CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The respondents pay the applicant's costs of and incidental to the interlocutory application made on 1 July 2019, to be fixed by way of a lump sum.
2. In the absence of the parties notifying the Court of an agreement as to an appropriate lump sum by 4 pm on 8 August 2019, the matter of an appropriate lump sum be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 On 5 July 2019, I published orders and reasons for decision in relation to an interlocutory application which had come before me as duty judge on 1 July 2019: see CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050 (the July interlocutory reasons). The relevant factual background to the application is set out in those reasons, and I adopt it for present purposes. 2 In the orders made on that day the Court gave the respondents leave to file and serve any submissions they wished to make on the question whether the Court should order them to pay the applicant's costs of the interlocutory application. The respondents filed and served submissions in accordance with those orders, contending the parties should bear their own costs of the interlocutory application. 3 Without leave, the applicant filed and served responsive submissions on the question of costs. Despite the absence of leave, I have considered those submissions. However, leave should have been sought before the submissions were filed. 4 No additional facts are required for the determination of the question of costs, save for one. On 12 July 2019, the Court was notified by the respondents that the applicant had been transferred to Australia that day, and had arrived in Brisbane. No evidence was provided about how precisely this had occurred: for example, whether the OMR Committee had approved his transfer, or not. 5 The applicant's legal representatives contend this fact demonstrates not only the necessity for the interlocutory application, but its success. I do not accept that submission entirely, for reasons I explain below. 6 If the usual basis for costs was the only consideration - that is, whether a party was successful in an application - there would be no order for costs on this application. The applicant was not successful in obtaining his proposed orders (whether one takes the first iteration of them, or the second). The Court did not make the principal orders the applicant's legal representatives sought, concerning specific steps which they proposed the respondents should be ordered to take to bring the applicant to Australia. For reasons given at [77]-[82] of the July interlocutory reasons, I determined that the making of such orders would be futile, given the evidence before the Court about the position taken by the Nauruan Government, and the position taken (at least at that time) by the Australian Government. 7 The relief granted was a modification of only one of the orders sought by the applicant, and certainly not the order which was the focus of oral submissions on the application. 8 The respondents submit there should be no order as to costs because the applicant did not contend the respondents were in breach of the Court's orders of 14 June 2019, but rather sought "qualitatively different" orders at the hearing on 1 July 2019, which were not made. The respondents also submit that they have complied with the 14 June 2019 orders, and insofar as the July interlocutory reasons suggest there has not been "wholesale compliance" with those orders (a term which the respondents contend has some difficulty), the respondents have not had an opportunity to respond to any "allegations" of such non-compliance. 9 At [4] of their submissions, the respondents described the context of the interlocutory application in the following way, having submitted that the interlocutory application commenced with the sending of a letter by the applicant's legal representatives to the AGS at 12.47pm on 28 June 2019: The respondents, with limited notice, had provided a detailed affidavit of the steps taken to secure the temporary medical transfer of the applicant to Australia, noting that the applicant's case remained under consideration by the OMR Committee, and that no decision had yet been made. 10 I do not accept that is an adequate description of the context of the interlocutory application. The interlocutory application was made, in my opinion, orally in Court on 1 July 2019, and was supported by the affidavit material to which I referred in the July interlocutory reasons. The context is as described in the July interlocutory reasons, and is substantially broader than the respondents' description. 11 In my opinion, the evidence demonstrated the applicant was driven to make an interlocutory application because of inactivity on the part of the respondents, and the worsening of his psychiatric condition. The respondents appear to submit the applicant should have simply continued to wait and see if he would be transferred. 12 Given the evidence, it might be said that it would have been irresponsible for the applicant's legal representatives to simply stand by and watch what was happening to the applicant, including his further acts of self-harm as displayed in the photographs tendered at the interlocutory hearing on 1 July 2019. There was no indication in the correspondence annexed to Ms Troup's second affidavit affirmed on 30 June 2019 about when the OMR Committee might meet again to consider the applicant's circumstances, nor whether if it did, this might result in his transfer. The information about the 11 July 2019 meeting of the OMR Committee only came to light for the first time in the respondents' affidavit material filed at the request of the Court shortly prior to the 1 July 2019 hearing. 13 I am prepared to infer that but for the fact of the 1 July 2019 interlocutory application, and the Court's request for evidence about what was happening in relation to the applicant, neither the applicant nor his legal representatives would have discovered what was proposed in the immediate future to occur in relation to his circumstances. 14 Indeed, I infer the applicant's case may not have been presented to the OMR Committee on 11 July 2019 at all, without the 1 July 2019 interlocutory application, bearing in mind that contrary to previous indications the applicant's case was not considered by the OMR Committee on 13 June 2019, which is what prompted the applicant to return to Court on 14 June 2019: see [28] of the July interlocutory reasons. 15 I am satisfied the 1 July 2019 interlocutory application was necessary and appropriate, because of the respondents' inaction and lack of progress of compliance with the Court's orders of 14 June 2019. The chronology and the detail in the July interlocutory reasons about the delays and obstacles placed in the way of the applicant's transfer, which the Court had ordered and the first respondent had directed under s 198E of the Migration Act 1958 (Cth), makes good the proposition that the legal costs involved in making that application were necessary and appropriate, and were incurred for the simple reason that more than two weeks had passed without the respondents being able to arrange for the applicant, despite his dire condition, to receive the medical treatment the evidence demonstrated he needed. 16 There will be an order that the respondents pay the applicant's costs of and incidental to the interlocutory application made on 1 July 2019. The order is made on the assumption that the applicant is liable to pay costs to his legal representatives. The basis for that assumption is that the applicant's legal representatives have sought an order for costs on his behalf. I consider it appropriate that the costs be fixed as a lump sum: that is the most efficient and cost-effective method in circumstances such as these. 17 The applicant sought that the costs be paid "forthwith", relying on Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 at [5]-[9]. In that decision, with his customary thoroughness, Perram J explained the applicable principles where a party seeks an order that costs be payable "forthwith". His Honour determined there was power to make such an order, a view with which I respectfully agree, for the reasons his Honour gave. His Honour also referred to a number of discretionary factors which tend, as discretionary factors often do, in different directions. 18 In the present circumstances, considering the matters set out by Perram J in Federal Treasury Enterprise at [5]-[9], although I accept there are some discretionary factors which might favour an order in those terms (especially that the final determination of this proceeding is some considerable time away), I consider more factors tend against making such an order. I do not consider that a "discrete issue" was resolved as a result of the 1 July 2019 interlocutory application. Indeed, the point I have endeavoured to emphasise is that the Court declined to "resolve" the substantive issues for which the applicant contended. The "resolution", such as it is, of the applicant's transfer, occurred for reasons about which there is no evidence before the Court. 19 It is possible that further costs orders may be made in this proceeding. It is possible there may be such orders made against the applicant, and in favour of the respondents. This proceeding is in its infancy in substantive terms and, short of speculation, no more can be said than that future costs orders may be made. As Perram J noted in Federal Treasury Enterprise, the fact that one set of costs orders may be set off against another may be a relevant factor in determining it is not appropriate to make costs payable "forthwith". I consider that factor is particularly relevant where, as here, the applicant is impecunious. 20 Contrary to the applicant's submissions at [14(c)], I am not prepared to find, in effect, that the respondents have not conducted this proceeding with competence and diligence (see Federal Treasury Enterprise at [9]). In terms of the proceeding, the respondents have (as I found in the July interlocutory reasons) been cooperative and responsive. The need for the 1 July 2019 application was not because of their conduct of the proceeding: it was because of the matters to which I referred in the July interlocutory reasons. Those matters were in part of the respondents' making, as I observed, but could not be described as conduct "in" this proceeding. 21 I decline to order that the applicant's legal costs be payable "forthwith". I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.