The High Court (Edelman J) has dismissed an application by summons relating to leave to appeal procedures.

Plaintiff S164’s applications for an order to show cause in the High Court’s original jurisdiction, with which he sought writs of prohibition and mandamus to require the Minister to release him from immigration detention, was dismissed by Gageler J in August 2018 (at [1]ff). In September, Plaintiff S164 then filed a notice of appeal against Gageler J’s decision, purportedly brought as of right (at [3]). The Minister responded by filing a notice of appearance and a summons seeking to have that appeal dismissed as incompetent, on the basis that Gageler J’s orders were interlocutory and thus, under s 34(2) of the Judiciary Act 1903 (Cth), require leave to bring an appeal to the Full Court (at [4]). Plaintiff S164 then claimed that the Minister’s filing of a notice of appearance meant he had submitted to the jurisdiction of the Court and could not challenge the competency of the appeal (at [5]).

Edelman J held that Plaintiff S164’s summons conflated the different kinds of jurisdiction — venue, personal, and subject matter — and must be dismissed. While an appearance usually indicates submission to jurisdiction and a general waiver around procedural irregularities (at [6]), the irregularity here was not around personal jurisdiction but the subject matter requirements of the court’s jurisdiction, which are statutory requirements that cannot be waived (at [7]). Section 34(2) requires leave to appeal in relation to the subject matter of interlocutory judgments: that requirement cannot be waived by a defendant, nor does filing an appearance preclude a defendant from challenging the Court’s jurisdiction (at [8]).

Turning to the Minister’s argument that Gageler J’s order was interlocutory, Edelman J agreed that it was, reiterating that interlocutory orders are ones that do not finally determine the rights of the parties in a legal rather than practical sense (at [11]ff), and an order to show cause does not do this because a judge can refuse to make the order on the basis that the application was premature but could be brought at a later date (at [13]). Consequently, Plaintiff S164’s appeal was incompetent.