Moussa v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 Mr Moussa commenced a judicial review proceeding against the Migration Review Tribunal (which is now the Administrative Appeals Tribunal) ('the Tribunal') in the Federal Circuit Court by way of an application filed on 7 April 2015. On 16 June 2015 he filed a notice of discontinuance in that Court. The effect of its filing was that that proceeding ceased to exist for most purposes and no longer needed to be dealt with. 2 On 26 June 2015, that is ten days later, Mr Moussa had a change of heart and filed an interlocutory application seeking leave to withdraw the notice of discontinuance. The Federal Circuit Court dismissed that application on 9 July 2015 delivering reasons ex tempore for doing so at the same time. 3 That determination was interlocutory so an appeal lies to this Court only by leave: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Such an application must be brought within fourteen days: r 35.13(a) of the Federal Court Rules 2011 (Cth). 4 On 30 July 2015, after that 14 day period had expired, Mr Moussa filed an application to extend the time in which an application for leave to appeal could be filed and, on the assumption that occurred, an application for leave to appeal. 5 I propose to assume in Mr Moussa's favour that he should be granted the extension of time he seeks if he is otherwise entitled to a grant of leave to appeal. Leave to appeal will be granted where the decision of the lower court is attended by sufficient doubt and where substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 (FC). 6 The primary judge made this finding about the circumstances leading to the filing of the notice of discontinuance. '5. The applicant gave oral evidence that prior to filing the notice of discontinuance he had consulted a number of lawyers and that none of them had advised him to continue his case. The applicant gave evidence that some of the lawyers he consulted had the benefit of the Court book that he received on 2 June 2015. It was clear from the applicant's evidence that he knew what he was doing when he filed a notice of discontinuance. The applicant, however, said that he would not have filed that notice of discontinuance if he had been aware of assertions made by his authorised recipient that were in the Court book and which the applicant said were untrue and were fabricated.' 7 There is no specific rule in the Federal Circuit Court Rules 2001 (Cth) that permits a notice of discontinuance to be withdrawn. Indeed, the only rule relevantly touching upon such a notice is r 13.01: '13.01 Discontinuance (1) A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form. (2) A notice of discontinuance may be filed: (a) at least 14 days before the day fixed for the final hearing of the application; or (b) with the leave of the Court or a Registrar, at a later time. (3) However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if: (a) in a proceeding under the Family Law Act: (i) the proceeding relates to the property of a party; and (ii) one of the parties dies before the proceeding is decided; or (b) the proceeding is a creditor's petition. (4) A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.' 8 Rule 13.02 then deals with costs issues which arise from the discontinuance. There is no need to set it out. 9 It is established that a notice of discontinuance can be struck out if its filing constituted an abuse of process: Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 571 per Lord Scarman (with whom the other Law Lords agreed): 'The Court has an inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J and Lord Denning MR that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of process of the court.' 10 The application of that principle to a notice of discontinuance filed in this Court was accepted by Beaumont J in an obiter dictum in Wool International v Sedgwick Ltd (No 2) [1997] FCA 709. In Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 Mansfield J accepted the existence of the jurisdiction although his Honour described it as part of the inherent power of the Court to prevent injustice (at [5]). In that case it appeared that the notice of discontinuance had been filed without instructions. The Minister accepted that that was a sufficient fact to justify the exercise of the jurisdiction. Thus Mansfield J thought that it was 'not necessary to explore in any detail the content of the concept of abuse of process': (at [5]). 11 In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 Ryan J examined these authorities. He accepted at [18] that there was a jurisdiction to set aside a notice of discontinuance which involved an abuse of process at the suit of the party affected by the abuse. He thought this jurisdiction rare. His Honour also accepted (at [20]) that there was likely an inherent power to set aside a notice of discontinuance which has been procured by fraud or duress. 12 Ryan J was clear, however, in SZFOZ that the power could not be invoked where a party had knowingly and voluntarily filed the notice of discontinuance: see [20]. Precisely the same conclusion was reached by Ross J in Khadri v Minister for Immigration and Border Protection (2014) 140 ALD 136 at 140 [16]. There is yet to be a debate as to how principles relating to inherent jurisdiction can be applied to a court, such as the Federal Circuit Court, which is not a superior court and which may not have inherent jurisdiction. It is not necessary to pursue this point further. 13 Four principles may be distilled from the authorities referred to above: