ENV17 v Minister for Immigration
[2018] FCCA 2516
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2516 |
| Catchwords: MIGRATION – Application in a case to expedite proceedings – the Court must apply the law as it exists – the Court has no right to and cannot speculate upon alterations in the law that may be made in the future – no basis to expedite proceedings – application in a case dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999, (Cth), s 13. |
| Cases cited: DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 Jupp v Computer Power Group Limited (1994) 122 ALR 711 Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 R v Whiteway; Ex Parte Stephenson [1961] VR 168 Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 Sydney City Council v Ke‑Su Investments Pty Limited and Ors (1985) 1 NSWLR 246 Warramunda Village Inc v Pryde (2002) 116 FCR 58 Wong v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCA 937 |
| Applicant: | ENV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESMENT AUTHORITY |
| File Number: | SYG 3138 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 5 September 2018 |
| Date of Last Submission: | 5 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The Court varies order 2 made by Judge Dowdy on 5 September 2018.
Direct the Application in a Case be heard by this Court today.
The Application in a Case is dismissed.
Costs of the Application in a Case be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3138 of 2017
| ENV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were commenced on 9 October 2017. The applicant is seeking a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 September 2017. The proceedings came before a Registrar of the Court on 10 November 2017 and the matter was fixed for hearing before a different judge on 28 November 2019. Consistent with the practice adopted in this Court, where resources become available this matter was then transferred into this Court’s docket.
On 6 February 2018, this Court made orders vacating the order for the hearing date on 28 November 2019 and bringing the matter forward for hearing on 24 July 2018. On 24 July 2018, the solicitor for the applicant appeared and counsel for the first respondent appeared. The Court made orders vacating the hearing date and granting leave to the applicants to rely upon the amended application dated 12 July 2018. The Court did not formally dispense with the need for the filling of that amended application. It is apparent, that the Court intended that step to take place in respect of the amended application.
The proceedings thereby then raised an issue in respect of whether the applicant was a fast track applicant within Part 7AA because of a decision of the learned Judge Justin Smith in DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 and DBC16 v Minister for Immigration & Anor [2018] FCCA 1802. In those two cases, the Court declared invalid the appointment of a port as a proclaimed area of water within the Territory of Ashmore and Cartier Islands published by a particular gazette. The orders made were upheld by the Full Court of the Federal Court of Australia on 6 August 2018.
The orders made on 24 July 2018 anticipated that there would shortly be a decision of the Full Court of the Federal Court of Australia and permitted the parties to have leave to approach the Court in chambers for a hearing date which was mutually convenient within seven days of the decision of the Full Court of the Federal Court of Australia. The parties took that course and by consent on 14 August 2018, this Court made orders relating to the filing of evidence and fixed the matter for a final hearing at 11:00am on 13 November 2018. The Court also granted liberty to apply on two days’ notice.
On 24 August 2018, an application in a case was filed. The application in a case was supported by an affidavit of the solicitor for the applicants. The application in a case sought an order that:
“The matter be listed for the earliest available hearing date.”
The application in a case was brought to this Court’s attention and this Court made an order in chambers, consistent with s 13 of the Federal Circuit Court of Australia Act 1999 (Cth), directing that the application in a case be listed on the same date as the hearing date currently fixed by the Court. That is the same order that this Court has made in multiple other applications in a case that have been filed in respect of the issues that have arisen in the present case.
The Migration (Validation of Port Appointment) Bill 2018 was introduced to the House of Representatives and read for a first time on 20 June 2018, a Migration (Validation of Port Appointment) Bill 2018. That Bill has in fact progressed through the Houses, but has not been passed.
There is an extremely important principle identified by the High Court of Australia in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 both in the judgment of the Latham CJ at [237], and although dissenting on other grounds by the learned Starke J at [253] that, is to the effect that a Court must apply the law as it exists and that a Court has no right to and cannot speculate upon, alterations in the law that may be made in the future. Chief Justice Latham referred in that case to the proposed new by‑law, being not yet made and that it could only be a matter of speculation as to whether it will ultimately be made and come into effect and operation.
The principle identified in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 has been applied by the learned Gray J in Jupp v Computer Power Group Limited (1994) 122 ALR 711 relevantly at [716], where his Honour said:
There is no distinction in those authorities between applications by respondents and applications by applicants for adjournments. In either case, the courts have refused to adjourn cases to enable either party to take advantage of proposed changes in the law.
The court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent.
The observations of the learned Gray J have been the subject of consideration also by the learned Bennett J in Wong v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCA 937. In that regard, her Honour referred to a disagreement by the learned Finkelstein J with the principles formulated by the learned Gray J in Jupp v Computer Power Group Limited (1994) 122 ALR 711. Finkelstein J in his reasons in Warramunda Village Inc v Pryde (2002) 116 FCR 58, referred to the decision in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 and treated the same as confined to simply the application of the present state of the law. The principle articulated by the learned Starke J and by the learned Latham CJ went further, because it made clear that a court has no right to and cannot speculate upon, the alterations in the law that may be made in the future. The application in the present case is based upon that speculation. It is the decision of the High Court of Australia in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 that is binding on this Court.
The learned Finkelstein J Warramunda Village Inc v Pryde (2002) 116 FCR 58 suggested a court would not engage in an error by taking into account the possible change in the law and determining that the case may be heard on an earlier date. The learned Bennett J, Wong v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCA 937 in the decision referred to above, treated the decision in which the learned Finkelstein J was a member of the Full Court as establishing that a court is not justified in adjourning a matter on account of the possibility that the law could be the subject of an amendment by Parliament. The learned Bennett J in that case decided to determine the matter on the balance of convenience and found that the balance of convenience did not weigh in favour of the making of the order sought in the notice of motion. The approach adopted by the learned Gray J reflecting this principle, as this Court has articulated, is also supported by what was said by the Court of Appeal in Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527, relevantly at [532].
The learned McHugh J in the Sydney City Council v Ke‑Su Investments Pty Limited and Ors (1985) 1 NSWLR 246 referred to a general rule that it is not a proper exercise of 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. His Honour in that regard referred to the learned Deane J in R v Whiteway; Ex Parte Stephenson [1961] VR 168 at [171].
The circumstances of the present case are ones in respect of which the existence of a Bill to vary the law was known at the time that this Court first made orders on 24 July 2018 and when the Court made orders on 14 August 2018 fixing the matter by consent for hearing in November 2018. Ordinarily, where a procedural issue is one which is alive and the parties have made consent orders, a variation of those consent orders would require some material alteration to the circumstances in which the orders were made at that time. There has been no material alteration to the circumstances that would justify the Court entertaining an interlocutory application to agitate the consent orders that were made on 14 August 2018 earlier than the hearing date that had already been fixed.
Quite apart from that principle, however, the principle identified in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 is one which means that the Court should no more speculate to the benefit of the applicant, than in relation to the respondent as to whether the law will be the subject of change.
Mr Jones, the solicitor on behalf of the applicant, submits the legislation is imminent and that the proceedings unless the subject of summary determination bringing the matter forward by expedition, will be the subject of loss of the applicant’s rights that would arise because of orders if made by this Court arise and be preserved, even if the Bill were passed. The underlying premise in Mr Jones’ argument is that it is appropriate for the Court to speculate and take into account a potential change to the law to the advantage of one particular party, in this case, being his client.
For reasons already given, the principles were correctly identified by the learned Gray J, which is consistent with what was said by Latham CJ and Starke J in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230, that the Court has no right to and cannot speculate upon alterations in the law that may be made in the future. Applying that principle, there is no proper basis to expedite the proceedings.
Further, even if the Court were to adopt the approach of a balance of convenience, in the interests of the administration of justice, where the Court has in the ordinary course of its docket fixed a matter for hearing at a time when the parties were aware of the existence of a Bill and in circumstances where the order was made by consent, the balance of convenience does not lie in favour of the Court expediting the proceedings. In terms of the interests of the administration of justice, the Court’s orderly conduct of its business is important in relation to the ability of the Court to hear and determine cases for other litigants. This Court has a vast number of cases already fixed for hearing and the hearing date allocated on 14 August 2018 for November 2018 was the earliest ordinary hearing date that the Court could provide to the parties for a final hearing.
While this Court does have capacity to hear and entertain urgent applications, the present application for expedition is not one that has any urgency other than the applicant’s desire to bring the proceedings forward because of anticipated change in the law. That is not a proper basis upon which expedition should be granted. It is not in the interests of the administration of justice to expedite proceedings because of speculation in relation to a change in the law.
The applicant’s case in the present case has been treated no differently to the other numerous applications that have already been filed seeking summary determination, most of which do not reflect the skill and care that Mr Jones has brought to bear in the present case. All those applications have been listed in the ordinary course on the hearing date for which the matter has been fixed. In a large number of those applications, no attention has been given to ensure that an issue is raised in the proceedings to enliven the application of the benefits that it is contended the client will obtain if the hearing is heard and appropriate orders are made. Whilst that does reflect diligent and competent conduct by Mr Jones, it does not identify a proper basis upon which this Court should expedite the proceedings.
At the commencement of the hearing, the Court raised with Mr Jones that there was an order that had been made by the learned Judge Dowdy fixing the matter for hearing before Judge Cameron today at 2:15pm. That order was made by Judge Dowdy, being the duty judge, in circumstances where Judge Cameron appeared to have another matter involving the same solicitor, and with this Court having not earlier been available, as this Court had been fixed for and heard an eight‑day intellectual property case in Melbourne that was resolved earlier by final order than the full eight days. Mr Jones did oppose this Court fixing the application in a case for hearing before this Court, on the ground that Judge Cameron was available and that an order had already been made. The ordinary practice in this Court is for the docket judge in respect of any matter, to hear any application in case if able to do so. As this Court was able to hear the application in a case in respect of a matter now in this Court’s docket, and having been in this Court’s docket since 6 February 2018, the Court was satisfied that it was appropriate for the application in a case to be heard and determined by this Court.
I note that even if one were to apply the balance of convenience approach adopted by the learned Bennett J, given the steps that had been taken in these proceedings and the history of the matter as identified, where this Court had already brought forward this matter and where the Court vacated that earlier hearing date at the request of the parties and where the Court made orders by consent fixing the matter for hearing at a time when the existence of the Bill was known by the parties, the Court is not satisfied that the balance of convenience weighs in favour of expediting the proceedings on the grounds advanced.
If there were an issue in respect of the wellbeing of an applicant or other identified good cause, the Court can expedite proceedings where satisfied it is necessary to do so in the interest of administration of justice. For the reasons I have earlier given, the existence of the Bill and the proposed passing of the Bill are not good cause within the interests of the administration of justice to warrant expediting the proceedings.
The Court notes Mr Jones submitted that the matter was one in respect of which if expedited, the first respondent had not identified any basis on which the case could be distinguished from the orders made by the Full Court of the Federal Court made on 6 August 2018.
The first respondent’s submissions identify that there are two further cases agitating the same issues which are on appeal to the Full Court of the Federal Court of Australia and likely to be heard in November 2018 in respect of which the first respondent is seeking to advance that a decision of the Federal Circuit Court on this issue is plainly wrong and should not be followed.
If the proceedings were to be expedited, I do accept the force of Mr Jones’ submissions that the Court would apply the law as it presently is, and that notwithstanding the possibility of appeal to which the first respondent has referred, the Court would apply the law as it presently stands had the proceedings be expedited. Mr Jones submits that because the parties are before the Court, it is in the interests of the administration of justice and consistent with the principles of expedition to deal with the matter finally today.
The Court makes orders for the orderly administration of justice, fixing matters for hearing in order to try and manage the substantial caseload of the Court. Notwithstanding the attraction of Mr Jones’ submission, the consequence of expediting the matter today, would give rise to this Court having to entertain multiple applications for expedition because of a perceived change in the law. The Court does not have the resources or the capacity to hear multiple applications based on speculation in respect of a change in the law. The principle identified by the High Court of Australia in Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230 is an important principle that outweighs the attraction of the argument advanced by Mr Jones.
The orders made by the Court in the present case fixing the matter for hearing on 11 November 2018, have been made in the ordinary way, consistent with this Court’s practice and in circumstances in which this Court did not have an earlier ordinary hearing date for a final hearing. The consent orders made on 14 August 2018, for the reasons earlier identified, also required a material change of circumstances to warrant the bringing forward of an application to vary those orders. The affidavit of Mr Jones and his client does not identify any material change of circumstances, given that Mr Jones accepts he was aware of the Bill before Parliament at the time the orders were made in July and August in 2018. The Court is not satisfied that this is an appropriate case in which the proceedings should be expedited in the interests of the administration of justice.
Accordingly, the application in a case is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 28 September 2018
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