Consideration
5 Under s 43(2) of the Federal Court of Australia Act 1976 (Cth), the disposition of costs is in the discretion of the Court, although this discretion must be exercised judicially having regard to the relevant principles and the justice of the case in all the circumstances: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9]. In the ordinary course, costs will follow the event. This means that, ordinarily, a successful party is entitled to an award of costs in the absence of special circumstances justifying some other order: see, for example, Ruddock v Vadarlis (No 2) at [11] and Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67] (McHugh J) and [134] (Kirby J).
6 Where, however, a party has succeeded on a portion of the claim only, then, depending on the circumstances, it may be reasonable that that party bear the expense of litigating the portion on which that party failed: Ruddock v Vadarlis (No 2) at [11]. Similarly, a successful party who has nonetheless failed on certain issues may not only be deprived of the costs of those issues but may be ordered to pay the other party's costs of them as well: Ruddock v Vadarlis (No 2) at [11]; PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46 at [14].
7 Given the nature of the proceeding, I propose to keep these reasons brief. In this case, the applicants failed to make out their core claim that breach of the prohibition in s 91X(2) of the Migration Act resulted in jurisdictional error in the judgment of the relevant court and accordingly they failed in their application for relief. They therefore failed on the whole of their claim, which in the ordinary course would entitle the Minister to an award of costs.
8 As already noted, the applicants seek to avoid this result, contending that the Minister "ought to have been more diligent" in detecting s 91X breaches. I interpolate here that this proceeding was solely concerned with the inadvertent disclosures of names by the publication of the written reasons for judgment of the primary judge.
9 The evidence before me does not support the applicants' submission that the Minister ought to have been more diligent. The fact that the Minister's legal representative was the first to identify the inadvertent publication of part of the first applicant's name in the written version of the primary judge's reasons did not of itself give rise to an obligation to search for any other inadvertent disclosures. As I have already said, having drawn the primary judge's attention to one disclosure, the Minister's legal representative did not draw the primary judge's attention to the further disclosure of the name of the second applicant, possibly because the name was not so identified: see AVN20 v Federal Circuit Court of Australia [2020] FCA 584 (previous reasons) at [13].
10 Further, as disclosed in the previous reasons, the applicants had legal representation at the time the primary judge heard and determined their judicial review application, in the preparation of the notice of appeal from his Honour's judgment, and also when that appeal was heard and determined. As noted in my previous reasons at [13], the primary judge's associate emailed a copy of the revised reasons to the parties' legal representatives. It may be reasonably assumed that the applicants and their legal representatives were in a better position than anyone else to identify the publication of prohibited information, howsoever made, and that they would have read the revised reasons to confirm that they no longer published information of this kind. As stated in my previous reasons (at [64]):
I accept that, prior to the hearing of the appeal, the contents of the primary judge's reasons published online at the time were accessible to the applicants' legal representative and the applicants (although one or other or both of them appears to have had a limited facility with the English language, as indicated by the fact that they were assisted by an interpreter at the hearing before the Refugee Review Tribunal). … I find it difficult to accept that, in the circumstances known to him, an appropriately qualified legal practitioner would not have perused the online publications of the reasons of the primary judge … in the course of preparing the applicants' case for the hearing of the appeal prior to the hearing of the appeal …
I put this matter to one side in my previous reasons for the reason there stated: see my previous reasons at [64]. These circumstance are, however, relevant to the applicants' submission here that the Minister was at fault because he should have been more diligent in detecting the s 91X breaches that affected them. Contrary to the applicants' submission, it seems to me that in the circumstances known to the Minister, the Minister could reasonably have assumed that any breach of s 91X(2) had been remedied when the primary judge republished his written reasons. There is no evidence to show that the Minister was at fault, such as to disentitle him to an award of costs as the applicants have submitted.
11 Further, I reject the applicants' submission that costs to the Minister should "be substantially offset" because the Minister failed in his primary submission that the applicants' proceeding was an abuse of the process. As the Full Court said in PKT Technologies at [15]:
[T]he mere fact that a court does not accept all of a successful party's arguments does not make it appropriate to deal with costs on an issue by issue basis: The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [8]. A court will be reluctant to adopt an approach of apportioning costs between different issues depending on success or failure on those issues where it is likely to be difficult, if not impossible, to allocate items of costs between the different issues. See Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd (No 2) [2015] FCAFC 155 at [16] citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16; and Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (No 5) [2015] FCA 1310 at [15].
12 I do not consider that the outcome of the abuse of process issue justifies a departure from the ordinary position. The facts and circumstances that were relevant to the assessment of the Minister's abuse of process submission were also the facts relevant to understanding the nature of the breaches of the prohibition in s 91X, how they came about, and why they continued for as long as they did. There was substantial overlap between the facts pertinent to the Minister's abuse of process submission and to the applicants' ultimate claims for relief. It does not seem to me that, in setting out the facts in support of the abuse of process submission, the Minister unreasonably prolonged the proceeding or increased costs. The Minister's submissions on the issue were relatively confined, as were the applicants' submissions in response. It did not appear that this aspect of the Minister's case significantly enlarged the applicants' preparation and argument. There is nothing else disclosed in the circumstances of the case that would lead me to conclude that the court should depart from the usual order as to costs.
13 As already noted, the applicants made a broad submission to the effect that their safety and that of their family had been irretrievably compromised by the breaches of s 91X. This case is not, however, comparable to the circumstances under consideration in Ruddock v Vadarlis (No 2), where it was held that there should be no order as to the costs of the appeal or application before the primary judge, on the basis that the matters involved were "of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights", and where there was "substantial public and, indeed, international controversy about the Commonwealth's actions": see Ruddock v Vadarlis (No 2) at [29]. The circumstances of this case do not involve considerations of that kind: compare Hart v Commissioner of Taxation (No 2) [2019] FCAFC 191 at [6]. Further, as noted in my previous reasons at [111], under the provisions of the Migration Act to which I there referred, it is for the executive branch of government, not the courts, to decide whether there should be a reconsideration of the applicants' position and ultimately whether permission to remain in Australia should be given.
14 For the reasons stated, I would order that the first and second applicants pay the second respondent's costs of the proceeding.
15 The applicants did not make any submission concerning the use of the lump-sum costs procedure outlined in the Costs Practice Note. It seems to me that it is appropriate to use this procedure in this case. I would make orders accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.