SZCZF v Minister for Immigration and Citizenship

An Inherent or Implied Power? 17 In addition to such express power as is conferred to vary an order once entered, in departure from the general rule that such orders are final, stands the prospect that the Court may have an "inherent power" or an "implied" power. 18 In S353, for example, such an "inherent power" was referred to - but not invoked. Emmett J, with whom Allsop and Middleton JJ agreed, there referred to Order 35 r 7 and set forth the circumstances in which this "inherent power" could be exercised as follows: [20] However, no provision of the Rules can deprive the Court of the inherent power that it has to set aside an order made in the absence of a party or an order made at a hearing of which the party had no notice (see Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 8). That is to say, it is an incident of the exercise of the judicial power of the Commonwealth that the Court may, in an appropriate case, set aside its own order if it is satisfied that there is a proper explanation for the non-attendance of a party at a hearing at which the order is made. However, given that the power exists, it is clearly discretionary (see Taylor at 8). In the absence of an adequate explanation for the non-attendance, the orders previously made were there not set aside. In Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 at [13], Beaumont, Kiefel and Hely JJ also acknowledged a limited power in an "exceptional case" to revoke orders made by consent. 19 Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM, the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353: [22] This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders - implied or inherent power. This, of course, was the subject of DJL v The Central Authority 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the Judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority 201 CLR 226, such an unqualified proposition even supported by Taylor v Taylor 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v Central Authority 201 CLR 226 to any examination of this Court's power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application. 20 Although the Court may not have an "inherent power", as a Court created by statute, it does have all the "powers expressly or by implication conferred by the legislation which govern[s] it" and has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred": ­DJL v The Central Authority (2000) 201 CLR 226 at [25], cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30], 141 FCR 291 at 296. In VTAG, Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 619, that the Court's "incidental and necessary powers" are "no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction". From this, their Honours in VTAG held thatthe Court had power to set aside a consent order where the parties consent and had "in very limited circumstances" a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20], 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not "evince an intention that only orders under paras (ba) and (bb) can be varied or set aside": [2005] FCAFC 91 at [32], 141 FCR 291 at 295. 21 The setting aside of consent orders, it was suggested, may attract different considerations than the setting aside of other orders. Their Honours thus observed: [26] There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not inquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court. Reference was there also made by their Honours to Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 where Brennan J, sitting as a judge of the Australian Capital Territory Supreme Court, also recognised exceptions to the general rule that a perfected judgment cannot be recalled or varied. The Court, it was said, had an "inherent jurisdiction to ensure that its procedures do not affect (sic) injustice". See also: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [150] to [151]. 22 In VTAG the Full Court concluded that there was power to set aside consent orders previously made and entered in circumstances where there was consent to the orders being set aside, there was no improper purpose and there were no rights of third parties affected. 23 The "very limited circumstances" envisaged by VTAG, it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8]; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34], 220 ALR 706 at 715. 24 It is unnecessary to resolve the extent of any "inherent power" or any "incidental power". The power referred to in S353 was a power which was said to be available to vary orders made in the absence of a party. Such was not the present case. The orders as made in July 2007 were made with the express consent of the now Applicant. The Minister does not consent to the July 2007 orders now being set aside and the facts do not come within the limited exception embraced by Harvey v Phillips. No injustice, it is considered, is occasioned by holding the Applicant to the decision he made in July 2007.

Supplemental Orders 25 It has further been suggested that the Court has limited power to make "supplemental orders": Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (1993) 45 FCR 224. Lee, Hill and Cooper JJ there observed at 234 to 236: There is no doubt that the common law rule is that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside that judgment. The only remedy in such a case for a dissatisfied litigant is, where available, an appeal: Re St Nazaire Co (1879) 12 Ch D 88; Re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693 at 697 per Fry LJ and at 698 per Lopes LJ; and cf Gamser v Nominal Defendant. The general rule admits to certain exceptions but these are, so the respondent submits "severely circumscribed". One such exception is the "slip rule": see L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; another exception is fraud and a third relates to self-executing orders. None of these is relied on in the present case. Order 35, r 7 of the Federal Court Rules sets out exceptions to the general rule that the court will not vary or set aside judgments. These examples largely reflect the common law position. None is here relevant. However, Caboolture relies upon what is said to be the power of courts to make supplemental orders where circumstances make it necessary so to do. That in an appropriate case a supplemental order may be made after judgment is entered, is clear from Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141. The true principle was expressed in that case by Lord Lindley (at 143-144) as follows: This is not an application to alter an order on the ground of some slip or oversight. Nor is it a case in which the order has not been drawn up. Here the order has been drawn up, and it expresses the real decision of the court; and that being so, the Court has no jurisdiction to alter it. If this summons had proceeded on the theory that the order of the 11th of July was right, and that circumstances had since occurred which had rendered a supplemental order necessary, the Court might have entertained the application; but this summons proceeds on the theory that the order of 11 July is wrong. In my opinion, it is of the utmost importance, in order that there may be some finality in litigation, that when once the order has been completed it should not be liable to review by the judge who made it. Critical to the jurisdiction of the Court is first that the application not be one in any way to vary or alter the initial order. The present application does not seek to do this. It is, in the sense used in the cases, a supplemental order. … The principle behind denying the right of a court to vary or alter a judgment regularly given and entered is the need for finality of litigation. The Court has adjudicated upon the facts of the claim brought by a plaintiff against a defendant, found for one side and entered the relevant judgment. Neither the facts nor the law are to be agitated again, save on an appeal. But the issues involved where a claim is made against a solicitor for costs by a party to the litigation have not been determined by the judgment which has been entered. They remain yet to be resolved. The power to make such "supplemental orders", it will be noted, is not a power "to vary or alter a judgment regularly given …". 26 The revocation of the July 2007 Order certainly cannot be characterised as "supplemental orders". 27 No other source of power to vary or revoke the order as made in July 2007 has been identified.

Further Difficulties 28 A number of further difficulties confront the present Applicant. 29 First, unlike the position confronting Allsop J in NAZL where an application was being made to vary orders made by a Court comprised of three Judges, the orders as made by North J were made by His Honour sitting as a Full Court pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). But, even so, the propriety of a single judge of this Court entertaining a Notice of Motion filed in the same proceeding to vary or revoke an order as made by a different judge is not to be accepted unquestioningly. In the absence of a reason to do so, any such Motion should normally be heard by the Judge who made the order sought to be varied or revoked. Indeed, in circumstances where an application to vary an order is sought, much may depend upon the procedural history of the litigation or the substantive issues resolved. In those circumstances, the Judge who made the order is in the best position to resolve any subsequent application. 30 In the present proceeding, the Order sought to be varied does not depend upon any understanding of any preceding history or the substantive issues to be resolved. North J has in any event consented to the Court as presently constituted hearing the Motion. 31 The second difficulty, and one which cannot as easily be resolved in favour of the Applicant, is that the Affidavit filed in support of the Notice of Motion only provides an explanation as to the circumstances in which consent was given to the Appeal being dismissed. The Affidavit provides no factual basis upon which the Applicant could bring himself within any of the limited exceptions that there may be to the July 2007 Order otherwise being final. There is no suggestion that the Order as previously made involved any fraud or abuse of process. The simple fact is that in July 2007 the Applicant made a decision - he could either proceed with the hearing of the Appeal in this Court or he could agree to have that Appeal dismissed so that the Minister would give consideration to his case. The letter he received from the Department in late June 2007 stated in part as follows: As you may be aware, section 417 of the Act provides the Minister with the power to substitute, for a decision of the Refugee Review Tribunal, a decision that is more favourable to the applicant. You should also be aware that the Minister is under no obligation to exercise or consider exercising that power. While the Minister has the power to intervene in your case, it would be inappropriate for him to do so at this time as you are currently engaged in migration-related litigation. Accordingly, no further action will be taken in respect of this request. Having received that letter, and having spoken with the author of the letter, the Applicant then made his decision to discontinue his Appeal and there is now no reason why, having made that decision, he should be permitted to reinstate it. The Applicant made an assessment that he had greater prospects of success with the Minister than he had on Appeal to this Court. But the assessment was for him to make. 32 A litigant before this Court cannot consent to orders and thereafter simply request that those orders be revoked and advance little (if any) reason as to why the Court should even entertain the application. There would be no finality in litigation if such a course were to be permitted. 33 A further potential difficulty is whether the application which is now made to the Court should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order. After having referred to the ground upon which a consent order could be set aside in Harvey v Phillips, Handley JA in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 observed that "… it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings …" The difficulty could, perhaps, have been overcome by simply treating the existing Notice of Motion as a fresh proceeding: cf Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22], 78 ALD 151 at 158. No objection, however, was taken on behalf of the Respondent Minister to the manner in which the Applicant has proceeded and - accordingly - this further difficulty need not be resolved.

Discretion 34 Even if the Court had power to revoke the Order as made in July 2007, any such relief would have been refused in the exercise of discretion - assuming that the Court has such a discretion: cf Harvey v Phillips (1956) 95 CLR 235 at 242. 35 The resolution of the present Notice of Motion is no occasion to conduct a de facto hearing of the Appeal which was dismissed by consent. 36 It is sufficient for present purposes to note that the Refugee Review Tribunal set forth its reasons and findings in considerable detail. The learned Federal Magistrate also addressed each of the grounds advanced before that Court. The Notice of Appeal to this Court identified the Grounds of Appeal as follows (without alteration): His Honour Scarlett ignored the written case filed in Court on 7 March 2007 and failed to give me yet a detailed judgment. I rely on the order dated 22 March 2007 and yet will provide further grounds when I receive the judgment. His Honour Federal Magistrate Scarlett overlooked Consent Order appearing on page 114 of the court book dated 31 May 2006 and order by His Honour Smith FM appearing on page 115 of the court book filed 22 June 2006 and the comment made and filed on 26 September 2006 in court book p. 143-145 which would lead to see that the Tribunal made a judicial error under s.424 of the Act which provides an opportunity for the applicant for further comment and such did not happen. Neither of these grounds would appear to have any substance. The decision of the Federal Magistrate previously under appeal dealt with each of the grounds being advanced before that Court. The reasons for decision are expressed in sufficient detail to set forth the basis upon which each of the grounds was rejected. The reference in the second Ground of Appeal to a "Consent Order" was an order previously made by a Federal Magistrate quashing a previous decision of the Refugee Review Tribunal. Its relevance to the subsequent decision of a different Federal Magistrate is elusive. And the decision previously under appeal addressed and resolved the question as to whether an opportunity had been extended to the Applicant to present his case. The Notice of Appeal does not expose any self-evident error on the part of the Federal Magistrate. 37 There was, moreover, no acceptable explanation as to why the Order as made in July 2007 was only sought to be impugned by a Notice of Motion filed in February 2009. The only explanation advanced was that there had been a change in government.

Conclusions 38 "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [34], 223 CLR 1 at 17. There must be finality in litigation: Burrell v The Queen [2008] HCA 34, 248 ALR 428. 39 For better or for ill, the present Applicant had his opportunity to pursue his Appeal in this Court had he so wished and he decided not to proceed. The Order made in July 2007 gave effect to his decision. That Order is final. 40 The Notice of Motion is without merit. It is to be dismissed with costs. 41 The Respondent Minister seeks an order pursuant to Order 62 r 4(2)(c) of the Federal Court Rules for costs in a sum of $2,000. An affidavit has been filed in support of that sum. There is no reason why such an order should not be made.

ORDERS 42 The Orders of the Court are: 1. The Notice of Motion as filed on 9 February 2009 is dismissed. 2. The Applicant on the Motion is to pay the costs of the First Respondent fixed in the sum of $2,000. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 9 March 2009 The Applicant The Applicant appeared in person