Conway (a pseudonym) v Secretary, Department of Home Affairs

Background 1 The circumstances in which this dispute about costs arises for consideration have many similarities to those considered in QJKY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 879 (QJKY). 2 The applicant commenced the proceeding on 15 March 2024, seeking two forms of substantive relief: (a) mandamus to compel the determination of visa applications that he had made; and (b) an order in the nature of habeas corpus requiring his release from immigration detention. 3 The applicant's visa applications had been made in the early 1990s. The reasons for what is prima facie a remarkable delay in dealing with these applications have not been the subject of evidence. 4 The Court's reasons in an earlier decision concerning the applicant indicate that, between 1991 and 2014 he remained in Australia on various temporary visas, accumulated around 200 criminal convictions and was sentenced to around 15 years in prison (BHFC v Minister for Immigration and Border Protection [2014] FCAFC 25 at [20] (Marshall and Perry JJ). (BHFC)). His solicitor's affidavit in the present case deposes that he was in immigration detention from August 2014 to February 2021 and was detained again in April 2023. 5 The matter was listed for a hearing commencing on 10 July 2024. However, on 24 May 2024 (before the respondents' evidence was due to be filed) the second respondent (the Minister) granted the applicant the visa that he had applied for. This decision gave the applicant exactly the result that he sought to achieve by mandamus, and also rendered his application for habeas corpus otiose because he was immediately released from detention. 6 The parties agreed that the proceeding should be discontinued. A notice of discontinuance was signed by the applicant's solicitor on 7 June 2024 and provided to the respondents' solicitors on the same day. The respondents' solicitor signed the notice, to confirm her client's consent to the discontinuance, on 11 June 2024. 7 The applicant filed written submissions on 14 June 2024 which dealt only with the issue of costs. Correspondence continued between the parties' solicitors on that issue. (a) On 25 June 2024 the respondents offered to pay the applicant's costs of the application for mandamus in a fixed amount. The respondents' position was that no costs should be paid in respect of the application for habeas corpus. The respondents also proposed that costs which had been assessed against the applicant at the conclusion of the proceeding in which the BHFC judgment was delivered (the earlier proceeding), and which remained unpaid, should be set off against that amount. (b) On 27 June 2024 the applicant made a "counter-offer", pursuant to which: (i) the respondents would pay his costs in the proposed amount (seemingly for the whole proceeding); (ii) he would agree to set off the costs of the earlier proceeding against that amount; and (iii) the parties would write jointly to the Court "seeking reasons for the Court's making of the orders by consent". (c) The respondents replied that evening, agreeing to this course except in relation to making a joint request for reasons (while accepting that the applicant himself could request reasons). (d) The respondents' refusal to take part in a joint request for reasons was a deal-breaker for the applicant. On 2 July 2024 he responded to the effect that the parties should seek to vacate the hearing dates and ask the Court to deal with the question of costs on the papers. (e) The respondents replied later the same day agreeing to this approach, while observing there ought to have been no need for written submissions and that the respondents might seek their costs of the proceedings incurred after that day. (f) Orders were therefore made by consent on 4 July 2024 vacating the hearing and providing for written submissions on costs by the respondents and submissions in reply by the applicant. 8 In the light of this breakdown in negotiations, the applicant maintained the position adopted in his written submissions: that he should have his costs of the whole proceeding on an indemnity basis. 9 The respondents filed written submissions advancing the following position(s): (a) they should pay the applicant's costs, assessed on the ordinary basis, of the claim for mandamus; (b) the applicant should pay the respondents' costs of the claim for habeas corpus, on the basis that it was bound to fail (alternatively there should be no order as to the costs of this claim); (c) each party should bear their own costs of the costs dispute up to and including 2 July 2024; (d) the applicant should pay the respondents' costs of the costs dispute incurred after 2 July 2024, on the basis that his conduct in not accepting the respondents' proposed resolution was unreasonable; and (e) the respondents should be entitled to set off the applicant's liability for costs in relation to the 2013 proceeding against such costs as they are ordered to pay in relation to this proceeding. 10 The parties' submissions proceeded on the footing that the proceeding had come to an end. In fact, the notice of discontinuance had not been filed; nor had orders dismissing the originating application by consent been proposed. I raised this with the parties at a case management hearing on 20 November 2024 and the notice of discontinuance was filed later that day. I am thus dealing with the question of costs on the footing that orders are sought displacing the usual rule under r 26.12(7) of the Federal Court Rules 2011 (Cth) (the Rules) that a discontinuing party bears the costs of other parties. The parties consented to this application being dealt with on the papers.

The negotiations 14 The correspondence between the parties' solicitors indicates that a position on the amount of costs to be awarded had been reached which was acceptable to both sides. The applicant, however, made his acceptance of this arrangement conditional on there being a joint request to the Court for the provision of reasons. The respondents did not agree to participate in such a request, but stressed that the applicant was free to make such a request himself. This was not acceptable to the applicant. 15 The applicant's position is difficult to understand and appears to be misconceived. 16 The applicant proposed, appropriately in the circumstances, to discontinue the proceeding. Having obtained the respondent's consent, he was entitled to discontinue under r 26.12(2)(b) of the Rules. Discontinuance is an act of the moving party which brings a proceeding (or part of a proceeding) to an end. It is not the occasion for the making of any order by the Court, let alone for the provision of reasons. 17 Ordinarily, a party who files a notice of discontinuance is liable to pay the costs of other parties pursuant to r 26.12(7). The terms of the other parties' consent or an order of the Court may provide otherwise. The appropriate way to understand the present dispute, as noted above, is that the parties are seeking orders as to costs that would displace the usual rule in r 26.12(7). 18 An order of this kind was proposed to be made by consent. The applicant was apparently happy for that to occur, but only if there was a joint request for reasons. There were at least three problems with this position. (a) Any party affected by an order can ask the Court to provide reasons. Generally at least, if reasons are sought they will be provided. No additional force is conferred on the request by multiple parties having joined in making it. Persuading the respondents to join in making the request for reasons therefore served no identifiable purpose within the scope of the justiciable controversy or relevant to its resolution. (b) The only issue on which an order was required was costs. Where a consent order settles a dispute relating only to the private interests of individual parties, the basis for the order lies in the parties' agreement. The compromising of a dispute inter partes differs fundamentally from a situation where the Court is asked to make an order setting aside a purported exercise of public power, as discussed in the cases cited by the applicant (VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]‐[6] and Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86 at [4]). Generally, where represented parties reach a compromise on the question of costs and ask for that compromise to be reflected in an order, it would be at least highly unusual for the Court to go behind that agreement and express its own view as to the appropriateness of the order. Thus, if the Court had made the proposed consent order dealing with the costs of this proceeding, and been asked to give reasons, the reasons would simply have said that the order was made by consent. There was no reason to say more. It is hard to see what this would have achieved. (c) Perusal of the correspondence indicates, and the written submissions in reply confirm, that the applicant's position was motivated by the wish to have "a public record of the extraordinary delay that he had endured". This was said to be "for his own sake and to reduce the chance of anyone else having to endure anything similar in the future". If the applicant was seeking to obtain a public statement by the Court condemning his treatment by the respondents, or to use the Court's reasons as a way to bring that treatment to public attention, this was misconceived and improper. If reasons were requested for an order dealing with the costs of a discontinued proceeding, those reasons would canvass the issues relevant to costs and nothing else. No findings have been made as to the reasons why the applicants' visa applications took an extraordinarily long time to be determined; nor, with the proceeding now discontinued, is there any occasion for the Court to make such findings. 19 In these circumstances, it can rightly be said that the respondents have been required to make submissions on costs - and the Court has had to consider those submissions and prepare reasons - as the direct result of conduct by the applicant that was unreasonable. It is proper that this should be reflected in the order that the Court makes. However, the amounts likely to be involved do not justify the complication of a separate assessment of the costs of this issue. Taking a "rough and ready" approach (cf, eg, Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (No 2) [2021] FCA 185 at [69] (Stewart J)), I will apply a discount to the costs otherwise payable by the respondents.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (1)

Cases Cited (6)