CRS20 v Secretary, Department of Home Affairs

1. The respondents pay the applicant's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 On 12 June 2024, I ordered that the applicant be released from detention on the grounds that s 198AD of the Migration Act 1958 (Cth) applied to the applicant, and that I was not satisfied that there existed a real prospect of the transfer of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future, with the result that the continuing detention of the applicant was outside the constitutionally permitted period of executive detention: CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 (J). 2 The applicant seeks an order for costs of the proceeding. The respondents oppose the application for costs on the ground that the argument on which the applicant succeeded was raised only at a very late stage and submit that, for the most part, there should be no order for costs. 3 I referred in several places in my judgment to the circumstances in which the applicant's claim that s 198AD of the Act applied to him arose: J at [18], [149]-[151], [189]-[191], [251] and [281]. The main points are as follows - (1) On 15 March 2024, Sarah C Derrington J made orders by consent for the staged filing of affidavit evidence and written submissions. The evidence of the respondents was to be filed by 18 April 2024, followed by written submissions and evidence in response of the applicant by 2 May 2024, followed by written submissions and evidence in reply of the respondents by 16 May 2024. The timetable was subsequently varied by consent, but the underlying procedural steps remained in place. (2) On 21 March 2024, which was before the respondents' evidence was due, the Minister's solicitors sent a considered letter to the applicant's solicitors, setting out their understanding of the case to be advanced on behalf of the applicant, and seeking confirmation that their understanding was correct. With one minor qualification, the applicant's solicitors confirmed that what had been set out in the letter was consistent with the applicant's case. There was no mention made of the potential application of s 198AD of the Act. (3) The applicant filed his evidence and submissions in accordance with the orders. In the applicant's solicitor's affidavit of 2 May 2024 at paragraph [1(i)], the applicant was referred to as an "unauthorised maritime arrival", which was the factual basis of my finding that s 198AD applied to the applicant on the construction of s 198AD that I followed. The applicant also filed an outline of written submissions dated 2 May 2024 under the names of counsel. No mention was made of the possible application of s 198AD. On the contrary, the applicant relied on the fact that he had requested removal to Iran, thereby engaging s 198(1) of the Act. (4) The respondents filed reply evidence and an outline of submissions dated 20 May 2024 under the names of counsel. Unsurprisingly, because the applicant had not raised it, there was no mention of s 198AD. (5) On 30 May 2024, the applicant's solicitors were provided with copies of documents that they had requested that were referred to in annexure JN-26 to the affidavit of Jason Nette dated 16 May 2024. Amongst those documents was an Australian Border Force Field Operation Located Person Interview dated 27 September 2019, which stated - [CRS20] arrived into Australia as an illegal maritime arrival (IMA). IMAs are unable to make valid applications for visas in Australia due to section 46A of the Migration Act 1958. There is no evidence at this time that the Minister has lifted the section 46A bar on 27/09/2019 - therefore [CRS20] cannot make a valid application for a Bridging Visa E. (6) On the evening of Sunday 2 June 2024, at 8.04 pm, the applicant's solicitor sent by email to the respondents' solicitors "three additional authorities on which counsel for my client may rely at the hearing tomorrow". One of the three authorities was the decision of Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234, to which I gave consideration in the principal reasons and determined to follow. There was no express indication in the email of the purpose for which counsel for the applicant might refer to the authorities. (7) The first day of the hearing was 3 June 2024. After some formalities, I took as read the affidavit material, and received into evidence a small number of additional documents. Lead counsel for the applicant then commenced his address, stating that it was "on the understanding that both parties have closed their evidentiary cases". (8) Lead counsel for the applicant by way of overview identified the five points that I summarised at J [83]. The third of those points was that s 198AD(1) applied to the applicant which, as a result of s 198(11), meant that s 198 did not apply to the applicant. In developing that point, counsel for the applicant relied on the unchallenged evidence in the applicant's solicitor's affidavit of 2 May 2024 that the applicant was an unauthorised maritime arrival. (9) When senior counsel for the respondents addressed the Court on the afternoon of the first day, he foreshadowed an application to reopen his case. On the morning of the second day, applications were made by both sides to reopen their cases, which were, in the end, unopposed: J [18]. No application for an adjournment was made, and the hearing proceeded. 4 There is no direct evidence before the Court as to the reason for which the applicant's reliance on s 198AD was raised only at a late stage. However, I think the course of events is clear enough. The Full Court's decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 turned on the proposition that if the bar was lifted under s 46A(2) of the Act, then s 198AD did not apply because transfer to a regional processing country would not be reasonably practicable. The Located Person Interview dated 27 September 2019 raised the prospect that there was insufficient evidence that the bar had been lifted in the applicant's case, thereby making the reasoning of the Full Court inapplicable to the applicant. The production of this document by the respondents was likely a source of inspiration to the applicant's representatives over the weekend before the hearing to introduce an argument that s 198AD applied to the applicant. As the argument developed, it extended to a submission, which I accepted, that I should follow the first instance decision of Rangiah J in circumstances where the orders of the Full Court had been reversed by the High Court. Counsel for the applicant submitted, in effect, that the point was raised late because they had not realised it sooner. I think the totality of the circumstances supports this submission. Those circumstances include that the respondents did not contend that s 198AD applied to the applicant, notwithstanding the decision of Rangiah J in AZC20. This may have been because the respondents thought that the reasoning of the Full Court should prevail, notwithstanding that the Full Court's orders had been reversed by the High Court. 5 The legal representatives for the applicant did not inform the Court or, evidently, the representatives for the respondents of their new argument, other than by the terms of the cryptic email to the respondents' solicitors sent on the evening before the hearing. Had clearer notice been given, there may not have been the need for the parties to make applications on the second day of the hearing to reopen their evidentiary cases. On the other hand, there might still have been time taken up to organise and tender some additional evidence, even if an application for leave to reopen was unnecessary. 6 I am mindful that both sides were well equipped and qualified to deal with the new argument. In addition, realistically I do not think there was much more that the respondents had to do to deal with the new argument other than that the Minister might, given more time, have considered making a determination under s 198AE. Whether that would have occurred is a question in the realm of speculation on which no opinion can be formed. 7 Under s 37N(4) of the Federal Court of Australia Act 1976 (Cth), in exercising the discretion to award costs in a civil proceeding, a Judge must take account of any failure to comply with the duties imposed by subsections (1) and (2) to conduct litigation in a way that is consistent with the overarching purpose. I do not think that this mandates consideration of any failures in some punitive way. Rather, it remains the case that costs are awarded as an indemnity, where the starting point is that the successful party is entitled to costs. That prima facie position may be altered where, for instance, a failure to comply with the duties imposed by ss 37N(1) and (2) has caused costs to be wasted, or to be unnecessarily incurred, by any of the parties, thereby warranting consideration of whether some adjustment should be made. 8 I have given attention to whether there has been a failure by the applicant or his lawyers to give effect to the overarching purpose. Civil litigation is a human process. It is an inherent feature of litigation that sometimes counsel conceive of arguments shortly before, or during, a hearing. Sometimes, courts themselves identify dispositive issues. Powers of amendment exist so that the real issues in dispute may be determined. It remains the case that, subject to proper weight being given to the promotion of the overarching purpose as required by s 37M(3) of the Federal Court of Australia Act, the question of any prejudice, and the kinds of considerations referred to in the principal authorities, such as Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [23]-[27], parties may introduce new issues. The circumstances in which that may occur vary immensely, and in a proceeding where the liberty of the subject is in issue, the subject matter of the proceeding will likely shape the exercise of any procedural discretion to allow a new issue to be raised. 9 I am not persuaded that there has been any failure by the applicant to act in a way that is consistent with the overarching purpose. Moreover, I am not persuaded that the late introduction by the applicant of reliance on s 198AD of the Act has led to any appreciable increase in, or the wastage of, the costs of any party. The respondents contested the applicant's claim that s 198AD applied, and there was a proper and reasonable basis to do so. The costs incurred by the respondents in defending the proceeding on the premise that s 198 applied to the applicant would therefore likely have been incurred in any event. Correspondingly, it is unlikely that it would have been reasonable for the applicant to place all his eggs in the s 198AD basket, and the applicant's costs that were incurred in prosecuting the claim on the assumption that s 198 applied were therefore reasonably incurred. 10 For the foregoing reasons, I am not persuaded that there is any reason to depart from the usual course that costs should follow the event: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [241] (Kiefel and Keane JJ). 11 The Court made orders on 12 June 2024, shortly after 4.00 pm, that the applicant be released from detention forthwith. There was some delay in the applicant's release. The representatives for the applicant requested that the matter be re-listed before me, which occurred that evening at about 7.00 pm. Shortly after the hearing commenced, I stood the matter down so that further instructions could be obtained by the legal representatives. The evidence is that at about 7.39 pm, the applicant was no longer in detention. 12 The applicant seeks an order that the costs of the hearing on the evening of 12 June 2024 be taxed on an indemnity basis. The applicant relies on an affidavit of his solicitor sworn today, which sets out a chronological account of email and telephone communications that occurred after I made the order, and prior to the applicant's release. 13 I am not satisfied that the evidence discloses any basis on which to find that the respondents acted in contumelious disregard of my order, or otherwise acted in some high-handed manner, such as to warrant an order for indemnity costs. Further, and in any event, the applicant will recover costs of the hearing on the evening of 12 June 2024 as part of the costs of the proceeding that will be ordered. The recoverable costs upon a taxation on a party and party basis will be those that were fairly and reasonably incurred: see the definition of "costs as between party and party" in the Dictionary to the Federal Court Rules 2011 (Cth). I doubt that the applicant would have incurred any additional costs over the period of two or three hours immediately prior to his release. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.