Applicants S61 of 2002 v Refugee Review Tribunal

This appeal concerns a judicial review application that was initially dismissed by Madgwick J in the Federal Court and subsequently dismissed by the Full Court of the Federal Court. The Full Court's decision was subsequently remitted to the Federal Court for determination by Lindgren J. The appellants have appealed against the decision of Lindgren J. The central issue in the appeal is whether Lindgren J had the authority to dismiss the application for the writs sought by the appellants and, if so, whether his Honour erred in law in doing so. The Full Court held that Lindgren J had the requisite authority and that no error of law had been made in the dismissal of the application.

The Full Court considered the intended operation of Order 51A Rule 5 of the Federal Court Rules, which provides that when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge will hear the parties on whether, if the order nisi were made, it should be made absolute. If the Court is satisfied that an order absolute should be made, it will not make the order nisi but will proceed directly to make the order absolute. The Court concluded that Order 51A Rule 5 was designed to allow the two-stage process of an ex parte application for an order nisi followed, assuming the initial application to be successful, by an inter partes application for an order absolute, to be avoided in appropriate cases. The rule authorises the Court to hear and determine the application for the writ sought by the applicant, achieving substantially the same outcome as provided for by Order 55 Rule 2 of the High Court Rules. The requirement to obtain in the first instance an order nisi may be avoided in an appropriate case.

The Full Court also considered the effect of the order of Lindgren J, who ordered that "the application be dismissed." The Full Court held that Lindgren J intended to dismiss on the merits the appellants' application for writs of certiorari and mandamus, and that his Honour had adequate authority to proceed as he did. The Full Court rejected the objection to competency of the appeal and dismissed the appeal with costs, except for the costs of and incidental to the notice of objection to competency.