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[2001] FCA 1865
mixed. The parties each bear their own costs of the appeal and cross appeal and of the proceedings before North J.
After the government won its appeal in the Tampa asylum seeker case, it asked the court to make the two community groups who brought the case pay its legal bills. The Full Federal Court refused. Even though the government had won, the judges decided that the case had raised brand new and very important questions about the government's power to control borders, whether it could hold people on ships, and what rights those people had. The groups had nothing to gain financially, the lawyers worked for free, the case was run efficiently, and it gave the public a clear court ruling on a controversial matter. Because of all those special factors the court said each side should simply pay its own costs.
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2,873 words · generated 24/04/2026
In late August 2001 the Norwegian vessel MV Tampa rescued 433 persons from a distressed Indonesian fishing boat in the Indian Ocean. The Tampa proceeded towards Christmas Island but was refused permission to enter Australian territorial waters. Australian Defence Force personnel boarded the vessel and the rescued persons were transferred to HMAS Manoora. On 31 August 2001 Eric Vadarlis, a Melbourne solicitor, and the Victorian Council for Civil Liberties Inc (VCCL) commenced urgent proceedings in the Federal Court seeking writs of habeas corpus and orders in the nature of mandamus compelling the Commonwealth to release the rescued persons and bring them ashore on the Australian mainland.
5 cited instruments linked from this judgment.
North J heard the matter over six days and on 11 September 2001 made orders requiring the respondents (the Minister for Immigration, the Commonwealth and others) to release the persons and bring them ashore, subject to a stay pending appeal. His Honour also ordered the Commonwealth to pay the applicants' costs on the basis that costs follow the event. The Commonwealth appealed immediately. Cross-appeals were filed by Vadarlis and VCCL on the question of standing to seek injunctive and mandamus relief. The Full Court (Beaumont and French JJ, Black CJ dissenting) heard the appeal on an expedited basis on 13 September and delivered judgment on 17 September 2001 allowing the appeal, setting aside North J's orders and dismissing the application. The Court reserved the question of costs for written submissions.
The High Court refused Vadarlis special leave to appeal on 27 November 2001, noting that events had overtaken the habeas corpus claim and that any remaining issues were hypothetical. The High Court made no order as to the costs of the special leave application. Further submissions were then filed in the Federal Court on the costs of both the appeal and the first-instance proceedings. The Commonwealth sought orders that Vadarlis and VCCL pay its costs of the appeal and of the proceedings before North J, or at least a proportion of those costs. No costs order was sought against the intervenors, the Human Rights and Equal Opportunity Commission and Amnesty International Limited.
On 21 December 2001 the Full Court published separate reasons on costs. Black CJ and French J delivered joint reasons concluding that each party should bear its own costs of the appeal, cross-appeal and the proceedings at first instance. Beaumont J would have ordered Vadarlis and VCCL to pay the Commonwealth's taxed costs of the final hearing and the appeal but granted each a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth). The formal orders of the Court reflected the position of the joint judgment: the parties were to bear their own costs.
The joint judgment records that the proceedings had raised novel and important questions concerning the alleged deprivation of liberty, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth) and Australia's obligations under international law. There had been divided judicial opinion. Parliament had passed the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) which validated the Commonwealth's actions, inserted s 7A into the Migration Act confirming the availability of executive power to protect Australia's borders, and barred further proceedings in respect of the relevant actions. The respondents had no financial gain in bringing the proceedings and had been represented pro bono. These factors, taken together, were held to point powerfully against the making of an adverse costs order.
Black CJ and French J began from the statutory starting point in s 43 of the Federal Court of Australia Act 1976 (Cth). The power to award costs is expressed without any presumption and is to be exercised judicially by reference to circumstances connected with the litigation. Their Honours traced the long-standing authority that the discretion is absolute and unfettered, citing Donald Campbell & Co Ltd v Pollak [1927] AC 732 at [9] and Cretazzo v Lombardi (1975) 13 SASR 4. They accepted the ordinary rule that costs follow the event but emphasised that the rule is not inflexible.
The joint judgment examined the compensatory rationale for costs orders and noted academic criticism that the rationale can produce unfairness in novel cases involving no obvious fault on the part of the loser. They accepted that the concept of public interest is broad and nebulous unless given specific legally normative content, citing Oshlack v Richmond River Council (1998) 193 CLR 72 and South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 at [18]. No general exemption from costs exists for public interest litigation, yet the particular features of a case may justify departure from the usual order.
The Court then listed the discretionary considerations at [28]. Factors favouring costs in the Commonwealth's favour were its success on the appeal and at first instance and the substantial costs it had incurred. Countervailing factors were far more powerful: the proceedings raised novel and important questions of law concerning individual liberty, executive power, the Migration Act and international obligations; there had been divided judicial opinion illustrating the difficulty of the issues; Parliament had subsequently legislated to validate the Commonwealth's actions and to confirm the availability of executive power; the respondents had no financial gain; and the representation had been provided pro bono with the result that the important questions were resolved with expedition and efficiency.
At [29] their Honours described the case as most unusual. It involved matters of high public importance and raised questions concerning the liberty of individuals unable to take action on their own behalf. The proceedings had provided a public forum in which the legal authority of the Commonwealth's actions was fully considered and, by majority, upheld. The character of the case was quite different from the environmental litigation in which many previous public interest costs decisions had been made. These considerations led to the conclusion that the appropriate disposition was that each party bear its own costs.
Beaumont J, in separate reasons, took a stricter approach. His Honour regarded the Commonwealth as wholly successful after the appeal and saw no sufficient reason to depart from the Milne v Attorney-General (Tas) (1956) 95 CLR 460 principle that a wholly successful defendant should receive costs unless good reason to the contrary is shown. He considered that the public interest or test case character of the litigation did not itself supply such a reason, especially as Milne itself had been a test case. Beaumont J would have ordered costs against Vadarlis and VCCL but granted them costs certificates under the Federal Proceedings (Costs) Act. The orders ultimately made by the Court followed the joint judgment of Black CJ and French J.
The Court also rejected the Commonwealth's submission that the litigation constituted an interference with executive power analogous to a non-justiciable act of state. At [30] the joint judgment stated that determining the existence and limits of executive power is not an interference with its exercise. Reference was made to the constitutional history of s 75(v) and the framers' intention to ensure judicial review of executive action.
Before Ruddock v Vadarlis the law on costs in public interest litigation was dominated by the High Court's decision in Oshlack v Richmond River Council (1998) 193 CLR 72. That case established that the statutory costs discretion in the Land and Environment Court of New South Wales was wide enough to permit regard to the public interest character of proceedings, the absence of personal gain and the importance of clarifying environmental law. However, the majority in Oshlack emphasised that "public interest litigation" is a nebulous concept unless given specific content. Subsequent Federal Court decisions such as Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186, South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 and Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 made clear that Oshlack did not create a new general rule exempting public interest litigants from adverse costs orders in ordinary federal jurisdiction.
The law on costs in cases involving personal liberty was also developing. In Cabal v United States of Mexico (No 6) (2000) 174 ALR 747 Goldberg J had accepted that the public interest in ensuring that detained persons are not deterred from seeking their liberty could outweigh the ordinary compensatory principle. The Full Court in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 approved that approach although it did not apply it to the appeal before it. Re Bolton; Ex parte Beane (1987) 162 CLR 514 had long emphasised the law's jealousy of any infringement of personal liberty and the special role of habeas corpus.
Ruddock v Vadarlis did not alter the fundamental principle that costs remain in the unfettered judicial discretion of the Court. It did, however, illustrate the circumstances in which that discretion could be exercised against the successful party in a high-profile constitutional and administrative law matter involving executive power and liberty. The decision confirmed that the combination of novelty, divided judicial opinion, parliamentary validation, absence of private gain, pro bono representation and the subject matter of individual liberty could constitute a powerful discretionary consideration. It also confirmed that public interest factors do not create a presumption but must be weighed with all other circumstances connected with the litigation.
After the decision, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) inserted s 7A into the Migration Act 1958 (Cth) confirming the survival of executive power to protect Australia's borders. The Act also barred further proceedings. These legislative steps removed the utility of similar future litigation but did not purport to alter the principles governing costs in proceedings already concluded. Subsequent cases have continued to treat Ruddock v Vadarlis as an example of the outer limits of the costs discretion rather than a new bright-line rule.
At [9]–[10] the joint judgment states that the costs power in s 43 "is not fettered by any stated legislative presumption" and cites Donald Campbell for the proposition that the discretion is "absolute and unfettered" provided it is exercised judicially. In plain English: Parliament has given the Court a very wide discretion; there is no automatic rule that the winner always gets costs, but the judge must act fairly and by reference to the case itself.
Paragraph [13] discusses academic criticism of the compensatory principle and notes that in novel cases involving no obvious fault the usual rule "may work unfairness" and "may set up a significant barrier against parties of modest means". Translation: Sometimes making the loser pay can discourage worthwhile cases that raise difficult new questions even when the loser had reasonable arguments.
At [18] their Honours quote Gaudron and Gummow JJ in Oshlack that "public interest litigation" is a "nebulous concept" unless given "further content of a legally normative nature". Translation: Simply calling a case "public interest" does not automatically change the costs rule; the judge must identify concrete reasons connected to the case before departing from the ordinary approach.
The list of discretionary considerations at [28] is central. Factors 4–9 identify the novelty and importance of the questions, divided judicial opinion, subsequent parliamentary intervention, absence of financial gain and pro bono representation. Translation: Although the government won, the case was so unusual, raised such important new legal issues about freedom and government power, and was brought selflessly that it would be unfair to make the community groups pay the government's legal bills.
At [29] the Court describes the case as "most unusual" and notes that the proceedings provided a forum in which the Commonwealth's legal authority "was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist". Translation: The case mattered not only for the result but because it let the public see the courts carefully examine and rule on what the government could lawfully do.
Paragraph [30] rejects the submission that the litigation interfered with executive power, stating it is not an interference "to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope". Translation: Asking a court to decide the limits of government power is not the same as stopping the government from using that power; courts exist to decide those limits.
The decision is most likely to be invoked where litigation satisfies a cluster of features: (1) it raises genuinely novel questions of law of general public importance; (2) the subject matter concerns the liberty of individuals who cannot realistically litigate on their own behalf; (3) the unsuccessful party has no prospect of financial or personal gain; (4) the litigation is conducted on a pro bono or heavily subsidised basis with efficiency and high-quality advocacy; (5) there is divided judicial opinion demonstrating the difficulty of the issues; and (6) the proceedings provide a transparent public forum for authoritative resolution of contested executive or governmental action.
Typical triggers include constitutional challenges to executive power, habeas corpus applications on behalf of detained non-citizens, test cases clarifying the limits of statutory or prerogative powers, and proceedings brought by NGOs or public interest bodies where Parliament later intervenes to validate the very action challenged. The precedent is less likely to apply to ordinary commercial or private law disputes even if they raise interesting legal points. It is also unlikely to assist a repeat litigant or a party whose conduct has unnecessarily lengthened the proceedings. The decision emphasises that the factors must be weighed together; no single factor is decisive.
Later courts have treated Ruddock v Vadarlis as an authoritative illustration of the width of the costs discretion rather than a binding new rule. In subsequent public interest costs applications the Federal Court has cited the decision for the proposition that public interest factors, when given specific content, can justify departure from the usual order but do not create a general exemption. Cases such as Save the Ridge Inc v Australian Capital Territory (No 2) and subsequent environmental and human rights matters have referred to the list of factors at [28]–[29] as a useful checklist.
Appellate courts have been careful not to read the decision as undermining the compensatory principle. In cases where the public interest element is weaker or the applicant has a personal stake, courts have continued to apply the ordinary rule that costs follow the event. The decision has been distinguished where the litigation is seen as political rather than legal, or where the unsuccessful party has engaged in conduct that disentitles it to favourable costs treatment.
High Court decisions after 2001 have not directly overruled or substantially qualified the approach. The refusal of special leave in the Tampa matter itself, with no order as to costs, has been noted as consistent with the Full Court's ultimate costs order. Academic commentary has placed Ruddock v Vadarlis within a small but important line of cases (including Oshlack and Cabal) that demonstrate the elasticity of the costs discretion in matters touching personal liberty and constitutional boundaries. No court has suggested that the decision created a new category of "Tampa costs orders"; rather it is cited as confirming that the statutory discretion must respond to the infinite variety of circumstances that may arise.
Several questions remain unresolved after Ruddock v Vadarlis. First, the precise weight to be given to subsequent parliamentary validation of the contested conduct is unclear. In the Tampa case the validation occurred after the hearing but before the costs decision; it is not settled whether prospective validation would carry the same significance.
Second, the interaction between the costs discretion and s 7 of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (or similar ouster provisions) was left academic because the Court found it had power to deal with costs. A future case in which a statute expressly purports to bar costs orders in respect of completed proceedings may require determination of constitutional limits on such ouster clauses.
Third, the extent to which pro bono representation can be taken into account remains open. The joint judgment treated the fact of pro bono representation and its quality as a positive discretionary factor, but Beaumont J regarded it as irrelevant to the allocation of costs between the parties. Later decisions have not fully reconciled these views.
Fourth, the decision does not specify a threshold for "novelty" or "public importance". Whether a case must raise constitutional issues, or whether important questions of statutory interpretation in areas such as taxation, corporations or environmental law can attract the same consideration, is not settled.
Finally, the relationship between this costs approach and the emerging jurisprudence on protective costs orders and capped costs remains to be fully worked out. Although the Australian Law Reform Commission recommended statutory public interest costs orders in 1995, that recommendation has not been enacted. Courts continue to develop the common law discretion case by case. Ruddock v Vadarlis remains an important outer marker of how far that discretion can stretch, but the precise boundaries in new categories of public interest litigation are still being drawn.
INTRODUCTION 32 At first instance, the primary Judge (North J) stated (at 171) that "[t]he order for costs will require the [Commonwealth] to pay [Victorian Council for Civil Liberties Inc's] [and Mr Vadarlis'] costs … on the principle that costs follow the event …". In allowing the Commonwealth's appeals and dismissing Victorian Council for Civil Liberties Inc's ("VCCL") and Mr Vadarlis' cross-appeals, this Full Court ordered that the final orders made by North J on 11 September 2001 be set aside; and that in lieu thereof, the applications be dismissed. We directed that the question of costs of the applications and of the appeals be the subject of written submissions. In those submissions, the Commonwealth seeks its costs, both at first instance and on the appeals. For their part, VCCL and Mr Vadarlis contend that there should be no order for costs. The intervenors do not seek, and have never sought, their costs.
THE COURT'S JURISDICTION OVER COSTS WHERE A DEFENDANT IS WHOLLY SUCCESSFUL 33 Section 43(1) of the Federal Court Act of Australia 1976 invests the Court or a Judge with jurisdiction to award costs. Section 43(2) provides, relevantly, that the award of costs is in the discretion of the Court or Judge. 34 Since the matter of the award of costs for present purposes is now governed by statute, the ancient position at common law, including the principle (or convention) that the Crown was not liable for and did not receive costs, need not be considered. 35 The general rule governing the exercise of the statutory power to award costs where a defendant is wholly successful is well established by High Court authority. As Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said in Milne v Attorney-General for the State of Tasmania [1956] 95 CLR 460 (at 477): "It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary". 36 In Milne, the defendants were wholly successful; and it was held by the High Court that no reason "to the contrary" was shown in that case. The circumstances were that a number of plaintiffs commenced an action in the Supreme Court of Tasmania against several Tasmanian Ministers of State and the State Director of Land Settlement. The plaintiffs sued severally, but the claims arose out of the same set of circumstances. The case of Milne being typical, it was agreed that it should be the only case heard. Although the basis of Milne's claim was contractual, it arose by reason of certain legislation enacted in and after 1945, which had, for its object, the settlement on the land in Tasmania of discharged members of the forces who had served in the war of 1939 - 1945. The action was heard before Morris CJ, who held that judgment should be entered for the defendants, but refused to make an order in their favour for costs. Milne's appeal to the High Court from the dismissal of his proceedings on the substantive issues was unsuccessful. Turning to the adjectival question of costs, Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said (at 477): "We should have thought that, if there ever was a case in which plaintiffs should be held to litigate at their own risk as to costs, this is that case." 37 Accordingly, the judgment at first instance was varied by adding an order that the plaintiffs pay the defendants' taxed costs of the action. Subject to that variation, the appeal to the High Court was dismissed, also with costs.
WAS THE COMMONWEALTH A WHOLLY SUCCESSFUL DEFENDANT? 38 In my view, it is appropriate that this question be addressed in several different contexts.
(a) The interlocutory proceedings before the primary Judge 39 The history of the interlocutory proceedings, which took place on 31 August 2001 and 1 and 2 September 2001, and which included the grant of an interim injunction and the conduct of an interlocutory mediation by a Court Registrar, is explained by French J in his reasons for allowing the appeal (see Ruddock v Vadarlis [2000] 183 ALR 1 (at [140] - [145]). Given these circumstances, especially the fact that interim relief was granted, and that mutual advantages to the parties flowed from the incidental mediation process, it would not be right, in my view, to say that, at the interlocutory stages of the proceedings, the Commonwealth was wholly successful. Rather, it would be more accurate to say that the outcome was a mixed one for the parties. That being so, it is appropriate, in my view, that costs should follow this outcome, or event, of that aspect of the litigation; that is, that there be no order for those costs.
(b) The final hearing of the claim for habeas corpus before North J on 3, 4 and 5 September 2001 40 As has been said, this Full Court ordered that North J's orders be set aside, so that the Commonwealth was ultimately wholly successful. It must follow, as was held in Milne, that the Commonwealth should be compensated by an award of taxed costs "unless good reason is shown to the contrary". 41 On behalf of VCCL and Mr Vadarlis, a number of circumstances were urged upon us, especially the "test case" or "public interest" aspect, as constituting a good reason to depart from the general rule. Reliance was placed upon Oshlack v Richmond River Council (1998) 193 CLR 72. 42 In my opinion, VCCL and Mr Vadarlis have failed to demonstrate a good reason to depart from the usual rule. 43 In explaining the English origins of the modern rule in the award of costs, Dawson J has said (in Latoudis v Casey (1990) 170 CLR 534 (at 557)): "After the Judicature Acts, all costs were within the discretion of the court. By rule it was provided in England that in civil jury trials costs followed the event unless the court should for good cause order otherwise. In non-jury cases the costs were left to the discretion of the court. Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non-jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party 'except for some reason connected with the case': Donald Campbell & Co. v. Pollak, per Viscount Cave L.C. See now in the U.K., O. 62, r. 3(3) of the Rules of the Supreme Court 1965." (Emphasis added) 44 There is not here, in my view, any "facts leading up to or connected with the litigation", such as to constitute good reason for depriving a wholly successful defendant of its costs. Specifically, as Branson J has observed (Booth v Bosworth [2001] FCA 1718 (at 26), even if proceedings could be characterised as a "test case", it would not follow that this of itself was sufficient to deprive a successful party of the usual order for costs; and, of course, Milne was itself a "test" case. 45 In this connection, it must be borne in mind that the object of an award for costs is not to punish an unsuccessful plaintiff, but to compensate a wholly successful defendant. As Mason CJ said in Latoudis (at 542 - 543): "[I]n exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott." (Emphasis added) 46 McHugh J (at 566 - 567) said: "An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation: Kelly v. Noumenon Pty. Ltd. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v. Abbott, Keely, Toohey and Fisher JJ. pointed out that ' the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings': see also Anstee v. Jennings." (Emphasis added) 47 It is not I think necessary, or helpful, to rehearse the particular circumstances that were held to be significant in the cases cited to us, where there was a departure from the usual order. It will suffice for our purposes to mention two as illustration of the need to acknowledge the particular context which, necessarily, will limit the guidance we obtain from such cases as precedents. 48 In Oshlack, the question, which was whether the trial Judge's discretion had miscarried, arose in the context of environmental legislation which made specific provision for costs and which, as Gaudron and Gummow JJ observed (at 89), was "not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation". 49 Another example of a specific legislative costs context is Perrett v Commissioner for Superannuation (1991) 23 ALD 257. In refusing costs, Wilcox, Burchett and Ryan JJ specifically took into account (inter alia) (at 268) that the Tribunal had no power to award costs. 50 In the present case, there was no peculiar legislative provision with respect to costs. The question for North J was whether, in the context of a federal constitutional challenge, a common law remedy, namely habeas corpus, should be granted, accompanied by a direction that the MV Tampa occupants be brought onto the Australian mainland. Unlike Oshlack, no peculiar costs provision was engaged. Rather, costs here are to be awarded pursuant to the general provisions of s 43 of the Federal Court of Australia Act. 51 In my view, Milne is indistinguishable in principle from the present case. As McHugh J noted in Latoudis, even if it might be said that VCCL or Mr Vadarlis may have "nearly succeeded" or "acted reasonably" in commencing the litigation, in principle, the fact of a dissent in the Full Court is not to be regarded as a good reason for depriving a wholly successful defendant of its costs. To hold otherwise, would be to undermine the Court's settled practice in allocating costs, a practice established by High Court authority. Accordingly, the costs of the final hearing before North J on 3, 4 and 5 September 2001, should follow the ultimate event, that is, the dismissal of the principal proceedings.
(c) The costs of the appeal 52 Again, in my opinion, the circumstances here are on all fours with those in Milne. Costs must follow the event. However, in my view, both VCCL and Mr Vadarlis are entitled to a cost certificate under the Federal Proceedings (Costs) Act 1981 (see below).
INTERVENORS' COSTS 53 North J ordered that the Commonwealth pay the costs of the intervenors (Amnesty International Limited ("Amnesty") and the Human Rights and Equal Opportunity Commission ("HREOC"). However, upon the hearing of the appeal, both Amnesty and HREOC accepted, correctly, that his Honour's order was contrary to the usual practice in this area. In accordance with that practice, I propose that there be no order for the costs of the intervenors, both at first instance and on the appeals.
OTHER FACTORS RELIED UPON BY VCCL AND MR VADARLIS 54 For completeness, reference should be made to a number of matters mentioned in submissions by VCCL and Mr Vadarlis as reasons why the Commonwealth should receive no costs. As will be seen, in my view, none of them detracts from the conclusion I have reached.
(a) Special orders for costs in detention cases 55 On behalf of VCCL and Mr Vadarlis, reliance is place upon the exceptional approach taken in this area, due weight being given to the importance of upholding "the liberty of the subject" (see Cabal v United Mexican States (2000) 174 ALR 747 at 752 - 753 par [21] per Goldberg J). 56 In my view, this exception (in truth, one of necessity) has no application here, where the real object of the litigation is not to uphold the liberty of the subject, but to bring of non-citizens into Australia.
(b) Border protection legislation 57 After the decision of this Full Court in these appeals on 17 September 2001, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) ("the Act") was enacted, and came into effect, on 27 September 2001. Section 7(1) of this Act (the provisions of which are set out below) prohibits the institution or continuation of proceedings in respect of action to which Part 2 applies. Part 2 applies to any action taken during the "validation period" (i.e. 27 August 2001 to 27 September 2001) by an officer or other person acting on behalf of the Commonwealth, in relation to, inter alia, the MV Tampa. Section 6 provides that all action to which Part 2 applies "is taken for all purposes to have been lawful when it occurred". The Act also inserted a provision in the Migration Act 1958 (Cth) (s 7A) that the existence of statutory powers under that Act "does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders". 58 The provisions of s 7(1) of the Border Protection legislation are: "7(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part [i.e. Part 2] applies, against: (a) the Commonwealth; or (b) a Commonwealth officer; or (c) any other person who acted on behalf of the Commonwealth in relation to the action. (2) This section applies to: (a) the institution of proceedings on or after the day [i.e. 27 September 2001] on which this Act receives the Royal Assent; and (b) the continuation, on or after the day [i.e. 27 September 2001] on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day". (Emphasis added). 59 On behalf of the Victorian Council for Civil Liberties Inc ("VCCL"), it is submitted that the Commonwealth's application for costs "is, or necessarily involves", a continuation in this Court of a civil proceeding against the Commonwealth and Commonwealth officers; and that the continuation of such a proceeding is prohibited by s 7(1) of the Border Protection legislation. 60 As a matter of statutory interpretation, I cannot accept the submission, whether the relevant prohibition is construed literally on the one hand, or purposively on the other. 61 If one were to take a literal approach to the meaning of s 7(1), an application by the Commonwealth for costs of proceedings already determined in its favour by their dismissal cannot, in my view, be said to be a "continuation" of those proceedings in any literal sense. The relevant dictionary (Macquarie) meaning of "continue" is: "6. to go on with or persist in: to continue an action". Taken literally then, the prohibition enacted in s 7(1) is directed at a party who has already (pre-Act) instituted a proceeding against the Commonwealth who is prohibited from going on with, or persisting in, that party's own proceeding. In other words, viewed literally, s 7(1) says nothing about the Commonwealth seeking costs in respect of a proceeding instituted against it, which has been already dismissed before s 7(1) was in force. 62 The same conclusion is, I think, arrived at, alternatively, by adopting a purposive construction, so that regard is had to the object of the Border Protection legislation, considered in the context of the relevant known circumstances. For this purpose, it will be necessary to recall the chronology of the relevant events. The proceedings at first instance were commenced before North J on 31 August 2001; on 11 September 2001, North J ordered that the Commonwealth release the MV Tampa occupants and bring them ashore on the Australian mainland; and that the Commonwealth pay to each of VCCL and Mr Vadarlis their costs of, and incidental to, the proceedings. However, on 17 September 2001 in each proceeding, this Full Court allowed the Commonwealth's appeal and dismissed the cross-appeal of VCCL and Mr Vadarlis, then directing that "the question" of costs of the principal proceedings and of the appeal "be the subject of written submissions filed within 14 days". In its written submission filed on 1 October 2001 in pursuance of this direction, the Commonwealth has applied for costs, both at first instance and on appeal. 63 Although it was clearly within the power of this Full Court, and quite common in complex litigation, to seek assistance from the parties on the question of how the costs of proceedings ought to be borne by the parties, it was not a step, from the Court's perspective, that was necessary or essential. The Full Court could have, instead, adopted the approach, sometimes taken, of dealing, provisionally or finally, with costs in its reasons for judgment on the appeal itself. Indeed, this was the approach taken by North J at first instance. It will be remembered that his Honour dealt with costs relevantly thus: "Costs The order for costs will require [the Commonwealth] to pay the … costs of [VCCL and Mr Vadarlis] on the principle that costs follow the event…. As I have heard no argument on the question of costs, liberty will be reserved to all parties … to apply by 4.15 pm on 13 September 2001 to vary the orders as to costs." 64 No application to vary this order was in fact made (the appeals were instituted before 13 September 2001). 65 The point of explaining how North J dealt with costs is merely to give an illustration of the facts (a) that there is a well known rule that costs of litigation in this Court ordinarily follow the event; and (b) that courts sometimes deal with costs, at least provisionally, without specifically hearing the parties on costs. 66 In enacting the Border Protection legislation, the Parliament may be presumed to have been aware of the direction given on the question of costs by the Full Court on 17 September 2001. The Summary of the outcome of the appeals published that day on the Internet stated: "7 The appeals will therefore be allowed and the orders made by Justice North set aside. The parties will have liberty to make submissions on the question of costs." 67 It could hardly have been the intention of the Parliament of the Commonwealth to deprive the Commonwealth of its accrued right to seek costs pursuant to the direction given by this Full Court ten days earlier. Plainly, this was not the object of the Border Protection legislation. Indeed, to interpret s 7(1) to operate so as to achieve that outcome would be "irrational" and thus "unintended" in the sense explained by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 321). Such an interpretation should be rejected accordingly.
(c) The application to the high court for special leave to appeal 68 Mr Vadarlis applied to the High Court for special leave to appeal from the judgment of this Full Court. In refusing the application, Gaudron J, speaking for herself, Gummow and Hayne JJ said: "Upon Mr Vardarlis' application, the primary judge, North J, held that Mr Vardalis lacked the standing to seek the relief sought, apart from relief in the nature of habeas corpus. The respondents had conceded standing in respect of habeas corpus but submitted that those taken aboard the MV Tampa were not detained in the sense required for such an order. Justice North rejected that submission and made an order that the first to third of the present respondents (that is, the Minister, the Commonwealth and Mr Farmer, the Secretary and Chief Executive Officer of the Department) release those who had been taken aboard the MV Tampa and bring all except those who expressed a contrary wish, 'ashore to a place on the mainland of Australia'. The Full Court, by majority (Beaumont and French JJ, Black CJ dissenting), set aside the orders of North J and ordered that the proceedings be dismissed. The Full Court unanimously dismissed a cross-appeal by Mr Vadarlis against the decision of North J respecting his limited standing. Upon the present application to this Court, the applicant's claim to orders compelling the Commonwealth respondents to bring the persons concerned to Australia is central. Without such an order, the applicant's other claims to relief have either been overtaken by events or would be of no practical significance. In so far as the applicant now seeks to pursue a claim to or in the nature of habeas corpus, it is common ground that the essential claim made at trial and in the Full Court of the Federal Court, namely, the detention of the persons concerned aboard the MV Tampa can no longer be made. None of the persons concerned is now aboard either the MV Tampa or the HMAS Manoora, the vessel to which they had been transferred by the time the trial judge made his orders; all have now gone either to Nauru or to New Zealand pursuant to arrangements made with the governments of those countries. If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country touching that question. That detention, if any, was not the subject of the proceedings in the Federal Court, and, the agreement dated 10 September 2001 between the governments of Australia and Nauru notwithstanding, habeas corpus cannot now issue with respect to that detention, at least in these proceedings. Habeas corpus issues to require justification for the continued detention of a person who is in detention at the time the writ issues; it does not issue to inquire into the lawfulness of detention that is at an end. So far as the applicant seeks mandamus, he points to no present duty, the performance of which could be compelled by that remedy. There is a further point. If, as the applicant contends and the Commonwealth respondents deny, an agreement of the parties, made during the course of the trial before North J, obliges the parties to seek to have this Court determine whether facts which no longer exist would have warranted the issue of a writ of habeas corpus, the dispute is hypothetical. It gives rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth. It is unnecessary to form, or express, any concluded view on the several other issues sought to be raised by the application. However, in the light of the reasoning in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, the question of standing to seek injunctive and other relief under section 75(v) of the Constitution to compel observance of the law is an important constitutional question and might, in an appropriate case, attract the grant of special leave. The same is true of the question of executive and prerogative power examined in the Full Court, and also of the question of the validity of the Border Protection (Validation and Enforcement Powers) Act (Cth)." 69 Gaudron J then pronounced the orders of the Court as follows: "The application must be dismissed. There will be no order as to costs."
70 Although the High Court gave no express reasons for not ordering costs, it appears, from the reasons for refusing special leave cited above, that the decision not to order costs was based, at least in substantial part, upon the impact of the several supervening events mentioned. These events, of course, occurred after this Full Court's decision. In my view, they can have no significance in considering how the Court should deal with costs.
(d) Pro bono representation 71 It appears that the legal representatives of VCCL and Mr Vadarlis acted without fee. As Justice Brian Cohen, speaking extrajudicially, has pointed out (by reference to the representation of the appellant in Donoghue v Stevenson (1932 AC 562)), it is essential that important cases raising difficult questions should reach the higher courts with the assistance of skilled lawyers who, if necessary, were prepared to act without fee in cases deemed worthwhile (see (1992) 66 ALJ 615 at 616). Of course, in an ideal world, legal aid should be available to provide some, albeit moderate, level of remuneration for professional assistance to the courts in all appropriate cases. But whether or not legal aid should have been provided here is not a matter for us to decide. The question is how, as between the parties, the costs and expenses of litigation should be borne. 72 It is established that the fact that legal aid has been made available is not a relevant consideration on costs. In Latoudis v Casey, above, Mason CJ said (at 543): "The availability of legal aid might be regarded as a possible reason for refusing to award costs. But no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind." (Emphasis added) (See also Re Minister or Immigration and Ethnic Affairs; Ex parte Lai Qin (1996) 186 CLR 622 per McHugh J at 629.) 73 In my view, these observations provide a suitable analogy here. It equally would not be right to draw a distinction between parties based on receipt of professional services without fee. In other words, whilst the fact of pro bono representation may be important for other purposes in the administration of justice, it cannot bear upon the specific question of the allocation of costs as between the parties.
GRANT TO vcCL AND MR VADARLIS OF COSTS CERTIFICATES UNDER THE FEDERAL PROCEEDINGS (COSTS) ACT 74 Both VCCL and Mr Vadarlis have applied for the grant of a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). In my view, each should be granted such a certificate. 75 Section 6 deals with costs certificates for respondents in federal appeals relevantly as follows: · Subject to the Act, where a "Federal appeal" (defined so as to include an appeal (as here) to the Full Federal Court from a judgment of a single Judge of the Court (s 3(1))) succeeds on a question of law (as here), the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal (s 6(1)). · A costs certificate under s 6(1) is to state that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that are required (as here in my view) to be paid to the appellant in pursuance of an order of the court (s 6(3)). · The Attorney-General shall not authorise payment in respect of a costs certificate in relation to an appeal that exceeds the prescribed maximum amount (s 18(2)). Under the Federal Proceedings (Costs) Regulations (reg 4), the prescribed maximum amount is $6,000. 76 Each of VCCL and Mr Vadarlis thus qualifies for a costs certificate.
COSTS ORDERS PROPOSED 77 Accordingly, I propose the following orders: 1. Make no order for the costs of the interlocutory proceedings before North J on 31 August 2001, 1 and 2 September 2001. 2. Order that VCCL and Mr Vadarlis pay the taxed costs of the Commonwealth of: (a) The final hearing of the principal proceedings before North J on 3, 4 and 5 September 2001; and (b) (c) The appeals (including the cross-appeals). 3. Grant a certificate under the Federal Proceedings (Costs) Act to VCCL and to Mr Vadarlis.
Counsel for the Appellants: Mr D M J Bennett QC SG and Mr RRS Tracey QC with Mr D Star and Mr G Hill
Solicitor for the Appellants: Australian Government Solicitor
Counsel for the First Respondent in V1007 of 2001: Dr G Griffith QC and Mr HI Fajgenbaum QC with Ms DS Mortimer and Mr C Horan
Solicitor for the First Respondent in V1007 of 2001: Riordan & Partners Counsel for the First Respondent in V1008 of 2001: Mr JWK Burnside QC and Mr CM Maxwell QC with Solicitor for the First Respondent in V1008 of 2001: Mr JP Manetta Counsel for the Second Respondent: Counsel for the Third Respondent: Solicitor for the Third Respondent: Holding Redlich Ms K Eastman
Mr B Zichy-Woinarski QC and Mr GT Pagone QC with Mr AD Lange Slater & Gordon
Date of Last Submission: 14 December 2001
Date of Judgment: 21 December 2001
Ruddock
Vadarlis
Federal Court of Australia Act (1976) (Cth) s 43 Border Protection (Validation and Enforcement Powers) Act 2001, s 6, s 7 Migration Act 1958 (Cth) s 7A Donald Campbell & Co Ltd v Pollak [1927] AC 732 followed Cretazzo v Lombardi (1975) 13 SASR 4 cited Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 approved Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 followed Latoudis v Casey (1990) 170 CLR 534 discussed Jamal v Secretary Department of Health (1988) 14 NSWLR 252 cited In re Mersey Railway Co (1888) 37 Ch D 610 cited Speight v Syme (1894) 20 VLR 107 cited Liversidge v Anderson [1942] AC 206 cited Perrett v Commissioner for Superannuation (1991) 23 ALD 257 cited Oshlack v Richmond River Council (1998) 193 CLR 72 discussed South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 cited Re Sierra Club of Western Canada v British Columbia (Chief Forester) (1995) 126 DLR (4th) 437 cited Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 cited South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 cited Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 cited Edgley v Federal Capital Press of Australia Pty Ltd (2001) FCR 1 cited Norbis v Norbis (1986) 161 CLR 513 cited Milne v Attorney-General (Tas) (1956) 95 CLR 460 discussed Cabal v United States of Mexico (No 6) (2000) 174 ALR 747 approved Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 cited Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited Cox v Hakes (1890) 15 AC 506 cited Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 cited Jones v Cunningham 371 US 236 (1963) cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 cited Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297 cited Marbury v Madison (1803) 5 US (1 Cranch) 137 cited Tollefson, "When the "Public Interest" Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) University of British Columbia Law Review 303 McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article"(1996) University of British Columbia Law Review 309 Halsbury's Laws of Australia (Vol.20), Sydney, Butterworths, 1991 -, Australian Law Reform Commission Report No. 75, Costs Shifting - Who Pays for Litigatio?, ALRC, Sydney, 1995 Campbell, "Public Interest Costs Orders" (1998) 20 Adelaide Law Review 245 Kelly, "Costs and Public Interest Litigation After Oshlack v Richmond River Council" [1999] 21 Sydney Law Review 680 JA La Nauze, The Making of the Australian Constitution, Melbourne University Press, Melbourne, 1972 Thomson, "Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution" in The Convention Debates (1891-1898) Commentary Indices and Guide), Legal Books Pty Ltd, 1986
REASONS FOR JUDGMENT (ON COSTS) BLACK CJ AND FRENCH J: Introduction 1 On 31 August 2001, the Victorian Council of Civil Liberties ("VCCL") and a Melbourne solicitor, Eric Vadarlis, commenced proceedings in this Court seeking orders in the nature of habeas corpus and mandamus to compel the release and delivery into Australia of 433 non-citizens then said to be detained by the Commonwealth on the Norwegian vessel, MV Tampa, off the coast of Christmas Island. 2 The factual background leading to the proceedings is set out in the judgments of the Court in Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1297. Those named as respondents in the application at first instance were the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister of Defence and the Commonwealth. 3 Orders were made by North J on 11 September after a six day hearing in the following terms: "(1) Subject to paragraph 2, the respondents release those persons rescued at sea who were brought on board MV Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001, and bring those persons ashore to a place on the mainland of Australia. (2) Paragraph 1 operates from 5.00pm Australian Eastern Standard Time on 14 September 2001, or on the determination of any appeal from this decision to the Full Court of the Federal Court of Australia, whichever is later. (3) Paragraph 1 does not apply in respect of any of the said persons who indicate to the respondents that they do not wish to be released and brought ashore to a place on the mainland of Australia. (4) Liberty is granted to the parties to apply generally as to the implementation of the orders made in paragraph 1. (5) (a) Subject to (c) hereof the respondents are to pay to each of the applicants the costs of and incidental to the proceeding commenced by that applicant; and (b) Subject to (c) hereof the respondents are to pay to Amnesty International Limited and the Human Rights and Equal Opportunity Commission their costs of and incidental to these proceedings; and (c) Liberty is granted to the respondents to apply by 4.15pm on 13 September 2001 to vary the orders made in subparagraph (a) and (b) hereof." 4 An appeal was lodged by the Commonwealth and the Ministers on the same day. Cross-appeals were lodged by VCCL and Vadarlis against the trial judge's finding of their want of standing to obtain injunctive orders and mandamus. In the event the appeal was expedited and, after a hearing on 13 September, the following orders were made on 17 September: "1. The appeal is allowed. 2. The cross appeal is dismissed. 3. The orders made by North J on 11 September 2001 are set aside and in lieu thereof the application is dismissed. 4. The question of the costs of the application and of the appeal be the subject of written submissions within fourteen days." Submissions were subsequently lodged with the Court. 5 On 27 November, the High Court (Gaudron, Gummow and Hayne JJ) refused Vadarlis special leave to appeal but declined to make any order as to the costs of the application for special leave: See High Court of Australia Transcript, Vadarlis v Minister for Immigration and Multicultural Affairs, M93/2001 (27 November 2001). In refusing special leave to appeal the Court pointed to the undisputed fact that in so far as Vadarlis sought to pursue a claim to or in the nature of habeas corpus, the essential claim made at trial and in the Full Court, namely the detention of the persons concerned aboard the MV Tampa, could no longer be made. All the rescued people had gone either to Nauru or to New Zealand under arrangements made by the Australian Government with the governments of those countries. So far as Vadarlis sought mandamus, he had pointed to no present duty the performance of which could be compelled by that remedy. Moreover, if as Vadarlis contended, the agreement of the parties made during the trial before North J obliged them to seek to have the Court determine whether facts which no longer exist would have warranted the grant of relief, the dispute was hypothetical. It would give rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth. The Court concluded: "It is unnecessary to form, or express, any concluded view on the several other issues sought to be raised by the application. However, in the light of the reasoning in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, the question of standing to seek injunctive and other relief under s 75(v) of the Constitution to compel observance of the law is an important constitutional question and might, in an appropriate case, attract the grant of special leave. The same is true of the question of executive and prerogative power examined in the Full Court, and also of the question of the validity of the Border Protection (Validation and Enforcement Powers) Act (Cth)." The application was dismissed. The Court said there would be no order as to costs but did not give reasons in that respect. Further submissions were invited by this Court on the costs of the appeal in these proceedings following the High Court decision. 6 The appellants seek orders that VCCL and Vadarlis pay the appellants' costs of the appeal and of the proceedings before North J. Alternatively, they seek orders for a proportion of the costs to be paid by VCCL and Vadarlis. No order is sought against the other parties to the proceedings, namely the Human Rights and Equal Opportunity Commission and Amnesty International Limited. The Statutory Framework - The Federal Court of Australia Act (1976) (Cth) 7 Section 43 of the Federal Court of Australia Act provides: "43(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (1A) [Concerns only representative proceedings] (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." The Statutory Framework - Border Protection (Validation and Enforcement Powers) Act 2001 8 Following the decision of the Full Court on this appeal the Parliament passed an Act entitled the Border Protection (Validation and Enforcement Powers) Act 2001 which came into effect on 27 September 2001, the day it received the Royal Assent. Part 2 of the Act is entitled "Validation of certain actions". There is a defined "validation period" starting on 27 August 2001 and ending at the beginning of the commencement day of the Act (s 4(c)). Part 2 is said to apply to any action taken during the validation period by the Commonwealth or by a Commonwealth officer or any other person acting on behalf of the Commonwealth in relation to the MV Tampa, another vessel called the Aceng or any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully. Section 6 provides: "All action to which this Part applies is taken for all purposes to have been lawful when it occurred." Section 7 then purports to prohibit proceedings in respect of action to which Part 2 applies: "7(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part applies, against: (a) the Commonwealth; or (b) a Commonwealth officer; or (c) any other person who acted on behalf of the Commonwealth in relation to the action. (2) This section applies to: (a) the institution of proceedings on or after the day on which this Act receives the Royal Assent; and (b) the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day." The Act also contains amendments to the Customs Act 1901 (Cth) and the Migration Act 1958 (Cth). In particular, a new s 7A is inserted in the Migration Act, which provides: "7A. The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders." Principles Governing Awards of Costs 9 The point of departure in ascertaining the principles that govern costs awards in the Federal Court is s 43 of the Federal Court of Australia Act 1976. It speaks of a judge having "jurisdiction" to award costs in all proceedings before the Court. No doubt this is to be regarded as a reference to power in aid of jurisdiction rather than a grant of jurisdiction in the sense in which that term is used in Chapter III of the Constitution. The power of the Court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that "the Court has an absolute and unfettered discretion to award or not to award [costs]": per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case. 10 The power that was the subject of consideration by the House of Lords in Donald Campbell was conferred by statute - s 49 of the Judicature Act 1873. Their Lordships disapproved of a tendency by the Court of Appeal to review the exercise by trial judges of that discretion. In particular, the proposition was rejected that the trial judge in a non-jury case must give the successful defendant his costs except in certain defined circumstances (at 811). The same principle as that enunciated by the House of Lords applies generally in Australian jurisdictions where similar statutory provisions exist. So Bray CJ said in Cretazzo v Lombardi (1975) 13 SASR 4 (at 11): "I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollak, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation." Zelling and Jacobs JJ both agreed with Bray CJ while publishing short concurring reasons. The principle has also been adopted expressly in relation to s 43: See Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 (at 732); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 (at [2]). 11 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) & Ors (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). 12 The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for the applicant to bring the proceedings. If the applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it. The order made in such cases is compensatory: "If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott [(1981) 53 FLR 108 (at 111)]"
(1975) 13 SASR 4
(1987) 17 FCR 211
(1990) 170 CLR 534
(1988) 14 NSWLR 252
(1998) 193 CLR 72
(1994) 83 LGERA 307
(1998) 84 FCR 186
(1998) 154 ALR 411
(1986) 161 CLR 513
(1956) 95 CLR 460
(2000) 174 ALR 747
(1987) 162 CLR 514
(2000) 200 CLR 591
(1992) 176 CLR 1
(1988) 19 FCR 347
(2001) 183 ALR 1
(1998) 194 CLR 247
(1996) 141 ALR 727
(1981) 53 FLR 108
(1979) 42 FLR 213
(1991) 28 FCR 172
(1993) 26 IPR 201
(1993) 113 ALR 285
(2001) 108 FCR 1
(1986) 161 CLR 515
(1981) 147 CLR 297
(1996) 186 CLR 622
The parties each bear their own costs of the appeal and cross appeal and of the proceedings before North J.