Long v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT 1 The appellant, Brian Long, sought leave to appeal from an interlocutory judgment of R D Nicholson J of 19 June 2002. His Honour dismissed a motion by which Mr Long sought orders that the respondent be restrained from removing him from Australia and from detaining him. He also sought an order that the decision of the respondent to cancel his B F transitional (permanent) visa ("the visa") be stayed. 2 The application for leave to appeal came before this Full Court on 22 August 2002. Leave to appeal was not opposed by the respondent. We granted leave and commenced to hear the appeal on 22 and 23 August 2002. During the hearing of the appeal it became apparent that rather than pursuing his application for leave to appeal it was preferable, from Mr Long's point of view, that he apply for a mandatory interlocutory injunction compelling the respondent to reinstate the visa pending the hearing and determination of the substantive application. 3 The current appeal was adjourned to a date to be fixed and the costs of the appeal were reserved. 4 In the absence, on leave, of R D Nicholson J, the motion for mandatory interlocutory relief came before French J on 2 October 2002. Rather than hear the motion, French J listed the substantive application for hearing on 21 October 2002. 5 On 19 November 2002 French J dismissed the substantive application: see Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1422. A notice of appeal from the judgment of French J has been lodged by Mr Long. The relevant file has been allocated the number W 338 of 2002. 6 In that appeal, Mr Long has caused to be issued a motion seeking interlocutory relief pending the hearing and determination of the appeal, including an order that the respondent be restrained from continuing to detain Mr Long in immigration detention. 7 Counsel for Mr Long, in correspondence to the Court on 9 December 2002, requested that the motion in W 338 of 2002 be heard at the same time as the resumed hearing of the part-heard appeal in the instant matter, if such a course was considered appropriate. 8 The Court does not consider the course suggested by counsel to be appropriate. The listing of the motion and, subsequently the appeal in W 338 of 2002 should occur in the context of the usual practice for such listings. It is not appropriate for parties to choose their full courts. 9 By letter to the parties dated 10 December 2002 the parties were advised that the appeal in this matter would be called on for mention on 16 December 2002. The letter included the following information: "Any notice of motion which the parties wish to have dealt with in the mention should be filed and served with supporting affidavit material by 4.30 pm (EST); 1.30 pm (WST) on Monday 16 December 2002." 10 Earlier on 29 November 2002 the Court requested the parties: "to file and serve written submissions on whether there is any practical utility in the appeal … remaining on foot." 11 Written submissions were filed in response to the Court's 29 November letter. The respondent submitted that the appeal is futile given the determination of the substantive matter by French J. Mr Long contended that the appeal is not futile because of a live issue about costs of the appeal and costs before Nicholson J. In addition, in response to the Court's invitation of 10 December 2002, the respondent filed a motion seeking that the Court rescind the leave to appeal which was granted in August 2002. 12 In Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652, a Full Court said at [13] that: "There is ample authority for the existence of a discretion in this Court to stay an appeal in circumstances where there is nothing to be gained by the appeal proceeding …" 13 Hope Downs was followed, in that respect, by a Full Court in Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872 at [46]. Further at [47] the Full Court in Tchoylak said that:- "There is a real doubt as to whether, if the Court were to proceed to determine the appeal, it would do so in the exercise of the judicial power of the Commonwealth." 14 The observation set out above should be considered together with the conclusion of a Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 where it was held that the fact that the respondent had voluntarily left Australia prior to the hearing of the appeal did not render the appeal moot. The Full Court said there was a sufficient "matter" within the meaning of Ch III of the Constitution for determination in a legal proceeding. Among the considerations which led the Court to that conclusion were the fact that there had been a finding of serious personal fault against a member of the Refugee Review Tribunal which the Minister had a tangible interest in seeking to have reversed by an appellate court. There was also the question of the order for costs, although the amount in that case was likely to be minimal given that the respondent was not represented before the primary judge. 15 In Beitseen v Johnson (1989) 29 IR 336 at 338 a Full Court held that "it should not proceed further with the hearing of the appeal"; in effect granting a permanent stay. Beitseen was applied in Mayne Nickless Limited v Transport Workers Union of Australia, unreported, Full Court, 16 July 1998. Mayne Nickless, in turn, was cited in Hope Downs as support for the power of the Court to permanently stay an appeal which is moot. 16 The Full Court in Beitseen at 338, said that "the passage of time has … deprived the issues in controversy of real practical significance". We are of the view that the same can be said of the appeal in the current matter. It is not desirable that scarce judicial resources be used in a debate which cannot have any real practical effect on any issue, perhaps other than costs. The considerations which led the Full Court in SBAN to find that there was a sufficient "matter" within Chapter III of the Constitution do not arise here. 17 Competing contentions about residual costs issues did not deter the Full Court in Hope Downs from permanently staying the appeal in that matter. We consider that the same course should be taken in this matter. 18 We do not believe that live issues in respect of costs should result in an otherwise moot appeal proceeding to full hearing and determination. Given the special and unusual circumstances surrounding this appeal we do not propose to make any party liable for the costs of the other. Indeed that was the approach taken by French J on 19 November in the substantive proceeding. Further, we consider that the costs of the motion before R D Nicholson J should be costs in the appeal in matter W 338 of 2002. The respondent, by its motion dated 16 December 2002 requested that we rescind the leave to appeal which was granted on 22 August 2002. We do not consider an order of that type to be necessary. It is sufficient to order, on the respondent's motion, that there be a permanent stay of the appeal. 19 We will order as follows: