Case: S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13
Outcome: considered
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: Setting aside (1) The Court may vary or set aside a judgment or order before it has been entered. (2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. (3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court. (4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. But rule 7(2), it will be noted, does not apply where the Court is exercising its appellate jurisdiction: S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 at [19] . Order 35 r 7 is thus not an available source of power to vary or set aside the Orders made by North J. 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). In the absence of an adequate explanation for the non-attendance, the orders previously made were there not set aside. In Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 at [13] , Beaumont, Kiefel and Hely JJ also acknowledged a limited power in an " exceptional case " to revoke orders made by consent. 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. 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.