FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration and Border Protection [2013] FCA 1417

THE COURT ORDERS THAT:

1.    The title of the proceeding be amended to show the name of the first respondent as the Minister for Immigration and Border Protection.

2.    The first respondent’s notice of objection to competency is allowed.

3.    Gayan Dhanajaya Perera pay the costs of the first respondent’s notice of objection to competency.

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

REASONS FOR JUDGMENT

1    On 27 August 2013, Gayan Dhanajaya Perera (“the applicant”) filed a notice of appeal from the judgment of Judge Hartnett in Perera v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1227. Judge Hartnett dismissed the applicant’s application to reinstate his originating application for judicial review of a decision of the second respondent, the Migration Review Tribunal. The first respondent (“the Minister”), contended that the applicant’s purported appeal is incompetent because the judgment of the primary judge was interlocutory and leave to appeal must be granted in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) before a competent appeal may be instituted.

2    The judgment of the primary judge involved the dismissal of an application made by the applicant to have his application for judicial review reinstated. That application had been earlier dismissed by a Registrar without consideration as to its merits and because of the applicant’s failure to appear at a directions hearing held on 6 February 2013. The judgment below was made under r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) which allows the Federal Circuit Court to vary or set aside its own judgments where made in the absence of a party.

3    As McHugh ACJ, Gummow and Heydon JJ said in Re Luck (2003) 203 ALR 1 at [4]:

[T]he usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

4    There can be no doubt that the decision of the Registrar made pursuant to r  13.03(c) of the Federal Circuit Court Rules to dismiss the applicant’s application for want of appearance was an interlocutory judgment: Dai v Michael Roberts Strata Management Services Ltd [2000] FCA 680 at [4]-[7] (Beaumont, Whitlam and Lehane JJ). The nature of the judgment of the primary judge was somewhat different. That judgment was a refusal to set aside the interlocutory order of the Registrar. The nature of that judgment was in essence, no different to an order refusing an application to aside a default judgment because both kinds of judgment involve a refusal to set aside an interlocutory order.

5    There is longstanding authority for the proposition that an order refusing to set aside an interlocutory order does not have the legal effect of finally determining the rights of the parties. That is because the refusal of an application to set aside the interlocutory judgment is not a bar to a further application being made to set aside the interlocutory judgment: Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246 at 248 (Gibbs CJ) and 254-257 (Mason J).

6    In my view, the reasoning in Carr is applicable in the present case. It must follow that the orders made by the primary judge were interlocutory so that, by reason of s 24(1A) of the Act, leave to appeal is required by the applicant. As no such leave has been granted the Minister’s objection to the competency of the purported appeal must be upheld.

7    The Court will make the following orders:

1.    The first respondent’s notice of objection to competency is allowed.

2.    Gayan Dhanajaya Perera pay the costs of the first respondent’s notice of objection to competency.

Associate:

Dated:    19 December 2013