Consideration
34 In our view the decision of his Honour was an interlocutory decision, leave is required, and leave should be refused. We also consider that the application of Mr Chien pursuant to r 36.57 of the Federal Court rules for the Court to receive further evidence should be dismissed.
35 First, principles applicable to determination of whether a decision is final or interlocutory are well-settled. As explained in Hall v Nominal Defendant (1966) 117 CLR 423, a final order finally disposes of the rights of the parties (Barwick CJ at 430, Taylor and Owen JJ at 439-440, Windeyer J at 443 and cf Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 254). In Chien v Minister for Immigration and Citizenship [2013] FCCA 218 his Honour did no more than rule upon an oral application to discharge a joinder order in respect of Joseph and an order that the parties agree on a litigation guardian for Joseph (in default of which a request issue to the Attorney-General for the appointment of a litigation guardian). Such orders squarely fall within the scope of the practice and procedure of the Federal Circuit Court. In no way can it be said that such orders finally determine the matter between the parties, or finally determine the rights of the parties in a principal cause pending between them. Indeed, it has been accepted previously in this Court that an order joining a party to proceedings is an interlocutory order (Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28). Similarly, an order requiring the appointment of a litigation guardian is an interlocutory decision: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114. An application to discharge such orders must, perforce, also be an interlocutory application and orders refusing to so discharge must be interlocutory orders.
36 Second, we are not satisfied that the orders of his Honour conclusively determined an issue of conflict of laws such as to finally determine that issue, as submitted by Counsel for Mr Chien. The "conflict of laws" issue agitated by Mr Chien concerns whether Mr Chien is entitled, pursuant to Taiwanese law, to make decisions on behalf of his son with respect to such matters as citizenship. It is clear that his Honour did not, and did not purport to, make any such conclusive determination. His Honour's rulings concerned practice and procedure in the Federal Circuit Court, pursuant to rules of that Court, in circumstances where his Honour had not only formed a view that Joseph was a person whose participation in the proceedings was necessary, but where the evidence before the Court as to the effect of Taiwanese law was inconclusive.
37 Third, we are not satisfied that the evidence of Dr Yo sought to be tendered by Mr Chien ought be received by the Court. We take this view in circumstances where:
No satisfactory explanation has been provided by Mr Chien as to why evidence of this nature was not before his Honour. Mr Chien complained in Court that his Honour improperly failed to require further expert evidence to be provided to the Court. In our view such a submission is at the very least surprising, when the application to discharge orders to join Joseph as a party and have a litigation guardian appointed was made orally by Counsel for Mr Chien, presumably without the support of evidence such as is sought to be tendered in this Court. Any lack of preparation or satisfactory evidence in this regard must lay squarely at the feet of Mr Chien.
Further, we are not satisfied as to the cogency of this evidence. As the Full Court explained in Guss v Johnstone [2000] FCA 1455 at [30] the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial. In response to questions from the Bench, Counsel for Mr Chien conceded that evidence in Dr Yo's affidavit did not directly support the proposition that Mr Chien had the sole right to commence litigation on behalf of the child Joseph (transcript p 37 ll 1-12). It is difficult to see how the admission of this evidence would have produced a different result to his Honour's conclusion at [48] that the evidence before the Court in respect of the status of Mr Chien as a litigant under Taiwanese law was equivocal.
38 In any event Mr Chien had not, under the rules of the Federal Circuit Court, commenced the litigation on behalf of Joseph but rather in his own right as a person personally aggrieved by the Minister's decision and there had been no suggestion by the Minister before that court that he was incapable in his own right of being so aggrieved.
39 Fourth, as explained by this Court in the well-known case Decor Corporation Pty v Dart Industries Inc [1991] 33 FCR 397, in considering whether leave to appeal in respect of an interlocutory decision ought be given the Court should have regard to:
whether the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and
whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
40 We are not satisfied that either test has been satisfied.
41 At [19]-[51] his Honour discussed, in considerable detail, principles relevant to the joinder of a party and the appointment of a litigation guardian. In particular, his Honour considered (and applied) the reasoning of the Full Court in News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524, 525 where the Court explained that:
An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside …
…
The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.
(emphasis added.)
42 In this case it is not in dispute that Mr Chien had commenced proceedings in his own right. The subject of the application for judicial review before his Honour was the Australian citizenship of the child Joseph. While Counsel for Mr Chien submitted that there was no evidence before the Court that the child was seized of rights arising from his Australian citizenship, such a submission ignores a plethora of rights which exist as a matter of law, having regard to the statutory rights which attach to Australian citizens including the right to vote (s 93 Commonwealth Electoral Act 1928 (Cth)), the right to hold an Australian passport (s 7 Australian Passports Act 2005 (Cth)), the right to stand for Federal Parliament (s 163 Commonwealth Electoral Act 1928 (Cth), subject to s 44 of The Constitution) and the right to work in the Australian public service (s 22 Public Service Act 1999 (Cth)). Indeed, Counsel for Mr Chien conceded that the child Joseph was presently entitled to these rights (transcript p 18 ll 14-15).
43 French J (as his Honour then was) observed in Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670 that an application for a visa directly affects the applicants, who are entitled to be joined to proceedings concerning that application. Similar principles apply in relation to a citizen in respect of a Ministerial decision to confer that citizenship. Nothing could be clearer than that an application to quash a decision conferring citizenship upon Joseph affects Joseph's rights.
44 In this light, a submission that his Honour erred in finding that the child Joseph was directly affected by the proceedings, and therefore was a necessary party to the application commenced by Mr Chien for the purposes of r 11.01(1) of the Federal Circuit Court Rules, cannot be sustained.
45 Further, r 11.08(2) provides that unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding. His Honour clearly found that:
there was no evidence before the Court as to the capacity of the child to understand the concept of Australian citizenship including the rights thereby conferred; and
while Mr Chien had sole parental responsibility for Joseph, he had commenced the application for judicial review because he - Mr Chien personally - was aggrieved by the Minister's decision.
46 In circumstances where the application for judicial review had been commenced by Mr Chien on his own behalf there remains a potential conflict of interest for Mr Chien to act as the litigation guardian of Joseph in these proceedings. His Honour expressly identified this potential. To that extent, we consider his Honour properly ordered that a litigation guardian be appointed to Joseph, but note in any event that the terms of his Honour's order potentially permit Mr Chien to act as the litigation guardian depending on the agreement of the parties and, in default, the decision of the Attorney-General for the Commonwealth. Further, even if it transpires that a third party litigation guardian must be appointed, in all likelihood that person would be bound to take into account the rights and responsibilities Mr Chien enjoys in respect of Joseph and the position which applies in respect of Joseph in light of orders made by the Family Court. That is not exhaustive of considerations which such a litigation guardian might take into account but it should not be assumed that the litigation guardian would be duty bound to act as a contradictor in respect of Mr Chien's judicial review application.
47 Finally, even were we not satisfied that sufficient doubt to warrant reconsideration did not attend his Honour's judgment, we are not satisfied that the decision would occasion substantial injustice to Mr Chien were it wrong. The orders of his Honour contemplate the procedural steps of the joinder of the child Joseph to the proceedings, and the appointment of a litigation guardian. In our view, these were proper orders to protect the interest of a directly affected party on the facts of this case.