CONSIDERATION
26 This was and is a most unusual case.
27 Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) relevantly provides:
16.05 Setting aside or varying judgments or orders
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
…
(3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
(Emphasis added.)
28 The primary judge's analysis accord with the steps outlined by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530. Ryan J said (at [7]-[10]):
Principles governing an application for reinstatement
7 In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement[.]
(emphasis added [in original])
8 In this connection, a party's absence is analogous to a party's failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party's favour where there is little or no prospect of that party's succeeding on the substantive claim: see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320.
9 It should also be observed that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted. However, I do not perceive that the application of those requirements - first, that the decision in question be attended by sufficient doubt to warrant its reconsideration, and, secondly, that substantial injustice would flow were leave not granted (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, per Sheppard, Burchett and Heerey JJ, at 398) - would result in any different outcome in this case.
Whether the learned Federal Magistrate's discretion miscarried
10 It follows from what I have said that the decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles stated as follows by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, at 504 to 505, where their Honours said:
But the judgment complained of, namely, sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance.
29 Usually this approach is entirely orthodox. But, as noted, this was and is a most unusual case.
30 Quite understandably, MZYEZ and decisions like it have been widely followed in this Court and in the Federal Circuit Court. But, despite this, it must be emphasised that the relevant discretion conferred on the Federal Circuit Court by r 16.05 is unfettered. In my view, while the steps in MZYEZ should usually be followed, there are occasions when, in the exercise of the unfettered statutory discretion, more fundamental principles are enlivened. This was one such occasion.
31 This was not a case of 'failure of the applicant to appear in court that day' as almost all such cases are and to which MZYEZ was specifically directed (see [8] of MZYEZ). To the contrary, the applicant had done everything possibly required of him to attend and appear but, through absolutely no fault of his own, his application was proceeding in his absence in the undesignated courtroom while he patiently waited to present his case in the designated courtroom. In those circumstances, there was no hearing proper at all.
32 In Cameron v Cole (1944) 68 CLR 571, Rich J said in the context of a decision of a court made in the absence of the party who has not been given a reasonable opportunity by the court to appear and be heard that (at 589):
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v. Kanssen). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial (Crane v. Director of Public Prosecutions).
(Citations omitted and emphasis added.)
33 To similar effect was Taylor v Taylor (1979) 143 CLR 1, which was discussed by French J (as his Honour then was) in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365. His Honour said (at [77] and [79]):
77 A decision of a Court made in the absence of a party who has not been given a reasonable opportunity by the Court to appear and be heard, may be set aside in its inherent jurisdiction (Cameron v Cole (1944) 68 CLR 571 at 589 (Rich J)):
In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.
In considering whether the Bankruptcy Act 1944 (Cth) conferred power on the Federal Court of Bankruptcy to set aside such a decision, Rich J referred to the general presumption that a statute is not to be taken to have undermined fundamental principles of law or of equity except by the use of clear words (at 589):
A fortiori in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.
…
79 Taylor is an example of a judicial discretion to rehear a case where a decision affecting rights was made in the absence of a party. An order was made in the absence of a husband involved in matrimonial proceedings. His non-appearance was not his fault but the result of an error by his solicitors. Service of the relevant petition having been properly effected the first decision was not a nullity. Nevertheless the order was able to be set aside by an order made in the inherent jurisdiction of the Family Court. Both Gibbs and Mason JJ referred to Grimshaw v Dunbar [1953] 1 QB 408 in which Jenkinson LJ restated the prima facie right of a party to an action to have it heard in his presence and said (at 416):
… if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs …
34 SZFDE went on appeal to the High Court, but on this point the discussion is unaffected.
35 A federal court has such implied power as is a necessary corollary of the nature of judicial power itself (rather than 'inherent jurisdiction'). The implied power is construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction. In any event, the express statutory power under this rule is unfettered, but would pay regard to the exceptional circumstances of this case enlivening the 'fundamental principle' described by Rich J.
36 It follows, in my view, that in these unusual circumstances there was no obligation on the part of the applicant to satisfy all of the factors set out in MZYEZ by Ryan J. These factors are not a statutory checklist but, as Ryan J states (at [14]), considerations 'relevant to' an assessment of the Court's unfettered discretion. In those circumstances, the correct disposition of the application was to set aside the judgment entered 'in the absence of the applicant's appearance' and, unless the applicant was ready to proceed with his application (which, as his Honour's reasons reveal, he most clearly was not), to set down the application for an actual hearing on a later date.
37 In my view, the primary judge, in the exercise of his discretion, should have ruled that there had been no proper hearing at all on the first application. It follows, in my view, with great respect, that the discretion of the learned primary judge miscarried and the applicant is entitled to relief.
38 I should add that during and prior to (by email) the first hearing and the second hearing of this application, I raised this issue at some length with counsel and while it was not the way in which the grounds were drawn, there is no doubt that the issue was live.
39 A further ground and, indeed, a separate judicial review application (VID 639 of 2018) was advanced arising from the refusal of the Federal Circuit Court to accept for filing a second, but similar application. I do not consider it is necessary to determine that ground as it is clear that the application in VID 98 of 2018 should succeed on the basis I have identified.