Indicia of the exercise of Commonwealth judicial power
39 In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445, Allsop CJ said at [55]:
The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.
40 The question raised by the present case is whether a decision that is delayed unduly lacks the essential characteristics of a judicial decision. The historically evolved and practical defining characteristics of courts include the reality and appearance of decisional independence and impartiality, the application of procedural fairness, adherence as a general rule to the open court principle and the provision of reasons for decision: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [67] (French CJ). In the decided cases, those essential characteristics have not been expressed in a manner that identifies timely delivery of decisions as a separate indicia of the exercise of judicial power. The applicant was unable to point to any case in which delay, of itself, had been the basis for a determination that a judicial decision exceeded authority.
41 Of course, as has already been explained, delay may be a significant operative factor as to why the reasons in a particular case may not meet what is required in order to alleviate concerns as to practical injustice. Also, each of the identified defining characteristics of a judicial decision manifest a concern to ensure that judges make independent decisions with due deliberation after a proper opportunity has been afforded to a party to present evidence and make submissions. Where delay is of such an order that a question arises as to whether reasons might be delivered that are informed by the hearing process then the ability to conform to the defining characteristic of providing reasons is compromised and in such a case the decision may be found to lack the indicia of a judicial decision. Very considerable delay in delivery of reasons may give rise to legitimate concerns as to whether, under pressure, the judge has failed to bring an active, independent and properly deliberative mind to the factual and legal issues raised by the parties at the hearing.
42 The possibility that there may be rare cases where delay alone casts such a shadow over the reasons that it will vitiate proceedings was recognised by Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [5] (Gleeson CJ). Although NAIS concerned an administrative decision, a number of members of the Court placed the principles to be applied where there was delay by an administrative decision-maker within the context of the approach by the courts to delay by judges in delivering decisions.
43 In context, the statement by the former Chief Justice was not concerned with the circumstances where delay may provide a basis for review of a judicial decision for jurisdictional error even though there is no possibility of consequence for the making of a proper decision. Rather, the observation by the Chief Justice recognises that in some cases, even where it is not possible to point to a particular error in the reasons, the delay alone may cause there to be doubt as to whether the judicial task has been properly undertaken. Possibly such instances may extend to include cases where the appearance created by the delay is such as to cause there to be doubt as to whether a decision of the kind required for the proper exercise of judicial power had occurred. This is evident from later statements by the Chief Justice in NAIS to the effect that the question is one of fairness of the procedure: at [7]. Ultimately, the reasoning by the Chief Justice (dealing with the administrative decision) was to the effect that the delay was so extreme that in the absence of countervailing reasons advanced by the Tribunal there was a real and substantial risk that the capacity to assess the evidence of the applicants in the Tribunal was impaired: at [10].
44 In NAIS, Gummow J was of the view that excessive delay, of itself, does not prove a breach of the rules of natural justice: at [55]. Kirby J also required there to be a consequence of the delay and summarised the applicable principles in the following way at [60]:
Whilst different considerations apply to delay in a court subject to appeal and in a tribunal subject only to judicial review, there are, unsurprisingly, common principles. Ultimately, in either case, if the court, on appeal or review, concludes that the delayed decision is unsafe or involves material unfairness or injustice to the losing party, an affront to the common hypothesis of decision-making is established. That affront cannot be allowed to stand. Appropriate relief will then be granted, as it must be in this case.
45 Hayne J approached the matter on the basis that the relevant question was whether the evidence had been received in a way that the evidence could be fairly assessed and then used by the Tribunal in reaching its decision: at [134]. Callinan and Heydon JJ expressed the principles to be applied in cases where review is sought on the basis of delay in the following way at [161]:
Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realisation that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinise the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.
46 Therefore, in the view of Callinan and Heydon JJ, delay alone was not a basis for setting aside the decision. The question was whether the decision had been made fairly. In that regard, their honours held that '[a] failure to make a quick decision would not, in the context of the [Migration] Act overall, of itself constitute jurisdictional error': at [163]. However, later their Honours, reasoning by analogy from English cases concerned with the effect of delays in the making of court decisions, held at [167]:
We agree that delay of itself may undermine the basis for a judgment that requires the weighing of claims and facts. The first respondent here did not suggest, nor could she convincingly have suggested, that delay of itself may not be a highly relevant consideration in determining whether the process before the Tribunal was fairly conducted, even though the Tribunal was not a court.
47 It can be seen that even though NAIS concerned an administrative decision, most members of the Court reasoned in a manner that recognised similarities between the way in which delay may affect judicial and administrative decisions particularly when it came to fact-finding. A majority of the Court recognised that delay of itself was not a sufficient basis for demonstrating an excess of jurisdiction but accepted that where the delay was shown to have a consequence (or likely consequence) then that operative effect could found a conclusion that the decision was made in circumstances that were procedurally unfair and therefore in excess of jurisdiction.
48 Recently, this Court had occasion to consider a delay of six years in the delivery of a decision by a Federal Circuit Court judge: Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13. In that instance, there was a right of appeal. One of the grounds raised was that the effects of the delay made the judgment unsafe. The Full Court reviewed the authorities concerned with the circumstances in which delay may provide a ground upon which an appeal may be upheld. The ground was upheld based upon reasoning to the effect that aspects of the reasoning had been affected by the delay. They included a view that delay created a substantial risk that the judge would, under pressure, gravitate to the conclusion that was easiest to make and there was material to corroborate a submission that the delay had such an effect in the case: at [101]. Though concerned with an appeal, there was no suggestion that a delay which was not demonstrated to have had an operative effect upon the reasoning might give rise to a ground upon which the appeal might be upheld.
49 In the course of their reasoning in Von Schoeler, the members of the Full Court referred to the observations of Gleeson CJ in NAIS and stated that it was common ground that the circumstances in which delay of itself would vitiate a judgment are rare: at [93]. Their Honours had already characterised the extent of the delay in Von Schoeler as 'extraordinary and deplorable' and then observed that it 'is rare to encounter delay of this magnitude': at [92]. It was also observed that the delay inevitably meant that the losing party must feel a greater sense of injustice at the result. Yet, despite those statements, there was no suggestion that delay without consequence might form the basis upon which an appeal may be allowed. Again, in context, the reference to it being a rare case where delay alone would vitiate a judgment should be read as recognising only that there will be rare cases where the delay itself is a sufficient basis upon which to conclude that the delay has been operative upon the deliberative process and therefore is a basis to call in question the correctness of the decision irrespective of the character of the reasoning.
50 The applicant relied upon a statement made by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [40] to the effect that if it had not upheld the appeal on other grounds then the court would very likely have found that the ground of appeal that complained of the delay was determinative. However, the relevant ground was expressed in terms that the reasons provided by the primary judge were inadequate given, amongst other things, the length of the delay: see the nature of the ground of appeal quoted at [26]. Therefore, it is not an observation that assists in the present case.
51 Further, care must be taken as to the extent to which decisions concerning appeal grounds might be applied in the present instance. The present case is not an appeal, it is an application for judicial review in which the sole ground advanced is that delay is of such an order that the decision lacks a necessary incident of the character or quality of judicial decision. If delay alone (as distinct from delay of a kind that called into question whether the deliberative task had been properly undertaken) meant that the authority of a judge was exceeded then the principle of finality which is an essential characteristic of the judicial process would be seriously undermined. The orders of a superior court of record are valid until set aside even if made in excess of jurisdiction: State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). However, the same does not apply to a court of record that is not designated as a superior court. Orders made by such courts that exceed their jurisdiction are a nullity: Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at [27] (Gaudron, Gummow and Callinan JJ), [71] (McHugh J). If an otherwise correct decision could be challenged as exceeding jurisdiction by reason of delay then a great many decisions may be called into question thereby undermining an essential characteristic of any judicial decision, namely that it quells disputes by offering finality. A judge, by delaying, could deprive the parties of that important incident of any judicial decision. The characteristic of finality in decision-making that is one of the hallmarks of the exercise of judicial power sits inconsistently with any claim that the exercise of judicial power may be called into question on the basis of inoperative delay.
52 Also, if inoperative delay could affect the validity of a judicial decision then it could not be said that there is a clear time period within which particular decisions must be delivered. In consequence, there would be the need to investigate what might be considered to be a reasonable period for deliberation in a particular case. As explained at the outset of these reasons, the nature of a judicial decision is such that time must be taken for due deliberation. The time that may be required in one case compared with another may vary greatly. The period that may be adjudged to be reasonable for deliberation will depend upon a great many circumstances and the period for which a decision may be reasonably reserved is not affected solely by the nature of the evidence and arguments in the particular case. Matters such as the other demands on the Court and the particular judge would need to be brought to account as would personal circumstances such as any period of ill-health of the judge. On the other hand, when it comes to adjudicating whether delay may have been operative on the result, it is possible for a judgment to be made by reference to the court record in a particular case as to whether a point has been passed beyond which it is no longer safe for reasons as provided to be accepted as a proper foundation for a conclusion that delay has not had any effect (or likely effect) on the result. Therefore, the task of adjudging whether there has been operative delay does not introduce the same degree of uncertainty as would be the case if the validity of a judicial decision depended upon it being delivered within, what is adjudged to be, a reasonable period after the hearing.
53 The above reasoning does not leave the parties without any remedy in cases where there is undue and ongoing delay in the delivery of reasons. Well before any point is reached whereby the delay is such that it may call into question the safety of accepting any subsequent reasoning at face value, a party may raise a concern about the delay. All courts, including the Federal Circuit Court, have procedures whereby such concerns may be raised anonymously with the head of the jurisdiction through the local Bar Association or Law Society. Further, as has been observed already, there is a review jurisdiction whereby this Court may require a decision to be made in circumstances where it is demonstrated that there has been undue delay in the delivery of a decision. Those steps can be taken without any inquiry being undertaken as to whether the delay is likely to be operative. In appropriate cases, relief can be granted on the basis of an assessment that sufficient time has passed for it to be reasonable to expect the decision to be made.
54 Finally, if this Court was persuaded before the delivery of a decision that a particular case was an example of the rare instance where inordinate delay was operative (in the sense that the extent of the delay and the nature of the issues to be determined upon due deliberation by the judge concerned was such that it could not be safely concluded that the delay would not have an operative effect on any future reasoning to support a decision) then this Court may grant relief requiring a fresh hearing of the matter even though a decision has not been delivered.
55 For all those reasons, the application for review must be dismissed.
56 By way of postscript I note that some of the written submissions for the applicant expressed the applicant's contention in terms that the primary judge was functus officio when the decision was delivered. It was said that was the case by reason of the effluxion of time. However, ordinarily when a judge announces that the decision in a matter is reserved, the proceedings remain on foot: CLU16 v Minister for Home Affairs [2019] FCA 147 at [18] (Rares J). The effluxion of time thereafter during which time there is no further act by the judge does not render the judge functus officio unless and until orders are pronounced: see the reasoning of Perram J in CQX18 v Minister for Home Affairs [2019] FCA 386 at [16]-[18]. It is the perfecting of final orders by the process of having them drawn up and entered in the record that is the point beyond which any further recall of orders by a court of record is beyond power: Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141 at [17] (French CJ, Crennan, Kiefel and Bell JJ).