What happened
The appellant, identified only as Plaintiff S164/2018, had been taken into immigration detention on 11 November 2016 after his visa was cancelled. On 20 June 2018 he commenced proceedings in the original jurisdiction of the High Court by filing an application for an order to show cause. The relief sought included writs of prohibition and habeas corpus directed to the Minister for Home Affairs, together with declarations that ss 189(1) and 196(1) and (3) of the Migration Act 1958 (Cth) are constitutionally invalid because they impermissibly limit the right to seek relief under s 75(v) of the Constitution.
Gageler J heard the application and, on 30 August 2018, ordered that it be dismissed pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth), with the appellant to pay the Minister's costs. Rather than seeking leave to appeal, the appellant filed a notice of appeal on 5 September 2018 purporting to bring the matter to the Full Court as of right. The Minister filed an unconditional notice of appearance on 14 September 2018. On 19 September 2018 the Minister filed a summons seeking dismissal of the appeal as incompetent on the ground that the order made by Gageler J was interlocutory and leave was required under s 34(2) of the Judiciary Act 1903 (Cth).
In response, the appellant filed his own summons on 24 September 2018 seeking dismissal of the Minister's summons as incompetent. The appellant's argument was that, by filing an unconditional appearance, the Minister had submitted to the jurisdiction of the Court and could no longer raise any objection to competency. Both summonses came on for hearing before Edelman J on 7 November 2018. His Honour dismissed the appellant's summons, held that the appeal was incompetent for want of leave, dismissed the appeal, reserved the costs of the appeal itself, and ordered the appellant to pay the costs of both summonses.
Why the court decided this way
Edelman J began by identifying an erroneous conflation by the appellant of the personal and subject-matter dimensions of jurisdiction. Citing authority that jurisdiction over the defendant implies either voluntary appearance or proper service, his Honour accepted that an unconditional appearance ordinarily waives irregularities in service. That waiver, however, operates only in the personal dimension. The requirement imposed by s 34(2) of the Judiciary Act that an appeal "shall not be brought without the leave" from an interlocutory judgment is a statutory limit on the subject-matter jurisdiction of the Full Court. Such a limit cannot be waived by a party, nor can an appearance create an estoppel that prevents the Court from satisfying itself of its own jurisdiction. The "first duty" of any court is to consider its jurisdiction; that duty cannot be displaced by the conduct of the parties.
Turning to the character of the order made by Gageler J, Edelman J applied the "usual test" that an order is final or interlocutory according to whether it finally determines the rights of the parties in the principal cause pending between them. The legal, not the practical, effect is decisive. Even if a second application would almost certainly fail, the legal possibility of bringing another application means the order is interlocutory. His Honour noted that the jurisdiction to grant prerogative relief is itself discretionary and that an order dismissing an application for such relief does not finally determine any party's rights.
The Court treated Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd as settled authority that an order refusing an application for an order nisi is interlocutory. That decision had itself relied upon Coles v Wood, which explained that refusal of prerogative or declaratory relief does not finally determine rights even if the reasons given might be persuasive in later proceedings. Edelman J rejected the appellant's attempt to distinguish the earlier case on the basis of a supposed difference in language between the old O 55 r 1(2) ("refusing") and the new r 25.03.3(a) ("dismissing"). The Court had in practice used both verbs interchangeably, and no relevant distinction existed. The order of Gageler J therefore fell squarely within the interlocutory category, leave was required, and the appeal filed without it was incompetent.
Before and after state of the law
Prior to the Statute Law (Miscellaneous Provisions) Act 1988 (Cth), s 34 of the Judiciary Act permitted appeals as of right to the Full Court from any judgment of a single Justice exercising original jurisdiction. The 1988 insertion of s 34(2) altered that position for interlocutory judgments. The Explanatory Memorandum made clear that the purpose was to relieve the Full Court of the burden of hearing misconceived appeals from rulings on interlocutory matters, such as refusals of applications that on their face appeared to be an abuse of process or frivolous. Appeals as of right were preserved for final decisions.
The law concerning the characterisation of orders refusing orders to show cause was already settled before 2018. Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd had decided the point in a joint judgment of five Justices. That decision had been followed repeatedly in the Full Court of the Federal Court. Edelman J's judgment reaffirms that line of authority, confirms that the 2004 Rules made no substantive change to the position under the 1952 Rules, and makes explicit that the distinction between personal and subject-matter jurisdiction prevents parties from conferring appellate jurisdiction by consent where statute withholds it. After this decision the law remains that any appellant wishing to challenge the dismissal of an order-to-show-cause application in the High Court's original jurisdiction must first obtain leave under s 34(2).
Key passages with plain-English translation
Edelman J stated: "The distinction relevant to Plaintiff S164's summons is between the 'personal' dimension of the court's jurisdiction over a defendant, in relation to which the defendant can generally waive irregularities of service, and the 'subject matter' dimension of the court's jurisdiction. Unless a statute permits, a defendant cannot waive a statutory requirement concerning subject matter jurisdiction." In plain English, appearing in court fixes problems about whether you were properly served, but it cannot give the court power to hear an appeal that a statute says cannot be brought without leave.
On the final-versus-interlocutory test the judgment says: "The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them." Translation: look at what the order legally does, not at how much it hurts in practice. If the law still allows you to try again on the same point, the order is only interlocutory.
The Court summarised the authorities thus: "The settled authority in this Court is that an order refusing an application for an order nisi is interlocutory in nature." Plain English: the High Court has decided this question before and the answer is clear; dismissing a show-cause application never counts as a final decision that ends the case forever.
What fact patterns trigger this precedent
This decision is triggered whenever a litigant files a notice of appeal from a single Justice's dismissal of an application for an order to show cause (or order nisi) without first obtaining leave under s 34(2) of the Judiciary Act. It is equally engaged when a respondent who has filed an unconditional appearance nevertheless wishes to object to the competency of such an appeal on the ground that leave is required. The precedent applies to any proceeding in the High Court's original jurisdiction that seeks prerogative or declaratory relief and is summarily dismissed under the show-cause procedure in r 25.03.3(a). It is not limited to migration cases; the constitutional argument advanced by the appellant was never reached because the procedural barriers were insurmountable. The decision is also engaged where a party argues that some form of submission or conduct by the opposing side has cured a statutory jurisdictional defect in the appellate process.
How later courts have treated it
The judgment itself records that Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd "has been relied upon on numerous occasions in the Full Court of the Federal Court of Australia" and describes it as "both longstanding and correct". Edelman J's reasons reinforce that authority and close off the specific arguments advanced by the appellant concerning the supposed difference between the old and new High Court Rules and the supposed inconsistency with McHugh J's decision in Gallo v Dawson. By treating the earlier decision as binding and by clarifying the non-waivable character of the leave requirement, the judgment strengthens the procedural gate-keeping role of s 34(2). Subsequent single Justices and the Full Court have continued to apply the same bright-line rule that dismissal of an order-to-show-cause application is interlocutory, thereby maintaining the requirement for leave and preventing unmeritorious appeals from reaching the Full Court without scrutiny. The decision has not been distinguished or criticised in the source material; it is presented as a straightforward application of existing principle.
Still-open questions
The judgment leaves open what should occur if an appellant who has filed an incompetent appeal subsequently files a proper application for leave and seeks to rely on the earlier filed documents. Edelman J noted that the Minister accepted that the documents "might be re-filed" in any leave application and for that reason reserved the costs of the incompetent appeal rather than making an immediate costs order. The precise mechanics and costs consequences of such a course therefore remain to be worked out in a future case.
A further open question is whether there could ever be circumstances in which dismissal of an application for an order to show cause could be characterised as final. The reasons emphasise that the legal possibility of bringing a further application is decisive even if that application would be "doomed to failure". Whether a truly exceptional case could overcome that presumption is not addressed. The underlying constitutional argument concerning the interaction between ss 189 and 196 of the Migration Act and s 75(v) of the Constitution was not reached at all; that substantive issue therefore remains undecided by the High Court. Finally, the precise boundary between the personal and subject-matter dimensions of jurisdiction in other statutory contexts is not exhaustively mapped; the judgment decides only that the leave requirement in s 34(2) falls on the non-waivable side of the line.