 7(1), is directed to ‘a judgment or order’.  Rule 7(2)(e) is directed to ‘the order’. 

10                  The appellant submits that in the event the rule is applicable, r 7(2)(e) is applicable because the Court did not address one of the arguments put to it.  The appellant expresses this argument in the following way:

‘With regard to the issue of the Appellant’s withdrawal from the course at Notre Dame University in November 2001, the Appellant put forward two alternative submissions:

(a)               The relevant statutory provisions did not, on a proper interpretation, permit cancellation of the Appellant’s visa in respect of a course from which he had withdrawn or in which he was no longer enrolled at the time of the decision to cancel his visa.

(b)               Even if the submission in (a) was incorrect, nevertheless the relevant provisions did not, on a proper interpretation, permit cancellation of the Appellant’s visa in respect of a course from which he had withdrawn or in which he was no longer enrolled at the time of (alleged) non-compliance with course requirements, that is as at November / December 2001.  The Appellant’s submission in this regard was that he could not be said to have been in breach of Condition 8202 during the last term at Notre Dame in November / December 2001 if he was no longer enrolled at Notre Dame at that time.  Thus, it was argued, the question whether he was enrolled at Notre Dame at that stage, that is at November / December 2001, was a material issue.

The submission in (b) above formed the basis of or was an ingredient of Grounds of Appeal 2(b), 3, 4 and 5, and was dealt with in the Appellant’s written Outline of Submissions at paras. 24 – 27 (and 28 – 36), 39 – 42, and 43 – 46.’  (original emphasis)

It is accepted by the appellant that the reasons for judgment addressed the issue identified in par (a).  It is submitted, however, that the reasons did not address the alternative submission in par (b) above.  It is therefore submitted that the order which was made dismissing the appeal ‘does not reflect the intention of the Court’. 

11                  The respondent submits that the power in O 35 r 7(2)(e) is directed to cases where the order of the court does not reflect the order intended to be made:  Owston Nominees No.2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at [35] per Allsop J citing Re Swire; Mellor v Swire (1885) 30 Ch D 239 at 243 per Cotton LJ.  Here, it is submitted that the order of the Court unambiguously reflects the judgment that the appeal be dismissed.  Therefore no occasion for the correction of the record arises, it is said.  The argument is that the basis on which the appellant argues for the order to be set aside does not come within the rule even if it is applicable. 

12                  The appellant contends that FCR O 35 r 7(2)(e) has a wider application than that contended for by the respondent.  In support, reference is made to Miller v University of New South Wales (No 2) [2001] FCA 1198.  There Branson J accepted that in circumstances where an order had dismissed a claim based on a misunderstanding, an application could be made to set aside the order at any time before the order was drawn up, or possibly even after it was drawn up, relying on FCR O 35 r 7(2)(e).

13                  I agree with the respondent’s submission.  There is no factual basis upon which it could be said that the order did not reflect the intention of the Court at the time it was made. 

discretion

14                  If O 35 r 7(2) entitles the Court to reopen the judgment and order given on 29 October 2004, there would still be the issue of discretion to be addressed.  The respondent submits that the power to set aside an order which has not been entered is one which the authorities stress needs to be exercised with ‘great caution’ and in circumstances which are ‘quite exceptional’.  In De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215 in a joint judgment, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said (in relation to an order which had not been entered):

‘The power of this Court to reopen its judgments or orders is not in doubt.  The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law, (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302) where “there is some matter calling for review”, (Smith v NSW Bar Association (1992) 176 CLR 256 at 265) or where “the interests of justice so require”.  (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302.  It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part”, (Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; cf State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45 – 46; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 134 at 168) ie without the attribution of neglect or default to the party seeking reopening.  (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303).  By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law.  On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority.  On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.  In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.  (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302; Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 394 – 5; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28 – 29.’

15                  The respondent concedes that there is no suggestion in this case of neglect or default on the part of the appellant.  However, the respondent submits there are no circumstances calling for the exercise of a discretion in favour of the appellant.  The respondent contends this is not a case where the appellant’s principal argument was not addressed.  It is accepted that par [18] of the judgment in Fang refers to the appellant being no longer enrolled for the course at Notre Dame ‘at the time of consideration by the MRT’, but other paragraphs are not so limited. in particular, pars [23], [24] and [44].  At par [24] the reasons stated:

‘In my opinion his Honour was not in error of law in reaching this view.  It is important to realise that the condition attached to the visa at all times.  The function required under s 116, in relation to the exercise of the power to cancel, is to determine whether the holder of the visa has not complied with the conditions of the visa.  That is a statutory enquiry limited only by the currency of the visa.  There is sound sense in this.  If non‑compliance with the conditions of a student visa could not be considered because of a cessation of or change in enrolment, the power to cancel the visa could be prevented from exercise for lengthy periods of time.  The power is one which exists at any time and his Honour was correct to find that the MRT had found that the breach of the condition supported the exercise of the power to cancel and that the condition should not be construed in the manner contended for by the appellant.’

The respondent submits that reasoning in this paragraph is inconsistent with the submission that the second of the appellant’s arguments was not addressed in the reasons, so that even if the application were upheld, it could not ultimately succeed. 

16                  The appellant contends that a reading of the reasons does not disclose that the second argument was dealt with or that the reasons are inconsistent with the appellant’s further or alternative argument.  I am unable to agree.

17                  In par [24] of the reasons, reference was made to ‘a cessation of or a change in enrolment’.  The reference to ‘cessation’ is clearly capable of application to cessation of enrolment by withdrawal from a course.  The ratio expressed in that paragraph addressed the issue whether the statutory power to cancel a visa could be prevented from exercise (for lengthy periods of time or otherwise) by a student who holds a visa ceasing to be enrolled (whether by withdrawal or otherwise).  It was the fact of non-enrolment (the issue in the second argument) that was at the heart of the ratio.  As the appellant asserted in his second argument that he was no longer enrolled at Notre Dame, it was this fact which was common to the second argument and the ratio.  The ratio reached is entirely inconsistent with the second argument and any prospect of it supporting a reopening of the orders.  This follows from the provision in Condition 8202(2) that a holder meets the requirements of Condition 8202(1) if, relevantly, ‘the holder is enrolled in a registered course’.

18                  I therefore agree there would be no utility in the judgment or order being reopened for the reasons advanced on behalf of the appellant. 

inherent jurisdiction

19                  The appellant also contended that there is considerable authority that the Court may reopen judgments, even in cases where the order of the court has been entered (as here).  The appellant relied upon the dissenting judgment of Kirby J in DJL v The Central Authority (2000) 201 CLR 226 at [96], where his Honour stated that it was now recognised in Australia that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances to repair accidents and oversights which would otherwise occasion a serious injustice.  His Honour cited State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 38; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 – 303 per Mason CJ; and De L at 215 – 216.  He stated that there has been for some time a controversy in Australia as to this exceptional principle applied to appellate courts of the Commonwealth, the States and the Territories.  Kirby J accepted that the decisions of the High Court in Bailey at 531 and Gamser v Nominal Defendant (1977) 136 CLR 145 tended to suggest such courts did not enjoy such a power, at least as an attribute of their ‘inherent’ jurisdiction and without specific legislation to that effect.  However, he said (at [101]) that, since those decisions were decided, suggestions have been made in the High Court, in the New South Wales Court of Appeal and in the Full Court of the Federal Court that courts of appeal and full courts in Australia may, in wholly exceptional circumstances of the type referred to in Bailey and in Gamser, enjoy the power to correct even a perfected order.  In his Honour’s view, in dissent, that was the correct statement of the law.  The decisions of the Full Court of the Federal Court cited by Kirby J were Donkin v AGC (Advances) Ltd [1995] FCA 696 (unreported, Federal Court of Australia, Black CJ, Davies and Whitlam JJ, 30 August 1995); Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543 at 551; Fox v Commissioner for Superannuation [No 2] (1999) 88 FCR 416 at 429. 

20                  The respondent argued that the majority members of the High Court in DJL held that the Full Court of the Family Court did not have power to reopen final orders after their entry.  This applied and followed Bailey v Marinoff.  The ratio of the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) was that in relation to intermediate courts of appeal, State or Federal, attention must be given to the text of the governing statues and any express or implied powers found therein.  At [25], the Court said that it would be inaccurate to use the term ‘inherent jurisdiction’ in such instances and that the term should be avoided as an identification of the incidental and necessary power of a statutory court.  In Director of Fisheries (NT) v Arnhem Aboriginal Land Trust (2001) 109 FCR 488 at [144] Sackville J, with whom Spender and Merkel JJ agreed, said that with reference to DJL that ‘the High Court has emphasised that the powers of a statutory court, such as the Federal Court of Australia, in relation to appeals is determined by the terms of the statutory grant of the right of appeal’, citing DJL at 671 and CDJ v VAJ (1998) 197 CLR 172 at [100] – [102] per McHugh, Gummow and Callinan JJ. 

21                  The appellant contends that the High Court in DJL was not laying down any specific proposition or determining any principles that went beyond the case of the Full Court of the Family Court.  In particular, the appellant contends the High Court in DJL did not seek to address the existence the issue of the implication of a power to set aside a judgment in exceptional circumstances where a serious injustice would otherwise arise and where there would be likely to be irremediable prejudice to the party concerned.  The respondent contends that the principles followed by the High Court in DJL are applicable to the Federal Court and relevant to determination of any issue of power which it might have, relying on Arnhem Aboriginal Land Trust in support. 

22                  It is prima facie inappropriate that the issue of the Court’s power to reopen appellate jurisdiction should be decided by a single judge acting with authority granted pursuant to s 25(1A) of the Federal Court Act to exercise appellate jurisdiction.  This is particularly so where judgment has already been delivered pursuant to that authority.  It is clearly an issue which should have the benefit of primary judge consideration and resolution by a full court or alternatively be referred by a primary judge to a full court.  Therefore, as this application fails for other and discretionary considerations in any event, I leave open the issue of the power of the Court to otherwise reopen its entered appellate judgments for a more appropriate occasion.

conclusion

23                  For these reasons I consider that the notice of motion should be refused. 

Associate:

Dated:              17 December 2004