Applicant S1494/2003 v Minister for Immigration & Citizenship [2008] FCA 286 | Case summary

LEAVE TO APPEAL IS REQUIRED 6 Unfortunately, it is no easy task in many cases to answer the question whether a particular judgment is interlocutory or final: Egglishaw at [39]. Indeed that question has been said to be 'productive of much difficulty': Carr v Finance Corporation of Australia Ltd [No.1] (1981) HCA 20; (1981) 147 CLR 246 at 248 ('Carr'), and numerous decisions referring to the task, including the Full Court decisions of this Court in Johnson Tiles v Esso Australia (2000) 104 FCR 564 at [42] and Malouf v Malouf (1999) 86 FCR 134 at [23]. 7 Nonetheless, having considered the question carefully, I have concluded that Mr Reilly is essentially correct in his submissions. For those reasons, and the reasons I have set out below, I therefore consider leave to appeal is required in this matter. 8 The High Court of Australia has considered this question on a large number of occasions during the past century, dating back at least as far as its decision in Roberts v Roberts and Moffatt: Ex Parte Roberts and Moffatt(1908) 7 CLR 566. When considering the question in Ex parte Bucknell (1936) 56 CLR 221 at 225, the High Court said that it was the interlocutory nature of the order, not the nature of the motion or other proceedings in which the court made the order, that determined whether leave was required. Its more recent considerations of the question probably began with its decision in Hall v Nominal Defendant (1966) 117 CLR 423 ('Hall'). In that case the High Court held that the refusal of an application for an extension of time in which to bring an action against the Nominal Defendant was an interlocutory order. Taylor J, with whom Owens J agreed, reviewed various English authorities on the question and concluded that the order made did not of its own force conclude the applicant's right to bring an action so it 'was not final in the sense in which that term is used in relation to judgments and was interlocutory only.' (at 441). In his decision, Windeyer J said that the correct approach was to 'look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them.' A little later in his decision, his Honour expressed it this way: '…a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties.' If a final disposal of an action between the parties means a final determination of the rights of the parties as raised by that action, there would appear to be no difference between those two formulations. His Honour then raised the difficulty where, as was the case in Hall, there was no existing dispute between parties and no existing action, and there would not be a cause of action unless the prescribed times were extended. After referring to it as a troublesome matter his Honour ultimately appeared to conclude that the order was an interlocutory order (at 445). 9 Anshun No 1 was decided by the High Court in 1980, approximately six months before Carr (see below). In Anshun No 1, at 38, the High Court referred to the decision of the Judicial Committee of the Privy Council in Tampion v Anderson (1973) 3 ALR 414 ('Tampion'),where it was held that an order staying an action on the ground that it is frivolous, vexatious and an abuse of the process of the court was an interlocutory judgment, and to its decision in Licul v. Corney [1976] HCA 6; (1976) 180 CLR 213 ('Licul'). In Licul the High Court relevantly held that the true test was whether the judgment or order, as made, finally disposes of the rights of the parties (Gibbs J at 225 referring to Hall at 423). Barwick CJ said it was not a final order '...disposing of the action between the parties and settling their substantive rights.'(at 220). In Anshun the decision of the primary judge, to stay a proceeding on the ground of Anshun estoppel, was held to be a final judgment, as opposed to an interlocutory judgment, because 'in reality' it finally disposed of the rights of the parties. In the process the High Court said that it was not necessary to consider whether the views expressed in Tampion and Licul were consistent. 10 In Carr the High Court held that the test for determining whether a judgment was final had previously been determined by its decision in Licul. That test was expressed by Gibbs CJ in slightly different terms to those his Honour used in Licul (see above) as 'whether the judgment or order, as made, finally determined the rights of the parties.' (per Gibbs CJ at 248). It will be noted that this was the first formulation used by Windeyer J in Hall (see above). In his decision, Mason J set out the quote from the decision of Gibbs CJ in Licul referred to above (at 253 to 254). The High Court said that the test requires the Court to have regard to the legal, rather than the practical effect of the judgment on its face: see per Gibbs CJ at 248 and Mason J at 253 to 256. In applying the test, their Honours eschewed any attempt to resolve the issue by going behind the order and examining the facts of the matter, or the course that the proceedings had taken, or the grounds on which the order was refused and the impact those grounds had on the prospects of bringing a second application: see per Gibbs CJ at 248 and Mason J at 256. Their Honours added that the rigour of this approach could be mitigated by granting leave in the appropriate case. See also Bienstein v Bienstein [2003] HCA 7, (2003) 195 ALR 225 at [25] (Bienstein). 11 In Carr, Mason J (at 253 to 254) referred to the decision of Gibbs J in Licul and observed that that approach had been adopted and applied in Anshun No 1. Apart from this brief mention of Anshun No 1, the High Court did not in Carr,return to or attempt to resolve, any question of a lack of consistency between Tampion and Licul. 12 In the more recent case of Re Luck the High Court referred to Carr and Bienstein and a number of other decisions of the High Court (at [4] and [8]), as well as a number of English decisions including the decision of the Privy Council in Tampion (at [7] and [8]), and concluded (at [9]) that there was no reason to depart from the effect of those decisions. The Court therefore concluded (at [9]) that: Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. 13 Anshun No 1 was not referred to in Re Luck. This raised a question whether the High Court's ruling in Anshun No 1 had been qualified by its ruling in Re Luck. That led, in turn, to different approaches being taken by various judges of this Court to the application of the decision in Re Luck: see the various decisions listed in Egglishaw at [41]. 14 Those differences were resolved by the recent decision of the Full Court of this Court in Egglishaw. In Egglishaw, the Full Court was called on to consider whether the applicant required leave to appeal from a decision of a single judge of this Court who had dismissed the applicant's proceedings on the ground that an Anshun estoppel arose to prevent him raising in a second set of proceedings an issue that he could have raised in earlier proceedings against the same respondent. The Full Court was also required to consider whether an Anshun estoppel properly arose in the circumstances. The Full Court considered the latter issue first and concluded that an Anshun estoppel did not arise in the circumstances of that case. Nonetheless, the Full Court went on to consider whether the applicant required leave to appeal. In the process, it considered (at [39] and [40]) the decisions of Anshun No 1, Re Luck and Tampion and concluded (at [43]) that there was no inconsistency between the decisions of Anshun No 1and Re Luck because each applied to its own facts, specifically the judgments under appeal each had a different basis. It summarised its conclusion as follows: We agree that there is nothing in Re Luck that seeks to qualify or overrule the Court in Anshun [No 1]. Furthermore, the Court in Anshun [No 1] recognized that there might well be a relevant difference between a case such as the present, where an earlier judgment or proceeding precludes a further judgment or proceeding, and the ordinary case, where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights. The latter case was the kind discussed in Tampion and Re Luck, but, as the judgment in Anshun [No 1] makes clear, Tampion and therefore Re Luck do not concern the former kind of case, with which we are concerned here. 15 One question that was not expressly dealt with in the cases referred to above is whether a dismissal on the basis of a lack of jurisdiction is a final or an interlocutory order. The Full Court of this Court has held that such an order is an interlocutory order: '….at least where the order does not necessarily finally dispose of the rights of the parties.': see Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 at [6] ('NAGM') and Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3]. See alsoSZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 per Merkell J at [31] to [37] cf [38]. However, there has been a number of decisions of judges of this court that have held that a dismissal for want of jurisdiction is a final order: see MZXIW v Minister for Immigration and Multicultural Affairs [2007] FCA 123 at [3], NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29], MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] and MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [6]. In my view there is no conflict between these two sets of decisions because the latter all appeared to me to rely upon the High Court's decision in Anshun as explained by the Full Court in Egglishaw and therefore concluded that the order at issue finally disposed of the rights of the parties within the qualification expressed by the Full Court in NAGM (see above). 16 In my view the following principles can be extracted from these decisions: a) The test is whether the judgment or order finally determined the rights of the parties. b) That is to be assessed having regard to the legal effect of the judgment or order on its face. c) It is not to be assessed by having regard to the practical effect of the order. d) Further, it is not permissible to go behind the order and examine the nature of the application that resulted in the order being made, or the surrounding facts of the matter, or the course that the proceedings had taken to result in the order being made. e) Neither is it permissible to examine the grounds on which the order was refused if the purpose of that examination is to attempt to ascertain what effect those grounds may have on the prospects of the applicant bringing a second application. f) An order for a permanent stay of an action as an abuse of process on the ground that the action is prevented by Anshun estoppel or res judicata is a final order because it finally determines the rights of the parties. g) On the other hand, an order that stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action is an interlocutory order. h) Finally, an order dismissing an action for want of jurisdiction is an interlocutory order except where it finally determines the rights of the parties, for example, where it is based upon an Anshun estoppel or res judicata. 17 In this case Barnes FM ordered that: 'The application be dismissed pursuant to Rule 13.10(a) of the FMC Rules.' Rule 13.10 of the FMC Rules relevantly provides that: 13.10 Disposal by summary dismissal. The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim. 18 Consistently with the High Court's ruling in Carr, the order of Barnes FM must be examined on its face to determine its legal effect. On its face, this order did not involve any final determination of the rights of the parties, but rather summarily dismissed the applicant's proceedings. Moreover, the summary dismissal was made under a rule of the Federal Magistrates Court which provided for summary dismissal upon the Federal Magistrate being satisfied that certain conditions existed. The necessary conditions were that the applicant had no reasonable prospects of successfully prosecuting the proceedings. To reach the necessary degree of satisfaction about that, the Federal Magistrate did not need to make a final determination of the applicant's rights. On its face, therefore, the legal effect of the Federal Magistrate's order was to summarily dismiss the applicant's proceedings without any final determination of the applicant's rights. 19 Further, in my view, there is nothing in the High Court's decision in Carr that would prevent this Court from considering the grounds upon which the order was made or refused, provided that it does not take the next step and attempt to assess the impact those grounds may have upon the prospects of the applicant's further application ie assessing the practical, rather than the legal effect, of the order. 20 In this case, as I have observed above, Barnes FM dismissed the applicant's application on the grounds that he had no reasonable prospects of successfully prosecuting his proceedings. In Re Luck the High Court held that an order dismissing an action because it did not disclose a reasonable cause of action was an interlocutory order. In this context, there is no practical difference between a dismissal on the basis of an absence of a reasonable cause and a dismissal on the basis of an absence of reasonable prospects of successfully prosecuting proceedings. So much is clear, in my view, from the High Court's decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125which described the more rigorous test on summary dismissal (the test that applied before the introduction of s31A of the Federal Court of Australia Act 1976 (Cth) and its equivalents in other Acts), variously as: a cause of action 'being so obviously untenable that it cannot possibly succeed', or a case 'which the Court is satisfied cannot succeed'. In my view, these formulations make it clear that, in this context, the prospects of success are informed by reference to the claim or cause of action before the Court. The fact that the High Court was there delineating a more rigorous test does not detract from the clear link it has established between the expressions 'no reasonable cause of action' and 'no reasonable prospects of successfully prosecuting proceedings'. 21 By analogy with the decision in Re Luck,the dismissal made by Barnes FM in this case was an interlocutory order. 22 Finally, I do not consider the High Court's decision in Anshun No 1 or the Full Court's decision in Egglishaw affects this conclusion. As the Full Court has pointed out in Egglishaw, the permanent stay in Anshun No 1 was based upon an earlier proceeding and judgment precluding a subsequent proceeding which raised an issue that could, and should, have been raised in those earlier proceedings. In this case Barnes FM did not dismiss the applicant's application in reliance upon Anshun estoppel or res judicata.Instead, her Honour concluded that the applicant's application had no prospects of success because the RRT was correct in its decision that it was functus officio and therefore had no jurisdiction to consider the applicant's application to review the delegate's decision. This is similar to a dismissal for want of jurisdiction. In the absence of Anshun estoppel or res judicata, such a dismissal does not involve a final determination of the rights of the parties, but rather a conclusion that the relevant body or court has no jurisdiction to determine those rights whatever they may be. Such an order is therefore interlocutory and not final. 23 For these reasons I consider that the applicant requires leave to appeal the decision of Barnes FM in this matter.

Applicant S1494/2003 v Minister for Immigration & Citizenship

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