LGC24 v Minister for Immigration and Multicultural Affairs

1. The applicant commenced two separate proceedings in this Court. One, which was docketed to another judge of the Court, challenged the validity of the Minister's decision to refuse to grant a Skilled (Provisional) (Class VC) work visa to her. The other, docketed to me, claimed prerogative relief in connection with her application for a Class XA (Subclass 866) protection visa.
2. In LGC24 v Minister for Immigration and Multicultural Affairs [2025] FCA 253 I determined the applicant's claim for a writ of mandamus in relation to her application for a protection visa. In her originating application, the applicant had also applied for a writ of habeas corpus, and when I delivered judgment I directed the parties to contact my chambers for the purpose of arranging a hearing of that remaining aspect of her application.
3. Subsequently, the applicant filed an interlocutory application, seeking leave to file an amended originating application. The effect of the proposed amendments (if they were allowed) would have been to abandon all remaining claims in relation to the applicant's application for a protection visa. In their place, a new series of claims was sought to be made in relation to the unsuccessful application for a skilled work visa (that is to say, the decision that was subject to challenge in separate proceedings being heard by another judge of this Court).
4. The respondents did not oppose the applicant having leave to abandon the existing, remaining, grounds that related to her application for a protection visa, but opposed a grant of leave in respect of the new grounds relating to the skilled work visa. The applicant's position, however, was that if she did not obtain leave to introduce her new grounds, then she did not wish to abandon her existing grounds.
5. Following argument on the interlocutory application, but before judgment had been delivered, the applicant obtained judgment in her favour in her other proceedings (i.e., those challenging the decision to refuse to grant her a skilled work visa): LGC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1023. One consequence of that decision was that the applicant's Bridging visa E (subclass 050), which had been taken to be cancelled by reason of s 501F(3) of the Migration Act 1958 (Cth) when her application for a skilled work visa was refused, was reinstated. She is, accordingly, now a lawful non-citizen, and has been released from immigration detention.
6. In those circumstances, the challenge that the applicant sought to bring to the validity of the decision refusing to grant her a skilled work visa, and the dependent claim for a writ of habeas corpus, is now moot. The existing claim for a writ of habeas corpus, which was dependent on matters connected with her unresolved protection visa application, also became moot by reason of her release from immigration detention.
7. The applicant thus sought to discontinue the proceedings. The respondents did not oppose that course. But the parties are in dispute in relation to costs. The competing positions may be summarised as follows:

(a) The applicant contends that the respondents should pay her costs of the proceedings from 23 January 2025 (the date upon which the applicant swore an affidavit deposing to an interview conducted with her by two officers of the Australian Federal Police while she was detained at Villawood Immigration Detention Centre).

(b) The respondents contend that:

(i) the applicant should pay the respondents' costs of:

(A) the proceedings in relation to the application for a writ of habeas corpus (either from the date the proceedings were commenced or, alternatively, from 2 April 2025, when the High Court delivered its judgment in CZA19 v Commonwealth of Australia [2025] HCA 8 (with each party bearing its own costs in relation to that aspect of the claim before that date)); and

(B) the interlocutory application; or

(ii) there be no order as to costs in relation to either the application for a writ of habeas corpus or the interlocutory application up to and including 5 September 2025 (the date upon which an offer to compromise the costs of the proceedings expired), after which time the applicant should be ordered to pay the respondents' costs.

1. The applicant did not, in terms, apply for leave to discontinue the proceedings. Rather, she submitted that the "matter should discontinue". In context, however, it is clear that that is what she meant.
2. Rule 26.12(7) of the Federal Court Rules 2011 (Cth) relevantly provides that, "[u]nless ... an order of the Court provide[s] otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued". That rule has been said to establish a "default position", or a "starting point", that a discontinuing party should pay the other party's costs: see Tamu v World Vision Australia (No 2) [2021] FCA 565 at [33] and the authorities cited therein.
3. In Simatis v Walgenup Aboriginal Corporation (No 2) [2023] FCA 607 at [3], Colvin J said:

Where proceedings have been discontinued, there must be good reason for the discontinuing party not to be ordered to pay the costs of the proceedings: see the review of the authorities by Flick J in Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1760 at [7]- [12]. Where both parties have acted reasonably in the conduct of the proceedings and the purpose of the proceedings has been overtaken by settlement or a supervening event then it will usually be appropriate to make no order as to the costs of the proceedings: Re Minister for Immigration and Ethic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-5 (McHugh J) and Travaglini v Raccuia [2012] FCA 620 at [13] (McKerracher J).

1. I also gratefully adopt what Horan J said in VDCL v Purcell [2024] FCA 107 at [14]- [17]:

Rule 26.12(7) is not necessarily founded on a premise that, when a proceeding is discontinued by an applicant, the respondent is the successful party. There may be a range of circumstances leading to the discontinuance of a proceeding, not all of which may be equated to success on the part of either the applicant or the respondent in the sense of a vindication of that party's position in relation to the claims forming the subject matter of the proceeding. For example, there might be circumstances in which the relief sought in the proceeding has been overtaken or rendered inutile by supervening events or circumstances beyond the control of any of the parties, or where (as was the case in Lai Qin at 624) the applicant "has achieved the relief sought in the action either by settlement or by extra-curial means".

Nevertheless, previous decisions of this Court have generally accepted that r 26.12(7) prescribes a starting point or a default position that, in the absence of any agreement between the parties, a party who files a notice of discontinuance should pay the costs of each other party unless "good reason" is shown for exercising the discretion to order otherwise: see, for example, Armstrong v Australian Community Pharmacy Authority [2012] FCA 577 at [9], [13]-[14] (Rares J); El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 at [17] (Foster J); Diploma Group Limited (No 3) at [2]. While some decisions have described this as creating a "presumption" that the discontinuing party ought pay the costs of the other side unless good reason is shown (see Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 at [7] (Barker J), cited in Zhao at [15] and Taylor at [8], [22]), it is unnecessary to determine whether such a description is apposite: cf. Lo v Australian Community Pharmacy Authority [2013] FCA 639 at [60] (Katzmann J), cited in Francis at [20].

The general policy embodied in r 26.12(7) is that, where a party elects to discontinue a proceeding, the other party has a prima facie entitlement to an award of costs: see Travaglini v Raccuia [2012] FCA 620 at [36] (McKerracher J). The Court retains a discretion to displace or depart from that position under r 26.12(7) in the circumstances of the particular case. Like any discretion as to costs, the discretion under r 26.12(7) must be exercised judicially by reference to facts connected with or leading up to the litigation. The need for good reason to be shown for any departure from the default position under r 26.12(7) should not unduly constrain or fetter the judicial discretion to make a different costs order in appropriate circumstances. Nevertheless, the onus is on the party who seeks to depart from the costs consequences under r 26.12(7), other than by the terms of a consent, to make an application to the Court and to explain and establish the basis on which a different costs order should be made: Francis at [20]; Taylor at [9]-[10]; Zhao at [16].

In exercising the discretion under r 26.12(7), it remains relevant to consider the conduct of the parties and the reasons for discontinuance: cf. O'Neill at [13]. However, the fact that the discontinuing party has acted reasonably is not necessarily sufficient of itself to warrant a departure from the costs consequences under r 26.12(7). As McKerracher J observed in Diploma Group Limited (No 3) at [18], even if an applicant acted reasonably in bringing and conducting the proceeding, "unless the litigation is rendered futile by external events, such as a settlement, or the objective of the litigation being achieved in other ways, the discontinuing party is almost always liable for costs".

Should the respondents pay the applicant's costs?

1. I will first consider whether any reason has been shown as to why the respondents should pay the applicant's costs. The applicant advanced two, or possibly three, submissions in support of such an order.

1. The first reason identified by the applicant was that her proceedings were in the public interest. She expressed the submission as follows:

The Applicant adduced evidence of the June 2024 episode of questioning by police. The questioning took place inside immigration detention. The Applicant's participation lacked voluntariness. Correspondingly the Applicant sought to enforce "public law obligations" in her pleadings and remedy.

There is a public interest in the Applicant bringing to the Court's attention the appearance of the Respondent operating an independent criminal justice process in the portfolio. The Respondent's conduct was identified as occurring covertly and within the frame of immigration detention. While the Respondent had the opportunity to dispute the affidavit evidence, the Respondent did not do so.

There is a public interest as the circumstances of immigration detention affect numerous individuals beyond the Applicant herself.

The Applicant raised an arguable case that the Respondent's decision of 5 June 2024 was attended by bad faith, including an intention to detain.

1. To enable those submissions to be understood, a small amount of context is required:

(a) The reference to the applicant adducing evidence of an episode of questioning by police refers to an affidavit sworn by her on 23 January 2025. There has not yet arisen any occasion for the respondents to respond to that evidence, nor to test the applicant's account. Its use in proceedings thus far has been limited to being read on the hearing of the interlocutory application, for the purpose of demonstrating the existence of a proper basis for alleging that the Minister's decision to refuse the applicant's application for a skilled work visa was attended by bad faith.

(b) In that affidavit, the applicant deposed to being interviewed by two officers of the Australian Federal Police while she was detained at Villawood Immigration Detention Centre. On its face, the applicant's account of the interview does not suggest that her participation in it was anything other than voluntary. She says that she was told by a member of staff at Villawood that she "need[ed] to go to the visiting room" where the interview took place, but she does not suggest that she was compelled to participate in the interview.

(c) In his oral submissions in support of the interlocutory application, counsel for the applicant submitted that the applicant's immigration detention facilitated an "interview that could not have been ... undertaken in any other place". Why that was so was not explained. But it formed part of a broader submission that the Minister had determined to refuse the applicant's application for a skilled work visa so that she would be taken into immigration detention, in order to facilitate her prosecution for certain crimes and to punish her without the need to secure a conviction. It is to that broader argument that, I infer, the submission that the Minister was "operating an independent criminal justice process" refers.

1. Needless to say, there has been no adjudication of those claims of the applicant that I have just described. Indeed, there has not even been a determination that leave to bring such claims should be granted. I have described them solely so as to enable an understanding of the basis upon which the applicant contends that her proceedings had a public interest character.
2. While it may be the case that "the circumstances of immigration detention affect numerous individuals beyond" the applicant, the claims sought to be brought do not relate to the circumstances of immigration detention generally. There is no evidence to suggest that success for the applicant would have, directly or indirectly, had any consequences for any other person in immigration detention. These proceedings were brought for the individual benefit of the applicant, and not "for the benefit of the public or to enforce a public duty": Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469 (R D Nicholson J).
3. The applicant relied on Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [20]. That paragraph is found in the judgment of Gaudron and Gummow JJ, which is a summary of the matters taken into account by the trial judge in those proceedings. Those matters included the following:

(ii) The characterisation of proceedings as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law" may be a factor which contributes to a finding of "special circumstances" but is not, of itself, enough to constitute special circumstances warranting departure from the "usual rule"; something more is required.

(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna".

(iv) In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation.

(v) The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public.

1. Their Honours went on to state, at [30] that:

[T]he submissions for the appellant, in part, sought to establish a category of "public interest litigation" into which this case fell. That is a "nebulous concept" unless given ... further content of a legally normative nature. It also tends ... to distract attention from the legal issue which is at stake.

Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that "something more" than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances.

1. The present proceedings were of a very different nature to Oshlack. They were brought for the applicant's individual benefit, with no apparent implications for any other individual. It may be accepted that, in common with nearly every judicial decision, success might have had practical consequences for others in similar or analogous circumstances. But there was no evidence or suggestion that the applicant's plight was shared by any other person, or that there was any kind of systemic or otherwise widespread issue that would have been cured by these proceedings. In one sense, every piece of litigation that alleges invalidity in relation to an exercise of public power is in the "public interest". But that could never be enough, without more, to confer the status of "public interest litigation" (even if the mere designation of proceedings as such were a useful analytical tool for the purposes of determining the appropriate costs order). In every meaningful sense, these proceedings raised a fact-specific challenge to the applicant's own immigration detention, and no more.
2. The applicant also relied on the decision of Colvin J in Moli v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 1112. That was a case that had proceeded to final judgment, and thus raised a different issue in relation to costs than the present case. Nevertheless, his Honour's observations at [25], [27], and [29] are apposite:

Plainly, Mr Moli's interest in bringing his review application related to his personal circumstances and he was seeking an outcome that would benefit him personally. However, the nature of the contentions he advanced also concerned matters of much broader significance and of considerable importance when it comes to the extent of executive power conferred on the basis that it may be exercised where a Minister is satisfied that it is in the national interest to do so.

...

In short, in my view, the case gave rise to issues of a fundamental kind as to the extent to which Parliament should be taken to have conferred upon the executive a power which could affect the circumstances of an individual in a fundamental way with the matters that would give rise to the power to be determined by the executive.

...

Of course, many public law cases brought in the Courts invoke principles that concern the limits of power and are likely to have consequences beyond the particular case. Those aspects in and of themselves do not give rise to special circumstances that would justify departure from the general rule that costs should follow the event. However, in some limited instances, the underlying point at issue is of such broad or fundamental significance to the way in which individuals may be governed that there is a significant public interest in ensuring that the point is authoritatively determined.

1. The distinction between Moli and the present case will be immediately apparent. That case raised an important point of general application, that would have had a direct practical significance for a great number of individuals. The same cannot be said here. If the applicant's case had ultimately been accepted, then it is not apparent that anything would have been established apart from a discrete instance of an invalid exercise of executive power. Indeed, as I understood it, the applicant did not contend that there was any uncertainty about, or novelty in, the principles upon which her case depended. It was, rather, a unique and unusual set of facts.
2. It follows that I cannot perceive anything in this litigation that would qualify it as litigation brought in the "public interest" in any sense that would be relevant to consideration of the exercise of the costs discretion in favour of the applicant.

The Applicant's Prospects of Success Were High

1. The next ground relied upon by the applicant was framed as follows:

The Applicant submits the application for leave would succeed were the matter to continue. No further evidence or submissions were within the grant of leave to the parties. Plainly, the Applicant gave the Court "reasons to suppose" her detention had been unlawful. AKW22 v Commonwealth of Australia [2024] FCAFC 22 at [21]. In the circumstances the Applicant should be awarded her costs concerning that part of the proceedings.

1. I understood this to be a submission that the applicant had acted reasonably in commencing, and conducting, the proceedings (by reference to their inherent prospects of success). Even assuming that to be so, however, without more I do not consider that it would justify, not just a departure from the default position that the applicant pay the respondents' costs, but an order that the respondents pay the applicant's costs. As McKerracher J said in Australian Securities and Investment Commission v Diploma Group Ltd (No 3) [2017] FCA 891 at [18]:

Essentially, ASIC argues that it acted reasonably so should not be obliged to pay costs. There is no suggestion that ASIC did not act reasonably. But, unless the litigation is rendered futile by external events, such as a settlement, or the objective of the litigation being achieved in other ways, the discontinuing party is almost always liable for costs.

1. I will return in due course to consider the significance of the fact that the applicant achieved her objectives in these proceedings in another way (i.e., in the other proceedings she had earlier commenced). But insofar as the applicant sought to rely on the strength of her case, I do not think that that is a consideration that is capable of justifying the order she seeks.
2. Although Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 involved a rule in materially different terms to r 26.12(7) (as to the significance of which, see, e.g., Travaglini v Raccuia [2012] FCA 620 at [17]- [25], [36]-[37] (McKerracher J)), it remains instructive to the extent that it emphasises the inappropriateness, in most cases where there has been no trial on the merits, of determining an issue of costs by reference to a prediction as to the outcome of the hypothetical case. As McKerracher J said in Travaglini at [20]: "[t]hat principle cannot be in doubt".
3. True it is that, in relation to the interlocutory application, I have had the benefit of full argument from the parties as to the merits of the application. It is sufficient for the purposes of dealing with this aspect of the applicant's submissions, I think, to observe that it was not an application that "was almost certain to have succeeded": see Lai Qin at 625 (McHugh J). It follows that the same must be true in relation to the prospects of the substantive claim.
4. I do not consider that there is anything about the case that the applicant brought, or sought to bring, that would justify an award of costs in her favour absent a judgment in her favour on the merits. There was no suggestion (and nor could there be) of any unreasonableness on the part of the respondents in the way they defended the litigation. I have already quoted from several authorities that make the point that, where both parties have acted reasonably in the conduct of the proceedings and the purpose of the proceedings has been overtaken by settlement or a supervening event, then it will usually be appropriate to make no order as to the costs of the proceeding. I can see no basis upon which the applicant should be entitled to a more favourable result than that.

The Applicant's Application for a Protection Visa Remains Undetermined

It may also be a concern of the Court that 12 months have passed since Administrative Appeals Tribunal made the favourable Protection visa finding for the Applicant, yet the visa application is still undetermined.

1. It was not clear whether this statement was advanced as a submission in support of the costs order sought by the applicant, but I will treat it as if it was.
2. In my first judgment in this matter, I determined, adversely to the applicant, her claim for mandamus in relation to her application for a protection visa (and ordered her to pay the respondents' costs of that part of her application). The applicant has not made any fresh application for mandamus, nor sought leave to raise any issue concerning that application in these proceedings. Whether or not the fact that the application remains undetermined may entitle the applicant to prerogative or other relief is no longer an issue in these proceedings. I thus do not consider it to be a relevant consideration for the purposes of determining the appropriate costs order to be made upon a discontinuance.

1. For these reasons, I do not consider that the applicant has demonstrated any basis upon which she would be entitled to a costs order in her favour.

Should the applicant pay the respondents' costs?

1. The principal basis upon which the respondents contended that the applicant should pay their costs was simply that she had not demonstrated the existence of a good reason why, contrary to the default position established by r 26.12(7), she should not do so.
2. Consistently, however, with the observations in many cases, including Simatis at [3], Diploma Group Limited (No 3) at [18], and VDCL at [17], where litigation is rendered futile by external events, including the objective of the litigation being achieved in other ways, it will commonly be appropriate to make no order as to costs.
3. The respondents accepted that these proceedings (or at least what remains of them) have been rendered moot by the delivery of judgment in the applicant's other proceedings, and her release from immigration detention. The respondents also accepted that in such circumstances, the "usual order" is that there be no order as to costs. But the respondents submitted that that there are exceptions to that general position, applicable here, including that one party was almost certain to have succeeded, or that one party acted so unreasonably that the other should have their costs (see, e.g., Lai Qin at 624-625).
4. The respondents submitted that the applicant's claim for habeas corpus on the basis of her unresolved protection visa application would have inevitably failed. That was said to be because of the decision of the High Court in Commonwealth v AJL20 (2021) 273 CLR 43; [2021] HCA 21 at [33]- [37], [49]-[51] (Kiefel CJ, Gageler, Keane and Steward JJ), with all doubt about the position being removed by the decision in CZA19. Furthermore, the respondents submitted that the application to amend the originating process to introduce claims of bad faith in relation to the refusal of the skilled work visa would inevitably have failed.
5. The respondents' case in relation to the original claim for habeas corpus can be acknowledged to have been strong. I think the difficulty in saying that it was hopeless is that the applicant had not yet been called upon to formulate with precision the way in which she would put her case. She had consistently maintained that her case was distinguishable from AJL20 (and later CZA19) on the basis that her detention was a product of bad faith on the part of the Minister. In one sense, I perceived her application to amend her originating application to be an attempt to more precisely locate the bad faith upon which she relied. I do not think that it can be said with any confidence that the applicant's case had yet achieved its final expression, sufficient to say that it lacked any merit whatsoever.
6. In relation to her prospects on the interlocutory application, I do not think it is appropriate to go much beyond what I have already said about it. It may be accepted to have been an ambitious application, but I do not propose to determine it on a hypothetical basis when the controversy to which it relates has now been quelled. If the hurdle of leave had been cleared, then it is difficult to predict the precise course that the proceedings would have taken (including as to how the applicant's case might have evolved, or been refined, in the event that discovery or subpoenas were allowed).
7. It follows that I am not prepared to find that the respondents would have inevitably succeeded, no matter how promising things might have appeared.
8. The respondents also submitted that the applicant had acted unreasonably in two respects:

(a) First, in pursuing her claim for a writ of habeas corpus following the delivery of CZA19, and the respondents' invitation on 7 April 2025 to abandon those claims.

(b) Secondly, in seeking to raise a challenge to the Minister's decision about her skilled work visa in the present proceedings, instead of seeking leave to re-open her other proceedings after judgment was reserved.

1. I have already said enough to dispose of the first of those arguments. In relation to the second, the applicant certainly took an unorthodox approach. But in circumstances where she had always challenged the lawfulness of her detention in these proceedings, and that detention was attributable to the refusal of her skilled work visa as much as the failure to grant her a protection visa, I do not think that too much should be made of this.
2. For these reasons, subject to the matter to which I will return in a moment, I consider that I should exercise my discretion to make an order providing that the parties should each bear their own costs of the originating application in relation to the claim for habeas corpus, and the interlocutory application.
3. The final matter I need to consider is the effect of the respondents' offer to the applicant that the parties agree that there be no order as to costs. That offer was communicated by email sent at 10:28 am on 4 September 2025. It was expressed to be open until 5:00 pm the following day, 5 September 2025. The applicant responded to that offer in a considered and substantive way at 5:35 pm on 5 September 2025, rejecting the offer and making a counter-proposal.
4. Although the time for acceptance of that offer was short (only some 30 hours), I am of the view that it afforded the applicant a reasonable period within which to consider it, and that its rejection was unreasonable. At 4:54 p.m. on 4 September 2025, the applicant filed written submissions in support of the costs orders she sought. The respondents' offer remained open until 5:00 pm on the following day. It follows that the applicant was required to, and evidently did, give the topic of costs careful consideration in that period. The letter from the respondents containing the offer set out clear reasons why the offer was consistent with principle. Finally, it may be inferred that the applicant in fact had a sufficient opportunity to consider the offer because she responded with her own detailed counter-offer substantially within the allowed period.
5. The conclusion at which I have arrived is consistent with the terms of the respondents' offer. The rejection of the offer had the consequence that the respondents were obliged to prepare and file written submissions on the question of costs. And they have achieved a result as good as that offered.
6. In those circumstances, I am satisfied that it is appropriate to order the applicant to pay the respondents' costs incurred after 5 September 2025.

1. For the foregoing reasons, I will order that there be no order as to costs in respect of the originating application (other than those costs the subject of my order of 26 March 2025) up to and including 5 September 2025, and that the applicant pay the respondents' costs thereafter.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice .