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[2002] FCAFC 438
procedural. The appeal was permanently stayed. There was no order as to costs of that appeal. The costs of the motion before the primary judge were made costs in appeal matter W 338 of 2002.
The Full Court decided that Mr Long's earlier appeal no longer had enough practical importance to justify a full hearing. The substantive case had been dismissed, and a separate appeal from that decision was underway. The remaining costs questions could be dealt with separately, so they did not keep the earlier appeal alive. The Court permanently stayed it and made specific costs orders.
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2,133 words · generated 01/10/2026
This judgment is about the management of an appeal that had become part-heard and then, in the Court's view, lost its practical purpose. It is not a decision resolving the merits of Brian Long's visa or detention dispute.
Mr Long had sought orders restraining the Minister from removing or detaining him and staying the decision to cancel his transitional permanent visa. On 19 June 2002, Nicholson J dismissed that interlocutory motion. Mr Long sought leave to appeal. The Full Court granted leave on 22 August 2002 and began hearing the appeal over 22 and 23 August. During argument, it became apparent that Mr Long might instead pursue a mandatory interlocutory injunction requiring the Minister to reinstate the visa pending determination of the substantive application. The Full Court adjourned the appeal to a date to be fixed, reserving costs [1]–[3].
No linked legislation citations have been extracted yet.
The mandatory relief motion came before French J on 2 October 2002. Rather than hear that motion, his Honour listed the substantive application for hearing on 21 October [4]. On 19 November, French J dismissed the substantive application. Mr Long then lodged a separate appeal from that judgment, allocated file number W 338 of 2002 [5]. In that new appeal, he also sought interlocutory relief, including an order restraining continued immigration detention [6].
Mr Long's counsel asked the Court to hear the motion in W 338 of 2002 at the same time as the resumed part-heard appeal, if appropriate [7]. The Full Court declined that proposed arrangement. It said listing the motion and later appeal in W 338 should follow usual listing practice, and that it was not appropriate for parties to choose their Full Courts [8].
The Court had also asked the parties to address whether the earlier appeal had any practical utility [10]. The Minister said that it was futile after the substantive application had been determined. Mr Long argued that it was not futile because there remained issues about costs of the appeal and costs of the motion before Nicholson J [11]. The Minister also filed a motion seeking rescission of the leave to appeal [11]. The Court did not consider rescission necessary. It permanently stayed the appeal instead [18]–[19].
The central question was not whether the interlocutory judgment was correct. The question was whether there was any practical point in continuing the appeal after the procedural and substantive developments.
The Court began from the proposition that it had power to stay an appeal where “there is nothing to be gained by the appeal proceeding”, quoting Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 at [13] [12]. It noted that Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872 followed that approach [13]. Tchoylak had also expressed doubt about whether the Court would be exercising the judicial power of the Commonwealth if it determined an appeal in the absence of a sufficient live controversy [13].
The Full Court then considered the apparent tension with Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431. In SBAN, the respondent had voluntarily left Australia before the appeal hearing, but the Full Court did not treat that as making the appeal moot. The judgment explains that the Minister had a tangible interest in overturning a finding of serious personal fault against a Refugee Review Tribunal member. A costs question also remained, although its likely amount was minimal [14]. Those circumstances provided a continuing matter for determination.
The Full Court considered those features absent in Mr Long's case. It said that the passage of time had deprived the issues in controversy of “real practical significance” [16]. It also stated that the appeal could not have any real practical effect on any issue, perhaps other than costs [16]. The contrast with SBAN was therefore material: the Minister's particular interest in reversing a serious personal finding in that case had no equivalent identified here [14], [16].
Mr Long's costs argument did not persuade the Court to continue the appeal. The Court noted that competing contentions about residual costs issues had not prevented a permanent stay in Hope Downs [17]. It held that live costs issues should not cause an otherwise moot appeal to proceed to full hearing and determination [18]. Instead, the Court dealt with costs by making no order as to the costs of this appeal and directing that the costs of the motion before Nicholson J be costs in W 338 of 2002 [18]–[19].
The Court also declined to rescind leave to appeal. It regarded a permanent stay as sufficient to resolve the procedural issue [18]. The disposition thus separated the question of whether the appeal should continue from the earlier grant of leave.
The judgment describes an existing procedural principle, rather than announcing a new test. Before this decision, the cited Full Court authorities recognised a discretion to stay an appeal where proceeding would achieve nothing practical. Hope Downs supplied the general statement of that discretion [12]. Tchoylak followed it and raised the related question whether deciding an appeal without a live matter would involve the exercise of federal judicial power [13].
The judgment also demonstrates that mootness is not determined solely by whether the immediate factual circumstances have changed. SBAN showed that an appeal could remain a live matter even after a person had voluntarily left Australia. The Court identified the Minister's tangible interest in reversing a serious personal finding and a costs issue as relevant circumstances [14]. Thus, practical significance or a continuing interest may exist even where the original individual controversy has changed.
Long applies those principles to a different procedural setting. The substantive application had been dismissed, a separate appeal had been lodged, and the issues in the earlier interlocutory appeal were no longer of real practical importance [5], [16]. The Court held that residual costs questions were not enough to require a full hearing [17]–[18]. Its practical distinction is that costs can be managed through a costs order without keeping an otherwise moot appeal on foot.
The effect of the decision was specific: the part-heard appeal was permanently stayed, while the separate appeal W 338 of 2002 remained the procedural context in which the costs of the earlier motion were to be dealt with [19]. The judgment does not set out a comprehensive definition of mootness, nor does it say that costs can never sustain an appeal. Instead, it records that the particular costs issues did not justify continuation here, and contrasts the matter with SBAN's distinct circumstances [14], [17]–[18].
At [12], the Court quoted Hope Downs: “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 …” In plain English, an appeal does not have to continue merely because it was properly started. The Court may stop it if deciding it would serve no practical purpose.
At [13], the Court noted Tchoylak's “real doubt” about whether deciding an appeal in such circumstances would involve the exercise of the judicial power of the Commonwealth. This links the case-management question to the constitutional requirement for a matter requiring judicial resolution. The judgment does not expand that proposition into a general constitutional test.
At [14], the Court described why SBAN remained live despite the respondent's departure from Australia. The Minister had a tangible interest in seeking to reverse a serious personal finding against a Tribunal member. In ordinary terms, the proceeding mattered to the Minister for a reason beyond the respondent's physical presence in Australia. That feature distinguished SBAN from Long.
At [16], the Court said the passage of time had “deprived the issues in controversy of real practical significance”. The phrase captures the Court's assessment of the effect of developments after the interlocutory appeal began. The existence of a procedural history was not enough; the issues still needed a practical consequence capable of being affected by the appeal.
At [18], the Court stated that live costs issues should not cause an otherwise moot appeal to proceed to full hearing and determination. In plain English, a costs dispute can be resolved without necessarily requiring the Court to decide an appeal that no longer has practical value. The Court's orders show how it dealt with the costs matters in this instance.
The judgment is most directly relevant to an appeal that has become part-heard or remains pending after a significant procedural change has overtaken the dispute. Here, the substantive application was dismissed after the interlocutory appeal had been adjourned, and a separate appeal from that dismissal was filed [3]–[6]. The earlier appeal's practical purpose had consequently changed.
The case also applies where a party argues that residual costs questions mean an appeal is not futile. Long shows that such a contention is relevant but not necessarily decisive. The Court considered the costs argument, compared Hope Downs, and dealt with the costs separately rather than continuing the appeal [11], [17]–[19].
The precedent is not a rule that an appeal becomes moot whenever a person leaves Australia, or whenever the immediate relief sought is no longer available. The Court expressly discussed SBAN, where a tangible interest in reversing a serious personal finding supported a continuing matter notwithstanding the respondent's departure [14]. A fact pattern involving an enduring institutional, personal, or other practical interest may therefore require separate consideration.
The judgment's reasoning is tied to what the Full Court found about the issues in this particular appeal: they had lost real practical significance, with no comparable SBAN consideration [16]. The case does not specify a mechanical checklist or declare that the mere filing of a later appeal automatically renders an earlier appeal futile.
The supplied judgment contains no decisions later than 20 December 2002, so it cannot establish how subsequent courts treated Long. No later cases or subsequent citations are provided in the source text, and this analysis cannot add them.
The judgment itself records the authorities it followed or considered. It followed the practical-utility approach in Hope Downs and Tchoylak [12]–[13]. It referred to SBAN to distinguish circumstances in which a matter remained live despite a person's departure from Australia [14]. It also relied on Beitseen v Johnson (1989) 29 IR 336, whose Full Court had said that the passage of time deprived the controversy of real practical significance, and on Mayne Nickless Limited v Transport Workers Union of Australia, which had applied Beitseen [15]–[16].
For a professional reader, the safe account of the precedent's treatment is therefore limited to this line of authorities as described by the Court. Hope Downs is cited for the discretion to stay an appeal that has no practical utility; Tchoylak follows that approach; Beitseen and Mayne Nickless support a permanent stay where controversy has lost practical significance; and SBAN is treated as a contrasting case with a continuing interest [12]–[16]. Whether later courts have applied, qualified or distinguished Long would require sources beyond this judgment.
The judgment does not define exactly how much practical effect is needed to keep an appeal alive. It applies the established discretion to the facts before it, saying the issues had lost real practical significance, but it does not provide a complete threshold or a list of relevant factors [12], [16].
It also leaves open how costs issues should be assessed in other circumstances. Long establishes that the particular residual costs contentions did not justify continuing this appeal, and that costs could be dealt with through separate orders [17]–[19]. It does not decide whether a substantial or otherwise consequential costs issue could, in a different case, contribute to a continuing matter.
The comparison with SBAN identifies one kind of interest that can matter: a tangible interest in reversing a serious personal finding against a Tribunal member [14]. The judgment does not say whether that is the only kind of interest capable of keeping an appeal live. It also does not describe what evidence or degree of practical consequence would establish such an interest in another case.
Finally, the judgment does not decide the merits of the separate appeal in W 338 of 2002, the lawfulness of Mr Long's detention, or the validity of the visa cancellation. Its orders address only the earlier appeal's continuation and the allocation of costs [18]–[19]. Those limits matter when using Long: it is a procedural decision about utility and mootness, not a determination of the underlying immigration dispute.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
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:
Associate: Dated: 20 December 2002 Counsel for the Appellant: Mr H N Christie (on 22 and 23 August 2002) and Mr S Strbac (on 19 December 2002)
Solicitor for the Respondent: Australian Government Solicitor
Dates of Hearing: 22 and 23 August 2002, 19 December 2002
Long
Minister for Immigration & Multicultural & Indigenous Affairs
The appeal was permanently stayed. There was no order as to costs of that appeal. The costs of the motion before the primary judge were made costs in appeal matter W 338 of 2002.