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[2018] HCA 51
respondent. Appeal dismissed as incompetent; appellant's summons of 24 September 2018 dismissed; costs of the appeal reserved; appellant to pay respondent's costs of both summonses.
A man in immigration detention asked the High Court to make the Minister show cause why he should not be released and why parts of the Migration Act should not be declared invalid. A single judge dismissed that application outright. The man appealed without first asking for permission to appeal. The Minister appeared and then asked the Court to throw the appeal out because permission was required. The man replied that once the Minister had appeared he could no longer object to the appeal going ahead. The Court held that appearing in a case does not let a party waive a statutory rule about the Court's power to hear certain types of appeals; the need for leave on interlocutory matters is a non-waivable subject-matter limit. It also confirmed that dismissing a show-cause application is only an interlocutory step, not a final decision, so leave was mandatory. The appeal was dismissed and the man was ordered to pay the costs of the arguments about competency.
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1,733 words · generated 24/04/2026
6 cited instruments linked from this judgment.
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.
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.
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).
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.
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.
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.
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.
Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51 7 November 2018 S229/2018
V A Kline for the appellant (instructed by Victor Alan Kline, Barrister)
C L Lenehan with K N Pham for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
High Court - Appellate jurisdiction - Leave to appeal - Circumstances when leave necessary - Distinction between interlocutory and final judgment - Where Judiciary Act 1903 (Cth) s 34(2) requires leave to appeal from interlocutory judgment of High Court exercising original jurisdiction - Where single Justice dismissed application for order to show cause - Where appellant filed notice of appeal without seeking leave to appeal - Whether judgment appealed from interlocutory or final - Whether appeal incompetent.
Courts - Jurisdiction - Different dimensions of jurisdiction - Where respondent entered unconditional appearance to the appeal - Whether submission to personal dimension of jurisdiction precludes respondent from impugning competency of appeal based on lack of subject matter jurisdiction.
Words and phrases - "application for an order nisi", "application for an order to show cause", "finally determines", "incompetent", "interlocutory judgment", "leave to appeal", "personal dimension of jurisdiction", "subject matter dimension of jurisdiction".
Judiciary Act 1903 (Cth), s 34(2). High Court Rules 1952 (Cth), O 55 r 1(2). High Court Rules 2004 (Cth), r 25.03.3(a).
EDELMAN J. Each party to this proceeding has brought an application by summons. Both relate to an appeal that has been filed against a decision of a single Justice of this Court dismissing an application for an order to show cause. The first application, by the Minister for Home Affairs, seeks to have the appeal dismissed as incompetent because it should have been brought as an application for leave to appeal. The second application, by Plaintiff S164/2018 ("Plaintiff S164"), seeks to have the first application dismissed as incompetent on the basis that the Minister had submitted to the jurisdiction of this Court in the appeal. On 11 November 2016, Plaintiff S164 was taken into immigration detention following the cancellation of his visa. On 20 June 2018, Plaintiff S164 filed an application for an order to show cause in the original jurisdiction of this Court. He sought writs of prohibition and habeas corpus directed to the Minister requiring his release from immigration detention, and declarations to the effect that ss 189(1) and 196(1) and (3) of the Migration Act 1958 (Cth) are invalid and that his detention under those sections is illegal. The sole ground on which that relief was claimed was that the impugned provisions of the Migration Act "so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the Constitutional structure". On 30 August 2018, Gageler J ordered that the application for an order to show cause be dismissed pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth) and Plaintiff S164 pay the Minister's costs. On 5 September 2018, Plaintiff S164 filed a notice of appeal in this Court, appealing from the whole of the judgment of Gageler J. The appeal purported to be brought as of right. Plaintiff S164 did not apply to the Court for leave to appeal. No leave to appeal has been granted by the Court. The Minister filed a notice of appearance on 14 September 2018. Subsequently, on 19 September 2018, the Minister filed a summons in this Court seeking orders that the appeal be dismissed as incompetent and that Plaintiff S164 pay the Minister's costs. The issue raised by the Minister's summons is whether the order made by Gageler J on 30 August 2018 is interlocutory so that leave is required to bring an appeal to the Full Court. Section 34(2) of the Judiciary Act 1903 (Cth) provides: "An appeal shall not be brought without the leave of the High Court from an interlocutory judgment of a Justice or Justices exercising the original jurisdiction of the High Court whether in Court or Chambers." On 24 September 2018, Plaintiff S164 filed a summons seeking orders that the Minister's summons be dismissed as incompetent and that the Minister pay Plaintiff S164's costs. The issue raised by Plaintiff S164's summons is whether, by filing the notice of appearance, the Minister's submission to the jurisdiction of this Court precludes him from impugning the competency of the appeal. Plaintiff S164's summons is based upon an erroneous conflation of the different dimensions of jurisdiction. Jurisdiction has a geographic dimension (venue), a personal dimension, and a subject matter dimension. One usual requirement for the personal dimension of jurisdiction is that the person has been properly served with the court's process or the person has submitted to the court's authority. As Brandeis J said, "jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or [proper] service of process upon him". An unconditional appearance filed by a defendant generally amounts to "a submission to the jurisdiction of the court and to a waiver of irregularity, eg in the manner of service". By submitting to the jurisdiction over her or him, the defendant will generally have waived irregularities in the manner in which the process was served. 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. Section 34(2) of the Judiciary Act creates a jurisdictional requirement of leave to appeal concerned with the subject matter of interlocutory judgments. The jurisdictional requirement is not concerned with the person over whom the Court exercises authority. The requirement for leave cannot be waived by a defendant. Nor can a defendant submit to a hearing in the absence of leave. Nor could the act of filing an appearance in the appeal somehow create an estoppel that precludes a defendant from making submissions about the scope of the Court's subject matter jurisdiction. Such a result would be inconsistent with the "first duty" or "threshold" consideration "of any Court, in approaching a cause before it, ... to consider its jurisdiction". Plaintiff S164's summons must be dismissed with costs. Turning to the Minister's summons, s 34(2) of the Judiciary Act was introduced by the Statute Law (Miscellaneous Provisions) Act 1988 (Cth). Prior to the introduction of that sub‑section, s 34 enabled a person to appeal as of right to the Full Court of the High Court from a judgment of a Justice or Justices exercising the Court's original jurisdiction. The Explanatory Memorandum for the Bill which introduced s 34(2) said that the introduction of a requirement for leave to appeal from an interlocutory decision: "will relieve the Full Court from having to deal with misconceived appeals from rulings on interlocutory matters, such as where a writ appears on its face to be an abuse of the process of the Court or where there is an attempt to institute a frivolous or vexatious proceeding. A refusal of the application for leave will be determinative of the matter. At the same time, a right of appeal will be preserved in respect of final decisions by the Court sitting in its original jurisdiction." 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". Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final. If it is open to the parties to bring another application then the legal effect is not final, even if the second application would usually be "doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application". The settled authority in this Court is that an order refusing an application for an order nisi is interlocutory in nature. In Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd, the applicants instituted two separate proceedings concerning the same issue. They filed a notice of appeal and an application for leave to appeal against a judgment of Toohey J refusing an application for an order nisi for writs of prohibition and certiorari. The two separate proceedings were instituted because the applicants were not sure if the judgment on the order nisi was interlocutory so that leave was required. In a joint judgment, five Justices of this Court said that the applicants "now concede - and rightly so - that the decision was interlocutory. As there is no appeal from an interlocutory decision except by leave of the Court, the notice of appeal must be struck out as incompetent." One case relied upon by their Honours was Coles v Wood, where Moffitt P (with whom Samuels JA agreed) said: "The jurisdiction to grant prerogative relief, for example in the nature of a certiorari, is also discretionary. The refusal of an application for such relief does not determine, finally or otherwise, the rights of any party. Whether the particular reasons given for a refusal of such an order for declaratory or prerogative relief will in a practical sense, be persuasive as to decisions to be given in other proceedings where the existence of the right claimed or its enforcement is at issue, does not stand against the conclusion that the order of dismissal is not final but interlocutory." One reason why an order to show cause does not finally determine the rights of the parties can be seen in the power to refuse to make the order simply on the basis that the application was premature and should be brought at a later time. The decision in 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. It has the merit of being both longstanding and correct. Contrary to the submissions of Plaintiff S164, it is not inconsistent with the earlier decision of McHugh J in Gallo v Dawson, which did not involve an application for an order to show cause. It is not possible to distinguish the decision in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd, as Plaintiff S164 attempted to do, by contrasting O 55 r 1(2) of the former High Court Rules 1952 (Cth) and r 25.03.3(a) of the High Court Rules 2004 (Cth). Under the former, the Court had power to make an order "calling on the proposed respondent to [show] cause why the writ or order should not be issued". This Court commonly made orders, as Toohey J did in the decision from which the incompetent appeal was brought in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd, that the application was either granted or refused. Contrary to the submissions of Plaintiff S164, there is no relevant difference between "refusing" an application for an order to show cause made under O 55 r 1 and "dismissing" an application for an order to show cause under the later r 25.03.3(a). The order of Gageler J on 30 August 2018 dismissing the application for an order to show cause was interlocutory in nature. Accordingly, leave to appeal is required under s 34(2) of the Judiciary Act. The appeal is incompetent and must be dismissed. Plaintiff S164 must pay the Minister's costs of the summons. In these circumstances, where an application for leave may be filed and the Minister accepts that the documents filed in the incompetent appeal might be re-filed in the application for leave, it may be appropriate for costs of the appeal to be costs in a future application for leave. The appropriate order at this stage is that costs of the appeal are reserved.
Plaintiff S164/2018
Minister for Home Affairs
Appeal dismissed as incompetent; appellant's summons of 24 September 2018 dismissed; costs of the appeal reserved; appellant to pay respondent's costs of both summonses.