THE POWER TO REINSTATE
4 Rule 36.73 of the Federal Court Rules 2011 (Cth) (the 2011 Rules) deals with discontinuance of appeals. Subrule (1) provides that an appellant may, without the Court's leave, discontinue an appeal by filing a notice of discontinuance in accordance with the prescribed form, at any time before the hearing of the appeal. Subrule (2) provides that a notice of discontinuance "has the effect of an order of the Court dismissing the appellant's appeal". Subrule (4) provides that an appellant who files a notice under subr (1) discontinuing an appeal must, unless the parties otherwise agree, pay the costs of each respondent.
5 Unlike r 39.05, which gives the Court a limited power to vary or set aside an order or judgment after it has been entered, r 36.73 does not empower the Court, on a limited basis or otherwise, to vary or set aside a notice of discontinuance which has been filed before the hearing of an appeal, and so reinstate an appeal which has been discontinued.
6 While r 39.04 empowers the Court to vary or set aside a judgment or order before it is entered, without apparent limitation, r 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered only if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission.
7 Rule 39.05 reflects a general principle that, with limited exceptions, an entered, or "perfected", judgment or order is final.
8 In Bailey v Marinoff (1971) 125 CLR 529 at 530-531; [1971] HCA 49 (Bailey), Barwick CJ (who generally agreed with the separate reasons of Menzies J and Walsh J, but added remarks of his own) said that:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. …
9 If that principle were to be applied to the applicant's application to reinstate the Appeal Proceedings, the effect of the filing of the notice of discontinuance - dismissal of the proceeding - would be beyond recall, apart from any specific and relevant statutory provision.
10 In Bailey, judgment was entered as a result of the appellant's non-compliance with an order of the Court of Appeal of the Supreme Court of New South Wales which required appeal books to be filed and served by a certain date, failing which "the appeal was to stand dismissed for want of prosecution". When the appellant failed to comply with that order, on the face of it, the appeal stood dismissed. However, the Court of Appeal, in effect, made an order relieving against that consequence and reinstated the appeal.
11 In doing so, the Court of Appeal, as Walsh J explained at 534 of his judgment in Bailey, did so on the basis, in "such a case" as that before the Court, of the existence of a doctrine recognising "the court's inherent jurisdiction to intervene in order that justice may be done". The reference to "such a case" was explained to be a case where an appellant had applied itself with due diligence to the satisfaction of a condition.
12 For Walsh J, at 534, the question was not whether the Court of Appeal ought to have "a reserve power" which would enable it "to intervene in order that justice may be done" but whether the Court had an "inherent power" to deal further with an appeal which by its formal order had already been dismissed. Ultimately, his Honour considered, at 537, that Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309 had to be regarded as direct authority for the proposition that there is no inherent power to vary an order by which an appeal stands dismissed in a case in which the order was formally drawn up and entered before any application to vary it was made.
13 Menzies J, at 531, considered the appeal before the Court was not concerned with the power of a court to alter orders in pending litigation, but with the power of a court to make an order in litigation which, "without any error or lack of jurisdiction", has been regularly concluded. His Honour added, at 531-532, that however wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot extend to the making of orders in litigation that has been brought regularly to an end.
14 Gibbs J dissented on the basis that the Court of Appeal had an "inherent power" to vary a conditional order to dismiss an appeal after the time for compliance with a condition had expired: at 544-545.
15 The finality principle as articulated in Bailey was referred to expressly by the plurality in DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 (DJL) at [38] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The general principle was also applied in a criminal law context by the plurality in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 (Burrell) at [29] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).
16 In DJL, the plurality found that the Full Court of the Family Court of Australia did not have power to reopen final orders after their entry. In the course of their judgment, the plurality emphasised that the Family Court, established by the Family Law Act 1975 (Cth) (the Family Law Act) and vested with statutory jurisdiction and powers, was not a common law court as were the three common law courts at Westminster, and so was unable to draw upon "the well of undefined powers" that were available to those courts as part of their "inherent jurisdiction": at [25]. Rather, the Family Court was a statutory court, being a federal court created under the Constitution, which exercises jurisdiction and powers conferred by statute either expressly or by implication. It also has such powers as are "incidental and necessary" to the exercise of the jurisdiction and powers conferred. Thus, it would be inaccurate to use the term "inherent jurisdiction" and the term should be avoided as an identification of the incidental and necessary power of a statutory court. Their Honours added, at [26], that the distinction between "inherent jurisdiction" or "inherent power" and jurisdiction or power derived by implication from statutory provisions conferring a particular jurisdiction is not always made explicit but is fundamental.
17 The fact that the Family Court was, under the Family Law Act, "a superior court of record" made no difference to that view: at [29]-[31]. The plurality, at [39], said that in considering what is involved in the establishment of a statutory court as a superior court with appellate jurisdiction as well as original jurisdiction, as in the case of the Family Court, it was important to bear in mind that the position respecting the revision of orders of the superior courts of record at Westminster "can supply only a limited analogy".
18 At [45], the plurality concluded that the Family Law Act in its text and structure provided no express conferral of the power sought to be exercised, to reopen a judgment entered; there was no inherent power by reason of the description of it as a "superior court of record" in the Family Law Act; and no such power could be derived by necessary implication from the statutory structure.
19 Kirby J in a separate judgment, at [106], considered, to the same effect as Gibbs J in Bailey, that the Family Court was possessed of an implied power "to repair accidental mistakes and oversights", but that it was confined to "exceptional cases" where if the mistake were left unrepaired it would cause "serious injustice". He said the applicant "bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition".
20 In Burrell, where the High Court determined that the Court of Criminal Appeal of the Supreme Court of New South Wales had no power to reopen an appeal once judgment had been delivered and orders reflecting judgment had been formally entered, the plurality at [14]-[20] again emphasised the significance of a judgment or order having been "perfected". The plurality confirmed, at [15], the principle of finality of litigation and that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
21 Their Honours said that that tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. Their Honours added that the principal qualification to the general principle of finality is provided by the appellate system. But they added that, in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
22 The Federal Court of Australia, as a federal court created under the Constitution, is in a very similar circumstance to that of the Family Court as discussed in DJL. Its rules, set out above, concerning the variation or setting aside of judgments and orders before and after they have been entered, also reflect the general principles described in DJL and Burrell.
23 Given that a notice of discontinuance when filed has the effect of an order dismissing the appeal, a question may be considered to arise whether those paragraphs of r 39.05 that are capable of applying in the case of a dismissal, apply either directly or by implication in the case of an application to reinstate a discontinued appeal; or there is any other provision of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or the 2011 Rules that provides a reinstatement power; or the Court has an "inherent power" to order reinstatement; or there is simply no power to reinstate a discontinued appeal.
24 This question has been raised but rarely. In Christodoulou v Disney Enterprises Inc and Others (2006) 156 FCR 369; [2006] FCAFC 183 (Christodoulou) at [25] and [28], a Full Court (Mansfield, North and Besanko JJ) considered that the Court is possessed of an "inherent jurisdiction" to reinstate an appeal which has been discontinued, at least where the notice of discontinuance can be shown to be a "nullity" because of fraud or mistake. The application to reinstate the appeal in that case was ultimately refused on the basis that the appeal had no prospect of success.
25 In this case, the applicant contends the Court has the express statutory power to reinstate her appeal under s 23 and/or s 28 of the FCA Act; or under r 1.32 of the 2011 Rules; and that it may do so by reference to the broad touchstone of "the interests of justice". By her submissions in this regard, we take the applicant to contend she does not need to establish any of the specific grounds for varying or setting aside a judgment following entry mentioned by r 39.05, or fraud or mistake in the filing of the notice of discontinuance, in order to enliven the Court's power to reinstate her appeal.
26 We will consider each of these alternatives. First, we will consider whether r 39.05 of the 2011 Rules is applicable. We will then consider whether s 28 of the FCA Act has any application. We will then consider whether s 23 of the FCA Act is the source of the power to reinstate or, on the other hand, there is an implied power to do so under the FCA Act. Finally, we will have regard to r 1.32 of the 2011 Rules.
27 We are not persuaded that r 39.05 of the 2011 Rules is applicable in the case of an application to reinstate an appeal following the filing of a notice of discontinuance. First, r 39.05 does not purport to apply to an application for reinstatement of an appeal. It empowers only the variation or setting aside of a judgment or order after it has been entered. Secondly, the circumstances set out in r 39.05, apart from subr (b), would not appear to be relevant to consideration of an application to reinstate an appeal following discontinuance. Only subr (b) - that the filing of the notice of discontinuance was obtained by fraud - could possibly be relevant. In the result, we do not consider r 39.05 can be the source of a power to reinstate an appeal, either by its express terms or proper construction or necessary intendment.
28 Section 28 of the FCA Act provides as follows:
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
(d) set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or
(g) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
(2) It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.
(3) The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.
(4) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.
29 On its face, s 28 is about the exercise of appellate power, not a discontinued proceeding, and has no application in relation to an appeal that has been discontinued.
30 Section 23 of the FCA Act has been relied on to support a variety of orders of this Court. It provides as follows:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
31 It must be noticed immediately, however, that the Court's power to make such orders is expressly conferred "in relation to matters in which it has jurisdiction". Section 23 is about power, not jurisdiction.
32 In Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at 80-81; [1998] HCA 30 (Patrick), the plurality (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) referred, with approval, to what Deane J had noted in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 622; [1987] HCA 23 (Jackson) of s 23 that:
Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of orders, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction.
33 The plurality further favourably referred to what Deane J said in Jackson at 623, that a power to prevent the abuse or frustration of a court's process should be accepted "as an established part of the armoury of a court of law and equity" and that "the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23".
34 In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 at [94], Gummow and Hayne JJ, in the course of a discussion concerning the grant of "anti-suit injunctions", said that the order in question in that case could be supported "as an exercise of the power of the court to protect the integrity of its processes once set in motion". In making that statement, their Honours referred to CSR Limited v Cigna Insurance Australia Limited and Others (1997) 189 CLR 345 at 391-392; [1997] HCA 33 (Cigna), as well as to the joint judgments in Patrick at [35] and Cardile and Others v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18 at [41].
35 In Cigna, at 391, the plurality (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) observed that the counterpart of the Court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. In making that statement their Honours primarily referred to Jackson at 619, 621 and 639.
36 Consistent with the observations in these authorities concerning the Court's power to prevent its processes being abused and its power to protect the integrity of those processes once set in motion, and the relationship of those powers to s 23 of the FCA Act, in Westsub Discounts Pty Ltd v Idaps Australia Limited (No 2) (1990) 94 ALR 310 (Westsub Discounts), Woodward J, at an earlier time, recognising that this Court is a creature of statute, held that the Court had the power to amend a costs order in a proceeding, following the entry of judgment. At the time, O 35, r 7 of the Federal Court Rules 1979 (Cth) (the 1979 Rules) enabled the Court to vary or set aside a judgment or order before it was entered; or, otherwise than in its appellate jurisdiction, in the limited circumstances set out, after it had been entered; or where there had been a clerical mistake, an error, or accidental slip or omission. Subrule (4) of O 35, r 7 provided that subr (2), which in certain circumstances permitted the Court to set aside an order or judgment after entry, did not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. It was on that subrule that Woodward J relied, in the circumstances of that case, as the source of the power to make an order amending the costs order following its entry. (On the application of that old rule, however, his Honour's decision has not subsequently been followed: see Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235; [1993] FCA 667; McDermott v Richmond Sales Pty Ltd (In Liq) [2006] FCA 248 at [23]).
37 His Honour considered, at [11], that s 23 of the FCA Act, in giving the Court "power, in relation to matters in which it has jurisdiction, to make orders of such kinds … as the Court thinks appropriate", by implication, gave the Court the same powers possessed of a common law court to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nonetheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right thinking people.
38 His Honour considered that the implication of a power to this end would enable the Court to amend an order for costs after judgment had been entered in a proceeding, to address an issue which, through inadvertence, had not been raised at the time of pronouncement of the Court's orders. In effect, his Honour considered that adding to or varying an order that was truly supplemental to the entered orders, as distinct from the judgment itself, did not offend the principle that a judgment or order made is final.
39 In Yevad Products Pty Ltd v Brookfield and Another (2005) 147 FCR 282; [2005] FCAFC 263, the Full Court (Nicholson, Finkelstein and Jacobson JJ) held that O 35, r 7(1) of the 1979 Rules applied, in that case, to empower the Court to vary or set aside orders where the application to reopen the orders in question had been made before the orders were sealed. In the course of its reasons, the Court, at [26], noted (seemingly with approval) that in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336, Kiefel J referred to the Court's power to reconsider an apparently final costs order, either under O 35, r 7(2)(f) of the 1979 Rules (with the consent of the parties), or, alternatively, under the implied power to correct the misuse of its processes. Her Honour plainly considered this implied power arose under s 23 of the FCA Act, referring as she did to Westsub Discounts.
40 The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
41 We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
42 It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in "the interests of justice".
43 The Court in Christodoulou appears to have come to a similar conclusion so far as the existence of an implied power to reinstate an appeal is concerned. While inexactly referring to the Court's jurisdiction as an "inherent" one, and while referring to English precedent drawn from common law courts, the Court nonetheless considered that an implied power, as we would understand it, exists to reinstate an appeal.
44 In other respects, however, we do not think that it assists to ask, as it was in Christodoulou, whether the filing of the notice of discontinuance in a given case was a "nullity" by reference to decisions of English courts expounding on the inherent jurisdiction of English common law courts. We do, however, consider that some guidance may be drawn from those English decisions so far as the making out of abuse of process is concerned, as explained below.
45 We should add that we do not consider that a number of first instance decisions of this Court, referred to in Christodoulou, take the question any further, each mostly accepting for the purposes of argument that there exists a power to reinstate an appeal that may or may not permit consideration of "the interests of justice".
46 While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant's instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
47 In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal "in the interests of justice", which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
48 We also consider that the power to reinstate an appeal is discretionary in nature so that, when enlivened, the prospects of success of the proposed appeal may also be taken into account in its final exercise, as held in Christodoulou.
49 Finally, we should deal with r 1.32 of the 2011 Rules, which provides that:
The Court may make any order that the Court considers appropriate in the interests of justice.
50 While apparently broad in scope, this rule must be understood as one arising under the FCA Act to facilitate the exercise of powers bestowed on the Court and is not itself the source of a jurisdiction going beyond the confines of jurisdiction expressly or impliedly conferred on the Court. If the Court does not have the jurisdiction or power to set aside a notice of discontinuance under the FCA Act, r 1.32 does not and cannot supply the jurisdiction to do so. In this, r 1.32 in many ways reflects the content of s 23.
51 The applicant also relies, in this regard, on the judgment in Mattner v Director of Public Prosecutions (Cth) (2011) 252 FLR 239; [2011] SASC 89 (Mattner) at [29] where Kelly J said:
I do not consider that I need to resolve that question here as I consider it appropriate to proceed on the basis that I can make the order sought if it is necessary to do so in the interests of justice under the second limb of r 117(1).
52 Mattner concerned an application to withdraw a notice of discontinuance in relation to an appeal to the Supreme Court of South Australia against a conviction in the Magistrate's Court of South Australia. Kelly J found that the Court's power to entertain the application was to be found in r 117 of the Supreme Court Rules Civil 2006 (SA) which, at subr (1), permitted the Court to make any order it considered necessary for the proper conduct of a proceeding or otherwise in the interests of justice. On that basis, Kelly J considered whether it was in the interests of justice to make the order sought and found that it was. The question referred to by Kelly J, at [29], which she found she did not need to resolve, was the proposition that it could be argued that, even if a notice of discontinuance brings a proceeding to an end, its withdrawal is the first step in the revived appellate proceedings.
53 Mattner can be distinguished from the present case given the interpretation and application of r 117(1) on which Kelly J relied in considering the matter. This Court is not conferred with power to entertain the present application by a rule similar to that considered in Mattner or any rule of Court. As noted above, r 1.32 of the 2011 Rules identified by the applicant does not give the Court such a power. Further, the rules considered in Mattner do not appear to have included a rule to the effect of r 36.73(2) of the 2011 Rules.
54 In this case, as discussed further below, we do not consider that the applicant has demonstrated that she discontinued the Appeal Proceedings otherwise than by a deliberate and informed decision on her part. Certainly, no abuse of the Court's process is identified. The power to prevent an abuse of the Court's process is not enlivened. Further, and in any event, we consider that, had the power to reinstate been enlivened, the prospects of success of the proposed appeal are so low that it would not be appropriate to exercise the power in the applicant's favour.
55 Finally, in the event that r 39.05, by reference to part (b), should be considered applicable in this case, we are of the view that the applicant has not established that the filing of the notice of discontinuance of the appeal in this case was obtained by fraud, broadly understood, and so there would be no basis to order reinstatement of the Appeal Proceedings under that rule.