Ball v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR ORDERS AS TO COSTS 1 On 11 July 2003, I ordered that certiorari issue to quash the decision of the respondent ("the Minister") of 13 March 2003 to cancel the applicant's visa. It was further ordered, on the same day, that the applicant forthwith be released from immigration detention. At the end of reasons then published for those orders, I indicated; 'My tentative view is that the respondent should pay the applicant's costs of the application, other than the costs of the hearing on 4 June as to which there should be no order. However, I shall hear Counsel on the question of costs.' 2 In written submissions subsequently filed on behalf of the applicant, it was contended that an order should be made that the Minister pay her costs of the hearing on 4 June 2003 when she unsuccessfully sought an interlocutory injunction requiring her release from immigration detention. In support of that contention, it was argued that the Minister knew, or should have known, that documents advising the applicant of the cancellation of her visa had been returned unclaimed and it was inappropriate for him to have considered cancellation in those circumstances. However, that point is answered by the observation at [25] of the reasons for judgment of 11 July 2003 that "Short of physically locating the applicant, it is difficult to perceive what more the Department could have done to bring to her notice the intention to consider cancellation of her visa." 3 It was next pointed out that certiorari, which the applicant ultimately obtained, is an extraordinary remedy of public importance to which the applicant was eventually held to be entitlement "ex debito justitiae" because the Minister's error "went to jurisdiction." However, it was implicit in the orders of 4 June 2003 that the applicant had not been able to point, on the material presented to that stage, to a serious question to be tried. In my view of the circumstances as they then existed, the Minister could not be fixed with responsibility for that omission. 4 Reference was also made in support of the applicant's contentions to this observation by Gray J in Te, in the matter of an application for writs of Habeas Corpus, Prohibition & Mandamus against Ruddock[2003] FCA 661 (2 July 2003) at [54]; 'In Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 at [5], the Full Court applied the principle expressed by Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651 (2000) 174 ALR 747 at [22] as follows: "Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained." The application of the same principle in the present case leads to the conclusion that, although unsuccessful, Mr Te should not be ordered to pay the Minister's costs.' 5 However, as the extract makes clear, the considerations which weighed with his Honour only militated against requiring the unsuccessful applicant to pay the Minister's costs. They did not go so far as to support an order that an applicant who has been unsuccessful at a particular hearing or stage of the litigation should have an order for payment by the successful respondent of his or her costs of that hearing or that stage of the litigation. 6 It is true that the hearing on 4 June 2003 enabled the Court to receive submissions on questions of law so that time was saved when the matter returned to Court on 3 and 8 July. However, on all of those questions, as revealed by the reasons of 11 July, the applicant was unsuccessful. Similarly, the fact that the hearing of 4 June obviated the need for a separate directions hearing cannot avail the applicant on the question of costs because a directions hearing would also have been unnecessary had the issue on which she ultimately succeeded been properly exposed and particularised in her application as originally formulated. Moreover, as Counsel for the Minister pointed out in his written submissions, of the issues which were alive at the commencement of the hearings on 3 and 8 July, the applicant succeeded on only two, both of which had been raised by the Court. As to the other issues, she was either unsuccessful or did not press them. Nevertheless, by the order which I proposed at the end of the reasons of 11 July, the applicant would receive her costs of the hearing on each of those days. 7 For these reasons I have not been persuaded to depart from the tentative view expressed on 11 July that the applicant should have her costs of the application including the hearings on 3 and 8 July, but there should be no order as to the costs of either party of the hearing on 4 June 2003. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.