Plaintiff S164/2018 v Minister for Home Affairs

The case of *Plaintiff S164/2018 v Minister for Home Affairs* involved an appeal lodged by the plaintiff against a decision of a Justice of the High Court. The Minister for Home Affairs, the respondent, filed a summons arguing that the plaintiff's appeal was incompetent because it should have been an application for leave to appeal, not an appeal as of right. The plaintiff, in turn, filed a summons seeking the dismissal of the Minister's summons, asserting that the Minister had submitted to the Court's jurisdiction. The dispute thus centred on whether the decision below was final, giving rise to an appeal as of right, or interlocutory, requiring leave to appeal.

The High Court was required to determine two primary legal issues. Firstly, whether the Court, of its own motion, has the power to determine its jurisdiction to hear an appeal, even if the respondent has not formally raised the issue. Secondly, and more centrally to the dispute, the Court had to decide whether the decision of the Justice at first instance was a final or interlocutory decision. This determination was critical because an appeal as of right lies from a final judgment, whereas an interlocutory judgment typically requires leave to appeal. The Court also considered whether the plaintiff's lodging of an appeal as of right, rather than an application for leave, was a strategic choice or a misunderstanding of the applicable rules and precedents.

The plaintiff argued that the decision below was final, relying on the reasoning in *Gallo* and asserting that the matter had been heard on the merits and dismissed with costs, making it the end of the matter for the parties. They contended that this was distinguishable from cases like *Re Media, Entertainment and Arts Alliance*, where an order nisi procedure was considered interlocutory. The plaintiff further argued that the Minister had submitted to the Court's jurisdiction by filing an unconditional notice of appearance, precluding them from challenging jurisdiction. Conversely, the Minister submitted that the decision was interlocutory, citing *Re Media, Entertainment and Arts Alliance* as binding authority for the proposition that applications in the nature of an order nisi are interlocutory. The Minister argued that the test for finality concerns whether the legal effect of the judgment is final in respect of the parties' rights in the principal cause, and that an order dismissing an application for an order to show cause does not preclude further applications or challenges. The Minister also contended that jurisdictional conditions, such as the requirement for leave to appeal, cannot be waived by the parties.