The decision in the Djokovic case

was unexpected by many of my acquaintances in the legal profession. There was a considerable belief that the Federal court might take the opportunity to reduce the decision making power of the Minister. In doing so they would have brought about a seismic shift in the way things are done here. The matter would certainly have gone to the High Court and could have dragged on for months, if not years. It would almost certainly have meant that Djokovic would have been granted permission to play tennis here.

Instead there was a unanimous decision that the Minister had not overstepped the mark and Djokovic lost. He was also ordered to pay the costs incurred by not only his own side but the government side. That is going to be a very hefty bill.

Yesterday I was asked by someone, "Can't Djokovic appeal? That way he could stay and still play and then..."  It's a reasonable question I suppose.

The answer though is "no". First of all it was a unanimous decision - which means all the judges agreed and, more importantly, they may well have sufficiently agreed, to write a joint judgment. We will find out whether that was the case when the reasoning is made available. If there had been a dissenting judgment the reasons would have been known so that Djokovic's legal team could see it immediately and decide whether to pursue the matter. 

Second, special leave to appeal would have to be granted. There is no automatic right of appeal to the High Court. There have to be grounds for granting special leave to appeal. Even if there had been a dissenting judgment that might not have been enough.  It would have to be a legal issue, not an evidentiary issue.

Third, costs have been awarded against Djokovic. In other words he has to pay not only his own legal bills but the legal bills of the government. Those costs will already run into many thousands of dollars. If the case had gone to the High Court and Djokovic lost again the legal bill would be even higher. Even someone as wealthy as Djokovic is reputed to be might be unwilling to risk the sums of money which would likely be involved.

Fourth, Djokovic has probably been warned, "Don't take it any further. This has already damaged your reputation."  This will matter to him because he gets income from sources where his reputation is what matters.  More than one sportsperson has lost "sponsorship" for saying something out of turn or behaving in a way which is considered unbecoming. Keep winning, behave yourself, say the right things and sponsorship money continues to flow.  

I am relieved by the court's decision in this case. If the government had lost then there was the potential for serious consequences with respect to border control, immigration, visas and more. That could have had consequences far beyond are borders and in other legal jurisdictions. While refugee advocates are bewailing what they see as a lost opportunity it is just possible that the court has done them a favour. It will depend on the reasoning in the judgment.