NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs

WHITLAM and KIEFEL JJ 1 The applicant in proceeding N 12 of 2003 has filed a notice of appeal from a judgment in that matter (NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 474) given on 20 May 2003 dismissing with costs his application remitted by the High Court for an order nisi for a constitutional writ. (The application for the order nisi related to a decision of the Refugee Review Tribunal made on 27 November 2000.) The notice of appeal was filed on 5 June 2003. The respondent objects to the competency of the appeal. 2 Counsel for the appellant does not accept that the orders made by the primary judge (Wilcox J) were interlocutory. He relies on O 51A r 5 of the Federal Court Rules, which provides: '(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' Wilcox J did not advert to that rule, and it may be accepted that he heard the application as if it were an application for final relief. 3 Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. The order pronounced by Wilcox J can only be regarded as such an order. The High Court has again recently emphasized that an order's legal effect determines whether it is interlocutory: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70. The appeal is thus incompetent. 4 Counsel for the appellant accepted that, if the appeal were incompetent, his client required leave to appeal out of time. Somewhat reluctantly, he made such an application orally. Nothing that he said cast the slightest doubt on the correctness on any part of Wilcox J's reasons for judgment. A grant of leave would be futile because an appeal would have no prospects of success. 5 The appeal should be struck out as incompetent, leave to appeal should be refused, and the appellant should pay the respondent's costs of this proceeding. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Kiefel.