Spendido v Assistant Minister for Immigration and Border Protection

1. The hearing listed for 30 May 2017 be vacated.
2. The matter be listed for mention at 9.30am on 17 October 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 The applicant in this proceeding seeks to have vacated the hearing date of his application and to have the hearing delayed until after the determination by the High Court of Falzon v Minister for Immigration and Border Protection (S31 of 2007). The Minister does not oppose the postponement of the final determination of the proceeding until after the decision of the High Court in Falzon to the extent of an overlap between the two proceedings, but contends that the Court should in the meantime determine the "non-Falzon grounds" raised in Mr Splendido's application. 2 Mr Splendido challenges the decisions of the Minister to cancel his visa. Three grounds are relied upon by Mr Splendido. The first is that the Minister's decision was invalid because s 501(3A) of the Migration Act 1968 (Cth) ("the Act") was an invalid conferral of judicial power on the Minister contrary to Chapter III of the Constitution. It is that ground which is raised in Falzon. The second ground in Mr Splendido's application challenges the Minister's decision not to revoke the earlier decision to cancel the visa by failing to take into account factual circumstances concerning Mr Splendido's criminal conduct. The third ground is that the Minister made findings which had no evidentiary basis. The first ground is in form a question of law dependent upon the proper construction of the provisions whilst the second and third grounds are fact specific to the circumstances of Mr Splendido. 3 The issue raised in Falzon is the constitutional validity of s 501(3A) of the Act. The plaintiff in Falzon contends that the section is contrary to Chapter III of the Constitution because it is a punitive provision and an unlawful interference with the judicial power of the Commonwealth. The proceeding was brought in the High Court's original jurisdiction as an application for writs of certiorari to quash the Minister's decision to cancel Mr Falzon's visa and to quash the subsequent decision not to revoke the cancellation. The High Court has not yet given a date for the hearing of the proceeding in Falzon but Mr Falzon's outline of submissions were filed on 10 May 2017 and the Minister's outline is due to be filed on 7 June 2017. 4 Mr Splendido has added to his application the same ground as have been raised in Falzon but neither he, nor the Minister, seek to have that issue determined in the proceeding. Both Mr Splendido, and the Minister, assume that the outcome in Falzon will apply to Mr Splendido without the need for specific argument or additional evidence. Neither party is seeking to have "the Falzon issue" determined in these proceedings before it is determined by the High Court in Falzon. The parties accept, as is clearly the case, that the outcome in Falzon will have a bearing in these proceedings. The question is, therefore, whether the balance of the proceeding should be determined before the decision in Falzon. 5 Mr Splendido is in custody but has given "firm instructions" that he wishes to have the hearing of his application vacated and for the whole of the application to be heard and determined after the hearing and determination of the High Court in Falzon. The Minister does not seek to have "the Falzon issue" determined in this proceeding, and correctly accepts that in those circumstances Mr Splendido's proceeding cannot be finalised until "the Falzon issue" is determined, but wishes to avoid delaying the hearing until after the decision of the High Court in Falzon. The Minister submits in that context, with some force, that adjournments pending the determination of issues raised in other proceedings will have the undesirable effect of creating a backlog of matters in this Court, and submits also that the issues in Falzon are discreet and that the outcome of the proceeding in Falzon would not cause any of the other issues in this proceeding to require re-litigation. 6 Proceedings should not generally be adjourned pending the determination of other proceedings. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 Starke J said at 253: Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future. An adjournment has been held not generally to be appropriate because of a belief that a change in the law by legislation may be pending that would change the respective rights of the parties (see R v Whiteway; ex parte Stephenson [1961] VR 168) or because of a possible change in the law by the decision of an appeal pending in the High Court (see Geelong Football Club Limited v Clifford [2002] VCSA 212): see also Sydney City Council v Ke Su Investments Pty Ltd [1985] 1 NSWLR 246; City of Sydney Council v Satara [2007] NSWCA 148. The position is different where the parties to a case seek to have tested in an appeal a proposition established in a decided case: see Re Yates' Settlement Trusts [1954] 1 All ER 619; R v Whiteway; ex parte Stephenson [1961] VR 168. The reason for the difference stemming from the level of certainty to be obtained by having a case tested and the knowledge that the decision of the higher court will declare the law on the relevant topic with retrospective effect: see Meggitt Overseas Limited v Grdovic (1998) 43 NSWLR 527, 534-5; City of Sydney Council v Satara [2007] NSWCA 148, [22]. 7 Each case for adjournment must, of course, be considered on its own facts. It is significant in this matter that Mr Splendido is in custody and will remain in custody unless successful in these proceedings. It is also significant that the parties are not seeking to have "the Falzon issue" determined in these proceedings before the decision in Falzon in the High Court. The assumptions made by the parties are that the outcome in Falzon will not require a rehearing in this proceeding to the extent that the "non-Falzon issues" may be decided before the outcome in Falzon is known, and that "the Falzon issue" will not require a hearing for argument in this proceeding once the decision in Falzon is known. It is also assumed, in effect, that the "non-Falzon issues" in Mr Splendido's application are capable of separate determination from "the Falzon issue" although the Minister did not apply for the separate hearing of any question under r 30.01 of the Federal Court of Australia Rules (2011). The difficulty with these assumptions is that they may prove not to be correct and leave open the possibility that the outcome in Falzon may give rise to new or different arguments in this proceeding after Falzon has been heard and determined. The material currently before the Court also does not exclude the possibility that the outcome in Falzon may have an impact upon the issues and arguments the parties may wish to put in respect of the non-Falzon grounds raised by Mr Splendido in this proceeding. Mr Falzon's submissions have been filed in that proceeding but the Minister's submissions have not yet been filed and it is not possible to evaluate with certainty whether the proceeding in Falzon may raise issues and arguments which may affect the way in which the non-Falzon issues and arguments in this proceeding may be developed. It is not possible, in other words, to conclude either that the "non-Falzon issue" should be determined as a separate question (if such an application had been made) or that the hearing of the "non-Falzon issues" would with sufficient certainty be finally decided. 8 It is not desirable for proceedings to be conducted on a basis which may require reconsideration of issues intended to have been finally determined. Mr Splendido's application was listed to be heard on an estimate of less than one day and its hearing after the decision of the High Court in Falzon is, on the material currently available, also thought to take less than one day. The outcome in Falzon is, obviously, not known but there are several possible consequences for Mr Splendido's application from the outcome in Falzon. One possibility is that Mr Splendido's application must succeed and that an earlier assumed unsuccessful hearing of the non-Falzon issues will have been a waste of time, cost and public resources. Another possibility is that the matters raised by the hearing and decision in Falzon may give rise to different or additional arguments for Mr Splendido that are not currently contemplated. Yet another possibility is that, contrary to the assumptions and expectations at this stage of the proceedings, that the hearing and determination of the issues in Falzon may suggest to those advising Mr Splendido other arguments on the non-Falzon issues in his current grounds or, indeed, to suggest other grounds not yet raised in the proceedings. These possibilities tend against a separate hearing of the non-Falzon grounds especially where there has been no application for the hearing and determination of separate questions as provided by the Rules. 9 The fact that Mr Splendido is in custody is a "weighty consideration" against an adjournment pending the outcome of the proceeding in the High Court: see BLD15 v Minister for Immigration and Border Protection [2017] FCA 72, [8]. However, it is Mr Splendido who seeks the adjournment and has given "firm instructions" that he wishes to have delayed this proceeding until the hearing and determination of the proceeding in Falzon. Neither he, nor the Minister, as previously mentioned, seek to have Mr Splendido's proceeding finally determined with all issues currently before the Court, including the determination by this Court of the same argument which has been raised in the Falzon proceeding. The adjournment sought by Mr Splendido would, however, be indefinite in effect and to that extent is undesirable to be made without review by the Court. In those circumstances it is desirable to adjourn the hearing for mention at regular intervals to enable Mr Splendido to be before this Court in case circumstances, instructions or the positions of the parties change with respect to the conduct of the proceedings. 10 Accordingly, the hearing date will be vacated and in lieu thereof the matter will be relisted for mention (subject to further submission by the parties) at 9.30am, 17 October 2017. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.