Anderson v Assistant Minister for Immigration and Border Protection

1. Each party is to bear their own costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 After I delivered judgment in this matter (Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888) (the primary judgment), both parties were ordered to file submissions on the question of costs. The catalyst for those orders was the observations I made at [46] of the primary judgment concerning the effect that the 17 December 2014 decision had on the disposition of this proceeding as follows: Before leaving this issue, it is appropriate to add these further observations. It is apparent from the Department's records relating to the 17 December 2014 decision that were eventually placed before the Court that that decision was not subjected to the kind of care and attention that should have been applied when making such a significant decision (see Schwart at [32] set out at [43] [of the primary judgment]). Furthermore, given that the Minster or his delegate had exercised a significant statutory power in making that decision and given that, as a result, an officer of the Department had acted under s 189 of the Act to detain Mr Anderson in immigration detention for a period of approximately 10 months, once it was realised that the decision had been made in error, it was, in my view, incumbent on the Minister or his delegate to alert Mr Anderson to that error and provide a timely explanation for it having occurred. Apart from anything else, a great deal of confusion would have been avoided in this proceeding and a significant amount of time would have been saved if such an explanation had been provided to Mr Anderson soon after that error was detected. I should add that my conclusions below that the 17 December 2014 decision did not have any relevant effect on the subsequent decision of 31 August 2016 does not detract from the force of these observations. 2 In his submissions, the Minister relied upon his complete success in the primary judgment to seek an order that the applicant pay his costs of the proceeding. By reference to a number of authorities, the Minister emphasised in his submissions that costs orders are not intended to punish an unsuccessful party, but to compensate a successful party and that depriving a successful party of costs was "extremely rare", an "exceptional measure" and justified only by "special circumstances", "substantial grounds", "some definite principle" or for "good reason". The Minister also pointed out that the applicant's originating application was, at all times, directed to having the 31 August 2016 decision quashed. He contended that whatever "confusion" was caused by the existence of the 17 December 2014 decision had not caused the applicant to sue, and did not cause any relevant misconduct in this proceeding. He contended that "any 'confusion' by the [a]pplicant was simply the [a]pplicant misconstruing and/or misunderstanding the correct position in relation to the purported December decision". 3 In his submissions, the applicant contended that the Minister's failure to notify him of, and explain, his error in making the 17 December 2014 decision "had a substantive impact on the conduct of the proceedings and resulted in protracted litigation". He submitted that the Minister's conduct was "inimical to the efficient and appropriate disposition of the proceedings according to law as quickly, inexpensively and efficiently as possible". Finally, he submitted that the costs incurred by the respondent in the proceeding "arose in large part as a result of [his] own misconduct" and that he was the author of his own misfortune by failing to properly disclose the relevant material pertaining to the 17 December 2014 decision. 4 In my view, this is one of those exceptional or rare cases where costs should not follow the event. That is so because, while the Minister was ultimately completely successful in the primary judgment, that success depended significantly, in my view, on the 17 December 2014 decision being first disposed of as an issue. While the bundles of documents the Minister provided in December 2016 included a copy of that decision, it was not until October 2017, following a Court order, that all of the materials relevant to it were provided to the Court and the applicant. It was that material that allowed the history relating to that decision to be extracted at [2], [4] and [13]-[15] of the primary judgment and that, in turn, led to the conclusion at [47] of the primary judgment, following the reasoning at [33]-[46], that the 17 December 2014 decision was a nullity. Once that conclusion was reached, the path to the Minister's complete success in the primary judgment was largely unhindered. 5 However, if the Minister had acted in the manner described at [46] of the primary judgment (above), or even if the Minister had provided the materials relating to the 17 December 2014 decision at, or near, the outset of this proceeding, I consider it is likely that the issue concerning that decision could have been removed from this proceeding entirely, or at least disposed of much sooner than it was. As to the Minister's contention that the confusion relating to that issue was a product of the applicant's misunderstanding, it is worth recording that, as late as the adjourned hearing of this matter in February 2018, the Minister was not able to explain to the Court the precise nature of the error that led him to the conclusion in 2015 that the 17 December 2014 decision was a nullity. As a result, he was given leave to file a set of supplementary submissions which ultimately contained that explanation. 6 In all these circumstances, I do not consider the Minister facilitated the just resolution of this proceeding as quickly, inexpensively and efficiently as possible in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth). 7 For these reasons, I consider the appropriate costs order is that each party should be ordered to bear his own costs of the proceeding. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.