The submissions of the parties
23 The applicant submitted that he should be granted an extension of time on the basis that he attempted to file the relevant papers in the Federal Court within time on 28 June 2019 but was unable to do so. He was four days late. In these circumstances, noting that the Minister does not oppose the extension of time, and having regard to the evidence at [26] of the applicant's affidavit affirmed 1 July 2019 as to his difficulty in filing a particular form, we would grant that extension.
24 The applicant referred to the statement in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J as follows:
In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement (sic)
(Ryan J's emphasis.)
25 The applicant also referred to two decisions of the Full Court of the Family Court: Barbey & Tuttle [2013] FamCAFC 44, which at various points makes reference to issues of prejudice, delay and the conduct of the applicant (as to which see [52] below), and Malak & Malak [2016] FamCAFC 114.
26 The applicant submitted that in the first limb of ground 1 of his draft notice of appeal, he contended that the primary judge did not consider all of the required matters. Instead, he submitted, the primary judge concluded that the interests of the administration of justice did not call for reinstatement of the applicant's judicial review application in these circumstances, referring to the primary judge's reasons at [13]. The applicant accepted that overarching consideration ought to have been given to that issue at a broad level of generality. He submitted that there were also underpinning considerations including the principle of the finality of litigation and the public interest in court efficiency. The applicant only sought a reasonable opportunity, in all of the circumstances, to participate in proceedings, he submitted.
27 There were specific factors, the applicant submitted, which the Court was required to take into account when determining whether to set aside orders previously made dismissing an application by reason of an applicant's non-appearance. The applicant referred to what Mortimer J said in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]:
As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
28 The applicant submitted that r 16.05(2)(a) of the Federal Circuit Court Rules required the primary judge to turn his mind to specific factors and not only the interests of justice as an all-encompassing consideration.
29 The applicant submitted that the primary judge did not expressly identify in his reasons for judgment the issue of the reasonableness of the applicant's proffered explanation or excuse for his non-attendance but that he was willing to accept that the primary judge implicitly considered this factor, inasmuch as the primary judge concluded that the applicant's excuse was untruthful. The applicant did not challenge the primary judge's findings in this respect.
30 The applicant also accepted that the primary judge considered whether or not he had an arguable case for the relief he sought and noted that the primary judge did conclude that there was a serious issue to be tried in the applicant's substantive application.
31 The applicant submitted that the primary judge did not expressly or implicitly consider the existence and nature of any prejudice to the Minister. The respondent Minister made no submissions that any prejudice might flow from reinstatement such that this factor could be assumed to be made out in the applicant's favour. Even assuming that there was no prejudice to the respondents in the present case, the applicant submitted, that was still a factor which the Court had to take into account. Here, the applicant submitted, there was no consideration by the primary judge of possible prejudice at the hearing and no relevant findings or reasons addressing this factor in the judgment.
32 The applicant also referred to the consideration of whether or not he disregarded the opportunity to appear at and participate in his trial and accepted that the primary judge considered this factor and decided it adversely against him.
33 In relation to the consideration of delay, and his conduct after the dismissal for non-appearance, the applicant submitted that it was open for these factors to have been weighed in his favour. He submitted that he lodged his reinstatement application on 22 May 2019 within a very short period of time after the dismissal of his application for non-attendance on 17 May 2019, such that any delay was very modest.
34 Turning to the second limb of his proposed ground, the applicant contended that when exercising his discretion the primary judge failed to conduct the required balancing exercise. The applicant submitted the various factors were to be weighed in the balance with no one factor being necessarily and of itself determinative. Here, the applicant submitted, the reasons for judgment did not evidence that the primary judge undertook the required balancing exercise, by virtue of the absence of consideration by the primary judge of the matters in proposed ground 1(a), that is, that there was no delay and no prejudice to the respondent.
35 The applicant submitted that the Court enjoyed a broad discretion under r 16.05(2) which nevertheless had to be exercised judicially. He submitted that the primary judge appreciated the "dilemma" before him, referring to the primary judge's comments during the reinstatement hearing that there was "a serious issue which deserved a final hearing" as against "how could [the Court] reward [the applicant's] behaviour, given that you were seeking to avoid a hearing?" The applicant also referred to the primary judge's statement, at [12], that if the applicant had given a truthful account, the Court would have been minded to reinstate the application but it "cannot and will not reward mendacity" and to the statement, at [13], that in the primary judge's view the applicant "got what he wanted". The applicant submitted that an evaluation of the reasonableness of the applicant's explanation was not the only factor to be considered, but could be a weighty factor. The applicant accepted that his explanation was assessed against material arguments suggestive of a different outcome. But these two factors were not the only ones, he submitted: other factors required consideration and balancing in the exercise of the Court's discretion. The applicant submitted that the primary judge was required to conduct a balancing exercise which was not apparent or, alternatively, that exercise was limited to only assessing the reasonableness of the applicant's explanations and did not include material arguments available to the applicant which favoured a different outcome.
36 The applicant submitted that the discretion under r 16.05(2)(a) was to be exercised judicially having regard to all of the circumstances. He submitted that the reference at [13] of the primary judge's reasons to "these circumstances", read in context, was primarily to the truthfulness of the applicant's account. By focusing almost exclusively on that factor, the primary judge overlooked several other factors, the applicant submitted. The applicant contended that the discretion of the primary judge thereby miscarried.
37 The respondent Minister submitted that there did not appear to be any dispute about the evidence before the primary judge, and that no allegation was made by the applicant that the findings of fact made by the primary judge were not open, or available to be made on the evidence.
38 The Minister submitted that the primary judge had the advantage in assessing the applicant's credit, having seen him give evidence. Accordingly, the Minister submitted that the applicant's concessions - with respect to the primary judge's conclusions regarding the reliability or truthfulness of the applicant's evidence, findings as to the merits of the judicial review proceedings, and determining against the applicant the issue whether he disregarded the opportunity to appear and participate - were appropriate. The Minister submitted that those findings ought not to be impugned when, on a fair reading of the reasons of the primary judge, they were based on an assessment of the credibility of the applicant's evidence, formed with the benefit of seeing him in cross-examination.
39 The Minister submitted that the decision whether or not to reinstate a proceeding was a discretionary one, and so attracted the application of the principles stated by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-5. The Minister submitted that the primary judge did not act upon a wrong principle, allow extraneous or irrelevant matters to guide or affect him, or fail to take into account some material consideration. There was no proper basis for this Court to interfere with, or set aside, the exercise of the primary judge's discretion, it was submitted.
40 The Minister submitted that the discretionary power in r 16.05(2)(a) was "unfettered", referring to Barbey & Tuttle at [90] and AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [42]. He submitted that the Federal Circuit Court rules (in r 16.05, or otherwise) did not circumscribe the discretion or set out matters that must (or must not) be considered - but the discretion must be considered judicially, the Minister submitted, referring to AHN17 at [42], Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [9] and 3D Funtimes Ltd v lntellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [5]-[6].
41 The Minister submitted that many of the cases of applications to set aside orders made in the absence of a party were determined by identifying and considering a number of different factors. However, the Minister submitted, those cases did not attempt to state definitively matters that must in all cases be considered, with the result that a failure to consider them amounts to legal error; nor did they have that effect. Rather, the Minister submitted, the cases identified factors that were usually or commonly to be considered. In this respect the Minister referred, for example, to White J's judgment in Lal at [9] (also citing 3D Funtimes at [6]) and noted that, as McKerracher J held in AHN17 at [42]:
… the unfettered statutory discretion in the rule should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list even though all of the factors may be relevant.
42 In fact, the Minister submitted, the applicant conceded (by his reference to CAL15 at [4]) that the factors referred to at [25] of his written submissions were "not statutory preconditions or a legislative checklist". The Minister also referred to AHN17 at [32] where, he submitted, McKerracher J cautioned against impermissibly elevating "guidelines" developed in the case law "to the status of binding legal principles which a court must consider in the exercise of its discretionary power".
43 The Minister submitted that in AHN17 at [18], like in the present case, the applicant alleged that the primary judge had erred in refusing to set aside an order made in the absence of a party because the primary judge had "failed to consider the applicant's lack of delay in making the application", had "failed to consider whether the [Minister] would be prejudiced" and had "failed to weigh the issues of delay and prejudice to the [Minister] against the assessment of the merits of the substantive application". Justice McKerracher rejected those arguments. Significantly, the Minister submitted, his Honour referred, at [41], to MZYEZ at [7] per Ryan J (relied on by the applicant in this case) and then said, at [42], that although the primary judge in that case did not expressly consider prejudice and delay and that the absence of those factors might weigh in favour of the applicant this did not disclose error for a number of reasons. Additionally, the Minister relied on what McKerracher J said at [33].
44 The Minister submitted that the factors identified by the applicant were not matters that must be considered in every case and further contended that the primary judge did not, in any event, fail to consider the matters complained of in the applicant's written submissions, being prejudice to the Minister and delay in bringing the application to set aside the dismissal for want of appearance.
45 As to prejudice, the Minister submitted that the better view was that the primary judge did not see prejudice (or a lack of prejudice) as a matter which was material to the exercise of his discretion in the present case. As to delay, the Minister submitted that the primary judge was plainly aware of the chronology of the matter, including the dates on which the application was dismissed for non-appearance and the time at which the interlocutory application for reinstatement was filed. He had not long before presided at the first hearing and he set out the relevant chronology at [1]-[4] of his reasons. It should not be inferred that the primary judge ignored these facts in the exercise of his discretion.
46 As to the alleged failure to balance relevant considerations, the Minister submitted that on a fair reading of the reasons of the primary judge no failure to balance competing factors was shown. The Minister referred to the reasons at [12]-[13] and submitted that these paragraphs were indicative of the weighing up and balancing of the factors the primary judge expressly saw as determinative in the exercise of his discretion. That weighing up process, the Minister submitted, ultimately led to the primary judge placing greater weight in this case upon the applicant's "mendacity" and his lack of reasonable explanation for non-attendance (indeed, his intention to have the matter dismissed for non-attendance) than upon the merits of his application which would otherwise have caused the primary judge to decide the application in a case in the applicant's favour. The Minister submitted that it was not shown that the matters now urged by the applicant as needing to have been weighed were considered material by the primary judge, or that they were not taken into account, rather than being considered and seen as nonetheless leaving the contest between the competing considerations expressly identified by the primary judge. The onus remained on the applicant to establish appealable error, the Minister submitted.
47 The Minister submitted that certain paragraphs of the applicant's written submissions (summarised at [35]-[36] above) acknowledged that the weight to be attributed to various factors was for the primary judge. The Minister submitted that was plainly correct and that, as shown in House v The King and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [35]-[50] per Gageler J, an appeal court should not disturb the primary judge's exercise of discretion simply because (if it be the case) it might have weighed matters differently and thus come to a different conclusion.
48 The applicant's claim that the balancing process miscarried because the primary judge failed to consider and balance "other factors" must be rejected, the Minister submitted, for the reasons identified in relation to the first ground of the proposed appeal. The Minister submitted that the discretion was "unfettered", and that there was no fixed list of factors that must be considered in every case. Here, the Minister submitted, the primary judge identified the factors which he saw as material to his exercise of discretion in the present case and explained how he reached the decision he did. The Minister submitted that the primary judge was not shown to have "overlooked" other factors that he was required to consider, especially in relation to prejudice and delay, which were not matters expressly relied on before the primary judge by either party as relevant to the exercise of discretion.