DUH18 and Ors v Minister for Immigration and Anor
[2020] FCCA 1706
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUH18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1706 |
| Catchwords: MIGRATION – Jurisdiction of this Court – this Court has jurisdiction to set aside final consent orders – no agreement underlying the final consent orders that can be set aside because of a mistake – unilateral mistake was not induced by either party – declarations do not reflect the true state of affairs – no proper basis for setting aside the final consent orders – not in the interest of justice to set aside the orders – applicants arriving by sea at Ashmore Reef – whether or not applicants were unauthorised maritime arrivals – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.75 Federal Circuit Court Act 1999 (Cth), ss.10, 10AA, 15, 18 Federal Circuit Court Rules 2001 (Cth), r.16.05 Federal Court Rules 2011 (Cth), r.39.05 Federal Court of Australia Act 1976 (Cth), s.23 Migration Act 1958 (Cth), ss.5(5), 5AA |
| Cases cited: Angas Securities Limited v Angas Securities Limited (No 4)[2016] FCA 1240 Chandless-Chandless v Nicholson [1942] 2 KB 321 Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322 Coote v Mainline Access Pty Ltd (No.3) [2019] FCCA 383 Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 Grassby v R [1989] HCA 45 Jackson v Sterling Industries Ltd (1986) 69 ALR 92 Jago v District Court of New South Wales [1989] HCA 46 Kinch v Walcott [1929] AC 482 New South Wales Crime Commission v Vu [2009] NSWCA 349 Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 |
| First Applicant: | DUH18 |
| Second Applicant: | DUI18 |
| Third Applicant: | DUJ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2148 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 6 February 2020 |
| Date of Last Submission: | 21 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Counsel for the Respondents: | Ms Hooper |
ORDERS
The application in a case filed by the first respondent on 24 January 2020 be dismissed.
The first respondent pay the costs of the applicants fixed in accordance with scale with the quantum to be agreed and if not agreed to be fixed by a registrar of the Court.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2148 of 2018
| DUH18 |
First Applicant
| DUI18 |
Second Applicant
| DUJ18 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This decision considers the Court’s jurisdiction to consider an application to set aside consent orders dismissing an application brought by the applicant in relation to a decision of the second respondent (‘the Authority’).
On 24 January 2020, the first respondent (‘the Minister’) filed an interlocutory application seeking orders varying final consent orders entered on 30 May 2019. The Minister says that it does so in order to ‘reflect the correct legal status of the second and third applicants’.
By an application filed on 23 July 2018, the applicants sought judicial review of a decision of the Authority made on 27 June 2018. The Authority’s decision affirmed a decision of a delegate of the Minister (‘delegate’) refusing to grant Safe Haven Enterprise visas.
The applicants are a family unit and originally from Vietnam. The first applicant, a woman, entered into a relationship with the second applicant, a man. The first and second applicants are the parents of the third applicant, who was born in Australia on 23 February 2016.
An affidavit affirmed on 5 February 2020 by Walid Babakarkhil, solicitor for the applicants, exhibits correspondence between the first respondent’s solicitors and the applicants’ solicitors leading to consent orders being made.
In an email from the Minister’s solicitors to the applicants’ solicitors dated 21 December 2018, the Minister’s solicitors advised that the Minister asked to withdraw from the proceeding on the basis that it was affected by DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (‘DBB16’) and attached consent orders (largely in the terms of the orders finally made) and included an invitation to the applicants’ solicitors to sign those consent orders.
After some correspondence from the Minister’s solicitors seeking advice as to whether the applicants consented to the orders being made, and after making some minor amendments to the form of the orders, the parties signed a minute of consent orders on 30 May 2019.
On 30 May 2019, the Court made final orders based on a minute of consent agreed to by the parties (‘the Final Consent Orders’) quashing the Authority’s decision and making declarations that the applicants are not unauthorised maritime arrivals. The declarations were in the following terms:
1. The purported appointment of a port as a proclaimed port, in respect of an area of waters within the territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette in No. GN 3 on 23 January 2002, is invalid.
2. The applicants are not “unauthorised maritime arrivals” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act).
3. The applicants have not been notified pursuant to s 66 of the Act of the decision of a delegate of the Minister of Immigration and border protection dated 26 April 2018.
The Court made orders that a writ of certiorari issue quashing the decision of the second respondent dated 27 June 2018 and that the first respondent pay the applicants’ costs in the application.
The main questions that arise are:
a)whether or not this Court has jurisdiction to set aside the Final Consent Orders;
b)whether or not there was an agreement underlying the Final Consent Orders that can be voided because of a mistake; and
c)whether it is appropriate to set aside those orders.
Application to set aside the Final Consent Orders
The Minister claims that at the time of entry into the Final Consent Orders, his solicitors were ‘of the mistaken understanding that all three applicants to these proceedings’ were subject to the judgment in DBB16. That is, the Minister maintains that the first applicant:
i)arrived by sea at Ashmore Reef;
ii)had, therefore, not ‘entered Australia by sea’ for the purposes of section 5AA(2) of the Migration Act 1958 (Cth) (‘the Act’);
iii)was not an ‘unauthorised maritime arrival’ within the meaning of section 5AA of the Act;
iv)was not a ‘fast track applicant’ to whom Part 7AA of the Act applied; and
v)was not under the Authority’s jurisdiction.
b)However, the Minister says that the second and third applicants are, in fact, unauthorised maritime arrivals (having arrived at Christmas Island or been born in Australia, respectively).
DBB16 is a decision of the full Federal Court which found that the appointment of the territory of Ashmore Reef and Cartier Islands as a ‘proclaimed port’ under section 5(5)(a) of the Act was invalid. This meant that the appellant who arrived at Ashmore Reef was not an ‘unauthorised maritime arrival’ and therefore not a ‘fast track applicant’ and the Authority had no jurisdiction to review the delegate’s decision with regards to him.
On 6 February 2020, there was a hearing and orders were made that submissions be filed regarding whether or not the second and third applicants are unauthorised maritime arrivals.
The application is supported by an affidavit of the first respondent’s solicitor, Ms Danielle Nicholson, affirmed 24 January 2020. That affidavit was admitted into evidence without objection at the hearing of the application.
Relevant legislation
Section 15(a) Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’) provides:
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate;and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) provides:
(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h) there is an error arising in the judgment or order from an accidental slip or omission.
(3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
The first respondent’s submissions
The Minister submits that:
a)the Court has power to vary the Final Consent Orders (citing Coote v Mainline Access Pty Ltd (No.3) [2019] FCCA 383 (‘Mainline’)); and
b)the evidence before the Court demonstrates that the orders should be made.
Mainline was a decision of Judge Manousaridis where an application to set aside orders made by consent was successful even after publication of reasons for judgment. Those orders were made after his Honour had published reasons for his decision and then asked the parties to prepare a minute of orders that gave effect to those orders. The orders submitted and made did not properly reflect those reasons. At [25], his Honour said:
[25] In my opinion it would be within this Court’s implied incidental power to set aside an order or judgment that has been entered by consent in the same circumstances in which it has been held it is within a superior court’s inherent jurisdiction to set aside a judgment or an order made by consent. Thus, even if the Orders are not interlocutory, this Court has jurisdiction to use its powers, and in particular the powers conferred on it by s 15(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act),22 to set aside the Orders if, for example, the agreement pursuant to which the consent orders were made is liable to be set aside or is otherwise unenforceable, or where setting aside the Orders is necessary to ensure the Court’s procedures do not effect injustice on any of the parties, or where it is necessary to do so to ensure that justice is administered according to law. Further, even if the Orders are interlocutory, the grounds on which a superior court can set aside consent orders are the relevant grounds on which it is open to this Court to set aside the Orders.
Ms Danielle Nicholson deposed in her affidavit that the second and third applicants did not arrive at Ashmore Reef. At [6] of her affidavit she states that the second applicant arrived at Christmas Island on 17 June 2013 and did not ever arrive at Ashmore Reef, whilst the third applicant was born in Australia in 2016 (and did not ever arrive at Ashmore Reef). Attached to her affidavit at page 52 are detention records from Christmas Island regarding same.
The Minister submits that Ms Nicholson’s evidence is:
a)already evidence admitted without objection;
b)not open to the applicants to challenge by way of written submissions; and
c)admissible pursuant to section 75 of the Evidence Act 1995 (Cth), because Ms Nicholson’s instructing legal officer is sufficient as a source of the information that forms the basis of Ms Nicholson’s belief, citing New South Wales Crime Commission v Vu [2009] NSWCA 349 at [47].
The Minister notes that the second applicant has provided no evidence concerning the circumstances of his initial arrival to Australia.
At [13] of his submissions, the Minister also says that it is not for him to ‘disprove a counterfactual that is not the subject of evidence by the second applicant.’
The Minister refers to r 16.05(2) and/or r 16.05(3) of the Rules as a source of the Court’s power to make the orders sought.
The applicants’ submissions
In summary, the applicants submit that:
a)this Court does not have the same jurisdiction as a superior court to set aside its final judgment; and
b)even if this Court did have such a power, the Minister has not met his burden of proof to establish that any Federal Circuit Court power to make these orders should be exercised.
In response to the Minister’s submissions regarding Mainline, the applicants contend that neither of the statements in Grassby v R[1] or Jago v District Court of New South Wales[2] which were cited in Mainline were made in a context that informs the interpretation of s 15(a) of the FCCA Act. They say that ‘read in context, these cases are simply uninformative for the present question.’
[1] [1989] HCA 45.
[2] [1989 HCA 46].
The applicants maintain that the Minister has misread the authorities, and that his reliance on Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (‘Permanent Trustee’)[3] is misplaced. The relevant passage relied on by the Minister is set out in [20] of Mainline:
[20] A useful statement of the circumstances in which a superior court may do so was provided by Brennan J when sitting as a judge of the Supreme Court of the Australian Capital Territory in Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd. After referring to the general rule that a perfected judgment cannot be recalled or varied, his Honour said:
There are some exceptions to this general rule. The exceptions fall into three classes: those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice; those which are authorized by statute; and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable.
(citations omitted)
[3] (1976) 15 ACTR 45.
The applicants contend that:
a)unlike this case, Permanent Trustee dealt with parties who consented to setting aside the orders; and
b)the discussion in Permanent Trustee about inherent jurisdiction only applies to superior courts, not to this Court.
The applicants acknowledge the three exceptions outlined in Permanent Trustee, and submit that this case does not fall into any of them, being:
a)the Court’s inherent jurisdiction to ensure that its procedures do not effect injustice;
b)exceptions authorised by statute; and/or
c)where a judgment is obtained by fraud or by an agreement which is void or voidable (the applicants say there was no agreement whatsoever).
The applicants claim that there was never any enforceable agreement between the parties. Rather, they say, there was a ‘remarkable casualness by the parties in relation to making orders’ and that ‘no evidence was exchanged, no submissions exchange, no correspondence discussing the orders etc.’ At [24] of their submissions the applicants depose that:
24. […] The Minister offered to concede “out of the blue” in respect of the first applicant, the second and third applicants asked that the concession extend to them, and the Minister agreed.
Further, regarding a potential agreement, the applicants say that there was no agreement for them to rely on should the Minister have decided to change his position or change his mind about the applicants’ case. They assert that ‘that observation is to reinforce the submission that there was never any agreement capable of engaging the second basis on which the usual rule as to finality may be overridden.’
With regards to a ‘mistake’, the applicants submit at [27] that this is irrelevant because ‘there was never any agreement capable of legal enforcement upon which the mistake might have some vitiating effect.’
Failure to meet burden
The applicants claim that the evidence deposed by Ms Nicholson in her affidavit regarding the detention records is not admissible as it is hearsay evidence. This is because, they claim, the Minister has not adduced evidence of the instruction’s source, and that an ‘instructing legal officer at the…Department’ is an inadequate source.
The applicants also submit that:
a)the Minister willingly and deliberately accepted the claim that the second and third applicants were not unauthorised maritime arrivals (at the time of the Final Consent Orders);
b)the detention notice is not probative of the critical question of whether the second applicant first set foot in Australia having arrived by sea at an excised offshore place after the relevant excision time; and
c)the Minister has failed to meet his burden to persuade the Court that any amendment to the Final Consent Orders is just.
Consideration
I find that the Court is able to rely on the evidence contained in Ms Nicholson’s affidavit, and that it is proves that the second and third applicants did not land at Ashmore Reef.
By way of submission, the applicants raised that the detention notice exhibited to Ms Nicholson’s affidavit which indicates that the second applicant was taken into detention on Christmas Island on 17 June 2013 does not prove that the second applicant did not pass through Ashmore Reef at all prior to arriving at Christmas Island.
I accept the first respondent’s submission that Ms Nicholson’s evidence is that the second applicant arrived at Christmas Island on 17 June 2013 and did not ever arrive at Ashmore Reef and that is supported by the business records of the second respondent annexed to the affidavit. The second applicant has put on no evidence in response to that evidence. Particularly, the second applicant has not filed an affidavit in this application where he deposes that he arrived at some place in Australia other than Christmas Island.
Further, the first respondent refers to the amendments made by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) which provides that a person is an ‘unauthorised maritime arrival’ under s 5AA(1)(a)(ii) of the Act if they entered Australia by sea ‘at any other place at any time on or after the commencement of this section’. It is submitted that because of these amendments, in order to be affected by DBB16, the second applicant must have arrived in Australia at Ashmore Reef, or elsewhere, before 1 June 2013. I find that there is no evidence that the second applicant arrived in Australia prior to 1 June 2013 and therefore cannot be affected by DBB16.
Jurisdiction to make the orders sought
The applicants’ submission that it is a ‘radical proposition’ to suggest that the FCCA Act has the same jurisdiction as a superior court to set aside final judgments is, in my view, not supported by the statutory scheme or the authorities referring to it. I refer to the decision of Mainline where Manousaridis J at [21] –[25] sets out a statutory court’s jurisdiction to set aside orders, including consent orders, referring to Jackson v Sterling Industries Ltd (1986) 69 ALR 92 at page 96 which provided:
[…] In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words "inherent jurisdiction". Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.
The provisions of s 15(a) the FCCA Act and r 16.05 of the Rules are in similar terms to the corresponding provisions in the Federal Court of Australia Act 1976 (Cth) and Federal Court Rules 2011 (Cth).
Section 23 of the Federal Court of Australia Act 1976 (Cth) states:
Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
And rule 39.05 of the Federal Court Rules 2011 (Cth) states:
Varying or setting aside judgment or order after it has been entered
The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission
It is not apparent why it is said that the empowering provisions of the FCCA Act and Rules do not provide the power for this Court to make orders setting aside a consent order so long as the Court is satisfied justice demands that order to be made. Whilst the FCCA is not a superior court, it does have extensive jurisdiction in reviewing decisions of registrars (in Family Law and Bankruptcy) and tribunals. The Court has such original jurisdiction as is vested in it:
a)by laws made by the Parliament by express provision: s 10(1)(a) of the FCCA Act;
b)by provisions which expressly or by proper implication authorise a civil proceeding to be instituted in the Court: s 10(1)(b) of the FCCA Act;
c)by legislative instruments made under s 10AA of the FCCA Act: s 10(1A) of the FCCA Act; and
d)includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals: s 10(2) of the FCCA Act.
Incidental and associated jurisdiction is also conferred: sections10AA and 18 of the FCCA Act.
Is there a proper basis for setting aside the Final Consent Orders?
The point is validly made by the applicants in this case that the usual grounds for setting aside a consent order such as fraud or common mistake are not present. Further, it is not a case where the Minister entered into a contract under a serious mistake about its contents, or where he was induced to enter into the contract under a serious mistake or misapprehension, or where the applicants set out to ensure that he did not become aware of the mistake or misapprehension: Taylor v Johnson (1983) 151 CLR 422 at 432. This is a case where it seems that the Minister made an error regarding the factual question of where the second applicant arrived in Australia, and then invited the applicants to consent to declarations and subsequent orders to be made on the basis of that error.
Further, it is correctly pointed out that the applicants have done nothing to induce the Minister to enter into negotiations for the making of the consent orders and there is no agreement in the sense of there being a settlement which underlies the making of the consent orders. The applicants’ legal representatives were approached with a set of minutes and those minutes were signed with the effect that declarations were made and the decision of the second respondent was set aside.
Notwithstanding those circumstances, the Final Consent Orders may be set aside on the grounds that the declaration (that the parties have agreed that the Court ought to make by submitting signed consent orders) does not reflect the true factual position underlying the making of the declarations.
In signing the consent orders and submitting them to the Court, the Court proceeded on the basis that it was appropriate for it to make those declarations and that they reflect the parties’ true state of affairs. The evidence before this Court is that the declarations do not reflect the true position of the second and third applicants.
The Minister seeks to rely on r 16.05(2)(e) of the Rules. That is commonly known as the slip rule. I do not think that slip rule applies to this case because a question of the Court’s intention is not engaged. The Court was provided with consent orders and the Court made orders in accordance with those orders.
In Mainline, Judge Manousaridis did not rely on r 16.05(2)( e) and stated at [27]:
[…] An order made by a court “should conform to legal principle”, and a court would be justified not to make orders by consent “if they do not conform to legal principle”. A fundamental legal principle is that any order a court makes must be one that is available to be granted, given the findings of fact and law the court has made. A consent order would not be made in conformity with legal principle if the findings of fact and law the court has made cannot support the orders, or if the orders are inconsistent with the court’s findings of fact and law. In my opinion, therefore, where a consent order has been made contrary to these principles, this Court’s implied incidental power to ensure the proper exercise of its express powers extends to setting aside the consent order.
In not relying on r 16.05(2)(e) his Honour stated at [18] to the effect that he did not himself consider whether the orders reflected the findings and therefore did not think that the Court had power under that rule to set aside the orders. In the circumstances facing Judge Manousaridis, his Honour made findings and then directed the parties to formulate orders that reflected those findings. The Court intended to make the consent orders presented to it, to make orders that gave effect to the findings. To the extent that the orders did not reflect those findings, they did not reflect the orders of the Court and were therefore liable to be set aside on the basis that they did not reflect the Court’s intention. With respect to Judge Manousaridis it is strongly arguable that r 16.05(2)(e) could have been relied upon in that case.
The applicants assert that the consent orders do not arise as a result of any agreement between the parties which underlies them. The authorities recognise that not all consent orders evidence a binding agreement between parties and may only evidence a situation where solicitors conferred for the purpose of making an order which could be made without argument: Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322 at 328, citing Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 per Lord Denning MR who said (at 189):
We have had a discussion about “consent orders.” It should be clearly understood by the profession that, when an order is expressed to be made “by consent,” it is ambiguous. There are two meanings to the words “by consent.” That was observed by Lord Greene M.R. in Chandless-Chandless v. Nicholson [1942] 2 K.B. 321, 324. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting.” In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?
In the matter of Angas Securities Limited v Angas Securities Limited (No 4)[2016] FCA 1240, Beach J at [26]-[33] summarised the Court’s power to set aside consent orders:
26. It is appropriate to discuss some general principles.
27. First, I have power to vary an interlocutory order (rule 39.05 of the Federal Court Rules 2011 (Cth)) even if made by consent and pursuant to an agreement between the parties.
28. Second, the power to vary is more readily exercisable in the context of an interlocutory order as compared with a final order, where in the former case “the finality of litigation does not weigh so heavily in the scales” (Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 5) [2007] FCA 1792 at [17] per Mansfield J).
29. Third, it may be appropriate to vary an interlocutory order where “new facts come into existence or are discovered which render its enforcement unjust” (Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 178 per Gibbs CJ, Aickin, Wilson and Brennan JJ), although such a statement is not exhaustive of the possibilities.
30. Fourth, in the context of a consent order or judgment that is final and which gives effect to an underlying agreement, the consent order may be set aside or varied on any ground that would impeach the underlying agreement or its enforceability (Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243 and 244). Correspondingly it has been said that if the underlying agreement or its enforceability is not so impeached, then the consent order or judgment should not be set aside or varied absent an “exceptional” or “rare” case (see Paino v Hofbauer (1988) 13 NSWLR 193 at 198 per McHugh JA and at 201 per Clarke JA and Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130; (2015) 89 NSWLR 198 at [27] and [28] per Bathurst CJ, Beazley P and McColl JA). Moreover, there may be an implied term of the agreement not to invoke any curial power to set aside or vary such an order.
31. Fifth and relatedly, the Court has power to vary a consent interlocutory order even if made pursuant to an agreement between the parties (R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389at 392 and 393 per Woodward and Foster JJ). Moreover, the same rigidity applying to varying final orders does not apply where the consent order, based upon an agreement, is interlocutory. Now it is possible that a party may contend for an implied term not to apply to vary, but such an implication is even more problematic when dealing with an interlocutory order. In any event, no such implied term has been contended for in the present case.
32. Before proceeding further, it is appropriate to note one other aspect relating to the fourth and fifth propositions. It has been pointed out in Chavez v Moreton Bay Regional Council [2009] QCA 348; [2010] 2 Qd R 299 at [35] per Keane JA that the views expressed in R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd may be considered to be more liberal than those expressed in Paino. Nevertheless, his Honour at [39] applied Paino but used more generous language, viz, “good reason for depriving...” rather than the adjectives “exceptional” or “rare”.
33. Perhaps the differences in language may reflect the differences in context. Where the consent order is made in implementation of an agreement between the parties in order to finally resolve the proceeding, then adjectives such as “exceptional” or “rare” are not inapposite. The circumstances justifying variation should be more limited given the intended finality sought to be achieved. But where the consent order is made to resolve an interlocutory dispute, there is not such a paramountcy of finality.
(emphasis added)
I accept the applicants’ submission that there was no concluded agreement underpinning the making of the Final Consent Orders. The orders were proposed by the first respondent and entered into without opposition from the applicants. It has not been suggested by the first respondent that there has been any fraud or misrepresentation on the part of the applicants. However, this of itself does not provide a sufficient basis not to set a consent order aside if the Order where the declarations which form part of the order are factually incorrect.
There is a genuine tension created by this application and its resolution is not straight forward. If one looks at this as a case of unilateral mistake which was not induced by any conduct on the part of applicants there are substantial reasons why the order should not be set aside; principally because it does not fall under the category of cases where there is a void or voidable contract. Further, the Courts have to be reluctant to set aside orders on the basis of the discovery of facts after the making of orders, which facts were ascertainable prior to the making of the orders and where there has been no fraud or conduct inducing the making of the consent orders.
Whilst it is an old case, Attorney-General v Tomline (1877) 7 Ch D 388 is instructive. Counsel was appearing for a defendant where judgment was given for the Crown which declared it entitled to damages and an injunction for taking coprolites (fossilised faeces) from land. Counsel for the defendant offered to pay half the gross value of the coprolites taken as the measure of damages and this offer was accepted by the Crown. There was a delay of about a fortnight in having the consent judgement given. Subsequently, an application was made to set aside that part of the judgment as it related to the measure of damages, that the true measure of damages was less than that which had been agreed.
The Court declined to release the defendant from the undertaking that had been given to the Court by his counsel on the basis that the defendant was a party to the arrangements which fixed the true value of the damages and had not mentioned those arrangements at the trial nor was his counsel aware of them. Fry J held at p 389:
[…] when a consent order has been drawn up, passed, and entered, it is not competent to this Court to vary that order, except for reasons which would enable the Court to set aside an agreement.
His Honour also stated at p 390:
The Defendant chose not to make the inquiry, and it would now be unreasonable to allow him to set the judgment aside. I called attention to the cases of applications to rescind contracts to take shares, where it has been held that a person might, after inquiry, refuse to take the shares; so here, after the undertaking was given, inquiry might have been made in time if due diligence had been used, and the application might then have been made. In regulating the proceedings of the Court too much indulgence should not be shewn to those who have not used due diligence.
In this case, a particular feature is that the Court has been asked to make declarations of fact in order to support orders setting aside the Authority’s decision. The evidence filed in support of the application establishes that those declarations of fact are incorrect, and therefore cannot support the orders. Practice Direction No 1 of 2016 of the Federal Circuit Court of Australia provides:
2. If the parties propose that an order be made with their consent, the effect of which is to set aside or vary an order of the Tribunal (‘consent order’), they must file the proposed consent order and, with it, a notation concisely setting out the matters said to justify the making of the proposed order and giving references to any authorities or statutory provisions relied upon. The proposed order must be signed on behalf of all parties. As well as the original two copies must be filed.
3. If the proposed consent order relates only to costs, only the proposed consent order need be filed.
4. If the Court makes a consent order the parties must, within seven days of the order being made, serve a copy of the order and the supporting statement (if any – see paragraph 2) upon the Tribunal.
Note: The Practice Direction does not apply to migration proceedings in which there is a challenge to a decision of the Minister or a delegate of the Minister or a report and recommendation to the Minister. In respect of those proceedings, the current practice will continue to apply, that is, for the submission of a note to accompany the draft consent order explaining the legal reasoning for the consent order.
The Court must consider the declarations of fact and law that have been made which cannot be supported by the facts as they are now known. It is not analogous to a judgment where the orders have no operation beyond the parties. These orders purport to state particular facts and bind the second respondent who submitted to the orders of the Court. No submission as made to the Court regarding the effect of those declarations in relation to the exercise of the Court’s discretion.
Notwithstanding the fact that declarations were made, there still has to be a proper basis for setting aside the order. In particular, it must be demonstrated that it is in the interest of justice that it be set aside, given that none of the specific grounds of r 16.05(2) can be relied upon. The first respondent has not pointed to any particular injustice that would be visited upon parties if the order was not set aside. Clearly it is not ideal that the orders were made and I presume that the first respondent pressed for the orders to be made as it was acting as a model litigant.
I am not persuaded that the Court should exercise its discretion to set aside these orders as no injustice has been pointed to by the first respondent and none is apparent. This is not a case which could be described as ‘rare’ or ‘exceptional’ which would justify the setting aside of a consent order.
Counsel for the applicants submitted that the only course open to the first respondent was to appeal the Final Consent Orders. I do not agree and find that this Court possesses the power to set aside the Final Consent Orders and can do so without requiring an appeal or fresh proceedings to be instituted: see TJM Products Pty. Ltd. v A & P Tyres Pty Ltd (1987) 17 FCR 390; Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 (cited in Re Universal Press Pty Limited v Robb [1989] FCA 364 per Gummow J at [14]).
In Kinch v Walcott [1929] AC 482, the Privy Council held at p 493:
[...] the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal.
The Court will make orders dismissing the application filed on 20 January 2020 with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 30 June 2020
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