Reza Barzideh v Minister for Immigration and Ethnic Affairs, unreported, 12 February 1997 - not followed

· The order was signed under the hand of the District Registrar on 4 October 1996. In the heading of the order, "Yong Jun Qin" was shown as the applicant and "The Minister for Immigration and Multicultural Affairs" was shown as the respondent. · On 22 October 1996 the applicant filed an Amended Application for an Order of Review, naming the Minister as respondent. · On 25 February 1997 the respondent filed a Notice of Objection to Competency on the grounds that: "1. The decision is a judicially reviewable decision within the meaning of Section 475 of the Migration Act 1958. 2. The party purportedly originally named as a Respondent to this Application is incapable of being named as a party to this Application pursuant to paragraph 480(a) of the Migration Act 1958." As will be seen, in argument before us the respondent expanded upon these grounds, but nothing turns on this for our purposes. It is accepted by the applicant, and properly so, that on the question of jurisdiction the respondent should not be confined to the grounds in his Notice of Objection. The question for us is, in substance, whether the respondent's objection to competency ought to be upheld or overruled. THE LEGISLATIVE SCHEME In order to understand the present question, which is one of statutory construction, it is necessary to refer to the legislative scheme. Division 2 of Part 8 of the Act deals (in ss.475 to 486) with the review by this Court of certain decisions made under the Act (see, generally, Minister v Ozmanian (1996) 141 ALR 322). The decisions which are reviewable are relevantly described by the provisions of s.475 as follows: "475.(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions: (a)decisions of the Immigration Review Tribunal (b)decisions of the Refugee Review Tribunal; (c)other decisions made under this Act, or the regulations, relating to visas. (2) The following decisions are not judicially-reviewable decisions: (a)... (b)... (c)... (d)... (e)... (f)... (g)..." The application for review is relevantly dealt with by s.476(1) as follows: "476.(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a)... (b)... (c)... (d)... (e)... (f)... (g)... (2) The following are not grounds upon which an application may be made under subsection (1): (a)... (b)... (3) ... (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a)... (b)..." By s.477 it is provided that an application may be made to this Court for an order of review in respect of the failure to make a judicially-reviewable decision where there is a duty to make a decision. The application for review by this Court is dealt with by s.478 as follows: "478.(1) An application under section 476 or 477 must: (a)be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." Provision is made by s.479 as to the persons who may make an application as follows: "479. An application under section 476 or 477 may only be made by: (a) if the judicially-reviewable decision is covered by paragraph 475(1)(a) or (b) - the Minister or the applicant in the review by the relevant Tribunal; or (b) if the judicially-reviewable decision is covered by paragraph 475(1)(c) - the person who is the subject of the decision." Section 480, which is of central significance for present purposes, makes the following provision with respect to the parties to the review: "480. The parties to the review of a judicially-reviewable decision are the Minister and: (a) if the judicially-reviewable decision is covered by paragraph 475(1)(a) or (b) - the applicant in the review by the relevant Tribunal; or (b) if the judicially-reviewable decision is covered by paragraph 475(1)(c) - the person who is the subject of the decision." (Emphasis added) Relevantly, the Court's powers on an application for review are described by s.481 as follows: "481.(1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: (a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties." The operation of a judicially-reviewable decision is relevantly dealt with by s.482 in these terms: "482.(1) Subject to this section, the making of an application under section 476 to the Federal Court in relation to a judicially-reviewable decision does not:

(a) affect the operation of the decision; or (b) prevent the taking of action to implement the decision; or (c) prevent the taking of action in reliance on the making of the decision. (2) If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. (3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision..." Intervention by the Attorney-General is provided for by s.484 as follows: "484.(1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding under this Part. (2) If the Attorney-General intervenes in a proceeding, the Court may, in the proceeding, make such order as to costs against the Commonwealth as the Court thinks fit. (3) If the Attorney-General intervenes in a proceeding he or she is taken to be a party to the proceeding." The Act does not confer on the Court any other jurisdiction in relation to judicially-reviewable decisions. Section 485(1) provides: "485.(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903." (Emphasis added) The Court's jurisdiction is, subject to s.75 of the Constitution, exclusive. Section 486 provides: "486.The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution." THE EXISTING STATE OF AUTHORITY ON THE PRESENT QUESTION Although four Judges of the Court have considered the present question, no unanimous view has emerged. In Reza Barzideh v Minister for Immigration and Ethnic Affairs, 12 February 1997, unreported, Hill J. said (at 10): "It follows from s478 of the Act that the application to be lodged with the Court within the time stipulated must be an application to which the Minister is a party. So much appears from s480 of the Act which so stipulates. But what happened here is that the application was an application to which the Minister was not a party at all. It purported to be an application to which the Tribunal was a party. It was only as a consequence of a subsequent order by Nicholson J that the Tribunal ceased to be a party and for the first time the Minister became a party. But that order was made more than twenty-eight days from the date of notification of the Tribunal of the decision. It was an order which the Court was not authorised to make. It should, in my view, be set aside as incompetent. The order being interlocutory, there can be no doubt of the power to set it aside, notwithstanding no appeal was brought from it." In Herman Mutaruha Chikonga v Minister for Immigration and Multicultural Affairs, 6 March 1997, unreported, R.D. Nicholson J. said (at 5): "Two matters necessarily follow from the requirement in s480 that the Minister be the respondent party when read with s478. The first is that unless the Minister is made the subject of an application within the period of twenty eight days, no application may be brought: s478(1)(b). In Minister for Immigration and Multicultural Affairs v Ozmanian [above] at 346, Sackville J, with whom Jenkinson and Kiefel JJ agreed, described the time limits in PtVIII of the Act as 'stringent'. The second is that if an order is made amending an application referring to a party other than the Minister and the amendment is made outside the twenty eight day period, that will be an order which has the effect of allowing an applicant to lodge an application against the Minister outside the specified period, contrary to s478(2). From the perspective of the statutory mandated respondent (the Minister) there is no application until he or she becomes a party to it. This is so even though the amendment may have been made on the motion of the respondent and by consent because the respondent lacks the authority to so move the Court and to so consent in the light of s478(2). For these reasons I consider the relevant reasoning in Barzideh is applicable here and the application should be dismissed. It should be noted that in his reasons in Barzideh, Hill J concluded he was 'constrained by the legislature to sit idly by while injustice is done'. That was a conclusion open to him because of the decision which he had reached in relation to the reasoning of the Refugee Review Tribunal. Although the reasoning of the Tribunal has not been argued before me, I share with Hill J in a sense of injustice at the application of the statutory technicality." In Ashni Lata Gounder v Refugee Review Tribunal 20 March 1997, unreported, Emmett J. said (at 5-6): "Hill J made some observations which were echoed by Nicholson J to the effect that there may well be an injustice occasioned by the mandatory terms of sections 478 and 480. Be that as it may, if that decision is correct, I have no doubt that the application is incompetent and should be dismissed on that ground. The language of section 480 is curious in so far as it says that 'the parties to the review of a... decision are the Minister...'. That is to say, the section does not say that the Minister must be joined as a party but simply says that he is a party. On the other hand it is difficult to see what work those words would have to do if Hill J is not correct. I would therefore follow his decision. In this case the application, as was the case in Barzideh's case, was one in which the Minister was not named as a party as such. It purported to be an application to which the Tribunal was named as a party. It would follow that the application should be dismissed as incompetent." However, Davies J. took a different approach in Zhen Gang Liu v Minister for Immigration & Multicultural Affairs, 18 March 1997, unreported. His Honour first observed this (at 2): "The principal point put by the solicitor for the Minister is that the Minister was not named as a respondent. Although the name of the respondent was omitted from the application, there had been stamped on the application at the time of filing against the words 'To the respondent address', the following:- 'To: The Respondent/s c/- Australian Government Solicitor Level 24, Piccadilly Tower 133 Castlereagh Street Sydney NSW 2000 GPO Box 2727 Sydney 2000; DX 444 Sydney Attn: Julia Hall' That is a stamp which is regularly placed on such applications by officers of the New South Wales District Registry at the time when the applications are filed. Apparently the application was served in accordance with the above note, for on 31 December 1996, the Minister for Immigration & Multicultural Affairs appeared, the notice of appearance recording Mr Liu as applicant and the Minister as respondent. Subsequent documents filed have been similarly headed. The solicitor for the Minister submitted that the application was invalid, not having named the Minister for Immigration & Multicultural Affairs as respondent, at least within 28 days of the applicant's being notified of the decision of the Immigration Review Tribunal. Lodgment within the 28 days criterion is not in issue, the point being that the Minister was not named as the respondent within that time." Davies J went on to say (at 3-4): "Compliance with s 478(1)(b) is mandatory, for s478(2) so provides; but that does not mean to say that every relevant provision of the Federal Court Rules must be strictly complied with. The Rules themselves provide for dispensation from compliance and for amendment. [His Honour referred to Order 1 r 8]. Order 13 r 2 provides:- '2(1)Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. 2(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. 2(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current, at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so. 2(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party. 2(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.' If these rules needed any enhancement, which I think they do not, s 25C of the Acts Interpretation Act 1901 (Cth) provides:- '25C.Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.' In a matter such as this, it is, I think, sufficient that there be substantial compliance with the procedural requirements of s 478(1)(a). It is sufficient for me to refer to Hamilton v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 349; Hakim v Minister for Immigration & Ethnic Affairs (1994) 49 FCR 495 and Ali v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 178)." His Honour said (at 4-5): "In the circumstances of the case, I have no doubt that there was substantial compliance with the procedural requirements. The application was, on its face, an application seeking a review by the Federal Court of a decision of the Immigration Review Tribunal, which decision was annexed to the application. The application specified, not in legal terms, but at least in general terms, the reasons why the applicant sought review of the decision. There was only one fault with the document, ie, that the name of the respondent was not included. This is a defect which the Court can remedy, for s480(a) of the Migration Act specifies who the parties to the application are. As the Rules provide that, where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made, I consider that this Court may insert the name of the party specified by s480 of the Migration Act, the applicant having been unaware of the name of the respondent. I assume that the respondent was unaware that the Minister of Immigration & Multicultural Affairs must be a party to the proceedings for that name was omitted from the application. It is understandable that this was so, for this was not an ordinary lis inter partes, in the sense of a dispute between two persons. Traditionally indeed, proceedings by way of certiorari have been brought in the name of the Crown. It is interesting to note R v Immigration Appeal Tribunal; ex parte Alexander [1982] 1 WLR 302, which, on appeal, was named Alexander v Immigration Appeal Tribunal [1982] 1 WLR 1076. What the applicant sought in the present case was review by the Court of a decision of the Immigration Review Tribunal. The Migration Act required the Minister to be a party but no part of the applicant's claim concerned an act or omission of the Minister. In my opinion, the omission of the name of the Minister did not invalidate the application which, on its face, was an application seeking review by the Court of a judicially-reviewable decision and which was directed to and served upon the Minister's solicitor, the Australian Government Solicitor." Davies J. distinguished the decisions in Barzideh and Chikonga as follows (at 5): "The solicitor for the Minister has asked me to follow the decisions in Barzideh... and Chikonga.... I am troubled that neither of those decisions discussed the authorities on substantial compliance which I have mentioned or authorities on the amendment of parties under O 13 r 2, particularly sub-rules (3) and (5), which permit an appropriate amendment to be made though a period of limitation has expired. Indeed, one view of the legislation is that once an application satisfying the description in s 476(1) has been lodged within the time prescribed by s 478(1)(b), then if the application has not named the parties correctly in accordance with s 480, that section makes amendment of the application mandatory. However, it is not necessary for me to consider the decisions further. They raise a point which is different from the present and do not bind me on the facts which are here in issue." THE RESPONDENT'S SUBMISSIONS On behalf of the respondent, it is submitted that, read in context, s.480 imposes on an applicant for review of a decision of the Tribunal a mandatory obligation to name the Minister as respondent to the application for the following reasons: · The respondent is not the Minister in the application as it was filed and, thus, the application does not fall within the strict and mandatory provisions of s.480. There was no right in the applicant to have commenced this proceeding against the respondent and this Court has no jurisdiction to entertain such an application (and see s.485(1)).

· In examining the meaning and effect of s.480, the pivotal word is "are". It is not used to indicate or declare a state of being, but rather to specify a mandatory obligation upon an applicant. The word "are" is one of the remaining parts of the original substantive verb. It is a form of the verb "be" or "to be". The use of the word "are" in the present legislative context is unusual. · In its context, in order to give some proper meaning to the word "are", one should read it in such a way so as to infer the words "to be" after it. Thus the provision would commence and be understood to mean: "The parties to the review of a judicially-reviewable decision are (to be) the Minister and...". · This is the approach which was taken in Barzideh and also accepted in Chikonga and Gounder. The respondent then submits that this Court, on the true construction of the Act, the Federal Court of Australia Act 1976 and Federal Court Rules, does not have power in the present circumstances to permit the amendment of the application, nunc pro tunc or otherwise, so as to name the Minister as respondent for the following reasons: · Section 478(2) when read in conjunction with s.478(1)(b) must lead to the conclusion that the only amendment which may be permitted by the Court is one which is made within 28 days of the applicant being notified of the decision. · Section 19(1) of the Federal Court of Australia Act provides: "(1)The Court has such original jurisdiction as is vested in it by laws made by 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." · Section 23 of the Federal Court of Australia Act provides: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kind, including interlocutory orders and to issue, or direct the issue of, writs of such kind, as the Court thinks appropriate." · Section 38 of the Federal Court of Australia Act provides: "(1)Subject to any provision made by or under this Act or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act. (2)In so far as the provisions for the time being are applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any direction of the Court or a Judge, to the practice and procedure of the Court. (3) In this section 'practice and procedure' includes all matters to which Rules of Court may be made under this Act." · Section 59(1), (2B) and (3) of the Federal Court of Australia Act provides: "59(1) The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court (including the practice and procedure to be followed in Registries of the Court) and for and in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. ... 59(2B) The Rules of Court may make provision for- (a) the amendment of a document in a proceeding; or (b) leave to amend a document in a proceeding; even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment. 59(3) Rules of Court under this Section have effect subject to any provision made by another Act or by rules or regulations under another Act, with respect to the practice and procedure in particular matters." (The terms of O 13 r 2(4) and (5) of the Federal Court Rules, dealing with the Court's power to amend in order to correct the name of a party, are set out above in the passage cited from the judgment of Davies J. in Liu.) · Section 478 is quite specific in the time limits given for the commencement of proceedings. To attempt to apply O 13 r 2 in the current circumstances is to seek to extend a limitation period when such extension is expressly stated as not being capable of extension. Order 13 r 2 assumes that there is no legislative bar to a grant of leave to commence out of the time prescribed. The Act is quite specific. Section 478(2) provides that the Court "must not make an Order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)". Any amendment of an application purportedly made outside the 28 day period must be seen as a clear breach of the provisions of s.478(1) and (2). These provisions were noted by the Full Court in Ozmanian, above, at 340, to contain very "stringent" time limits. · Davies J. relied upon the provisions of s.25C of the Acts Interpretation Act to the effect that where "an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient". But s.480 of the Act does not merely relate to a "form". Rather, it is a strict legal requirement imposed by the Act that the Minister shall be a party to the review. · At common law (see Sneade v Wotherton [1904] 1 KB 295 at 297) and by virtue of O 13 r 5 of the Federal Court Rules, the amendment purportedly permitted on 1 October 1996 may have taken effect as and from the date of the original application. However, it will be recalled that the order made by Ryan J. provided for the filing of an amended application outside the 28 day period as permitted in s.478(1). It will be remembered that the order was as follows: "The applicant file and serve within 21 days an application substituting the Minister for Immigration and Multicultural Affairs as the respondent and providing proper particulars of the grounds relied upon in his or her Application including particulars of the date of notification". But until the order was complied with, the Minister was not, in fact, joined or substituted as a party. The order was not "directory" of an amendment if it was only "permissive" in effect. It is further submitted for the respondent that the applicant did not make a "mistake" within the meaning of O 13 r 2 of the Federal Court Rules. On the contrary, it is said, the applicant intended to name the "Immigration Review Tribunal constituted by Ms Niki Dollis" as respondent. The fact that he did so on erroneous advice from an officer of the Court does not make his actions a "mistake" (see Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 and Brickworks Ltd v The Council of the Shire of Warringah (1963) 108 CLR 568 at 577). In contending that O 13 r 2 could have no application here, the respondent relies upon the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231. There, the owner of cargo damaged in transit sued the company it had engaged to arrange the carriage. The defendant issued a third party notice against the registered owner of the vessel, Grand Shipping S.A. The defendant later discovered that, at the time of the carriage, the vessel had been under charter to Rainbow Lines S.A., which had therefore been the carrier of the goods. By then, the time for suing Rainbow for indemnity or contribution had expired. The defendant applied to the Supreme Court of Victoria under Rule 36.01, the equivalent of O 13 r 2, to substitute Rainbow as a party for Grand. The application was refused at first instance and in the Full Court. An appeal to the High Court was dismissed. It was held that in issuing the third party notice against the owner, the defendant had not made a mistake "in the name of a party" within Rule 36.01(4), because it had intended to sue the owner of the vessel, believing that its right of action lay against the owner.

The respondent contends that this Court does not have jurisdiction to try the application for an order to review under the Act in the present circumstances. The application, he says, has not been brought in compliance with the Act. This Court is limited in its jurisdiction to that determined expressly by Parliament (see s.19(1) of the Federal Court of Australia Act). The failure to name the Minister as the respondent and thus to comply with the provisions of ss.478, 479 and 480, results in the Court having no jurisdiction to try the application. This follows, the argument runs, from a plain reading of s.485 and ss.474 to 480. It is then argued that, in its operation, s.478(2) prescribes that there can be no power or jurisdiction vested in the Court to allow an application to be lodged outside the 28 days from the date of the applicant being notified of the decision. Any application to amend an application brought outside the 28 day period should be dismissed, it is contended, for lack of jurisdiction. CONCLUSIONS Before dealing with the question raised, we are bound to say that we share Hill J's reaction that an injustice was involved as a result of the taking of this point by the Crown. That is the more to be regretted when the point is taken by a party which is expected to act, and to be seen to act, as a model litigant. It is worth recalling the observations of Griffith CJ. in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 as follows(at 342): "The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings. I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken." See also Kelson v Forward (1995) 39 ALD 303 per Finn J. at 326-7; and SCI Operations Pty Ltd v Commonwealth of Australia (1996) 139 ALR 595 at 613. It may be said, however, that the present point is jurisdictional, rather than a question merely concerned with practice and procedure. The distinction is, of course, well recognised (see, e.g. Russell v Russell (1976) 134 CLR 495). That is, it may be said that what Griffith CJ. had in mind concerned only procedural questions; and that if it appeared to the Crown that a court lacked jurisdiction, the Crown was not only justified, but bound, to draw the possible absence of jurisdiction to the attention of the court. But we cannot accept that there was any absence of jurisdiction here. Rather, in our view, the issue in question was purely procedural and lay within the competence of this Court to deal with. With all respect to those who have held otherwise, we are of the opinion that the approach adopted by Davies J. in Liu was correct. Upon analysis, the respondent's argument must be that as a matter of the construction of Division 2 of Part 8 of the Act, and of s.480 in particular, it is a jurisdictional fact, upon the existence of which the Court's jurisdiction is dependent, that an applicant actually name the Minister as the respondent in the form of application; so that omission to do so, the argument is, must mean that this Court never (that is, within or outside the 28 day time limit) has jurisdiction to entertain the matter in question, being the claim for judicial review of the Tribunal's decision. We cannot accept the argument. There is nothing in the language of Division 2 to that effect, and there is not, we think, any reason of logic, experience or otherwise, for reading such a requirement into the Act. On the contrary, the injustice and extreme inconvenience, which would flow if the implication suggested by the respondent were to be accepted, are, in our view, sound reasons why the implication should not be made (see CIC Insurance Limited v Bankstown Football Club Limited (1997) 141 ALR 618 per Brennan CJ., Dawson, Toohey and Gummow JJ. at 635; Cooper Brookes (Wollongong) Pty Limited v The Commissioner of Taxation (1981) 147 CLR 297 per Mason and Wilson JJ. at 320-1. In order to characterise a mere matter of form as "jurisdictional", extremely clear language is needed. An analogy may be found, of a sort that is very much a fortiori, in a frequently cited passage in Parisienne Basket Shoes Proprietary Limited v Whyte (1937) 59 CLR 369, where Dixon J. said (at 391): "It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed." It would be surprising if the Act were to be construed to mean that the consequence of a failure by an applicant to take the procedural or formal step of correctly naming a particular party as respondent, is that the Court lacks any jurisdiction to deal with any aspect of the matter. On the other hand, failure to take such a step could readily be seen as a question of practice and procedure and thus within the jurisdiction, and power, of the Court to entertain in the exercise of its discretionary powers to control its procedures. In our view, the language of Division 2 of Part 8 makes it clear that the "matter" in respect of which the Court is invested with jurisdiction is, relevantly, an application under s.476, pursuant to s.475(1), to review the decision of the Tribunal. The Court is seized of that matter upon the filing of an application applying for review of that decision. The same act does not deprive the Court of its jurisdiction, by reason of any failure to identify or name a party correctly (cf. Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219). This is an area which is governed by the Court's procedures, to be applied in the context of the provisions of s.480. As Davies J. observed, what an applicant is seeking is review by the Court of the Tribunal's decision. Section 480 requires the Minister to be a party, but no part of an applicant's claim concerns an act or omission of the Minister.

In our view, the evident purpose of s.480 is, first, to make it unnecessary for the decision-maker (the Tribunal) to appear (cf. R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13); and, secondly, to avoid the need for the Minister to apply to be joined as a party to the judicial review proceedings. But, significantly for present purposes, there is nothing that we can find in the language or evident intent of s.480 to suggest that a failure to name the Minister as respondent will have the effect of depriving the Court entirely of jurisdiction in the proceedings. Section 480 does no more than remove any doubts as to the identity of the proper parties to the proceedings by declaring who those parties are, subject to any intervention by the Attorney-General under s.484. Section 480 is declaratory of the position as to parties and it operates upon an existing claim before the Court. Such a claim is under the Court's jurisdiction if it is within ss.475, 476 or 477. Section 480 does not purport to oust that jurisdiction or create it but to shape what shall be one of its incidents. Nor is it framed as an imperative requirement to reflect that incident in the form of the initiating document lodged with the Court: cf. Clayton v Heffron (1960) 105 CLR 214 at 247. Support for our construction of s.480 may be found by contrasting the language used in other provisions of Division 2 of Part 8 where an intention to confine the jurisdiction or powers of the Court may be discerned. For instance, as has been seen, s.478(1) provides that an application "must" be made in a particular manner and lodged within a specified time. (The prescribed manner is as specified in the Court's Rules, which, it may be noted, make provision for amendments, where they are actually necessary for the determination of the real issues.) By s.478(2) it is provided that the Court "must not" make certain orders (not here material). By s.485(1), it is provided that the Court "does not have jurisdiction" in respect of certain decisions (not here material). On the other hand, the different language of s.480 merely provides that the parties to the review are the Minister and the other persons specified. It is not there suggested that a failure to name the Minister in the application has any particular consequences. That question is not addressed by s.480 to any extent. Jurisdiction of the Court is not mentioned in s.480. In our opinion, the naming of the Minister is not a jurisdictional fact upon the existence of which will depend whether the Court has jurisdiction. Moreover, we think that Bridge Shipping should be distinguished for present purposes. We agree with Davies J. that the present question arises in a public law context, and that the considerations which are relevant to the joinder of parties in private litigation, as Bridge was, are not pertinent here. In our view, the Court is seized of jurisdiction to review a decision of the Tribunal of the kind described in s.475(1), whether or not the applicant names the Minister in the application. In some circumstances, as Davies J. held, there will, in any event, be substantial compliance with the general procedural requirement of the Court that all proper and necessary parties be joined by name. In other circumstances, by application of the maxim "falsa demonstratio", it may be held, the relevant intention being manifest, that a failure to name the Minister is not a fatal error (see, e.g. Wingadee Shire Council v Mary Willis (1910) 11 CLR 123 at 148). But we need not pursue these aspects here. It is sufficient for us to hold, as we do, that the Court always had jurisdiction to entertain the present application for judicial review. We have dealt only with the objection to competency, that is, the question of jurisdiction. In the present case, and in the other cases where the point was dealt with, the respondent also applied for summary dismissal of the proceedings, but on the same jurisdictional grounds. Although summary dismissal may be ordered on that ground and of course other grounds, including abuse of process, our reasoning would also lead to the conclusion that any application for summary dismissal for lack of jurisdiction must also fail. There is plainly no abuse of process involved in the present case by amending a form of application so as to accord with the position declared by the terms of s480 of the Act. For completeness, we should add that, assuming as we have held, that the Court has jurisdiction in the claim for judicial review, it must follow that the Court has power, in the proper exercise of its judicial discretion, to permit any necessary or appropriate amendment to the form of the application filed, including any amendment necessary to ensure that the form of application names the correct parties on both sides of the record. It must also follow that it is within the jurisdiction of the Court to exercise this power either before, or after, the expiration of the period of 28 days after the applicant is notified of the Tribunal's decision. Upon lodgement of a form of application in the matter within the 28 day period, the Court is, as has been said, seized of the claim and the Court may at any time thereafter deal with the matter in accordance with the Court's practice and procedure, including its power of amendment. If necessary, that power may be exercised by the Court of its own motion (see O 13 r 2(1)). ORDERS As has been said, the question for us is, in substance, whether the respondent's objection to competency ought to be upheld or overruled. The special case raised a number of specific questions which we need not set out, as the representatives of the parties now agree that, in lieu of those questions, the more general question of law as we have stated it, should be answered. We make the following orders:

1. That in lieu of the questions stated in the special case, the following question should be answered: "Q. Should the respondent's objection to competency be upheld or overruled?"
2. That this question be answered as follows: "A. The objection should be overruled."
3. That the respondent pay the applicant's costs of the special case and of the proceedings before the Full Court.
4. That the matter be remitted to a single Judge to be dealt with in accordance with these reasons. I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment herein of the Court Associate: Dated: 6 June 1997 Counsel for the Applicant: R Niall

Counsel for the Respondent: A Robertson SC with R Downing

Solicitor for the Respondent: Australian Government Solicitor