Kapeli v Secretary, Department of Home Affairs

Mr Kapeli's submissions

1. Mr Kapeli submitted that the "default position" on a failed habeas corpus application is that there be no order as to costs and that that position has been restated in this Court and other courts many times and over a long time. The rationale for the stated principle is that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. Mr Kapeli argued that, although he was unsuccessful, the proceeding was neither speculative nor without a proper basis. Mr Kapeli's case raised novel questions regarding the scope of the aliens power, the construction of s 198 of the Migration Act 1958 (Cth) (Act), and the interaction between the recent decisions of the High Court of Australia in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (Love/Thoms) and NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005. Mr Kapeli also submitted that he is detained and impecunious, meaning that any order of costs against him would likely be of little value to the respondents, but it may well cause stress to his wife and children.
2. Mr Kapeli also relied on two other matters, relating to the conduct of the hearing, as providing a reason that there be no order as to costs or that there be a reduction in the quantum of any costs order to be made against Mr Kapeli.
3. The first matter concerns a notice to admit dated 13 August 2024 served by Mr Kapeli on the respondents. Mr Kapeli submitted that, by their notice of dispute, the respondents disputed a key fact in the notice to admit, that 'Mr Kapeli is recognised as Australian Aboriginal by other persons enjoying traditional authority amongst Aboriginal society'. Mr Kapeli submitted that that fact was expressly conceded by the respondents late in their closing submissions and was accepted by the Court as correct (Kapeli (No 1) at [171]). Mr Kapeli submitted that, by application of r 22.03 of the Federal Court Rules 2011 (Cth) (Rules), he ought be entitled to the costs associated with proving that fact. The process of proving that fact involved a trip to Forster for the purpose of obtaining affidavit evidence, including multiple meetings with each deponent, over several days. Mr Kapeli argued that those costs should be borne by the respondents whose election to dispute that fact precipitated the need to incur those costs.
4. The second matter concerns Mr Kapeli's application to attend the hearing in person and the adjournment of the hearing on 23 September 2024. Those events are the subject of findings in Kapeli (No 1) at [34]-[42]. Mr Kapeli submitted that he incurred significant legal expenses over the weekend of 21 and 22 September 2024 because the respondents raised a question about his fitness to travel, relating to a suspected tuberculosis (TB) diagnosis. Mr Kapeli submitted that the evidence shows that Mr Kapeli was cleared of any suspected TB diagnosis by 12.58pm on 17 September 2024. Mr Kapeli says that the expenses incurred over the weekend of 21 and 22 September 2024, and the hearing on 23 January 2024 (at which Mr Kapeli sought an adjournment), resulted from the respondents' lawyers misunderstanding that Mr Kapeli may yet receive a positive TB test.

Consideration

1. The Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is broad and is not bound by rigid or inflexible rules. The discretion must be exercised judicially, consistently with the purpose of the power and taking account of relevant facts and circumstances of the litigation: Kazar v Kargarian (2011) 197 FCR 113 at [4] per Greenwood and Rares JJ. While not a rigid rule, usually the discretion to award costs is exercised in favour of a successful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at [35] per Gaudron and Gummow JJ, [66]-[67] per McHugh J and [134] per Kirby J; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [25] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
2. Mr Kapeli has asserted that he is impecunious, but there is no evidence in support of that assertion. Regardless, impecuniosity is not a relevant consideration in the exercise of the Court's discretion whether or not to award costs, although it may inform the structure of a costs order, for example, by providing for payment over time: Northern Territory v Sangare (2019) 265 CLR 164 at [32] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). Mr Kapeli did not seek an order of that kind.
3. Mr Kapeli submitted that the 'default position' on a failed habeas corpus application is that there be no order as to costs. In support, Mr Kapeli relies on the following passage from the judgment of Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 (Cabal) (at [22]): 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.
4. The foregoing passage has frequently been cited in cases concerning the award of costs in respect of a failed challenge to executive detention: see for example Bowman v Commonwealth of Australia [2022] FCA 594 at [60], Taylor v Minister for Home Affairs (No 2) [2022] FCA 401 at [4(a)] and Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 955 (Helmbright (No 3)) at [22]. In a similar vein, Mortimer J (as her Honour then was) has observed that, where a proceeding concerns the exercise of a public power to deprive a person of their liberty, the Court must be careful not to make costs orders which may have a chilling effect on other persons seeking to advance arguments designed to secure their liberty: see DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [23(b)] and Plaintiff S111A/2018 v Minister for Home Affairs (No 5) [2022] FCA 603 at [26]. That principle has been referred to with apparent approval in a number of cases: MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 at [21]; Price v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 542 at [5(6)]; and Azimitabar v Commonwealth of Australia (No 2) [2024] FCA 1383 at [18].
5. The special circumstances of a habeas application is a significant factor bearing upon the Court's discretion to award costs. However, it is inaccurate to assert that there is a 'default position' with habeas applications that there be no order as to costs. Instead, the authorities make clear that the special circumstances of a habeas application is a factor that is relevant to the overall exercise of the Court's discretion on costs: Te v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at [80]; McCrea v Minister for Customs and Justice (2005) 145 FCR 269 at [29]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [3] (Griffiths J, Thomas and Stewart JJ agreeing). In Helmbright (No 3), Mortimer J observed (at [23]) that "if a proceeding is conducted vexatiously, irresponsibly, or in a way which unnecessarily and inappropriately causes other parties to incur costs" the kind of public interest associated with ensuring that the risk of adverse costs order does not stand in the way of a person seeking liberty may not prevail.
6. I do not consider that the commencement of the present proceeding was vexatious. However, I do consider that the proceeding was conducted in a way which unnecessarily and inappropriately caused the respondents to incur costs. The central issue in the proceeding was whether, for the purposes of s 189 of the Act, the detaining officer held a reasonable suspicion that Mr Kapeli is not an Aboriginal Australian within the meaning of the majority judgments in Love/Thoms by reason of the fact that he is not biologically descended from an Aboriginal person, and therefore outside the aliens power in s 51(xix) of the Constitution. The central issue raised a relatively short question of law concerning the ratio of the majority judgments in Love/Thoms. To the extent the central issue raised a question of fact (concerning Mr Kapeli's forebears), the facts were determined adversely to Mr Kapeli. I also found that, on that question of fact, Mr Kapeli gave untruthful answers to certain questions and was evasive in answering certain questions (Kapeli (No 1) at [98]).
7. Despite the central issue in the proceeding being confined, Mr Kapeli, through his legal representatives, raised a plethora of supplementary arguments and contentions which greatly expanded the issues for determination in the proceeding. Mr Kapeli failed on all such arguments and contentions (Kapeli (No 1) at [348]). I regard many of the supplementary arguments and contentions as speculative at best. Furthermore, Mr Kapeli's conduct of the proceeding caused an unnecessary interlocutory hearing on 20 September 2024, an adjournment of the trial which was due to start on 23 September 2024, an extension of the trial dates from two to three days, and a need for supplementary written submissions after the conclusion of the hearing. Those matters are the subject of criticism in Kapeli (No 1) at [10], [17], [25], [40]-[42] and [44].
8. I reject Mr Kapeli's submission that the respondents caused him to incur unnecessary legal expense over the weekend of 21 and 22 September 2024 because they raised a question about Mr Kapeli's fitness to travel, or that the respondents were responsible for the adjournment of the hearing on 23 September 2024 and the costs associated with the adjournment. The chain of events started with Mr Kapeli's application made on 20 September 2024 for an order requiring the respondents to transport him from the Villawood Detention Centre in Sydney to Melbourne so that he could be present during the hearing on 23 September 2024. In Kapeli (No 1) at [25], I concluded that the application was unreasonably delayed and should have been made at a much earlier point in time. The respondents consented to the order being made on 20 September 2024, but a concern over Mr Kapeli's fitness to travel arose that evening. I accept the respondents' submission that at all times they acted on the advice of medical officers of the Commonwealth, who until 23 September 2024 maintained that the applicant was not fit to travel. In so far as Mr Kapeli's solicitor, James Clarke, purports to give evidence concerning the interpretation of medical reports relating to Mr Kapeli, I reject that evidence as inadmissible opinion. Mr Clarke has no qualifications to give such evidence.
9. It also follows that the respondents' conduct was not the cause of the adjournment of the hearing on 23 September 2024. Indeed, I consider that the adjournment was unnecessary. The respondents opposed the adjournment on the basis that Mr Kapeli could be transported to Court for cross-examination on 24 September 2024 and, during the balance of 23 September 2024, cross-examination could proceed with respect to the respondents' witnesses (see Kapeli (No 1) at [41]). I nevertheless granted the adjournment, recording my misgivings (see Kapeli (No 1) at [42]). I did so because it was sought by Mr Kapeli. I reject Mr Kapeli's submission that the respondents bear any responsibility for the adjournment. The adjournment was caused by a combination of factors for which Mr Kapeli must accept responsibility: the late application to be transported to Melbourne; Mr Kapeli's lead counsel being unavailable on 24 September 2024 (a fact which was known when the proceeding was listed for trial); and Sarina Kapeli being unavailable to attend court on 24 September 2024 for the purposes of cross-examination (see Kapeli No (1) at [40] and [42]).
10. I also reject Mr Kapeli's submission concerning his notice to admit and the respondents' notice of dispute which disputed the fact that "Mr Kapeli is recognised as Australian Aboriginal by other persons enjoying traditional authority amongst Aboriginal society". It should be observed at the outset that the asserted fact is stated in a conclusory manner which intermingles assertions of fact and law. It is improbable that "persons enjoying traditional authority amongst Aboriginal society" (whatever that description might mean) would think of Mr Kapeli in the terms of an "Australian Aboriginal", being a term used by the High Court in Love/Thoms. The statement of a fact in those terms is misconceived. In any event, contrary to Mr Kapeli's submissions, the asserted fact was neither conceded by the respondents at trial nor accepted by the Court as correct. In closing submissions, the respondents stated expressly that they did not concede that Mr Kapeli satisfied the third limb of the tripartite test for membership of an Aboriginal group of people stated by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1. Rather, the respondents accepted that the detaining officer had given evidence that, on the basis of legal advice received from the Australian Government Solicitor, it was not open to her to reasonably suspect that Mr Kapeli does not meet the third limb. That is an entirely different proposition to the asserted fact. Further, I made no finding in the nature of the asserted fact. In the passage relied on by Mr Kapeli (Kapeli (No 1) at [171]), I accepted the evidence that each of Percy Simon, Desmond Simon and Michelle Donnelly are regarded as elders within the Worimi community in the Forster region, and that each of Percy Simon, Desmond Simon and Michelle Donnelly regard Mr Kapeli as a member of the Worimi community and that Michelle Donnelly regards him as a son. I made no findings with respect to the persons who hold traditional authority on behalf of Worimi people and the manner in which traditional authority may be exercised, as the evidence was insufficient for any such findings to be made. Nor did I make findings with respect to the Worimi people, or any sub-group of the Worimi people, as an "Aboriginal society" as that phrase is purported to be used in the asserted fact. I also made no findings that persons enjoying traditional authority recognised Mr Kapeli as an "Australian Aboriginal". It follows that r 22.03 of the Rules has no application.

Conclusion

1. Taking all of the above considerations into account, I maintain the view that the appropriate order is for Mr Kapeli to pay the respondents' costs of the proceeding. While the special circumstances of a habeas application is a significant factor bearing upon the Court's discretion to award costs, in this case that factor is outweighed by the fact that the proceeding was conducted in a way which unnecessarily and inappropriately caused the respondents to incur costs. I therefore dismiss Mr Kapeli's application to vary the costs order. The costs payable by Mr Kapeli will include the costs of this application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.