Date of Judgment: 17 May 2024 - [2024] HCASJ 18

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCASJ 18
Decision Date: 17 May 2024

CaseChat Overview and Summary

Mr Spall filed an application to remove his Federal Court proceeding to the High Court, seeking a determination on whether s 34(2) of the Australian Citizenship Act 2007 (Cth) was invalid. The Australian Government Solicitor, acting for the Attorney-General and the Minister, opposed the application. The court was required to decide whether the Federal Court proceeding was an appropriate vehicle for the proposed constitutional challenge, and whether the Commonwealth should pay Mr Spall's costs in this Court.

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

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 cause in any proceeding to decide the constitutional question. As to whether the Federal Court proceeding was a suitable vehicle, AGS responded as follows: "We consider there is a good argument that the proposed Ground 1A is a question of law that can be the subject of an appeal under 44 of the Administrative Appeals Tribunal Act 1975 (Cth). However, we acknowledge there is some prospect that the High Court might disagree. Given that your client is willing to commence separate proceedings in the original jurisdiction of the High Court of Australia to decide the constitutional question, we agree that is a practical way to avoid the risk identified above. If your client were to commence proceedings of this kind, confined to the constitutional question in proposed Ground 1A and on the basis of the facts as found in the AAT's decision, the Commonwealth would consent to the matter being referred to a Full Court of the High Court for decision." By email dated 26 September 2022, Ms Ford told AGS that she was seeking Mr Spall's instructions on the 19 September 2022 letter. There is no evidence of any further relevant communications until, on 9 February 2023, Mr Spall filed his removal application. On 14 February 2023, AGS informed Ms Ford that they did not have any further instructions in the Federal Court proceeding "at this stage". On 15 February 2023, AGS informed Ms Ford that they had received instructions overnight "not to concede" the Federal Court proceeding but did not have instructions about the removal application. On the same day, Ms Ford asked AGS to "confirm if your client will support" the removal application and, if not, explain why not. Ms Stone acknowledged receipt of Ms Ford's communication and said that AGS would respond when instructions were received.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON J

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON J

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