El-Masri v Minister for Immigration & Multicultural & Indigenous Affairs

evidence on present application 10 The only evidence filed in support of the present application is a short affidavit sworn by the applicant. By his affidavit the applicant deposes as follows: '1. That although the matter was agitated earlier in the Federal Court, in response to my Federal Magistrates matter the argument at that time became less tenable as time progressed in the year 2003. 2. However my adviser suggests to me there are grounds of review in my matter and I seek to have it put before the Court again. Please see the annexed grounds of Appeal.' 11 A document headed 'Grounds of Appeal' annexed to the applicant's affidavit alleges that the applicant was denied procedural fairness and natural justice by the Minister in various ways. Reference is also made to s 5, s 6 and s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) although the relevance of the reference is not made clear. The document is signed, apparently by Ms Purcell, under the typed words 'D. Purcell initiating legal practitioner'. 12 Ms Purcell filed written submissions in support of the applicant's application for an extension of the time within which to file and serve a notice of appeal from the decision of Raphael FM. The following additional 'evidence' is included within those written submissions: 'The applicant Mr El‑Masri faces deportation and separation from his wife and four children and one step‑child. This is a most serious consequence and so all arguments open to him should be ventilated. The argument was not ventilated prior to this because of the applicant [sic] counsel being somewhat inexperienced and not recognizing this argument. This is now recognized. ….' (my emphasis)

Is there a right to appeal from time to time? 13 Although both parties addressed their respective submissions to the Court on the basis that it was open to the Court in its discretion to grant the applicant the extension of time sought by him, I indicated to them during the hearing that I had serious reservations about the power of the Court to do so. The parties were given an opportunity to address the Court on this issue. They took up the opportunity to a limited extent only. Nonetheless, as the issue is an important one, I have considered it appropriate to give consideration to it. 14 The right of appeal from a judgment of the Federal Magistrates Court is created by par 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Paragraph 24(1)(d) confers jurisdiction on this Court to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth subject to certain exceptions not presently relevant. 15 The question of whether a party dissatisfied with a judgment of the Federal Magistrate Court may institute a second appeal from that judgment after discontinuing an earlier appeal from the same judgment is ultimately one of statutory construction. It involves consideration of the intention of the legislature as disclosed by the language of par 24(1)(d) understood in the context provided by Part III of the Federal Court Act. Little guidance on the question is afforded, in my view, by authorities touching on whether the discontinuance of a proceeding at first instance provides a defence to a subsequent proceeding for the same, or substantially the same, cause of action. 16 The intention of the legislature as disclosed by the language of par 24(1)(d) cannot be determined without reference to the long accepted nature of a statutory right of appeal. In Grierson v The King (1938) 60 CLR 431 the High Court refused to grant special leave to allow Mr Grierson to appeal from a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had refused to re-open an earlier appeal instituted by Mr Grierson against his conviction or to give him leave to bring a fresh appeal. Mr Grierson wished to place reliance on allegedly material facts of which he became aware only after the hearing and determination of his original appeal. The High Court (Rich, Starke, Dixon and McTiernan JJ) approved the following statement made by Jordan CJ in the course of his judgment in the Court of Criminal Appeal: 'When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisors or whenever a new fact is alleged to come to light.'

'If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal.' (citation omitted) 17 In Postiglione v The Queen (1997) 189 CLR 295 the High Court confirmed that the Criminal Appeal Act 1912 (NSW) ('Criminal Appeal Act') does not confer jurisdiction to re‑open an appeal which has been heard on the merits and finally determined. 18 There is no relevant distinction between the language by which a right of appeal is conferred by the Criminal Appeal Act 1912 (NSW)and the language of subs 24(1) of the Federal Court Act. I conclude that once an appeal against a judgment brought in reliance on subs 24(1) of the Federal Court Act has been heard and disposed of no further appeal may be brought by the appellant against the same judgment. In this case, however, the applicant's appeal was not heard by Madgwick J. The conduct of the parties rendered it unnecessary for his Honour to hear and determine the appeal. 19 There is authority on the issue, not strictly raised by the present application, of whether an appeal abandoned without a determination on the merits, may be re‑instated. In R v Moore [1957] 1 WLR 841 (CCA), Lord Goddard CJ at 842 observed: 'There have been from quite early days in the history of the court, applications for leave to withdraw a notice of abandonment, and it is exceedingly difficult to understand what power the court has to give leave to withdraw a notice of abandonment, considering that by the rules, which have the force of a statute, the appeal has been dismissed. An examination of the cases has shown that, except in one case at any rate, the court has only allowed notice of abandonment to be withdrawn if they are satisfied that there has been some mistake. No doubt if a case could be made out that an appellant had in some way or another been fraudulently led or induced to abandon his appeal, the court in the exercise of its inherent jurisdiction would say that the notice was to be regarded as a nullity; but where there has been a deliberate abandonment of an appeal, in the opinion of the court there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated, because the appeal having been dismissed the court has exercised its powers over the matter and its functus officio. Accordingly, the court is not going to entertain applications for the withdrawal of notices of abandonment unless something amounting to mistake or fraud is alleged, which, if established, would enable the court to say that the notice of abandonment should be regarded as a nullity.' 20 In R v Preston [2004] SASC 77 Duggan J relied on R v Moore in observing at [12]: 'The filing of a notice of abandonment in some jurisdictions results in a dismissal of the appeal. In certain exceptional cases, the courts have permitted the withdrawal of such a notice, but not where there has been a deliberate abandonment of an appeal.'

At [13] his Honour noted that a further exception might apply where an applicant had been denied procedural fairness both at trial and on appeal. However, this possibility need not be considered here as there can be no possible suggestion that the applicant was denied procedural fairness by Madgwick J.

21 I have been unable to find authority on the precise issue raised by this case. The evidence before the Court reveals that the applicant made a deliberate decision to discontinue his appeal. The Minister consented to the discontinuance. Order 52 r 19(1A) of the Federal Court Rules ('the Rules') provides that if a notice of discontinuance is filed and served in accordance with the Rules the appeal is abandoned. The Rules do not deal explicitly with the effect of an order made by consent that an appeal is discontinued; they assume that discontinuance will be effected by the party claiming relief. Order 22(2) of the Rules provides for the giving of a notice of discontinuance and indicates the circumstances in which such a notice may be given. When, as happened in this case, the parties invite a judge to make an order by consent that an appeal is discontinued, they are to be understood, in my view, as asking the judge to make an order which relieves the appellant from the obligation to obtain the leave of the Court to file and serve a notice of discontinuance. The effect of the order so far as the appeal is concerned will, I consider, be the same as if the appellant had obtained leave to file and serve a notice of discontinuance and had filed a notice of discontinuance in reliance on that leave. The present applicant is thus to be understood to have made a deliberate decision to abandon his original appeal from the decision of the Federal Magistrate. 22 The order made by Madgwick J has been entered. Order 35 r 7 of the Rules recognises that the Court, as a superior court of record, has certain implied powers to set aside an order after it has been entered. It is not necessary for me to reach a concluded view on the issue of whether the applicant could obtain an order under O 35 r 7 setting aside paragraph 1 of the orders made by Madgwick J. No application under O 35 r 7 has been made by the applicant. I note, incidentally, that O 35 r 7(2) does not reach to an order made where the Court is exercising its appellate jurisdiction. 23 However, the difficulties that the applicant would face were he to apply for an order under O 35 r 7 setting aside paragraph 1 of the order of Madgwick J demonstrate, as it seems to me, that the legislature could not have intended that it should be open to the applicant simply to institute another appeal from the judgment of the Federal Magistrate. The apparent absence of direct authority on this issue, far from supporting the position for which the applicant contends, seems to me to suggest broad acceptance of the position that a right of appeal once exercised is exhausted. That is, that a statutory right of appeal is not a right to appeal from time to time subject only to the requirement that any necessary extension of time be obtained. Once a right of appeal under s 24(1) of the Federal Court Act has been exercised, no further right of appeal may, in my view, be invoked. I do not consider that the position is otherwise where the appeal is discontinued rather than determined on the merits. Where an appeal is discontinued the only way, in my view, in which the decision appealed from may later be challenged is if leave is obtained to reinstate the appeal earlier discontinued. 24 In summary, in my view, subs 24(1) of the Federal Court Act gave the applicant the right to appeal from the judgment of the Federal Magistrate. However, it did not give him the right to appeal from that judgment from time to time. The applicant exercised his right to appeal from the judgment of the Federal Magistrate when he filed and served the notice of appeal that came before Madgwick J. That appeal the applicant is to be understood to have abandoned. Subsection 24(1) on its proper construction does not, in my view, authorise the applicant to institute a second appeal from the same judgment. 25 Whether the applicant may be able to obtain an order under O 35 r 7 of the Rules setting aside paragraph 1 of the order made by Madgwick J is not a question which I am required to determine. Any application under O 35 r 7 would require to be made, assuming his Honour's availability to hear the application, to Madgwick J. I note, however, that the evidence before me does not appear to be sufficient to justify an order under O 35 r 7. 26 I conclude that there is no power in the Court to grant the application made by the applicant.

Discretionary considerations 27 Even if I am wrong in my above conclusion, I would not exercise my discretion in favour of granting the applicant the extension of time for which he has applied. The applicant conceded through Ms Purcell, to whom I granted leave to address the Court on his behalf, that the only basis upon which the extension of time was sought to be justified was that she had recently thought of certain possible grounds of challenge to the decision of the Federal Magistrate that she had earlier overlooked. Ms Purcell apparently had responsibility for the conduct of the applicant's original appeal as an employee of Wyatt Attorneys. 28 In Henderson v Henderson (1843) 3 Hare at p 115; 67 ER at p 319 Sir James Wigram VC observed: 'where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'

The above observation of the Vice‑Chancellor was approved by the High Court in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. In my view, it applies with equal, if not greater, strength, in respect of appellate litigation.

29 For the above reasons, the applicant's application was dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

The Applicant appeared in person assisted by D Purcell

Legal Representative for the Respondent: A Markus

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 29 April 2004

Date of Judgment: 29 April 2004

Date of Publication of Reasons for Judgment: 11 June 2004