Mentink v Minister for Justice

1. The applicant pay the respondent's costs of the proceeding, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 In Mentink v Minister for Justice (No 2) [2017] FCA 681, I dismissed Mr Mentink's originating application filed 20 October 2014 and ordered the parties to exchange written submissions on the question of costs. 2 In his submissions, the Minister sought an order for costs relying on the discretionary power in s 43 of the Federal Court of Australia Act 1976 (Cth) and the usual rule that costs follow the event. Referring to the judgment of Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136, the Minister submitted that there was no special circumstance justifying a departure from the usual rule in this matter. That included, the Minister submitted, Mr Mentink's status as a self-represented litigant and his impecuniosity. The Minister also submitted that, while no valid criticism could be made of his conduct of the litigation, Mr Mentink had unduly delayed and complicated the progress of the proceeding by, amongst other things, "his pursuit of a voluminous but wholly fruitless interlocutory application for discovery" and the voluminous quantity of material he had submitted to the Court extending to almost 1,000 pages. Finally, the Minister submitted that Mr Mentink had been wholly unsuccessful in his claims, having failed on all of the eight grounds he raised in his originating application. 3 Mr Mentink opposed any order for costs being made. In the main, his submissions on that question comprised a reiteration of his many complaints against the Australian Federal Police (AFP), mixed with quibblings about various aspects of my reasons in [2017] FCA 681. Nonetheless, in the process, he did mention in passing the public benefit that he claimed had been gained from the proceeding in that it "served to test this relatively new legislation". He also referred to the proceeding being "lopsided" because he had brought it "without the assistance of legal expertise". Finally, he pointed to the fact that the proceeding had not "been turned away as frivolous or vexatious". In his submissions in reply, Mr Mentink challenged the Minister's assertion that he had unduly delayed the progress of the proceeding and submitted voluminous material. In the same submissions, he appeared to encapsulate the thrust of his contention that no order for costs should be made against him in the following terms: "A person's inability to afford representation ought not to be a factor inhibiting litigation that serves the national interest in law enforcement integrity. This is not a dispute between two 'civilian' parties but the legitimate exercise of government accountability under an enactment." 4 I do not consider Mr Mentink has raised any special circumstance that would justify my departing from the usual rule that costs should follow the event in this matter. While this proceeding may have incidentally resulted in the public gaining some benefit in that a limited number of provisions of the Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act) were considered and construed, I do not consider Mr Mentink pursued the proceeding for that public benefit, but rather in pursuit of his own private interests associated with the loss of his yacht and his complaints about the way in which the AFP handled the investigation of that matter. Mr Mentink may also be correct in his claim that the proceeding was not rejected as frivolous and vexatious, but that did not, in my view, mean that his arguments about the LEIC Act were valid, nor that his complaints about the Minister's decision and the processes he followed in making that decision, were well-founded. Similarly, I do not consider his failure to attract pro bono representation for the proceeding constitutes a special circumstance. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.