Case: DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226
Outcome: cited
order, once made and entered, is normally final. In DJL v The Central Authority [2000] HCA 17 ; (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] HCA 41 ; (1982) 149 CLR 672 at 684 (Mason ACJ, Wilson and Brennan JJ); Autodesk Inc v Dyason [No . 2] [1993] HCA 6 ; (1993) 176 CLR 300 at 302 (Mason CJ) and 317 (Dawson J). 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 [2000] HCA 17 ; 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] HCA 38 ; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 , such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38 ; 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 [2000] HCA 17 ; 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. 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] HCA 17 ; (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] , [2005] FCAFC 91 ; 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] HCA 23 ; (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 that the 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] , [2005] FCAFC 91 ; 141 FCR 291 at 295.