Minister for Immigration and Citizenship v SZNVW (No 2)

[2010] FCAFC 44

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZNVW (No 2) [2010] FCAFC 44

Citation:		Minister for Immigration and Citizenship v SZNVW (No 2) [2010] FCAFC 44
Appeal from:		SZNVW v Minister for Immigration and Anor [2009] FMCA 1299
Parties:		MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZNVW and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 96 of 2010
Judges:		KEANE CJ, EMMETT AND PERRAM JJ
Date of judgment:		20 May 2010
Catchwords:		PRACTICE AND PROCEDURE – Appeal – Whether Full Federal Court has power to set aside its own perfected orders – “Slip rule” – Allows  rectification of orders where they do not accurately reflect reasons of the court
Legislation:		Federal Court Rules Or 35, r 7(3)
Cases cited:	DJL v Central Authority (2000) 201 CLR 226 applied
Date of hearing:	31 March 2010
Date of last submissions:	31 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	2
Counsel for the Appellant:	S B Lloyd SC with T Reilly
Solicitor for the Appellant:	DLA Phillips Fox
Counsel for the First Respondent:	N J Williams SC with S Prince
Solicitor for the First Respondent:	No appearance
Counsel for the Second Respondent:	The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 96 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZNVW
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	KEANE CJ, EMMETT AND PERRAM JJ
DATE OF ORDER:	20 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Order 2 made by this Court on 10 May 2010 be set aside.

2.In lieu thereof it be ordered that the orders made by the Federal Magistrates Court on 22 December 2009 be set aside and in lieu thereof it be ordered that:

(a)    The applicant's application be dismissed.

(b)    The applicant pay the first respondent's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 96 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZNVW
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	KEANE CJ, EMMETT AND PERRAM JJ
DATE:	20 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This Court delivered judgment in this matter on 10 May 2010. Order 2 of those orders was in these terms:

   2. The decision of the magistrate be set aside.

2. That order contains two slips. First, the Court below was not the Federal Magistrate but, in fact, the Federal Magistrates Court. Secondly, the orders of the Court did not dispose of the proceeding before that Court. It was the intention of the Court by its earlier reasons that the proceeding before the Federal Magistrates Court should have been dismissed with costs.  The orders, by oversight, failed to do this. In those circumstances, it is appropriate to exercise the power under Order 35 rule 7(3) Federal Court Rules which allows a court to rectify perfected orders “when it can be shown that a court order does not correctly reflect the court’s decision as contained in its reasons”: DJL v Central Authority (2000) 201 CLR 226 at 263 [93] per Kirby J (with whom Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ agreed at 244 [34]). We would set aside Order 2 made on 10 May 2010, ex mero motu, and in lieu thereof order that:

   The orders made by the Federal Magistrates Court on 22 December 2009 be set aside and in lieu thereof it be ordered that:

   (a)    The applicant's application be dismissed.

   (b)    The applicant pay the first respondent's costs.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and Justices Emmett and Perram

Associate:

Dated:        20 May 2010