FEDERAL COURT OF AUSTRALIA

BZAC v Refugee Review Tribunal [2005] FCA 675

Federal Court of Australia Act (1976) ss 23, 24(1AAA), 25(2), 25(2B)

NBDW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 24 cited

Westsub Discounts v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 cited

Hunter v Chief Constable of West Midlands Police [1982] AC 529 cited

Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Limited (prov liq apptd) (1991) 108 ALR 263 cited

Hunter v Leahy [1999] FCA 1075 cited

Jackson v Sterling Industries Limited (1987) 162 CLR 612 cited

NBDW v MIMIA [2005] FCA 63 dismissed

Marchant v GB Radio [2002] FCA 465 cited

BZAC OF 2004 V REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No QUD 122 of 2005

SPENDER J

25 MAY 2005

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

2.                  The applicant pay the costs of the respondent, of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     This purports to be an appeal from a decision of Kiefel J on 26 April 2005 whereby her Honour, exercising the appellate jurisdiction of the court, dismissed the appellant’s appeal from a decision of Federal Magistrate Baumann given on 20 January 2005. Federal Magistrate Baumann dismissed the appellant’s application for review of the Refugee Review Tribunal’s decision dated 3 July 2004 and handed down on 19 August 2004.

2                     This matter was listed in the light of a notice of objection to competency filed by the Minister for Immigration and Multicultural and Indigenous Affairs on 20 May 2005. Section 24(1AAA) of the Federal Court of Australia Act (1976) (Cth) (“the Act”) provides that:

‘An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.’

This appeal, therefore, is incompetent.

3                     There is a question, however, of whether there is power in a single judge to dismiss it. The Federal Court has power to make orders to prevent abuse of its own process (deriving from s 23 of the Act and from the implied incidental power). Section 23 provides:

‘The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of writs of such kinds, as the Court thinks appropriate.’

4                     It is submitted on behalf of the Minister that a single judge of this court has an implied power pursuant to s 23 to dismiss an appeal as incompetent. Section 24(1AAA) makes plain that any appeal from a judgment of a single judge exercising the appellate jurisdiction of the court is incompetent. This view has been held to be plainly correct by a Full Court (Weinberg, Jacobson and Lander JJ) in NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 24 at par 4.

5                     In Westsub Discounts v Idaps Australia Ltd (No 2) (1990) 94 ALR 310, Woodward J, following Diplock LJ in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536, held that s 23 gives the Federal Court power to prevent misuse of its procedures:

‘... in a way which, although inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people.’

6                     I have always harboured reservations as to who might be regarded as “right-thinking people” and as to why that group, however it might be constituted, is a reliable bell-wether in questions of judicial competence. However, Lord Diplock’s comments have been approved by Gummow J in dicta in Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Limited (prov liq apptd) (1991) 108 ALR 263 at 271.

7                     Also relevant are observations by French J in Hunter v Leahy [1999] FCA 1075, where his Honour quoted Deane J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 623:

‘… even in the absence of the provisions of s 23, the Federal Court would have possessed power to make such orders in relation to matters properly before it as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters’

referring to orders to prevent the abuse or frustration of the Court’s processes.

8                     In NBDW v MIMIA [2005] FCA 63 (“NBDW”) at first instance, a case squarely on the facts with the present matter, Hely J recognised that the appeal was incompetent but was ‘not persuaded’ that he had any power to deal with the matter. He referred the matter to the Full Court, which dismissed the appeal as incompetent without considering whether a single judge could have dismissed an incompetent appeal.

9                     It is relevant to consider s 25(2) of the Act, which provides:

‘Applications

(a)     for leave or special leave to appeal to the Court; or

(b)     for an extension of time within which to institute an appeal to the Court; or

(c)      for leave to amend the grounds of an appeal to the Court; or

(d)     to stay an order of a Full Court;

may be heard and determined by a single judge or by a Full Court.’

10                  It is also useful to note the ancillary powers conferred on a single judge and on a Full Court by s 25(2B), which provides:

‘A single Judge or a Full Court may:

(a) join or remove a party to an appeal to the Court; or

(b) make an order by consent disposing of an appeal to the Court (including an order for costs); or

(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb) make an order that an appeal to the Court be dismissed for:

(i) failure to comply with a direction of the Court; or

(ii) failure of the appellant to attend a hearing relating to the appeal; or

(bc) vary or set aside an order under paragraph (ba) or (bb); or

(c) give directions about the conduct of an appeal to the Court, including directions about:

(i) the use of written submissions; and

(ii) limiting the time for oral argument.’

11                  In neither s 25(2) nor in s 25(2B) is there the express conferral of power upon a single judge to dismiss an incompetent appeal. Hely J in NBDW said at par 6:

‘... the powers which a single judge has in relation to the exercise of the appellate jurisdiction of the court are as specified in 25(2) and there is not included in that specification a power to dismiss an incompetent appeal.’

However, Hely J noted in the same paragraph:

‘[Counsel for the Minister] could not refer me to any specific power which I have to deal with the matter, although she said, and I agree, that it seems absurd that one should have to go to the Full Court to dispose of an incompetent appeal.’

12                  It is apparent that there was no submission made to Hely J that a single judge had power to dismiss the incompetent appeal pursuant to s 23 of the Act.

13                  It is properly to be noted that a single judge acting in the appellate jurisdiction of the Court dismissed an appeal as incompetent in Marchant v GB Radio [2002] FCA 465. In that case, North J dismissed an appeal that was conceded by the appellant’s counsel as incompetent. His Honour did not state the source of his power to do so.

14                  In my judgment, when an appeal is manifestly incompetent, having regard to the provisions of s 24(1AAA) of the Act, it is competent for a single judge of this Court (by which is meant a judge of this Court sitting alone) pursuant to s 23 of the Act, to make orders to that effect. I note that the present appellant has yesterday filed an application for special leave in the High Court to appeal the orders of Kiefel J, the subject of this purported appeal.

15                  For these reasons, I make the following orders:

(1) the appeal be dismissed as incompetent;

(2) the appellant pay the costs of the respondent, of and incidental to the appeal, to be taxed if not agreed.

Associate:

Dated: 27 May 2005