Federal Court (Full Court). On an appeal by way of rehearing, must the Court determine the correctness of the orders under appeal by applying the law as it stands at the time it gives judgment on appeal to facts that are found on the basis of all the evidence properly before it?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the nature of the appellate aspect of the FCA's jurisdiction "to set … error right"?
Question 2: Can it be said that the parties to an appeal cannot change the nature of the Court's appellate jurisdiction, even by consent?
Question 3: Is an appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) an appeal by way of rehearing?
Question 4: Are there three conventional categories of appeal, namely appeal in the strict sense, appeal de novo, and appeal by way of rehearing?
Question 5: In an appeal by way of rehearing, must some legal, factual or discretionary error on the part of the judge at first instance be demonstrated before the power of the FCA to set aside the primary judgment is enlivened?
Question 6: On an appeal by way of rehearing, must the Court determine the correctness of the orders under appeal 'in retrospect', in the sense that it must do so on the law as it stands when it gives judgment on the appeal?
Question 7: If the answer to Question 6 is 'yes', and there are changes in the law (such as the common law) between the giving of judgment in the original jurisdiction and judgment on appeal, can the application of a revised view of the law to the facts as they present themselves to the appellate court be labelled a 'constructive error'?
Question 8: If the answer to Question 7 is 'yes' in relation to the common law, is this "readily explicable on the basis of the theory under which an authoritative statement of the common law is taken to declare the law as it is and always has been", meaning an ab initio declaration?
Question 9: If the answer to Question 6 is 'yes', then on an appeal by way of rehearing, must the Court determine the correctness of the orders under appeal by applying the law as it stands at the time it gives judgment on appeal to facts that are found on the basis of all the evidence properly before it?
Question 10: If the answer to Question 9 is 'yes', do those facts still concern a state of affairs that existed at the relevant time, such as when the orders below were made, with the result that a court on appeal "cannot apply a law as it now stands if, properly construed, that law does not operate on that prior state of affairs"?
Question 11: If the the power of the FCA under s 27 of the Federal Court Act to receive further evidence subject to the well-recognised constraints on that power that apply generally to appeals by way of rehearing?
Question 12: Do the introductory words to s 28 of the Federal Court Act mean that the Court's power in s 28(1)(b) to 'give such judgment, or make such order, as in all the circumstances, it thinks fit, or refuse to make an order' is confined to 'the exercise of its appellate jurisdiction'?
Question 13: Is the whole premise of the review carried out by the Tribunal and the appeal to the FCA from that review that the ART will make a legally effective decision on the review as a whole?
The FCAFC answered those questions as follows: