Plaintiff S164/2018 v Minister for Home Affairs

The High Court considered an appeal by the appellant, identified as Plaintiff S164/2018, against a decision of a single Justice of the High Court. The dispute concerned the competency of the appeal itself, specifically whether leave to appeal was required from the single Justice's prior decision. The respondent was the Minister for Home Affairs.

The central legal issue before the High Court was whether the judgment of the single Justice, which dismissed the appellant's application for an order to show cause, was an interlocutory or a final judgment. This determination was critical because s 34(2) of the *Judiciary Act 1903* (Cth) requires leave to appeal from an interlocutory judgment of the High Court exercising its original jurisdiction, whereas no such leave is required for a final judgment. The appellant had filed a notice of appeal without seeking leave, proceeding on the basis that the judgment was final. A further issue arose regarding whether the respondent's unconditional appearance to the appeal precluded it from arguing that the appeal was incompetent due to a lack of subject matter jurisdiction.

Edelman J reasoned that a judgment finally determines the rights of the parties in relation to the subject matter of the litigation. In this instance, the single Justice's dismissal of the application for an order to show cause did not finally determine the substantive rights of the appellant concerning the underlying matter for which the order nisi was sought. Instead, it determined the procedural question of whether the appellant was entitled to have the matter heard further. Therefore, the judgment was interlocutory. His Honour also found that an unconditional appearance to an appeal does not confer subject matter jurisdiction where it is lacking, nor does it prevent a party from challenging the competency of the appeal on that basis.

Consequently, the High Court ordered that the appeal be dismissed as incompetent for want of leave. The summons filed on 24 September 2018 was also dismissed. The costs of the appeal were reserved, but the appellant was ordered to pay the respondent's costs of two specific summonses filed on 19 September 2018 and 24 September 2018.