Interlocutory v Final Orders – Are times changing? Sarah Brown | Associate
On 12 April 2016, the Supreme Court of Western Australia, Court of Appeal handed down the decision of MCG – v – JM  WASCA 75. The Appeal was from a Family Law Magistrate of the Magistrates Court of Western Australia under the Family Court Act 1997 (WA).
The two questions to be determined by the Court of Appeal were whether:
- a decision was interlocutory or final; and
- the Supreme Court had jurisdiction to hear the Appeal.
Martin J stated in his Judgement:
- For the reasons enunciated in that case [CDW v LVE WASCA 24], this court has no jurisdiction to entertain appeals from decisions which are properly characterised as interlocutory and only has jurisdiction if the appeal is from a decision properly characterised as final. The reasons given in that case also address the criterion which is to be applied in order to determine whether or not the decision the subject of an appeal to this court is properly characterised as interlocutory or final.
- Essentially, the criterion to be applied is whether the order as made finally determines the rights of the parties. In addressing that question the court is required to look to the legal rather than the practical effect of the judgment. So if, as a matter of law, the unsuccessful party could make a further application for the same relief, even though such an application may have very little prospects of success, the order is properly characterised as interlocutory rather than final, and this court has no jurisdiction to entertain the appeal under s 210A of the Act.
- As I have noted, the appellant’s application to set aside the order made by consent was made pursuant to s 205ZH of the Act. No provision of the Act limits the occasions upon which application may be made pursuant to that section. To the contrary, the section expressly provides for a variety of circumstances in which application may be made pursuant to its terms. In my view, it is implicit in the terms in which the section is expressed that application may be made pursuant to the section on more than one occasion if and when differing circumstances arise which might enliven the jurisdiction conferred upon the relevant court by the section.
Martin J concluded at paragraph 10 of his judgment and said:
“It is theoretically possible for MCG to again apply for an order setting aside or varying the orders made by consent, it follows that the decision from which she seeks to appeal is interlocutory in character rather than final. Accordingly, this court has no jurisdiction to entertain the appeal which must be dismissed”.
In the circumstances of this case, the Court found the Order to be interlocutory in nature and therefore capable of being varied. The Court of Appeal did not have jurisdiction to hear the Appeal given its interlocutory nature and the Appeal was dismissed.
The decision raises questions in terms of the approach to be taken in dealing with Appeals to the Supreme Court of Western Australia from the Magistrates Court of the Family Court of Western Australia.
There are a number of matters to be considered arising from the decision of MCG v JM which may include:
- Given an appeal from an Order made by a family law magistrate pursuant to s 205ZH of the Family Court Act 1997 is to be brought in the Family Court of Western Australia (as it has been found to be an interim order), then do appeals from orders pursuant to section 79A of the Family Law Act 1975 made in the Family Court of Western Australia follow the appellate pathway for interim orders or for final orders?
- In other words, as a s 205ZH order has been found to be an interim Order in the non-federal jurisdiction of the Court, is this then the case for the equivalent section, namely section 79A of the Family Law Act 1975, when the Court is exercising its federal jurisdiction?
- Are the findings of the Full Court of the Supreme Court of Western Australia in this case, namely that property orders are interim or interlocutory orders, in accord with the view of the Full Court of the Family Court of Australia?
- Is this judgment consistent with previous judgments of the Full Court of the Supreme Court of Western Australia?
- Does this decision mean that all Orders pursuant to section 205ZG of the Family Court Act 1997 (the equivalent of section 79 of the Family Law Act 1975) are interim or interlocutory Orders? Does this mean that all Orders made pursuant to section 205ZG whether they purport to be final orders or not are capable of being varied?
- Are you able to apply as of right to vary Orders under section 205ZG on the basis that it is an interim or interlocutory order?
- If this decision of the Full Court of the Supreme Court of Western Australia is inconsistent with the decisions of the Full Court of the Family Court of Australia in relation to what constitutes an interim or interlocutory Order, how should a lawyer provide advice? Is this another reason for Western Australia to consider referring its powers to the Commonwealth?