Allseas Construction S.A. v Minister for Immigration and Citizenship

INTRODUCTION 1 I delivered primary reasons for judgment in this dispute in Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas No 1). On that occasion, I indicated that I was tentatively of the view (which had already been advanced by the respondent) (the Minister) that because it was not possible for the relief obtained by the applicant (Allseas) to be obtained unless the Minister actively opposed the proceedings, that it may be appropriate that costs should lie where they fell. 2 Perhaps unsurprisingly, Allseas argued strenuously to the contrary, both orally and since in lengthy subsequent submissions. 3 The Minister has also filed subsequent submissions. 4 I do not consider that it is necessary or productive to refer to the entirety of the arguments advanced but having considered that material closely, I am of the view that a reasonable exercise of the discretion conferred under s 43(2) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) is that Allseas should have 50% of its costs to be taxed if not agreed. 5 Shortly stated, my reasons are as follows: Accepting, as I do, that the usual order as to costs is that they follow the event, this is nevertheless a case where Allseas has secured a significant commercial advantage which would otherwise not have been available to it had the Minister not acted as a proper contradictor in the proceeding advancing (reasonably strenuously) opposing arguments to those advanced for Allseas. This is a factor in favour of the Minister. I do not accept, as Allseas contends, that the arguments upon which it relied were obvious or straightforward. While I ultimately accepted them, it was necessary to give serious consideration to the opposing arguments advanced for the Minister. This is a factor in favour of the Minister. I do not consider that the fact that both parties changed their positions through the course of the proceeding, in the context of this particular litigation, should be taken into account one way or the other. The changes were constructive. I do not consider the Minister's application to adjourn the jurisdictional issue added significant cost to the proceeding as the full argument was ventilated a few days later. This is a factor in favour of the Minister. I am not persuaded that this is an instance in which public interest plays a role in determining the costs question itself. An exceptional departure from the usual rule as to costs sometimes occurs where in circumstances which can genuinely be described as being in the public interest a private citizen unsuccessfully challenges government action or legislation. In this instance, the private citizen has successfully challenged a viewpoint taken on the legislation. This is a factor in favour of Allseas. The argument advanced for the Minister that there was no need for Allseas to pursue the proceeding is, in my respectful view, not persuasive. The Minister had not made clear what the Department's view in relation to the dispute was and what the consequences of that view were likely to be. This is a factor in favour of Allseas. 6 Taking all those matters into account but giving significant weight to the fact that Allseas could not have succeeded had the Minister not been an effective contradictor, in my view in exercise of the discretion conferred under s 43(2) of the Federal Court Act an appropriate balance is that the Minister should pay 50% of Allseas' costs to be taxed if not agreed. 7 That order will be made. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.