HIGH COURT OF AUSTRALIA
GLEESON J
SPALL APPLICANT
AND
MINISTER FOR HOME AFFAIRS RESPONDENT
[2024] HCASJ 18
Date of Judgment: 17 May 2024
M11 of 2023
ORDER
1. The application is dismissed.
Representation
The applicant is represented by Carina Ford Immigration Lawyers.
The respondent is represented by Australian Government Solicitor.
GLEESON J. On 5 January 2024, the applicant ("Mr Spall") discontinued his application for removal of Federal Court of Australia proceeding number VID750/2021 ("the Federal Court proceeding") into this Court under s 40 of the Judiciary Act 1903 (Cth) ("the removal application"). Mr Spall now seeks an order under r 26.08.2 of the High Court Rules 2004 (Cth) that there be no order as to costs in the proceeding, departing from the usual order that the discontinuing party pay the respondent's costs under that rule. The respondent ("the Minister") opposes Mr Spall's application.
In support of his application, Mr Spall relies upon: (1) an affidavit of his solicitor, Carina Ford, affirmed on 24 January 2024; and (2) written submissions. The Minister relies upon: (1) an affidavit of Michelle Elizabeth Stone, a lawyer in the employment of the Australian Government Solicitor, affirmed on 9 March 2023; and (2) written submissions.
Pursuant to r 13.03.1 of the High Court Rules 2004 (Cth), I direct that the application for costs be determined without an oral hearing.
For the following reasons, the application should be dismissed.
Facts
Mr Spall obtained Australian citizenship by conferral in 1997. In 2018, he was sentenced by the County Court of Victoria to 12 months' imprisonment for conduct that occurred in 1995-1996. On 7 May 2020, the Minister decided under s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") that Mr Spall's citizenship had ceased.
The Administrative Appeals Tribunal ("the Tribunal") affirmed the Minister's decision. On 14 December 2021, Mr Spall commenced the Federal Court proceeding, appealing from the Tribunal's decision. On 6 July 2022, Mr Spall filed a notice under s 78B of the Judiciary Act 1903 (Cth) stating that the Federal Court proceeding involves a matter arising under the Constitution or involving its interpretation, namely whether s 34(2) of the Citizenship Act was invalid ("the constitutional question").
By letter dated 6 September 2022, the Australian Government Solicitor ("AGS"), acting for the Attorney-General of the Commonwealth ("the Attorney-General"), informed the solicitors for Mr Spall and the Minister that the Attorney-General had decided to apply to remove the Federal Court proceeding into this Court. By letter dated 7 September 2022 to AGS, Ms Ford requested that the Commonwealth agree to pay Mr Spall's reasonable costs in this Court. Ms Ford's letter also questioned whether the Federal Court proceeding was an appropriate vehicle for a challenge to the validity of s 34(2) of the Citizenship Act.
By letter dated 19 September 2022, AGS acting for both the Attorney-General and the Minister, declined Mr Spall's request for the Commonwealth to pay his costs and stated that the Commonwealth considered that costs should be in the…
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- Case
- [2024] HCASJ 18
- Decision Date
CaseChat Overview and Summary
The court found that the Federal Court proceeding was not the appropriate vehicle for the proposed constitutional challenge as there was a prospect that the High Court might disagree with the Federal Court's jurisdiction to hear the matter. The court also found that the Commonwealth did not have to pay Mr Spall's costs in this Court. The court found that it was in the interests of justice to dismiss the application, as the Commonwealth would consent to the matter being referred to a Full Court of the High Court for decision if Mr Spall commenced separate proceedings in the High Court.
The application to remove the Federal Court proceeding to the High Court was dismissed.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GLEESON J
Full text does not contain this section.