WZAQU v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 12 April 2013 reasons for decision and orders were made in this proceeding: WZAQU v Minister for Immigration and Citizenship [2013] FCA 327. 2 Those orders have not been entered. An application is now made to vary the orders previously made. 3 Power to vary orders made but not entered is conferred by r 39.04 of the Federal Court Rules 2011. That rule provides as follows: The Court may vary or set aside a judgment or order before it has been entered. The rule had its counter-part in the former Order 35 r 7(1) of the now-repealed Federal Court Rules. 4 The power conferred by r 39.04 remains a power which must be exercised "sparingly": Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 at [772] per Finn, Stone and Perram JJ. In applying the current r 39.04, their Honours there similarly observed: [772] … There is no doubt … that the jurisdiction to re-open orders is sparingly to be used. Citing the reasons for judgment of Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 the Full Court of this Court recently observed that "[b]ecause of the importance of the public interest in the finality of litigation, it is a jurisdiction 'to be exercised with great caution'": Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437 at 439 [6]. The procedure contemplated by r 39.04 (and indeed the undoubted inherent power of a superior court of record to do the same thing) must not be permitted to become an avenue whereby disappointed litigants (or their advisers) are permitted, in effect, a second chance before the trial judge. This is not only because it is contrary to the principle of finality of litigation; not only because it causes the successful party to incur costs which it has some expectation it ought not to have to incur having regard to its success in the suit; and not only because it ties up valuable court resources. It is also for the good reason that the civil litigation system does generally afford the class of disappointed litigants a second chance in the form of an appeal. The principles governing such appeals are highly formalised and, to an extent, constrained. It would be to put at nought those arrangements if there were to be permitted a form of de facto appeal on each occasion that a party alleged error in a trial judge's processes of reasoning. The power conferred by r 39.04 was exercised by the Full Court in Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72 at [6] to [7] per Jacobson, Yates and Katzmann JJ. Their Honours there repeated the proposition that "the power is to be exercised sparingly, indeed cautiously, having regard to the public interest in the finality of litigation". The power was there nevertheless exercised to make an additional order as to costs. 5 Notwithstanding that caution, it is considered appropriate to vary the orders previously made and to now substitute the orders as substantially agreed between the parties. Not only is there agreement between the parties as to the appropriate orders to be made, the orders as proposed - it is respectfully considered - better reflect the reasons for decision in the present proceeding and the decision in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41 at [99] to [104], 243 CLR 319 at 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The orders as proposed are also more aligned to comparable orders made in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.