NAMU of 2002 v Secretary, Department of Immigration & Multicultural & Indigenous Affairs

BEAUMONT ACJ: 1 Upon the Court ordering the dismissal of these proceedings, the respondents sought their costs. 2 The applicants resist, submitting that it was reasonable, indeed "imperative", for them to raise the issues for determination. They contend that they - "… ought not be effectively penalised by having to answer to meet the costs of their own case in a matter which is manifestly to the advantage of the operation and effect of the Respondents' legislative scheme. Costs ought to be ordered in favour of the Applicants." 3 The applicants submit: "8. In Ruddock v Vadarlis (2002) 188 ALR 143 the majority of the Full Court of the Federal Court referred with approval to the judgments in Re Mersey Railway Co (1888) 37 Ch D 610 ([17.1]), Liversidge v Anderson [1942] AC 206 ([17.5]), to the effect, essentially, as cited at [17.7] in respect of the Full Court Federal Court's judgment in Perret v Commissioner for Superannuation (1991) 29 FCR 581, 594: 'The court should consider the matter of costs, bearing in mind the result of the appeal but also taking into account the reasonableness of the applicant in bringing that appeal and the general importance of the clarification of the law for such a authority as the respondent.' 9. The general importance of the law as to matters in which the essential issue is the liberty of the applicant, is manifest in matters attracting the imprimatur of the writ of habeas corpus, (Vadarlis, [25.8]): '… the law of this country (England) is very jealous of any infringement of personal liberty. This is evidenced by the special rule that it may be applied for by any person. … 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 restraint upon their liberty.'" 4 For their part, the respondents submit there are no "public interest" reasons here which would justify departure from the normal principle that costs follow the event. 5 The respondents argue that, since in this matter the applicants sought relief (being their release from detention) in which they had a particular personal interest, the application cannot be properly described as involving a "test case" on some general question of law. Rather, they say, it is very much private litigation and not litigation in the public interest as some environmental cases may be, for instance, Oshlack v Richmond River Council (1998) 193 CLR 72. 6 The respondents further contend that this case is quite different in character from the situation which arose in Vadarlis. That case involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf. That, they say, is not the present case. 7 Nor, the respondents submit, is the present matter comparable to X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 93 in which Lee and Merkel JJ, (Black CJ dissenting) ordered that each party bear their own costs. There, the majority considered that there were three special features peculiar to that case which justified departure from the normal approach to costs. One of those was that the parties were minors in relation to whom there had been an issue as to whether they could personally bring the proceedings. Although in the present case three of the applicants are minors, that is not, however, in this case, a special or unusual circumstance justifying a costs order departing from that which follows the event. The other two special features involved the effect of a High Court decision being handed down after argument but before judgment and the fact that there was determined to be an error of law which did not, however, contribute to the decision. There are, the respondents contend, no such special features here. 8 In my opinion, there is considerable force in the respondents' arguments. The present case should, I think, be regarded as one falling within the general rule. That is to say, I think, as Black CJ did in X, that there are not present here any "special" features which would justify the Court's taking the extraordinary step of departing from the rule that, unless "good reason" to the contrary is shown, a "wholly successful" defendant (as here) should receive costs (per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ in Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477). As Dawson J noted in Latoudis v Casey (1990) 170 CLR 534 (at 557), "good reason" to the contrary is one "connected with the case"; that is, this discretion is to be "exercised judicially … not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation". 9 In my opinion, no such "good reason" is shown here.