Case: Kovalev v Minister for Immigration [1999] FCA 557 ; (2000) 100 FCR 323
Outcome: cited
The principles which apply in this situation are not in doubt. In Kovalev v Minister for Immigration [1999] FCA 557 ; (2000) 100 FCR 323 (" Kovalev ") at 326-328, French J explained the relevant principles: "In making a consent order the Court exercises judicial power. This is a power conferred upon it by the Parliament under Ch III of the Constitution of the Commonwealth. Its exercise is a public function and operates to bind the parties. Its public character applies to agreed orders disposing of private litigation between citizens or corporations and proceedings brought by or against governments and their agencies or public authorities. An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record. There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided 'according to law' and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do. In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant. The possibility arose that the matter could have been remitted to the Tribunal with the parties themselves not being ad idem as to the error of law which had led to the decision being set aside and which the Tribunal was required to rectify. And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content. In the particular case where a tribunal decision is set aside, the Tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law. A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate. ... ... It is well-established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make Thomson Australian Holdings Pty Ltd v Trade Practices Commission ( 1981 ) [1981] HCA 48 ; 148 CLR 150 at 163. The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so: see Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal. ... ... In the case of error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred. It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal. If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases. To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the Tribunal leaves the content of that principle in the hands of the parties." As French J noted, Sackville J had adopted a similar approach in Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265. Subsequently, Stone J in Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 agreed with the views expressed by French J and Sackville J. Her Honour observed in addition that the grounds for the making of the order can appear in the Court's reasons for judgment, rather than in the order itself. Similar views were expressed by RD Nicholson J in Xiao v Minister for Immigration [2001] FCA 459 ; (2001) 109 FCR 129. The principles explained by French J in Kovalev have been approved numerous times: see Re Allan and Repatriation Commission (2003) 77 ALD 140 at 144-145 [12]-[14]; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93 at 110 [55] - [56] ; and WAKM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 730 at [5] .