Case: Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235
Outcome: cited
" 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] HCA 27 ; (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. 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. 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should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order.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. 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] HCA 27 ; (1956) 95 CLR 235 at 242. 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. 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. 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.