Mohinder Singh v Secretary, Department of Family and Community Services [2005] FCA 1625

FEDERAL COURT OF AUSTRALIA

Mohinder Singh v Secretary, Department of Family and Community Services

[2005] FCA 1625

COURTS AND JUDGES – judgment – order entered – whether can be set aside – unsuccessful party seeking to reopen case

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Federal Court Rules O 35 r 7(2), O 35 r 7(3), O 36 Singh v Department of Family and Community Services [2004] FCA 1685(2004) 142 FCR 232 referred to

MOHINDER SINGH v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

VID 1121 of 2003

GRAY J 24 OCTOBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1121 of 2003

BETWEEN: MOHINDER SINGH

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 24 OCTOBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The motions the subject of the notice of motion filed on 30 September 2005 be dismissed. 2. The applicant pay the respondent's costs of the notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1121 of 2003

BETWEEN: MOHINDER SINGH

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GRAY J

DATE: 24 OCTOBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 23 December 2004, I gave judgment on an appeal by Mr Mohinder Singh against the Secretary of the Department of Family and Community Services. See Singh v Department of Family and Community Services [2004] FCA 1685(2004) 142 FCR 232. The appeal was from a decision of the Administrative Appeals Tribunal ('the Tribunal'). By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal was therefore confined to an appeal on a question of law. On 23 December 2004, I dismissed the appeal with costs. 2 The applicant subsequently sought special leave to appeal to the High Court of Australia from that judgment. His application for special leave to appeal was heard on 9 September 2005. The High Court dismissed that application, on the basis that an appeal would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. 3 On 30 September 2005, the applicant filed in this Court a notice of motion, seeking to set aside the reasons for judgment and the orders made on 23 December 2004. In its terms, the notice of motion seeks to: 'Reopen the case in light of new evidence for proper determination of the above mentioned appeal, which was not put forward by the applicant before this Honorable [sic] Court in the above mentioned appeal, in response to the respondent's contention.' 4 The order that I made on 23 December 2004 has been entered, pursuant to O 36 of the Federal Court Rules. Once a judgment or order has been entered, it can only be set aside or varied in very limited circumstances. Those circumstances are set out in O 35 r 7(2) of the Federal Court Rules. The circumstances are as follows: '(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents.'