BDB17 v Minister for Immigration
[2018] FCCA 2538
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2538 |
| Catchwords: PRACTICE AND PROCEDURE – Whether hearing to be expedited to avoid anticipated effect of proposed legislation. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 17A, 42 Migration Act 1958 (Cth), ss.5AA, 66 Migration (Validation of Port Appointment) Bill 2018 (Cth) |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 Attorney-General of the Northern Territory v Minister for Aboriginal Affairs (1987) 16 FCR 267; (1987) 73 ALR 33 DBB16 v Minister for Immigration & Border Protection (Unreported, Full Court of Federal Court of Australia, NSD 354/2017) Re Minister for Communications; Ex Parte NBN Limited (1986) 14 FCR 344; (1986) 1 BR 371 Re Minister for Minerals & Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 973 | ||
| Applicant: | BDB17 | |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 151 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 September 2018 |
| Date of Last Submission: | 7 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.S. Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: Second Respondent: | Ms M. Jackson Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant's Application in a Case filed 29 August 2018 be adjourned to 19 October 2018 at 10.15am.
Liberty to apply on 24 hours’ notice.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 151 of 2017
| BDB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Later Edited)
The applicant filed an application in a case with the Court on 29 August 2018 (“Application in a Case”) that was listed for mention yesterday, 6 September 2018, and has been mentioned again today having been brought on urgently at the request of the applicant. The effect of the Application in a Case is, as the Court understands it, to:
a)seek leave to amend the substantive originating application filed 17 March 2017 (“Substantive Application”);
b)assuming leave is granted, to have the amended originating application, heard instanter;
c)to obtain certain declarations concerning the matter; and
d)on the basis of those declarations, move for summary or final judgment by way of prerogative relief,
all of which have the practical effect of bringing forward a final hearing of the matter which is presently listed for March 2020, or at the least have the practical result of the vacation of that final hearing date.
Factual Background
The matter arises against a factual background which appears to be as follows:
a)the applicant arrived in the Commonwealth of Australia, and it does not appear to be disputed by the first respondent, the Minister for Immigration and Border Protection (“Minister”), at the Territory of Ashmore and Cartier Islands on or about 18 April 2013 and was thereafter taken to the port of Darwin;
b)the applicant thereafter applied for a safe haven enterprise visa (“Visa”) on or about 13 September 2016. A delegate of the Minister refused the grant of the Visa on 29 December 2016: Court Book (“CB”) 202;
c)the refusal of the Visa was reviewed by the Immigration Assessment Authority (“Authority”) and on 21 February 2017, and the Authority affirmed the delegate’s decision not to grant the applicant the Visa (“Authority’s Decision”): CB 650;
d)the applicant, who was self-represented at the time, filed the Substantive Application on 17 March 2017, annexing an affidavit which did no more than attach the Authority’s Decision;
e)a response was filed by the Minister on 5 April 2017 and sought an order that the Substantive Application be dismissed on the basis that the Authority’s Decision was not affected by jurisdictional error; and
f)on 7 June 2017, a Registrar of this Court made various orders (“Registrar’s Orders”) including an order that a Court Book be filed, that by 26 July 2017 the applicant file any amended application and any affidavit, listing the matter for final hearing on 23 March 2020 and granting liberty to apply, amongst other orders. A Court Book was filed on 8 June 2017 and the applicant did not file, pursuant to the Registrar’s Orders, any amended application or any affidavit.
Application in a Case
On 29 August 2018, more than a year after the Registrar’s Orders were made, the applicant filed a notice of address for service and the applicant’s current lawyers came onto the record and on the same day filed the Application in a Case which seeks orders in the following terms (although slightly varied by a proposed order handed up today):
1. The Applicant be granted leave to file in Court an amended application in the form at Annexure RSJ-1 to the affidavit of Reuben Saul Jahnke dated 29 August 2018.
2. The Applicant’s application for summary judgment in respect of ground 1 of the amended application be made returnable and heard instanter.
3. Pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 (Cth), further or alternatively, rule 13.07 of the Federal Circuit Court Rules 2001, there be summary judgment for the Applicant in respect of ground 1 of the amended application.
4. A writ of certiorari issued quashing the decision of the second respondent made on 21 February 2017.
5. A declaration be made that the purported appointment of a port as a proclaimed port and area of waters within the territory of Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette number GN3 on 23 January 2002 is invalid.
6. A declaration be made that the applicant is not an unauthorised maritime arrival within the meaning of section 5AA of the Migration Act 1958 (Cth).
7. A declaration be made that the applicant has not been notified pursuant to section 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the first respondent dated 29 December 2016.
8. The first respondent pay the applicant’s costs of the application in a case.
As noted above, a minute of proposed orders was handed up today which is slightly different but, in essence, not different in substance, and as follows:
THE COURT ORDERS THAT:
1. The applicant have leave to file and serve a further amended application substantially in the form of the proposed amended application at Annexure RSJ-1 to the affidavit of Reuben Saul Jahnke dated 29 August 2018.
2. The hearing of this proceeding insofar as it relates to ground 1 of the further amended application be expedited to take place at the hearing on 7 September 2018.
AND THE COURT DECLARES THAT:
3. The purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette no. GN 3 on 23 January 2002, is invalid.
4. The applicant is not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth).
5. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the first respondent dated 29 December 2016.
AND THE COURT FURTHER ORDERS THAT:
6. A writ of certiorari issue quashing the decision of the second respondent dated 21 February 2017.
7. The first respondent pay the applicant's costs of and incidental to the proceeding.
The Application in a Case is supported by an affidavit from a lawyer for the applicant (who also appears today as Counsel for the applicant) and that affidavit is in the following terms:
2. On 14 September 2016, the Applicant applied for a protection visa. The application forms are at pages 65-106 of the Court Book.
3. On 29 December 2016, a delegate of the Minister made a decision refusing the application. The decision record is at pages 219-227 of the Court Book.
4. Also on 29 December 2016, the delegate sent the Applicant, a notification of his decision. This notification is at pages 199-201 of the Court Book. Page 1 of the notification (page 199 of the Court Book) states that the Applicant’s decision was referred to the Immigration Assessment Authority.
…
5. The Applicant seeks leave to amend his application for judicial review to include a ground raising the validity of the appointment of waters within the Territory of Ashmore and Cartier Islands as a ‘port’ under the Migration Act 1958 (Cth) relying upon DBB16 v Minister for Immigration and Border Protection (NSD 354/2017) (DBB16). A copy of a draft amended application is Annexure RSJ-1.
…
6. On the basis of DBB16, I believe that any response to the new ground in the draft amended application has no reasonable prospects of success.
On the basis of there being reference to the Court Book, and the exchanges earlier with Counsel for the applicant in relation to the Court Book, the Court Book will be marked as Exhibit 2, and the Court notes that at p.428 of the Court Book the port of arrival is referred to as Darwin. The Court also notes the submission made by Counsel for the applicant that Darwin was not a port which had been excised from the mainland at the relevant time in any event.
The draft amended application referred to in the affidavit, Annexure RSJ-1, seeks orders quashing the Authority’s Decision, a writ of mandamus directed to the relevant Commonwealth authorities to determine the applicant’s application according to law and in particular, as follows:
A declaration be made that the applicant is not an unauthorised maritime arrival within the meaning of section 5AA of the Migration Act 1958 (Cth).
A declaration be made that the applicant has not been notified pursuant to section 66 of the Migration Act 1958 (Cth) of a decision of a delegate of the first respondent dated 29 December 2016.
The grounds of the draft amended application are also set out as being that the Authority’s Decision was made without authority because the applicant was not a fast track review applicant. Of course, if the applicant was not a fast track review applicant, his avenue of review at the relevant stage was to the Administrative Appeals Tribunal rather than the Authority.
The Court noted earlier that the matter was listed for mention yesterday, 6 September 2018. The applicant did not attend. Having looked at the Court file, it is noted that on the notice of filing returned to the parties at the time of the filing of the Application in a Case, it was marked with a hearing date and time of 6 September 2018 at 11.30am which, undoubtedly by inadvertence, the applicant did not notice. Given the Minister’s Counsel attended yesterday, that is a matter which might sound in costs even though the matter was adjourned administratively.
Port of arrival - the Territory of the Ashmore and Cartier Islands
The issues as to whether the Territory of the Ashmore and Cartier Islands is a port for relevant purposes have been ventilated before this Court in judgments including DBC16 v Minister for Immigration & Border Protection [2018] FCCA 1802 (“DBC16”) and DBD16 v Minister for Immigration & Border Protection [2018] FCCA 1801 (“DBD16”), and also by a Full Court of the Federal Court in DBB16 v Minister for Immigration & Border Protection (Unreported, Full Court of the Federal Court of Australia, NSD 354/2017) (“DBB16”), in respect of which no final reasons for judgment are available and in relation to which the Minister has indicated that, subject to those final reasons for judgment, there may be an application for special leave to appeal to the High Court.
It appears that the effect of the above judgments is to declare the purported appointment of a port as a proclaimed port, being an area of waters in the Territory of the Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette no.GN 3 on 23 January 2002, to be invalid. The declarations which were consequently made have the effect that the applicants in those cases were not unauthorised maritime arrivals within the meaning of that phrase in s.5AA of the Migration Act1958 (Cth) (“Migration Act”) and also that the applicants have not been notified pursuant to s.66 of the Migration Act of the decision of the delegate, and have resulted in the issuance of writs of certiorari quashing the decision of the Authority because the Authority in each case was without jurisdiction because the applicants were not fast track applicants within the meaning of s.5AA of the Migration Act.
The matter was called on for mention urgently at the request of the applicant, and the applicant seeks that, notwithstanding that the matter is listed for mention, that the Application in a Case and, effectively, the Substantive Application be heard and final relief be granted, today. The basis for the urgent hearing is said to be the imminent passage through the Parliament, possibly as soon as Monday 10 September 2018, of the Migration Validation of Port Appointment Bill 2018 (Cth) (“Port Validation Bill”), which is Exhibit 1.
The effect of the proposed Port Validation Bill if passed by the Parliament will be to legislatively validate the proclamation declared invalid by this Court and the Federal Court in DBB16, DBC16 and DBD16, and it appears that that is the only basis on which the application for urgency is made. The Court notes that there is no evidence before it as to the Parliamentary timetable in relation to the Port Validation Bill and therefore no evidence as to when it is go before the Parliament or indeed, for what purpose it will further go before the Parliament or what its present passage through the Parliament might or has been, and there is certainly no basis on which the Court can assume that it will be before the Parliament next week or, indeed, that it will pass in its present form or any form at all, and the Court is not in a position to act on an assumption with respect to the passage of the Port Validation Bill.
Expediting a hearing
In the above circumstances, the Court takes the view that it would be inappropriate to bring forward any hearing of this matter, be it by way of the Application in a Case or a final hearing of the Substantive Application itself, including the application for summary judgment. More particularly, however, the Court is concerned with respect to the bringing forward of an application in the manner contended for by the applicant of an application which is presently listed for hearing in March 2020.
The Court notes the position of the Minister that if the matter is brought on for final hearing today, the Minister does not appear to oppose final relief being granted, but both the applicant and the Minister’s Counsel are not, effectively, in a position to deal with the issue as to whether or not an application in a case of this type and, therefore, an originating application ought to be brought forward in the manner contended for by the applicant.
There is, and can be, no doubt that the Court should in the normal course generally apply the law as it is at the time of the hearing and determination of a case when it comes on for hearing in the normal course. There are a number of judgments to that effect. Albeit in dissent, Starke J in Ramsey v Aberfoyle Manufacturing Co Australia Proprietary Limited (1935) 54 CLR 230; [1936] ALR 6, CLR at 253 (“Ramsey”) said:
Courts of law, however, can only act upon the law as it is, and have no right to, and cannot speculate, upon alterations in the law that may be made in the future.
Also in dissent, Burt CJ in Re Minister for Minerals and Energy Ex Parte Wingate Holdings Pty Ltd (1987) WAR 190 at 194 (“Wingate Holdings”) said as follows:
The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be Pyrrhic. If it is, then so be it. That is a matter for him.
The Court notes that the majority in Wingate Holdings actually granted an adjournment on the basis of a proposed change in the law, which would have had the effect of making any order futile. In Willow Wren Canal Carrying Co v British Transport Commission [1956] 1 WLR 213; [1956] 1 All ER 567; (1956) 100 SJ 150, WLR at 215-216 per Upjohn J (“Willow Wren”) it was said :
…sitting in this court, it is my duty to see that litigants have their cases tried, as they are entitled to, and I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect on the rights of the parties. That seems to me to be a correct formulation of the law. This court is not concerned with what Parliament may think it wise to do in relation to the rights of the parties, but the plaintiff is entitled to come to this court and say ‘In the normal course of events my action will very soon be ripe for hearing. I desire that the court should hear it’.,.
It is plain, however, that it is not right for this court either now or at the hearing to take into account the possible effect of a Bill which is at present before Parliament and which, so far as this Court is concerned, may never become law, or, if passed into law, may contain provisions which ultimately do not affect the rights of the parties before the court. In other words, it is a matter of speculation on which this Court will not embark whether a Bill at present before Parliament will be passed into law in its present form.
The above authorities were referred to, albeit obiter, by Gummow and Lockhart JJ, who formed the majority of the Full Court of the Federal Court in Attorney-General of the Northern Territory v Minister for Aboriginal Affairs (1987) 16 FCR 267; (1987) 73 ALR 33 at 50-53.
This case is one which is listed for final hearing in March 2020. The effect of what the applicant now seeks to do is to jump the litigation queues, and they are as the parties will appreciate, very long queues in this Court, particularly in this Registry, on the basis of the possible passage of proposed legislation at some time in the future and possibly, in the very near future.
In McGarry v Boonah Clothing Pty Ltd (1988) 49 IR 66; (1988) 80 ALR 284 (“McGarry”), the Federal Court dealt with an application for an adjournment and whether it was proper to grant an adjournment to one party to enable it to take advantage of a possible alteration of rights. In McGarry IR at 77-78 per Gray J the Federal Court said:
There are numerous authorities however, which suggest that it is not proper for a court to adjourn a proceeding for the purpose of allowing one party to better its position by changing the respective rights of the parties
In McGarry, the Federal Court then referred to Willow Wren, which the Court has already referred to, in addition to two Victorian cases and one New South Wales case, and at IR at 78 per Gray J said that:
…These cases show that it is the duty of the Court to deal with the rights of the parties to a proceeding as they exist when the proceeding is before it. It would be improper, in my view, to advantage the respondent by affording it an adjournment at this stage.
In Jupp v Computer Power Group Ltd (No.2) (1994) 54 IR 248; (1994) 122 ALR 711; (1994) 1 IRCR 86 (“Jupp”) a decision of the Industrial Relations Court of Australia which, like the Federal Court of Australia, is by statute a superior Court of Record with the same status effectively as the Federal Court, and the judgments of which are therefore binding on this Court, considered a case where a trial date had been fixed and there was proposed amending legislation, and the applicant sought an early trial of his proceeding to avoid the effect of the proposed amendments to the legislation. The Court considered whether it should grant an early trial. Having referred to those authorities that the Court has already referred to today, in Jupp IR at 252-253 per Gray J the Industrial Relations Court of Australia said this:
Neither counsel was able to cite to me a case in which a court has acceded to an application to bring forward the trial and judgment of a proceeding in order to enable a party to avoid the consequences of impending or proposed legislation. There is, in other words, no authority in point. The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is. The application of that principle dictates that no special step be taken to avoid the proposed amendments. The Court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent.
In the course of submissions from both Counsel the Court referred to Re Minister for Communications; Ex Parte NBN Limited (1986) 14 FCR 344; (1986) 1 BR 371 (“Ex Parte NBN Ltd”) where the Federal Court was dealing with an application for an adjournment of proceedings where there was a Bill awaiting debate on a second reading in the Senate, and it would therefore appear subject to imminent passage through the Parliament. In Ex Parte NBN Ltd FCR at 349-350 per Bowen CJ the Federal Court stated:
It was argued on behalf of NBN Limited that it was not for the Court to speculate on the future progress of this legislation. It had to apply the law as it stood at the time the Court was considering the matter.
The Federal Court then referred to Ramsey, which the Court has referred to, and noted some difference of opinion in that case to the remarks which the Court has already quoted from Starke J in the judgment of Rich J, and then went on to say as follows, and per Bowen CJ at 349 in Ex Parte NBNLtd:
I would merely state that in general terms I agree with the proposition that the Court applies the law as it is in force when a matter is before the Court and in general does not speculate as to the future course of legislation. On the other hand, in exercising a discretion upon an application for a prerogative writ or any type of discretionary relief where legislation is actually in progress, the Court is not obliged to shut its eyes to the realities and to ignore what is taking place.
In Ex Parte NBN Ltd FCR at 350 per Bowen CJ the Federal Court went on to say that it had considered whether the Federal Court should stand the matter over to see what action was taken by the Senate or whether the respective Bill goes in its present form to the Governor-General and is brought into law, but found that the prosecutor was entitled to have its order, effectively, but was not prepared to give an answer which might result in futility. The Federal Court therefore made the further order, but suspended its operation for a period of 14 days with liberty to apply to either party: Ex Parte NBN Ltd FCR at 350 per Bowen CJ.
As the Court noted earlier in Wingate Holdings, a decision of the Full Court of the Supreme Court of Western Australia, the majority (Burt CJ dissenting in the passage that the Court has already referred to) said that, although as a general rule it was improper to grant an adjournment on the ground that some legislative intervention was anticipated, in the circumstances of that case, which involved a mining lease, the interests of justice were to be served by the adjournment sought, because the failure to do so would simply result in the making of an order that would be futile: Wingate Holdings at 196 per Wallace J and 198 per Olney J. Special leave to appeal was refused in that case by the High Court: Wingate Holdings at 190 (Editor’s note).
Before the Federal Court in Wong v Minister for Immigration and Multicultural Affairs (2003) FCA 973 (“Wong”) was an application with respect to a person seemingly in detention, and at [33]-[40] per Bennett J the Federal Court stated:
33. The next question is the relevance of the amendments. In the present case, the applicant will, when the amendments come into effect, lose the prospect of release on an interlocutory basis. The fact of those amendments, without argument or authority, formed the basis of Mr Wilson’s submissions on the balance of convenience. Mr Basten asserted that they were of no account but provided no further argument or authority to support that proposition. I say this without criticism of either Counsel in the circumstances of an urgent application brought on with minimal notice. It seems, however, that the question of the relevance of the amendments is not without difficulty.
34 In Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, the New South Wales Court of Appeal, in dealing with a consent adjournment by reason of proposed legislative change, held that the Court has the power and the duty to ensure that proceedings before it are disposed of in due course and that the prospect of legislative change is not of itself a sufficient or proper ground for allowing an adjournment. McHugh JA said, at 258:
“ … as a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future.”
35 In Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 (“Grdovic”), the New South Wales Court of Appeal held that, in the exercise of the discretion to grant a contested application for an adjournment, it is not proper for the Court to take into account as a controlling factor the prospect of a substantive legislative amendment which would accrue to the benefit of one party. Mason P, with whom Sheller and Beazley JJA agreed, said (at 531) that an announcement of proposed legislative change does not in any way qualify the judicial branch's obligation to uphold the existing law or enliven a power to grant a contested adjournment of proceedings so as to enable one party to gain the benefit of proposed legislation to the detriment of another party and cited a line of cases to the same effect. His Honour did distinguish situations where the Court is dealing with a discretionary remedy where relief may be denied on the ground of futility and where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal (at 534-535). Grdovic was followed by the Full Court in Attorney-General (Cth) v Foster (1999) 84 FCR 582 (“Foster”).
36 In the Full Court decision of Warramunda Village Inc v Pryde (2002) 116 FCR 58 (“Warramunda”), Finkelstein J (at 73 and following) considered the question of relevance of a proposal to amend legislation. His Honour, who was not considering amending legislation but an anticipated change to an industrial award, looked to the authorities where adjournments had been granted and refused and said that decided cases are only relevant by analogy. Finkelstein J considered the reasoning of Gray J in Jupp v Computer Power Group Ltd (1994) 122 ALR 711 where his Honour had said (at 716):
“The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is. The application of that principle dictates that no special step be taken to avoid the proposed amendments. The Court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent.”
37 Finkelstein J disagreed with Gray J's formulation of the principles and preferred the formulation of Burt CJ in Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 at 194 which his Honour summarised (at 75) in terms that “a party is entitled to ‘justice according to the law as it is’ refers to the law which is invoked when the writ is issued, and not to the law as it may be at the date of the hearing”. Finkelstein J concluded (at 75) that “a court will not fall into error for bringing a case on for hearing earlier than the appointed day, provided it can be heard without injustice to any party to the proceeding, or to parties in other litigation that may also have a just claim on the judge's time”. In Warramunda, Lee J did not discuss the question in detail, agreed with Finkelstein J that the appellant had not demonstrated that the primary Judge had erred in exercising the discretion to alter the date for hearing but observed that the question, whether it was not appropriate to adjourn a case to await prospective legislation that would alter rights, was incidental to and not the basis for that exercise of discretion. Gyles J did not discuss the issue or make clear whether or not he agreed with Finkelstein J in that regard.
38 It seems to be accepted that a Court is not justified in adjourning a matter on account of the possibility that the law could be the subject of amendment by Parliament (Fosterat 585).
39 The amendments, already passed by both Houses of Parliament, specifically do not affect existing orders of the Court but specifically do purport to apply to existing proceedings, such as those commenced by Mr Wong. This is not a case of some hoped-for legislation of uncertain content; the amendments are of imminent effect.
40 There may well be a difference between adjourning a matter that is otherwise before the Court for hearing and permitting an interlocutory application to be brought to take advantage of the law as it is and as it was at the time of filing the originating proceedings. The question arises whether pending changes in the law should affect the ordinary conduct of proceedings. Is there a relevant difference between an adjournment and the advancement of a hearing? There is, in my opinion, a degree of analogy between the Foster situation and a situation where the Court is asked, in effect, to advance a hearing because the law is about to be the subject of amendment.
The Federal Court concluded in Wang at [41] per Bennett J by saying this:
The difficulty is that, given the nature of this application, I have not had the advantage of proper submissions on this aspect, nor have I been able to give the parties the opportunity to make those submissions as I have been urged to give my decision without delay. In the circumstances including my conclusion on the strength of the applicant’s case, I do not finally decide the question but I am inclined to the view that, as the sole consideration in relation to the balance of convenience, it does not weigh in the applicant’s favour.
The Full Court decision in Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58; (2002) 113 IR 265 was dealing with questions of an anticipated change to an industrial award in circumstances where one of the parties said, well, if the Court decides X, we will make an application to amend the award to provide Y and therefore make the Court’s order futile, which is not quite on point in the present circumstances, but the Federal Court nevertheless also dealt with the Supreme Court Western Australia judgment in Wingate Holdings, preferring the dissenting view of Burt CJ.
To the extent that very recently other members of this Court might have, and it is put no higher than that, brought forward cases of this type and heard them or issued declarations and orders and made orders for a grant of prerogative relief of the type now sought by the applicant, it can simply be observed that they appear to have done so without regard to those cases which might bind them as to the circumstances in which a case might be brought forward or adjourned to allow one party to have the benefit of or avoid the effect of a proposed change in the law and seemingly without the benefit of any argument on those issues. It would appear that it was as recently as yesterday (6 September 2018) that issues of the type that the Court has now adverted to were first raised in a matter before Judge Street. That is perhaps not surprising, given the urgency with which the matters have been brought forward and the number of cases which have been brought forward before the Court, but it appears to the Court as presently constituted that the Court’s role as a general proposition is not to make special arrangements to bring forward or to put back litigation events so as to enable a party to avoid or take advantage of the effect of prospective legislation.
There may be some exceptions and nuances to that proposition, but without the parties today having made, or without the Court having had the benefit of the parties putting before it, proper and full submissions with respect to the issue that the Court has adverted to, the Court is in a not dissimilar position to that in Wong, in that it has not had the advantage of those submissions and, in those circumstances, it would, in the Court’s view, be inappropriate for the orders sought by the applicant to be made. The Court notes that both parties have indicated a willingness to deal with the matters that the Court has adverted to and, in those circumstances, it might be appropriate to grant some form of liberty to apply in any orders that are made today.
The applicant’s position simply appears to be one whereby the applicant is, and the Court does not say this pejoratively and understands entirely the reason for it being done, seeking to jump a very long litigation queue in this Court to enable him to avoid the effect of the passage of Port Validation Bill. On the basis of the authorities, the Court tends to the view, and puts it no higher than that, that such a course in the present circumstances, including the lack of evidence as to the Parliamentary timetable, is such that it would be inappropriate to advance the hearing of the Application in Case, or, to the extent advocated for, the final hearing of the matter, to allow the applicant to avoid the effect of the Port Validation Bill, as that is not a course that the law generally endorses and, on that basis, it is not appropriate to hear the Application in a Case or the Substantive Application today.
As the Court has indicated, the Court has not had the benefit of considered argument from either party in relation to these issues, and has for itself only had the benefit of a brief review of the authorities to which it has referred and, as the Court has indicated, having regard in particular to Wong, but also to its own sense of what is in the interests of the administration of justice, it is not appropriate to bring forward the hearing of Application in a Case or the Substantive Application.
Summary Judgment
In terms of relief on the basis of summary judgment, the principles are well known and referred to in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 (“Spencer”). The Court notes that in this case, the Minister’s position is that, if final relief were to be sought, the Minister would not oppose declarations being made in the terms sought by the applicant, but they would then appeal, and that there may still be a factual issue which is in dispute in relation to the relevant “port”.
It would also, if it be the case that there is an application for special leave to be made to the High Court, be the case that the law is presently not settled, although the Court accepts unequivocally that, were it to hear the matter finally today, it would be bound by the orders made by the Federal Court in DBB16, but the Court also notes that there is no binding authority of the High Court. The Court also notes, to the extent that it might be relevant to seeking a summary judgment application on an urgent basis to pre-empt or avoid the effect of prospective legislation, that the law might soon be different and in those circumstances the Court observes what was said by the High Court in Spencer where when referring to s.31A of the Federal Court of Australia Act1976 (Cth), which is in the same terms essentially as s.17A of the Federal Circuit Court Act 1999 (Cth) (“FCCA Act”), French CJ and Gummow J at [25] said this:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Bearing in mind what the Court has said with respect to the arguably unsettled state of the law, and bearing in mind that the matter is presently listed for final hearing in March 2020, by which time the law may have been further clarified either legislatively or by the High Court in relation to DBB16 if an application for special leave to appeal is made, it is the case in the Court’s view that this is not presently a proper case for a grant of summary judgment on an application to bring forward a matter which is listed for hearing in some 18 months. The Court therefore also takes the view that the Application in a Case and the hearing of the Substantive Application ought not to be brought forward.
Case Management
The Court is also entitled to have regard to case management issues in considering its determination of what is in this case, first and foremost, a procedural application. The Court refers to the well-known High Court authority in Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 and the provisions of ss.3 and 42 of the FCCA Act in relation to case management issues, including the notion that cases ought not be protracted.
The fact is, however, that the cases in this Court, given the number of migration cases which are before the Court which are in their thousands, are protracted, as is evidenced by the fact that in the normal course of events, this application would not be heard before its present final hearing date in March 2020. Case management is made more difficult for high volume first instance courts where applicants seek to jump the litigation queue, and where they seek to do so in respect of, as here, proposed legislation, and in particular, where, as here, it is notorious that the Migration Act is an Act which is most frequently amended by the Parliament of the Commonwealth of Australia, and in circumstances where the Parliament is often responsive, and often speedily responsive, to decisions of this Court, the Federal Court and the High Court.
Case management should not necessarily be beholden to urgency or dictation in the face of proposed legislation, and that is consistent in general terms with the general thrust of the authorities that the Court has earlier referred to. The Court also takes note of the fact that, and this was the subject of some discussion with Counsel for the applicant, it might be unfair to other individuals who are in essentially the same position as the applicant, but who have not had access to a lawyer, who might not be able to get access to a lawyer, or who otherwise simply do not know of the relevant court decisions which have now been made in relation to these issues, and the Court is concerned that it may be unfair to others if individual cases such as this are brought forward out of the litigation queue.
It certainly disadvantages other litigants both in migration and other cases because their cases may be displaced. It might be unfair on the basis that not all have the access to resources which enable them to bring forward an application such as this. It is also unfair in the Court’s view that the matter is not able to be properly considered on the basis of the authorities, today being a case in point. It also affects the Court’s management of its resources in having to deal with these issues in cases on an urgent basis and take up the time of judges of the Court hearing applications of this type when the time might be otherwise usefully occupied doing other things.
In the above circumstances the Court is of the view that the case management considerations to which it has broadly adverted also weigh against bringing forward the hearing of the Application in a Case, or a final hearing of the Substantive Application.
Conclusion
In conclusion, then, and for the reasons that the Court has referred to, the Court is of the view that it is not appropriate to bring forward the hearing of the Application in a Case, or by extension, the Substantive Application. Rather, the Court will list the Application in a Case for directions in the normal course, subject to a liberty to apply given what has been indicated by Counsel in relation to the matters discussed in argument.
The Minister has indicated that costs are not sought for the matter being adjourned yesterday, and therefore the appropriate order is that costs be reserved. There will be orders accordingly.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 September 2018
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