FEDERAL COURT OF AUSTRALIA

Mohinder Singh v Secretary, Department of Family and Community Services

[2005] FCA 1625

COURTS AND JUDGES – judgment – order entered – whether can be set aside – unsuccessful party seeking to reopen case

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Federal Court Rules O 35 r 7(2), O 35 r 7(3), O 36

Singh v Department of Family and Community Services [2004] FCA 1685(2004) 142 FCR 232 referred to

MOHINDER SINGH v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

VID 1121 of 2003

GRAY J

24 OCTOBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1. The motions the subject of the notice of motion filed on 30 September 2005 be dismissed.

2. The applicant pay the respondent’s costs of the notice of motion.

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

REASONS FOR JUDGMENT

1                     On 23 December 2004, I gave judgment on an appeal by Mr Mohinder Singh against the Secretary of the Department of Family and Community Services. See Singh v Department of Family and Community Services [2004] FCA 1685(2004) 142 FCR 232. The appeal was from a decision of the Administrative Appeals Tribunal (‘the Tribunal’). By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal was therefore confined to an appeal on a question of law. On 23 December 2004, I dismissed the appeal with costs.

2                     The applicant subsequently sought special leave to appeal to the High Court of Australia from that judgment. His application for special leave to appeal was heard on 9 September 2005. The High Court dismissed that application, on the basis that an appeal would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.

3                     On 30 September 2005, the applicant filed in this Court a notice of motion, seeking to set aside the reasons for judgment and the orders made on 23 December 2004. In its terms, the notice of motion seeks to:

‘Reopen the case in light of new evidence for proper determination of the above mentioned appeal, which was not put forward by the applicant before this Honorable [sic] Court in the above mentioned appeal, in response to the respondent’s contention.’

4                     The order that I made on 23 December 2004 has been entered, pursuant to O 36 of the Federal Court Rules. Once a judgment or order has been entered, it can only be set aside or varied in very limited circumstances. Those circumstances are set out in O 35 r 7(2) of the Federal Court Rules. The circumstances are as follows:

‘(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.’

5                     The order that I made on 23 December 2004 was not made in the absence of the applicant, who had appeared before the Court and argued his case in person, with the assistance of his daughter.

6                     It could not be said that the order had been obtained by fraud. As I have said, it was made on an appeal from the Tribunal on a question of law. There was no issue of fact that the Court had to determine, and therefore no evidence before the Court that could be described as fraudulent. The question of the facts to be found was one for the Tribunal only. The applicant has attempted to argue that what he describes as misstatements of the applicable law by those representing the respondent amounted to fraud. This cannot be the case. It is open to a party to put submissions of law to a court, even if they turn out to be not accepted by the court, or even if they turn out to be accepted by the court and are in the event incorrect. The court’s task is to do the best it can to find the law on the submissions put before it.

7                     In this context, I notice that at [40] and [41] of my reasons for judgment given on 23 December 2004, I accepted part of the argument that the applicant put to the Court. To that extent, his argument succeeded. I went on to say at [42], however, that success in that respect did not entitle the applicant to succeed in the appeal in its entirety. As I understand his argument, the applicant is now saying that the argument that I accepted is the basis on which he says the Tribunal took an incorrect view of the law. I agreed with that argument in my reasons for judgment, but on the view that I took, acceptance of that argument did not entitle the applicant to succeed on the appeal overall.

8                     The order that I made was certainly not interlocutory. It was not an injunction, or for the appointment of a receiver. There is no issue about whether it reflected the intention of the Court at the time, and there is certainly no consent on the part of the respondent in whose favour the order was made. Mr Lucas has appeared today for the purpose of resisting the application to set aside the judgment or order.

9                     For the sake of completeness I should refer to O 35 r 7(3), which is known as the slip rule. Under that rule, 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. No issue arises of any clerical error or accidental slip or omission in the order. The order that has been entered reflects perfectly the order pronounced on 23 December 2004 and the reasons for judgment that were given on that day.

10                  It follows from this that the applicant has not made out a case for the setting aside of the judgment and order, which he claims. Like all other litigants, he is bound by an order made in his case, which has been entered, unless he can bring himself within the limited circumstances that would entitle the Court to set it aside.

11                  Accordingly, the motion must be dismissed.

12                  The orders I make are as follows:

1. The motions the subject of the notice of motion filed on 30 September 2005 be dismissed.

2. The applicant pay the respondent’s costs of the notice of motion.

Associate:

Dated: 29 November 2005