CONSIDERATION
22 The proposed grounds of appeal do not establish any error in the finding of the primary judge. Mr Singh has not established any error in the finding of the primary judge that his inherent power to set aside a notice of discontinuance should not be exercised. There is nothing to indicate that the notice was procured by fraud or duress or without knowledge or consent. It is clear from the primary judge's reasons that his Honour was alive to the power to set aside a notice obtained in certain circumstances and I refer to what his Honour says (at [10]-[11]) of his decision:
10. The difficulties that confront the applicant are twofold. Firstly, the application has been properly discontinued with leave of the Court. In these circumstances, the bases for obtaining the Court's leave to set aside a notice of discontinuance or reinstate proceedings are limited. This issue was discussed by Ryan J in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 where his Honour said:
17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 where his Lordship said, at 747;
'It was also not in dispute that if the action had been discontinued by an order made under Ord 21 r 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under Ord 15 r 6(2). Order 21, though with amendments, can be traced through Order 20 of the Rules of 1962 to Order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under Ord 21, r 3 and the application for the rectification of the order of 14 August 1985 has been dismissed.' (emphasis added)
18. Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 where Lord Scarman, with whom the rest of their Lordships agreed, said, at 571:
'The first issue is whether the notice of discontinuance can be struck out, and, if it can, whether it should be. It is accepted that under the Rules of the Supreme Court as they were in 1979 (for they have now been amended to take care of the situation which arises when interim payments have been made: see R.S.C. (Amendment No. 2) 1980, r. 4), the plaintiff, notwithstanding the two interim payments and the admission of liability, could discontinue without leave, if he did so not later than 14 days after service of defence. Lord Denning M.R. was, however, prepared to hold that our courts can, by the device of statutory interpretation, repair the omission in the unamended R.S.C., Ord. 21, r. 2 to provide for the case in which interim payments had been ordered and made before the expiry of the time limit. "I fear," he said, "that the draftsmen of interim payments forgot all about notices of discontinuance. Interim payments are quite inconsistent with a right to discontinue without leave"; [1980] 1 W.L.R. 833, 854H. Interim payments were made possible by the Administration of Justice Act 1969, section 20, and introduced into the law in 1970 by R.S.C., Ord. 29, rr. 12-17. Like Lord Denning M.R., I have no doubt that the failure to amend the rule relating to notice of discontinuance was a casus omissus. But I do not agree that it is an omission which the courts can make good by reading into the rule a provision that leave is needed when the rule expressly said it was not. Unless, therefore, it is possible to treat a notice of discontinuance without leave which complies with the Rules of the Supreme Court as an abuse of process (which is what Parker J. did), the notice cannot be struck out.
In the Court of Appeal, Lord Denning M.R. was prepared so to hold (p. 855). Brandon L.J. expressed no opinion. Shaw L.J., however, held that it was not possible. It seemed to him "an inversion of logic to speak of an act which purports to terminate a process as being an abuse of that process." (p. 864D). I am not sensitive to the logical difficulty. Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has 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 M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.'
19. In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court's inherent power to prevent injustice. In those circumstances his Honour observed, at [2] and [5];
'2 Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings. It is, however, permitted only if it does not amount to an abuse of process: Castanho v Brown and Root (UK) Ltd [1981] AC 557. Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality 'if justice requires'.
... ...
5 In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out. Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context. It was accepted by the respondent that the allegations, if made out, fell within its reach.'
20. In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.
21. Because of what I have concluded was an absence of power in the Federal Magistrates Court to set aside the appellant's discontinuance of his application to that Court, it follows that the appellant has failed to satisfy the first limb of the test erected in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case, a Full Court of this Court applied the principles enunciated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431 and observed, at 398:
'The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court". The second:
"is whether substantial injustice would result if leave were refused, supposing the decision to be wrong."'
11. In the case presently before me there does not appear to be anything that would show a basis for the Court setting aside a notice of discontinuance that would fall within the types of circumstances discussed in the above quote.
23 Even if there were error in that regard, no arguable case has been shown to the effect that Mr Singh demonstrated that he was enrolled in a registered course, and there is nothing to point to error in the conclusion of the primary judge that 'it was difficult to see' how the Tribunal could have reached any other conclusion in the circumstances. In my view, the decision of the primary judge not to set aside the notice is not attended by any sufficient doubt nor would there be substantial injustice in the circumstances I have described if leave to appeal were refused. The appeal in the circumstances described would be bound to fail.
24 In those circumstances, the application for an extension of time and leave to appeal must be dismissed with costs and I so order.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.