whether application to adjourn appeal should be granted pending appeal
where adjournment application opposed
whether prejudice identified
Quick Take
1As a general principle, an appeal should be decided on the law as it currently stands and should proceed despite a pending special leave application, unless refusing an adjournment would prejudice the applicant to the point of denying justice. Relevant factors include prejudice to each party, whether special leave has been listed, the likely effect of the High Court proceeding on the appeal, the nature of the hearing and, impressionistically, the prospects of special leave (applying Assistant Minister for Immigration v Hood (Adjournment) [2026] FCAFC 98).
2An adjournment may be warranted on the facts where the sole ground of appeal squarely raises the contested question before the High Court and there is acknowledged divergence within the Federal Court on it. Here that question was whether irrational or illogical fact-finding must concern a 'critical fact' to constitute jurisdictional error, with the dissent of Lenehan J in VRRQ v Minister for Immigration and Multicultural Affairs [2026] FCAFC 117 rejecting that requirement. The case for adjournment is stronger where the respondent suffers minimal prejudice and the hearing is short and readily relisted.
3An appellant suffers relevant prejudice where it must proceed under binding Full Court authority that may soon be overturned, because arguing that the authority is wrong is a more significant hurdle. The merits of the 'critical fact' question, and whether the primary judge implicitly found no illogicality, were expressly left undetermined.
