(1) The nature of the appeal to the Full Court
48 To understand the proper scope of our role it is necessary first to understand the proper scope of the role of the primary judge in an "appeal" from an administrative tribunal on questions of law.
49 Such an "appeal" involves the exercise of the court's original jurisdiction. Section 19 of the Federal Court of Australia Act 1976 ("the FC Act") provides:
"(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.
(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts."
50 As to that jurisdiction, s 22 of the FC Act provides:
"The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."
51 Thus Order 13, referred to above, merely reflects the legislative policy expressed in s 22 that the Court should justly grant all remedies to which any party is entitled, provided that the claim is properly brought forward, so as to determine completely and finally all matters in controversy between the parties. Where the "appeal" to the Court is limited to questions of law, I take the effect of s 22 to be that the Court should determine all legal questions in controversy between the parties. It is an everyday occurrence that such legal questions become better understood and more accurately stated in the course of litigation.
52 Section 22 not only grants the Court wide powers, it mandates values to be observed in their exercise. In general, however inconvenient to the Court it may be, mere considerations of case management cannot stand in the way of the Court's primary function of doing justice between the parties: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.
53 Section 24 of the FC Act gives the Court jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge.
54 Section 27, enabling the Court on an appeal to draw its own inferences of fact and, in its discretion, to receive further evidence, is of relevance here, even though the initiating "appeal" to the Court itself from the Tribunal was only "on … questions of law". Often enough, some evidence will be necessary before the primary judge can determine the merits of such a question. A common example is a question of whether a tribunal breached an obligation to give a party a right to a fair hearing. As the Full Court put it in Cubillo v Commonwealth [2001] FCA 1213 at [255], referring to the effect of CDJ v VAJ (No 1) (1998) 197 CLR 172 and Allesch v Maunz (2000) 173 ALR 648, "it has been authoritatively determined that an appeal to this court is by way of rehearing". That observation necessarily applies also to appeals from single-judge decisions. (It may be noted that White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511, in which a contrary view was expressed, was decided before Allesch v Maunz and did not refer to the observations in CDJ at 2000-1; it must be regarded as superceded by Allesch).
55 The philosophy of doing substantial justice between the parties that, pursuant to s 22 of the FC Act, is to guide the Court in its original jurisdiction is also appropriate in the exercise of the appellate jurisdiction. This is apparent from s 28 (and perhaps especially from s 28(4)) which, again, both broadly empowers the Court and commands the Court to observe certain values in exercising those powers. Section 28 provides:
"(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;
…
(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."
56 As the learned authors of Butterworths' "Practice and Procedure High Court and Federal Court of Australia" put it in their commentary on s 28 at [33,025.5]:
"This section of the Act is a 'modal' section, that is, it sets out the methods in which the court may treat an appeal and the courses open to the court on appeal. Contrast this with s 24 which is a substantive section conferring jurisdiction upon the court to hear appeals: Kovac v R (1977) 15 ALR 637 at 642. As to when the court will intervene to vary a judgment or verdict, see Anderson v R (1977) 19 ALR 212; Whim Creek Consolidated (NL) v FCT (1977) 17 ALR 421 at 426; 31 FLR 146 at 151; 8 ATR 154 at 158 and notes to s 24, above. Section 28 confirms that the court has sufficient power in exercising its appellate jurisdiction to ensure that a decision given on appeal is just and not constrained by the technical form of the appeal. However, permission to argue a point on appeal, including a point of law, not taken at trial remains in the discretion of the court and the exercise of that discretion will depend upon it being clear that facts relevant to the application of any question of law have been determined and that it is expedient and in the interests of justice that the point is decided. Indeed, it may be necessary to show a risk of injustice if leave to argue the point is denied. Certainly, though, leave will not be granted where it involves the presentation of a different case to the one presented at trial where the opposing party might have had an opportunity to augment its case to deal with the point: WT Partnership (Aust) Pty Ltd v Sheldrick (1999) 96 IR 202; BC9903471; [1999] FCA 843."
57 Thus, unless there is irremediable procedural injustice to a party, the Full Court should strive to determine all questions of law properly arising in an appeal to it from the judgment of a single judge in a proceeding confined in its nature to legal questions.
58 What is considered an irremediable procedural injustice will vary. The most obvious case is where there is an irremediable loss of the opportunity to investigate or to bring evidentiary material to counter a question not raised at first instance. Increased or unnecessary costs can usually be remedied. However, in some cases, even the lavish application of indemnity costs will be no adequate balm: people involved in litigation often have great non-monetary investments in it of their time, anxieties, hopes and expectations. Corporations do not have feelings but may have invested much paid time of their servants and agents in the litigation which is difficult to quantify and to bring within a costs order
59 Further, where parties are clearly well-advised and merely tactical choices have been made as to which legal questions are to be agitated or as to how they are to be presented, the legitimate interests of all parties and the overriding public interest in the regular, efficient and orderly conduct of litigation, and in its finality, will often raise an issue of injustice militating against new points being taken on appeal.
60 The reluctance of the courts, for good reasons, to permit
"the main area for the settlement of disputes [to] move from the court at first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish" (per Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Halcombe (1986) 162 CLR 1 at 7)
has often been stated and recently by a Full Court of this Court in Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833 at [34] - [39]. Even in a criminal case, exceptional circumstances must be shown: Crampton v R (2000) 176 ALR 369 at [7] - [8]. Relevant matters to the maintenance of a firm line were referred to by Gleeson CJ in Crampton at [14] - [19]. They may be summarised as:
· the "overarching societal interest in the finality of litigation in criminal [and I would add, civil] litigation";
· the common position that fresh counsel are retained for an appeal increases a tendency to look for a new approach and thereby to seek to treat the primary hearing as a preliminary skirmish;
· the risks inherent in an appellate court in hindsight assessing the facts as to the wisdom of a course taken by counsel;
· the necessity, for an adversarial system, of generally regarding the parties as bound by the conduct of their counsel; and
· preservation of judicial neutrality by leaving it to the parties to define the issues and to select the evidence and arguments which they will rely.
A degree of care may be necessary in applying such well-settled principles to an appeal to the Full Court of this Court. In Allesch v Maunz, dealing with the indistinguishable statutory regime governing appeals to the Full Court of the Family Court of Australia, Gaudron, McHugh, Gummow and Hayne JJ said at 653-4:
"For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand." (emphasis added)
And in CDJ McHugh, Gummow and Callinan JJ said (at 199-202):
"The question of the circumstances in which the Full Court of the Family Court should exercise its discretion to receive further evidence, in exercise of the power conferred by s 93A(2), is therefore to be determined as a matter of statutory construction. That matter should not be approached as if the common law procedures which gave rise to the principles laid down in such authorities as Wollongong Corporation conclusively indicate the proper construction of the statutory provision.
The common law procedures were interlocutory in nature in the sense that they were directed to the issue whether there should be an order for a new trial. They involved the exercise of original jurisdiction. In contrast, the statutory appeal is directed to whether the orders made below should be set aside and, if so, what orders should be made in their place to determine the outcome of the litigation. An order for a retrial is one, but not the only, order that the appellate court may make. Moreover, such an order is an order of last resort. In that context, the admission of further evidence has to be seen from a different perspective from that which would be appropriate if the statute did no more than repeat the common law procedures. For example, in a statutory appeal it may be the respondent who seeks to introduce further evidence to buttress the favourable findings already made and to resist the substitution by the appellate court of its orders for those of the trial court.
The scope of s 93A(2)
In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.
Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it. In McCann, Dixon CJ, Fullagar, Kitto and Taylor JJ said: