M238/2002 v The Honourable Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 5 September 2003, the Court dismissed the application in this proceeding for writs of prohibition and certiorari and for declarations and injunctions. Pursuant to other orders made that day, the parties have made written submissions on costs. In order to understand their submissions, it is necessary to refer briefly to certain matters touching the proceeding. 2 First, as the applicant noted in his written submissions, when he initiated this proceeding in the High Court of Australia on 24 December 2002, he: … challenged both the failure of the respondent Minister to provide, as required by statute, reasons for his decision to cancel the applicant's permanent visa, and also the procedural fairness of steps prior to and involved in the decision. 3 After the proceeding had been remitted to this Court and the applicant had filed written contentions in support of his case, the respondent Minister provided the reasons for his decision of 24 October 2002. These reasons were exhibited to an affidavit of the respondent Minister's solicitor sworn on 6 June 2003, some 6 days before the hearing. As a consequence, at the hearing, the applicant advanced only one ground in support of his case, namely, that he was denied procedural fairness in connection with the Minister's decision to cancel his visa. I rejected this ground (and the applicant has appealed against my decision). In relation to costs, I observed, in my reasons for judgment of 5 September 2003 at [64], that: [W]hilst the respondent has succeeded in the result, he did not provide the applicant with his written reasons in conformity with s 501G of the Act until shortly before the date fixed for hearing. It was for this reason that I afforded the parties an opportunity to make submissions on the question of costs. the parties' submissions on costs 4 Having regard to some of the matters above, the applicant submitted that, in substance, he had succeeded on one ground of his complaint, namely, the failure to give reasons. In written submissions, he contended that: It is to be inferred that it was the institution of the present proceedings which resulted in the respondent providing the reasons for his decision. This is relevantly similar to the situation before Weinberg J in Bulos [v Migration Agents Registration Authority [2002] FCA 336] (which related to a refusal to reregister a migration agent) where his Honour said at [20]: The inference for which the applicant contends, namely that his re-registration was granted on that day only because of the pending interlocutory proceeding, is one which is plainly open. On this basis, the applicant submitted that he should have his costs up to and including 6 June 2003, when the Minister provided his reasons for decision. 5 In addition, the applicant maintained that there was "a public interest in not putting obstacles in the way of an applicant challenging a decision such as the one in issue here". In written submissions, he said: This is a decision which even the respondent Minister accepted would deprive the applicant of the right to live in Australia as a permanent resident, in proximity to his family, and with the access to medical treatment he requires, even though his risk of recidivism is low. There is an analogy here with the public interest in not blocking criminal appeals or applications for habeas corpus. In support of this submission, the applicant referred to the decision of Goldberg J in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 ("Cabal"), at 753. Bearing these matters in mind, the applicant submitted that, in addition to a costs order in his favour for costs incurred prior to 6 June 2003, there should be no order as to costs on and after 7 June 2003. 6 The respondent contended that there was, in this case, no good reason to depart from the ordinary rule that costs follow the event and that, in consequence, the applicant should pay the respondent's costs of the proceeding on a party and party basis. In written submissions, the respondent maintained: The applicant proceeded at the hearing in reliance upon the procedural fairness ground. That ground was distinct from the reasons ground and related to complaints from two specific matters raised in the Departmental 'Minute' presented to the respondent. It was contended by the applicant that he was denied procedural fairness in respect of these two matters. That ground was rejected by the Court. Any delay in provision of the statement of reasons did not bear upon the procedural fairness ground which would have, and did, proceed independently thereof. 7 In addition, the respondent submitted that, outside the criminal or quasi criminal jurisdictions, there was no special rule that litigants unsuccessfully seeking to be released from official detention should not be ordered to pay costs. Amongst other things, the respondent noted, in his written submissions, that this Court has awarded costs against unsuccessful applicants in proceedings challenging the validity of continued immigration detention. The respondent further contended that: The considerations referred to by Goldberg J in Cabal v Mexico (No 6) [2000] FCA 651 arose in the particular context of an application for bail under s 21(6)(f)(iv) of the Extradition Act 1988. Goldberg J took the view that 'the same approach as is taken in the criminal jurisdiction' was applicable to such bail applications, i.e. that (subject to statutory exceptions) costs are not awarded in favour of or against the Crown. He noted that the applicants were 'in a similar position in that respect to persons who are arrested, charged with offences under the criminal law and taken into custody', and that in the area of extradition 'there may intrude into a consideration of matters before the Court matters not only civil but matters which raise issues similar to those recognised in the area of the criminal law'. At best, the decision should be regarded as dealing only with the situation in relation to custody under the Extradition Act, where the analogy to the criminal jurisdiction is more direct. the law with respect to costs 8 The power of the Court to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). The power, which is discretionary, "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vardalis (No 2) (2001) 115 FCR 229 ("Ruddock v Vardalis"), at 234 per Black CJ and French J. As their Honours said in that case, at 234-235: Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: · Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. · Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) (1986) ATPR ¶40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 at 222. 9 An award of costs to a successful party is "principally by way of perceived restorative justice": see Ruddock v Vadarlis, at 235. As Black CJ and French J noted, at 235-236, the compensatory principle has been subject to a limited public interest qualification. Their Honour observed, at 236: The compensatory principle was long subject to a limited public interest qualification at common law. Historically the Crown neither paid nor received costs in criminal cases albeit this has been abrogated by statute in summary cases. So criminal proceedings instituted by public officials in the name of or on behalf of the Crown were seen as being brought only when the public interest required it. This was the chief rationale for the Crown's immunity from costs: Latoudis v Casey per Mason CJ at 538, Dawson J at 557, and McHugh J at 567. That case recognised that the old rule was displaced. Mason CJ said it 'could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings' (at 538). The discretion to award costs in criminal proceedings was not to be subjected to any presumption against the award of costs in favour of a successful defendant. The ratio of the decision did not involve any general proposition that the fact that proceedings are brought in the public interest can never be a relevant consideration in the exercise of the discretion to award costs … . …. In any event it must be recognised that the concept of the 'public interest' is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event. Usually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings. The Federal Court Rules 1979 (Cth) make specific provision for the case in which a judgment is obtained which is not more favourable than terms previously offered by a respondent: O 23, r 11. Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues: see, for example, Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 220; Hughes v WA Cricket Association (Inc); Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272. And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings: Latoudis v Casey at 544; Cummings v Lewis (1993) 41 FCR 559; 113 ALR 285 at 602-603; 327 (Cooper J, Sheppard and Neaves JJ agreeing). 10 In considering whether a successful respondent should be deprived of an order for costs, Goldberg J observed in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 ("Dr Martens"), at [52]: As a general rule, the successful party in a proceeding should be awarded all its costs of the proceeding including reserved costs on a party and party basis. But there are circumstances in which it will be appropriate to depart from that general rule. In particular, in an appropriate case costs may not be awarded where a successful party has failed in respect of distinct issues. 11 In this context, there may be a distinction between the position of applicants and respondents: cf Dr Martens, at [54]. In considering, in Dr Martens, whether a successful defendant should be deprived of an order for costs, Goldberg J noted, at [54]: The observations referred to … in Hughes v Western Australia Cricket Association (Inc) [(1986) ATPR ¶40-748 at 48,136] and Cummings v Lewis [(1993) 41 FCR 559, at 602-603] show that in appropriate circumstances a successful defendant might be disentitled to an order for costs in respect of discrete and separate issues. Nevertheless, a court should be reluctant to embrace the proposition that, as a general rule, it is appropriate to undertake an enquiry as to who was successful in relation to particular issues in a case to determine whether there should be an apportionment of costs against a successful party. A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: cf Verna Trading Pty Ltd v New India Assurance Ltd [1991] 1 VR 129 at 152-154. 12 In this case, when the applicant initiated this proceeding, there were two separate and distinct issues. The first related to the Minister's failure to give reasons in accordance with s 501G(1)(e) of the Migration Act 1958 (Cth) ("the Act") and the second concerned the alleged denial of natural justice. 13 Whilst there were significant difficulties in the way the applicant formulated its case with respect to the Minister's failure to give reasons (cf Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49, at 65 per Branson J, 69 per Goldberg J and 70 per Allsop J), the fact is that these reasons should have been given to the applicant at, or shortly after, the time the Minister made the decision (cf Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332, at 344 per Allsop J and 348 per Jacobson J). The Minister effectively conceded as much by providing the applicant with notice of his reasons on 6 June 2003, shortly before the hearing. 14 For the reasons advanced by the respondent in his written submissions, I accept that the decision of Hill J in Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 497 ("Dagli"), at [71]-[72], is distinguishable on the question of costs from this case. As the respondent noted, in Dagli, the Minister failed to provide his reasons under s 501G of the Act until the Court directed him to provide them some 11 days after the hearing. Because of the difficulties in the way in which the applicant formulated his case with respect to the Minister's failure to provide reasons, I am not satisfied that, as the applicant would have it, I should treat the late provision of reasons by the Minister as though the applicant has "in substance" succeeded on the absence of reasons ground. Nonetheless, the fact is that the respondent Minister did not comply with his statutory obligation to notify the applicant of his reasons for cancelling his visa until the hearing of the matter was almost upon him. The absence of reasons denied the applicant and his legal representatives the full opportunity, which is contemplated by the Act, to understand and evaluate the Minister's decision until shortly before the hearing. If the reasons had been given to the applicant at an earlier date, the course of the litigation would have been different. As already noted, however, on and after 7 June 2003, the applicant had the benefit of the Minister's reasons. 15 I reject the submission that the principle upon which Goldberg J acted in Cabal is directly applicable in the present case. Goldberg J's decision in Cabal concerned an application for bail under s 21(6)(f)(iv) of the Extradition Act 1988 (Cth). The quasi-criminal nature of the matter made it appropriate for his Honour to adopt the same approach as that taken in the criminal jurisdiction. Goldberg J emphasised that this was the basis of his treatment of the question of costs in his observations, at 753, that: I can see no reason, in principle, why the same approach as is taken in the criminal jurisdiction should not be carried over into the area of applications for bail under s21(6)(f)(iv) of the Act. I consider that an unsuccessful application for bail under the Act is one of the unusual or special circumstances which warrants the court exercising its discretion so as not to require the costs to follow the event. 16 The matters under consideration in the present proceeding were not criminal or quasi criminal in nature. As Black CJ and French J emphasised in Ruddock v Vardalis, questions of costs are, in any case, to be decided in the light of the particular circumstances. After referring to (amongst other authorities) the decision of Goldberg J in Cabal, their Honours stated, at 240: As Brennan J said in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, citing Lord Herschell in Cox v Hakes (1890) 15 AC 506 at 527, the law of this country is very jealous of any infringement of personal liberty. The writ of habeas corpus safeguards against any such infringement. This is evidenced in the special feature that it may be applied for by any person: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591 per Gleeson CJ and McHugh J at 600, Gummow J at 627and Kirby J at 625-627. The special rule reflects the purpose to which the writ and orders in the nature of habeas corpus are directed - the protection of individuals against the erosion of their right to be free from wrongful restraints upon their liberty: Jones v Cunningham (1963) 371 US 236 at 243. That is not to say, however, that a new rule is introduced to displace the ordinary rule in every case that concerns the liberty of the individual. The award of costs must remain an exercise of discretion having regard to all the circumstances of the case. 17 In the circumstances of the present case, there should be no order as to costs in the proceeding prior to the provision of the Minister's reasons on 6 June 2003. On and after 7 June 2003, when the applicant had the benefit of these reasons, there is, in my view, no good