Consideration
17 Mr Fazio argues that the Court has the power to set aside the original orders in Fazio No 1 and relied upon the following authorities in his written submissions:
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As authorised in The High Court authority of Aktas v Westpac Banking Corporation (No 2) (2010) 241 CLR 570 at 573{6), Wenkart v Pantzer (No 3) {2013} FCAFC and Autodesk Inc v Dyason (No2) the court has full power to rehear or review a case, even after judgement (sic) has been delivered, providing there is some matter calling for review. What must be demonstrated is that the court has apparently proceeded on the basis of some misapprehension of the facts or of the relevant law.
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18 Those authorities do not stand for the proposition that the Court can revoke its final orders when an appeal from them is on foot.
19 Indeed, there is no vehicle before the Court, other than some submissions, which would enable such a course even to be contemplated.
20 The only matter listed before me for mention and of which Mr Fazio has received notice, was notification, in effect, to the Court that the applicants no longer seek to vary the orders in Fazio No 1 and contend there should be no order as to costs.
21 As to the power to set aside final orders, see the discussion in SZCZF v Minister for Immigration and Citizenship (2009) 107 ALD 138 (at [9]-[13] and [17]-[18]) where Flick J said:
9 An order, once made and entered, is normally final. In DJL v The Central Authority (2000) 201 CLR 226, the High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry. And, in reliance upon that decision, in Pantzer v Wenkart [2007] FCAFC 27 at [5], Black CJ observed that it was "hard to see … how, in the face of DJL v The Central Authority, there can be any foundation for the contention that the Full Court of the Federal Court has power to re-open final orders duly entered …". The Chief Justice further observed:
[7] Even if there were power to re-open the orders then it is clear that such a power should only be exercised in exceptional circumstances. The public interest in finality requires as much: see, albeit in a different context, Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 (Mason ACJ, Wilson and Brennan JJ); Autodesk Inc v Dyason [No.2] (1993) 176 CLR 300 at 302 (Mason CJ) and 317 (Dawson J).
10 Only limited exceptions to the finality of orders once entered are conferred by the Federal Court of Australia Act and the Federal Court Rules 1979 (Cth). In addition to such express powers, there may be an "incidental power" of uncertain extent. But it is not considered that the Applicant can bring himself within any of the exceptions.
11 One express exception set forth in the Act is s 25(2B)(bc) which permits the Court to "vary or set aside an order" made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred "in general terms" and "should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20], 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1]; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3]; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2].
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13 An express power conferred by the Federal Court Rules which is frequently invoked is that found in Order 35 r 7(2). That Rule provides as follows:
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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).
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22 Mr Fazio has exercised his rights to obtain appropriate relief in both Fazio No 1 and Fazio No 2 and in filing the appeals. Further intervention on my part at this point (even if there were a proper application and admissible evidence) would be beyond power.
23 Despite the strength of the language adopted by Mr Fazio in his written submissions, his oral presentation was articulate and taken alone, made evident the futility of these entire proceedings. The applicants at one level have incurred substantial expense pursuing relief from which they will never benefit and Mr Fazio has sustained frustration and dissatisfaction with the process which has occurred. Nevertheless, it is clear that the orders made in Fazio No 1 were final. It is clear that Mr Fazio has exercised an application for relief in respect of those orders albeit unsuccessfully and it is clear that his rights to pursue appeals from Fazio No 1 and Fazio No 2 are preserved. In the meantime, while all this occurs, I am informed on affidavit from the applicants that the mortgagee is, in any event, pursuing its own power of sale.
24 There is no power in the Court to revoke its final orders particularly when there is an appeal on foot from those final orders. The proper avenue is to seek redress, if it is available through the process of appeal. Secondly, lest there is any doubt about that point, even affording Mr Fazio every reasonable indulgence, I am far from satisfied that there is admissible evidence before me which makes it clear that any of the conclusions reached in Fazio No 1 or Fazio No 2 were unsound. Mr Fazio has relied upon some material which shows an injury, a need for nursing care at various times and of certain other difficulties. It is not clear specifically what he would ask the court to draw from that material assuming that it were properly before the court. While the futility of this entire exercise is manifest, and while it appears that the applicants, in simply 'abiding the decision of the Court' on the appeals, are unlikely to make clear the steps that they have taken in relation to keeping Mr Fazio informed of his rights and obligations in accordance with the Rules, there is no power on my part to usurp the function of the Full Court by setting aside the final orders which were both made in Fazio No 1 and not disturbed in Fazio No 2.
25 Suggestions were raised by Mr Fazio that, as he had informed Court staff between the hearing of the applicants' application and the delivery of the decision in Fazio No 1, he had not been served with all the documentation and that Court staff and solicitors for the applicants were aware that he had not been served with the process upon which the applicants' application in open Court proceeded.
26 The evidence does show that a query was raised by Mr Fazio with the Deputy District Registrar after the hearing. It shows that Mr Fazio was informed correctly that he could examine the Court file.
27 There is no evidence he did so.
28 There is no evidence he sought to be heard while judgment was reserved.
29 There is no evidence that any application or any request of any sort was made.
30 As Mr Fazio would be aware from previous experience, the business of the Court is conducted by way of applications and affidavits as provided for in the Rules of the Court, rather than by way of correspondence to members of the Court Registry.
31 Insofar as the correspondence to the Court is concerned, to the extent that such material may be taken to be a submission that those within the Registry of the Court or its members would have any interest in deliberately ensuring that Mr Fazio was denied justice, it would be fundamentally misconceived. Indeed, to the contrary, the Court has repeatedly afforded Mr Fazio indulgences and special consideration in light of his unrepresented status.
32 It follows that the application by the applicants to vacate any application for leave to apply in relation to the orders with no order as to costs should be allowed. As the reality of the matter is that they are simply not pursuing such an application, no further order is necessary.