FEDERAL COURT OF AUSTRALIA

WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 856

ORDERS

THE COURT ORDERS THAT:

1.    Application dismissed.

2.    Applicant do pay first respondent's costs to be assessed by a Registrar on a lump sum basis if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Injustice is caused whenever there is inordinate delay in the making of a judicial decision. Litigants are entitled to expect that judicial decisions are made promptly. However, the fair resolution of disputes according to law requires due and proper deliberation. Parties often present complex arguments and detailed evidence that must be considered. They may offer many alternative ways of looking at the case. The identification of the proper legal principles to be applied may require further research and analysis. Time to undertake proper consideration of legal and factual arguments may be difficult for judges to find when other cases are pressing for attention. In most courts, the demands on judges are constant. Therefore, the complexity of particular cases and the burdens of work may account for reasonable and unavoidable delays that are inherent in the nature of the task.

2    It is also not uncommon for cases to be presented in a disordered way and considerable time is needed to unravel the meritorious from the ill-considered. If this important part of the task is not undertaken by a judge then there is the real risk that a just claim or defence may not be seen and reflected in the decision. Sometimes, a lack of judicial resources may mean that deliberation on reserved decisions must be triaged according to assessments of relative urgency and importance. Illness, exhaustion and other personal circumstances occasionally disrupt the judgment writing process.

3    Judgment writing takes care and requires time for reflection. Court decisions usually deal with matters of considerable importance to at least one of the parties. With rare exceptions, the burden of the consequences for the parties of a judgment of the court and the finality with which it may speak are matters that are at the forefront of the mind of judges. This is as it should be. Judges are selected for appointment on the basis of their knowledge and experience, but also on the basis of their human qualities, including insight into the diverse range of circumstances that may present for decision. They are properly expected to reflect on the case and then apply human understanding and due deliberation to ensure that the result is just, according to law.

4    The complexities and demands of the decision-making process are not always understood and therefore many litigants find delays in the delivery of decisions difficult to fathom. The process of getting to court can be difficult, expensive and emotionally demanding. The subject matter of the dispute and its lack of resolution can weigh heavily on those involved. Therefore, once the case has been heard, the parties are impatient for a result. There is obvious unfairness when parties, after such a process, are made to wait longer than the period necessary for due deliberation taking account of the overall demands on the court. However, the unfairness of delay alone is not of a kind that means that the correctness of the decision, when delivered, may be questioned or doubted.

5    There are other more fundamental reasons why delay is unfair. Delay dims the memory of the judge and deprives the parties of the force of the submissions made at a time when the judge was immersed in the issues. Assessments of the credibility of conflicting accounts given by witnesses and the coherence of arguments that depend upon an understanding of detail and nuance are more difficult for a judge to make as time passes. Indeed, eventually a point will be reached where the delay is such that the ability of the judge to undertake the required deliberation properly informed by the conduct of the trial or hearing may be doubted. Long delays may also cause questions to be raised in the minds of the parties as to whether the need for the judge to get on and deliver the decision or to justify the delay may subconsciously infect the reasoning and the result or whether the task may have become too much for the judge to deal with adequately. In such cases, delay results in injustice because it either has an operative effect on the result or the possibility of such an operative effect cannot be doubted. Then, delay is unjust because it compromises rather than aids the process of deliberation and calls into question the integrity of the reasoning and the result.

6    That said, some cases raise discrete legal issues or assessments of a kind where delay does not compromise the ability of the judge to undertake the required deliberation even if there is considerable delay. In such instances, the nature of the case is such that there is every confidence that the judge's recollection can be refreshed by reading the record of the hearing and the judge can then make a fully informed decision unaffected by the delay between the hearing and the delivery of the decision. This is especially so where there is no need to assess the credibility of competing witness accounts or to make assessments that require the judge to have in mind the nuances of a complex and detailed set of facts or especially sophisticated legal argument. Where the record is easily accessed and considered well after the hearing, the obligation to produce reasons will usually evidence whether the judge has properly undertaken the deliberative task. The authorities recognise an obligation in such circumstances to provide more fulsome reasons concerning the basis for views formed concerning the credibility of witness accounts. All of which is not to countenance delay in such cases. It is simply to recognise that there are cases where there is no cause to question whether the delay has affected the process of judicial deliberation unless error can be demonstrated by reference to the reasons given by the judge.

7    The question raised by the present case is whether extreme delay which is not said to have had any actual or possible operative effect on the process of deliberation or the correctness of the decision by the judge nevertheless means that the decision should be set aside and a new hearing take place so that the litigants can receive the justice of a decision that is delivered without undue delay following the hearing. It appears to be a novel question.

8    The judge in question took almost five years to make a decision. The matter to be decided was not complex. It did not require an evaluation of the credibility of any account given by a witness. It required a judgment to be formed as to whether an extension of time should be granted for the applicant to bring proceedings seeking judicial review of a decision which had the effect of refusing his application for a protection visa.

9    On any view the delay was extreme and deplorable. The only explanation afforded by the judge for the delay was pressure of work. A judge should never be in a position where accumulated reserved decisions mean that a delay of five years is required to deliver a decision. If there are insufficient judicial resources (about which I express no view as it was not a matter addressed in the submissions to the Court) then next best fairness requires that there be delays in listing cases for hearing rather than accumulating reserved decisions. There is no justice in parties obtaining a hearing, incurring the associated emotional and financial cost, only to have the decision delayed for years after the hearing.

10    In a case involving any degree of complexity, questions will arise as to whether a delay of the order that occurred in the present case affected the result. It may not be possible to point to a particular error, but judgments often require discretions to be exercised and evaluations to be made of a kind that will be affected by undue delay in a manner that may not be able to be demonstrated as being manifested in an identifiable error in the reasons as expressed. Therefore, in extreme cases, delay of itself may found a basis for a claim that it has been operative. However, no claim of that kind was made by the applicant in the present case.

11    The applicant claims that inordinate delay in the delivery of the decision by the Federal Circuit Court judge amounted to an abandonment of jurisdiction and meant that any decision made after that delay exceeded judicial authority. Therefore, so it was contended, the delay alone means the decision is invalid even though the delay was not alleged to be operative on the result in any way. In effect, the claim made is that the authority of a judge to deliver a binding decision comes to an end after the expiry of a reasonable period of time and any decision after that time exceeds the jurisdiction of the Court. The applicant seeks relief that would set aside the judge's decision and require a fresh hearing of the application by another judge.

Summary of outcome

12    For the following reasons, delay by a Federal Circuit Court judge in making a decision does not, of itself, demonstrate jurisdictional error or error of law on the face of the record. Delay may be a significant part of why there is reviewable error in a particular case. Indeed, in rare cases, error may be considered to be the inevitable consequence of undue delay. However, if the delay has no possible consequence for the decision-making process then there is no jurisdictional error and no error of law on the face of the record. Put another way, inoperative delay does not deprive a Federal Circuit Court judge of jurisdiction. Therefore, as the applicant did not seek to establish any respect in which the delay might have infected the decision in some way, the application must be refused.

The circumstances of the present case

13    The applicant sought a protection visa. The application was refused. The refusal was affirmed by the Refugee Review Tribunal in January 2013. There was a right in such cases to seek judicial review in the Federal Circuit Court. The right was confined in its extent to be the same as the original jurisdiction of the High Court under the Constitution. For present purposes, the consequence was that the applicant had to demonstrate jurisdictional error in order to overturn the Tribunal's decision.

14    The applicant had 35 days in which to seek judicial review in the Federal Circuit Court: s 477(1) of the Migration Act 1958 (Cth). In June 2013, well out of time, the applicant sought an extension of time in which to seek review of the Tribunal's decision. By s 477(2) the Court may extend time.

15    The application for an extension of time and the substantive application for review were set down for hearing together in November 2013 when oral argument was heard by the primary judge. Supplementary written submissions were filed in mid-2014. Those submissions were provided when developments in the law were brought to the attention of his Honour and a direction was made allowing written submissions to address those developments.

16    On 22 November 2018, the primary judge delivered reasons and refused the application for an extension of time: WZASS v Minister for Immigration and Border Protection [2018] FCCA 3363. His Honour found the grounds to be weak and the delay to be inadequately explained. Nevertheless, the primary judge also considered the merits and determined that had leave been granted to extend time the application for review would have been dismissed in any event.

17    The applicant first sought to appeal the decision of the primary judge as of right. However, an objection to competency of the appeal was upheld: WZASS v Minister for Home Affairs [2019] FCA 673. It is clear that there is no right of appeal against a decision by a Federal Circuit Court judge to make or refuse an order under s 477(2): s 476A(3)(a). Thereafter, the applicant brought the present application to review the decision of the primary judge.

The Court's review jurisdiction

18    The Federal Court has original jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to entertain an application for judicial review of a decision made by a judge of the Federal Circuit Court: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [10]-[11].

19    However, the jurisdiction of any court encompasses the identification, formulation and determination of questions of fact and law. Those tasks form part of the functions entrusted to a judge. Therefore, alleged mistakes by a judge of the Federal Circuit Court as to such matters are not reviewable on the basis that they constitute jurisdictional error: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179-180. For reasons that I gave in Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [22]-[43], the circumstances in which an inferior court might be said to have fallen into jurisdictional error are narrower than those which might apply in the case of the making of a decision by an administrative decision-maker in respect of an analogous form of statutory power and do not extend to review for alleged unreasonableness as to the formulation and adjudication of the issues to be decided.

20    The extent of judicial review available under s 39B extends to review for non-jurisdictional error of law on the fact of the record: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [22]. The record does not include the reasons for decision: DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454 at [42]-[47].

The grounds of review

21    The applicant put his claim in two ways.

22    First, it was submitted that there was an error of law on the face of the record because the decision had been reserved for almost five years. The error was said to be the extent of the delay which took the decision whether to exercise the power under s 477(2) to extend the 35 day period beyond the bounds of the period of time within which a valid decision could be made. It was said that the record showed (a) the nature of the order; (b) when the decision had been reserved; and (c) when the order had been made. Therefore, the error was apparent on the face of the record.

23    Second, it was said that there was jurisdictional error because the power conferred by s 477(2) had to be exercised within a reasonable period of time and, on any view, that period had passed by the time the primary judge published his decision.

24    Each of the two alternatives depends upon the proposition that there is a limit to the time for which a Federal Circuit Court judge may reserve a decision under s 477(2) and a decision made after that time exceeds the authority of the judge. At a number of points the case was advanced on the basis that there had been an abandonment of jurisdiction by reason of the extent of the delay in the present case.

25    The remedy sought was a new decision on the application. It was not suggested that the proper course to be followed if the alleged error was established required a new application. Inherent in the nature of the relief sought was an assumption that the application was still on foot and it was only the decision on that application that was invalid. Therefore, it was plain that the claim made was that the power to make the order on the existing application could still be exercised despite the passage of years.

The claim that the decision must be made within a reasonable period of time

Section 477(2) of the Migration Act

26    For the following reasons, any obligation to make a decision within a reasonable period of time could not arise from the terms of s 477(2). It is expressed in the following terms:

The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

27    Section 477(2) confers a power on the Federal Circuit Court to extend time. It does not confine the time within which the power may be invoked or exercised. It leaves open the possibility that an extensive delay in bringing the application may be justified leading to an exercise of the power many years after the 35 day time limit has expired. The power itself is conditioned by two requirements. First, an application must be made which conforms to the statutory requirements: s 477(2)(a). Second, the required state of satisfaction must be held by the Court, namely that the exercise of the power is necessary in the interests of justice: s 477(2)(b). Although, the power itself is expressed as one which 'may' be exercised by order of the Court, it is inconceivable that it was intended that the Court would retain a discretion to refuse to make the order even though an application was brought in accordance with the provisions and the Court was satisfied that the order was 'necessary in the interests of the administration of justice'. Therefore, this is an example of a provision where the power must be exercised if the stated conditions are met: Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31]; and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38].

28    The language of the provision does not lend itself to the implication of a requirement that the required state of satisfaction must be reached within a reasonable period. If there were such a requirement, the consequence would be that delay in forming the state of satisfaction would deprive a party of the possibility of any extension. It would be fundamentally inconsistent with the evident purpose of the power if deferment by the Court of the making of a decision could deprive a party of the benefit of the exercise of the power, a benefit which must be conferred if the application is brought and the Court is satisfied that an extension is necessary in the interests of justice.

29    Therefore, any requirement for the decision on the application to be made within a reasonable period of time is not to be found in s 477. Rather, it is to be found in the nature of the repository of that power, namely the Federal Circuit Court. If it exists, it is an obligation that pertains generally to applications brought in that Court and the timeliness with which those applications must be adjudicated. It would mean that the extreme tardiness of a judge would deprive that judge, but not another judge, of the authority to make the decision on the application.

The provisions of the Federal Circuit Court of Australia Act

30    The Federal Circuit Court is a federal court that is 'a court of record and is a court of law and equity': s 8(3) of the Federal Circuit Court of Australia Act 1999 (Cth). It consists of a Chief Judge and such other judges as from time to time hold office: s 8(4). The jurisdiction of the Court may be exercised by a single judge: s 11. It is entirely statutory.

31    The Court must completely and finally determine matters in controversy between parties to every matter in the Court: s 14. Therefore, the Court has no authority to refute or abandon its jurisdiction once it has been regularly invoked in respect of a particular matter. It follows that the Court may be required to exercise the jurisdiction entrusted to it by legislation. However, it does not follow that if there has been a refusal by a judge of the Court to exercise the jurisdiction to make a decision and deliver reasons after a hearing that the power to do so has been lost. A repository of power, whether administrative or judicial, cannot by inaction deny the authority of Parliament expressed in the legislation. In the case of judicial power, its nature is such that there is no discretion to deny its exercise. A party has a right to invoke the jurisdiction of the Court by application and to have the application finally adjudicated.

32    In proceedings before it, the Court must proceed without undue formality 'and must endeavour to ensure that the proceedings are not protracted': s 42. Expressed in those terms, the provision contemplates the possibility that proceedings may be protracted but only in spite of the endeavours of the Court. The practice and procedure of the Court is to be in accordance with Rules of Court: s 43. The parties identified no rule of practice or procedure that required an application be determined within a particular time. Proceedings are instituted by way of application: s 50.

33    As to reserved judgments, s 51 provides:

Limits on length of documents

(1)    The Federal Circuit Court of Australia or a Judge may give directions about limiting the length of documents required or permitted to be filed in the Federal Circuit Court of Australia.

(2)    Subsection (1) has effect subject to the Rules of Court.

34    The terms of s 51 do not address the issues for present determination.

35    Responsibility for the management of the administrative affairs of the Court is with the Chief Judge: s 89(1). That responsibility does not extend to assuming control over the making of decisions by a single judge who has reserved a decision for consideration. In such cases, the exercise of the judicial power of the Court properly rests with the single judge concerned who has been entrusted with the exercise of the power and authority of the Court in the respect of the particular application.

36    As the Federal Circuit Court is amenable to the jurisdiction conferred by s 39B of the Judiciary Act and it cannot deny or abandon its jurisdiction if it is regularly invoked by an applicant and it must deliver its decisions in accordance with a procedure that is not protracted, relief could be granted by this Court requiring the Federal Circuit Court to deliver a reserved decision in a matter where there has been undue delay.

37    It would be appropriate for any such relief to be directed to the Court rather than the individual judge concerned. 'According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge': Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 at 91 (Windeyer J). Therefore, 'when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer': at 92. So, where in accordance with established practice or legislative authority a single judge hears and determines an application, it is the jurisdiction and authority of the Court that is exercised, not that of the individual judge. In that sense, any delay in delivering a final decision is delay by the Court not the judge.

38    However, in such a case, relief would be confined to requiring the Court to conform to its obligation to exercise its jurisdiction without its deliberations being unduly protracted. It would not extend to requiring a fresh hearing. It is not until this Court is persuaded that the Federal Circuit Court could not or had not made a decision with the requisite judicial character that it could grant relief requiring a new hearing. Such relief is granted in those instances where there is a failure to conform to the obligation of procedural fairness which is a fundamental principle the content of which is informed by the concern of the law to avoid practical injustice: HT v The Queen [2019] HCA 40 at [17]-[18] (Kiefel CJ, Bell and Keane JJ). It may also be granted where the decision amounts to a failure to undertake the judicial task, such as by misconceiving in a fundamental way the nature of the application before the Court: Huynh at [43].

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).

Costs and conclusion

57    As the application has been unsuccessful and no submission was advanced as to why costs should not follow the event, it is appropriate for the application to be dismissed with costs to be assessed on a lump sum basis by a Registrar if not agreed.

58    Finally, in Von Schoeler the Full Court concluded its reasons by noting that the delay on the part of the judge in that case had brought the administration of justice into disrepute and that was a matter to be regretted. Although it is little comfort to the parties, the same observation must be made in this case.

Associate:

Dated:    18 June 2020