Practice Reminder - Consent Orders in Federal Court

As lawyers who represent applicants in proceedings before the Federal Courts will be aware, it "ain't" that common that the Minister will concede that the Tribunal has committed jurisdictional error and will agree that "constitutional writs" should be granted quashing the Tribunal's decision and remitting the decision back to the Tribunal "for re-determination in accordance with law".

But as the saying goes, "miracles do happen" and in fact in a small percentage of cases, the Minister will accept that the judicial review application is meritorious and that the case should be settled.

A recent judgment that was issued by Judge Street of the Federal Circuit Court, Chu v Minister for Immigration & Anor (2018) FCCA 1289 (17 May 2018) provides a sound reminder of the practice that should be followed when there has been agreement to settle a case.

Judge Street observed in Chu that the process of getting consent orders approved by the Court is "not a rubber stamping exercise" but instead involves "an exercise of the judicial power of the Commonwealth".

Accordingly, when consent orders are submitted to the Court for review and approval, it is correct practice to include a "note" in the consent orders that "reveals facts that in law would constitute jurisdictional error".

As Judge Street observed in Chu, this does not mean that the Court itself would necessarily find that jurisdictional error has been established.

Rather, the note describing the jurisdictional error must be sufficiently detailed so that the court is satisfied that there are facts that are reasonably open in the record to make the proposed consent orders appropriate. 

The note must have "sufficient specificity" to inform the court and the Tribunal concerning the "particular conceded error or errors".

The legal representatives of applicants before the Federal courts should keep the principles outlined in Chu  in mind in order to expedite the approval of proposed consent orders by the courts, and to avoid having draft consent orders "bounced back" by the court so that an appropriate note can be prepared.