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[2000] FCA 126
Federal Court of Australia
2000-02-17
Nicholson JJ
Original judgment source is linked above.
THE COURT 1 This is an application for leave to appeal from the decision of a judge of this Court, made on 10 November 1999, directing the Registrar not to accept a notice of motion lodged by the applicant for filing in the New South Wales District Registry of the Court. The direction was given on the ground that the applicant's notice of motion was frivolous or vexatious in that the application made by it, to set aside a previous order which had been entered by consent, "would be bound to fail". 2 The question raised by the appeal is whether the learned primary judge erred in so doing. That question may be seen as involving a wider one, namely, whether the consent order should be set aide. If the consideration of that question required further procedural orders, we would propose the making of such orders. It may be, but in the view we take it is unnecessary to pursue this problem, that there are procedural difficulties: see de Lasala v de Lasala [1980] AC 546 at 561. 3 The applicant is a national of Ethiopia. He was born in Addis Ababa. He arrived in Australia as a visiting academic on 6 July 1997. On 15 August 1997, he made application for a protection visa. His application relied upon the contention that he was a non-citizen in Australia to whom Australia had protection obligations under the well-known United Nations Refugees Convention as amended by the Refugees Protocol. That is to say, it was an application in which it was asserted that he was a refugee to whom the Convention applied. 4 On 21 May 1998 a delegate of the Minister refused the applicant's application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal (RRT). The RRT affirmed the decision of the Minister's delegate on 12 May 1999. 5 On 1 June 1999 the applicant applied to the Federal Court for judicial review of the RRT's decision. The applicant's grounds for review included an allegation that the Tribunal was biased and that the RRT had not provided sufficient opportunity for his case to be presented. 6 On 4 June 1999 the respondent's solicitor forwarded to the applicant a copy of a memorandum of appearance to that application under cover of a letter in which he was "strongly urged" to obtain legal advice and representation. Also enclosed with that letter was a list of agencies which might provide legal assistance. It appears that the applicant unsuccessfully sought legal aid from the Law Society of New South Wales. The applicant was not represented in his application for judicial review. It was submitted on his behalf that he had "fruitlessly tried all avenues" to obtain legal representation for his application for judicial review. 7 Some time after filing his application for judicial review, the applicant wrote to the Minister for Immigration and Multicultural Affairs requesting that the Minister exercise his discretion under s 417 of the Migration Act 1958 (Cth) (the Act). In an affidavit sworn on 28 October 1999 the applicant states that he expected a favourable response from the Minister. 8 On 1 August 1999 the applicant wrote directly to the learned primary judge to explain that he was "dropping" his application for judicial review because he was not able to obtain legal representation and due to the fact that he was "much exhausted by the lengthy process for the last two years". 9 On 9 August 1999 the applicant attended the offices of the Australian Government Solicitor and met with the respondent's solicitor, Ms Nanson, for approximately an hour. In an affidavit sworn 20 January 2000 Ms Nanson states that the applicant informed her that he wished to discontinue his application for judicial review. The affidavit further states that Ms Nanson and the applicant discussed the applicant's lack of legal representation and that Ms Nanson suggested that the applicant contact the New South Wales Bar Association for assistance, a suggestion to which Ms Nanson says the applicant's response was "I don't want to". Ms Nanson says that she then confirmed with the applicant that he wished to discontinue his application. Finally, Ms Nanson swears that she drafted a consent order which she explained to the applicant and which was subsequently signed by Ms Nanson and the applicant. The applicant makes no challenge to this affidavit. 10 On 13 August 1999 Tamberlin J directed that orders be entered in terms of the consent order ("the Consent Order") which was signed by the applicant and Ms Nanson on 9 August. The orders were entered on 30 August 1999. 11 On 14 October 1999 the Department of Immigration and Multicultural Affairs wrote to the applicant to inform him that the Minister had decided not to consider exercising his discretion under s 417 of the Act. The letter requested that the applicant attend the offices of the Department to discuss his "status in Australia". After receipt of the letter the applicant attended the offices of the Department and has since been in detention. 12 On 28 October 1999 the applicant filed a notice of motion seeking an order that the consent orders be set aside. 13 The Deputy District Registrar made an application under Order 46 rule 7A of the Federal Court Rules to the primary judge for an order directing him to refuse to accept or issue the notice of motion filed by the applicant on 28 October 1999. On 10 November 1999, his Honour considered that application and, for reasons published on that date, ordered that the Registrar refuse to accept or issue the notice of motion on the ground that it was frivolous or vexatious. 14 On 10 December 1999 the applicant lodged a notice of appeal and an application for an extension of time to file and serve notice of appeal. The applicant's grounds of appeal included an assertion that the primary judge had not taken into account the fact that the applicant was not represented when the consent order was signed and that he had relied upon the Court for assistance which was not forthcoming. The applicant's grounds for an extension of time to file and serve the notice of appeal included contentions that: (a) the applicant was not represented; (b) the applicant had no knowledge of the appeal process; (c) the applicant was in detention and did not have access to the necessary information; and (d) the applicant's notice of appeal was mistakenly sent to the High Court of Australia.
The parties' submissions 15 The applicant argues that this Court is invested with jurisdiction to set aside a consent order. The applicant says that this jurisdiction derives from: (a) Order 35 rule 7 of the Federal Court Rules, which gives the Court power to make an order "to avoid injustices"; and (b) an inherent power to prevent an order of the Court effecting an injustice. 16 The applicant further argues that this jurisdiction should be exercised for the following reasons: (a) the applicant was not properly advised before signing the Consent Order and it could not be said that his authorisation of the Consent Order was an informed act; and (b) that the applicant was mistaken in signing the Consent Order. 17 Conversely, the respondent's written submission asserts that as a general rule, perfected orders cannot be set aside, except in special circumstances. The respondent argues that those special circumstances are confined to instances in which the agreement underlying the consent order is void or voidable; for example, for reasons of illegality, misrepresentation, duress, or undue influence.
Conclusions 18 It is important to keep in mind that, in this case, the order dismissing the application by consent was duly entered well before the date when the applicant sought to file a motion to set the order aside. Casey J, speaking for the Court of Appeal of New Zealand, has said (in a judgment with which Cooke P and Bisson J agreed) in Waitemata City Council v MacKenzie [1988] 2 NZLR 242 at 249: "I am disposed to accept that the Court in an action taken for that purpose does have an inherent jurisdiction to set aside a sealed consent order obtained without authority or as a result of a mistake if the interests of justice require it. While there are obvious reasons for upholding the indefeasibility of such orders, it seems unnecessary to go to the extreme limit of regarding them as absolutely inviolate (apart from the 'slip rule'); to do so could transform procedures designed to further the ends of justice into instruments of injustice or oppression. So long as the rights of others have not been materially prejudiced, I can see no virtue in the formal operation of sealing sufficient in itself to constitute a bar to any prospect of restoring the parties to the position they should have been in all along. Whatever the grounds for seeking to set aside the order, the ultimate question is whether such a step is called for in the interests of justice, having regard to all the circumstances of the case." Twice, in this passage, emphasis is placed on the principle that relief, in the circumscribed situations to which the Court referred, is to be granted "if the interests of justice require it". See also Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-29. In the present matter, the applicant contends that the consent order should be set aside because of what his counsel characterizes as a "mistake", because he was unable to obtain legal aid and thus was not fully advised, and because he ought, so it is said, in justice to have the opportunity of a further hearing. 19 There are difficulties with each of these propositions. What is characterized as a mistake is really no more than a tactical decision which failed to yield the desired result. The applicant hoped that the Minister would exercise his power under s 417 of the Act, whereas, in the result, the Minister did not do so. There was no mistake in the relevant sense. The applicant knew perfectly well what the effect of the consent order would be, and in particular, that it would terminate his application to the Court. 20 It is true that applications for legal aid which the applicant had made were rejected. In at least one case, this was after some consideration of the merits of his case, although it does not appear how extensive that consideration was. But other avenues which were open to the applicant were not pursued. In the end, he appears to have become disheartened, and to have declined to take steps that were suggested to him. In any case, it cannot be said that the dismissal of a proceeding, which an applicant does not desire to pursue, will be invalidated by the fact that he has not first obtained legal advice. 21 The most important issue, as Casey J made clear in Waitemata City Council, assuming that a ground for setting the order aside does appear, is whether the interests of justice, in the circumstances, call for the setting aside of the order. But counsel for the applicant was unable to point to any aspect of the decision of the Refugee Review Tribunal which raises some argument that, in the interests of justice, the applicant ought to be able to rely upon as indicating that the decision should be set aside. Nor has the Court been able to find in the decision anything of that sort. 22 Had there been a question the litigation of which was demanded by a clear call of justice, and had the consent order really been the result of a mistake, the difficulty, raised in some cases, of the operation of a contractual compromise might not here have been insurmountable, for reasons which are elaborated by Casey J in Waitemata City Council at 250 and by Kay J in Magnus v National Bank of Scotland (1888) 36 WR 602 at 604. 23 The applicant placed some reliance on the proposition that the United Nations Convention secured to him a right of free access to the courts of Australia. But, apart from the difficulty that the issues in this matter relate to the rights conferred by the domestic law, there is the greater difficulty that the Convention right, just like the right to be heard under the domestic law, is not denied, but is exercised and exhausted, when an order is made by consent by the Court terminating a particular proceeding. Mr Bizuneh had access to the Court (though, of course, limited by the terms of s 476 of the Act) and chose to agree to the making of the particular order. 24 It is unnecessary to consider whether leave is required. If it is required, in view of the seriousness of the issues, it should be granted. But the appeal should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Solicitor for the Respondent: Australian Government Solicitor
Bizuneh
Minister for Immigration & Multicultural Affairs
(1993) 33 NSWLR 13