Save the Children Australia v Minister for Home Affairs

1. Each party bear its or their own costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 On 3 November 2023, I gave judgment in this proceeding: Save the Children Australia v Minister for Home Affairs [2023] FCA 1343. These reasons, which deal with costs, should be read together with those reasons. I will adopt the abbreviations used in those reasons. 2 The parties have been unable to agree on the appropriate order as to costs. STCA seeks an order that each party bear its or their own costs of the proceeding. The respondents seek an order that STCA pay the respondents' costs, to be fixed on a lump sum basis if not agreed. The parties have each filed written submissions in support of their positions. 3 STCA submits that certain discretionary factors apply to the present case. These include: the proceeding raised a novel and important question of law concerning de facto control in proceedings for a writ of habeas corpus; there was substantial public interest in bringing the case; and the application was brought for an entirely altruistic purpose. STCA relies on Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9], [28] and seeks to distinguish Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at [81]. 4 The respondents submit that costs ordinarily follow the event and STCA was entirely unsuccessful. Further, in response to an anticipated argument on behalf of STCA that there should be a departure from the usual rule on the basis that the proceeding was brought in the public interest, the respondents submit that there is no general rule that those who institute proceedings involving a matter of public interest are exempted from the usual order as to costs: Animals Angels' eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [130]; Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health (No 2) [2022] FCA 706 at [9] (upheld on appeal). Further, they submit that there is no set test, or exhaustive set of considerations, that govern where an applicant may avoid a costs order in pursuit of "public interest" litigation: see, eg, the authorities collected in DBE17 v Commonwealth (No 2) [2018] FCA 1793 at [22]. The respondents also submit that the proceeding did not involve a novel point of law. 5 As I stated in Bob Brown Foundation Inc v Minister for the Environment and Water (No 3) [2022] FCA 989, s 43 of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a discretionary power to award costs. The principles relating to the discretion to award costs under s 43 are well-established: see, eg, Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 566-567 per McHugh J; Ruddock v Vadarlis (No 2) at [11]-[12] per Black CJ and French J; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[5] per Finkelstein and Gordon JJ; Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; 236 FCR 370 at [11], [16]-[18] per Dowsett, Middleton and Gilmour JJ. 6 In the present case, STCA was unsuccessful in its claims. The usual position, therefore, is that it should pay the costs of the respondents. Further, it may be inferred that the respondents incurred substantial costs in defending the proceeding. 7 However, I consider there to be present a series of discretionary factors, akin to those relied on in Ruddock v Vadarlis (No 2) at [28]-[29], that provide a proper basis to depart from that position and to make an order that each party bear its or their own costs. Those factors are: (a) The proceeding raised novel and important questions of law concerning the liberty of the individual and the amenability of a respondent (who does not have custody) to the writ of habeas corpus. While the legal principles relied on by STCA had been developed in a series of United Kingdom cases, there had been little judicial consideration of those cases in Australia. Hence, from an Australian legal perspective, the questions of law were novel, as well as important. (b) As the oral and written submissions of the parties demonstrated, the legal questions were difficult. (c) The case was brought on behalf of certain Australian women and their children (34 people in total) who are being detained in camps in North-East Syria. The Commonwealth had previously repatriated four Australian citizen women and their 13 children who had been in a similar plight. This provided a factual foundation for STCA's claims in the current proceeding. (d) There was no financial gain to STCA in bringing the claims. The STCA is a charitable organisation and it brought the claims on behalf of women and children who are being detained in North-East Syria. Had STCA not brought the case, it is extremely unlikely that the women and children would have been in a position to bring the application in their own right, given their current circumstances. (e) STCA brought the claims in good faith, following an extensive period of correspondence with the Commonwealth. (f) The legal representation for STCA was provided free of charge or (in the case of junior counsel) on the basis of a conditional costs agreement. The quality of the representation (on both sides) enabled the proceeding to be conducted efficiently and expeditiously. 8 As with Ruddock v Vadarlis (No 2), this is a most unusual case, raising matters of high public importance. It concerned the amenability of the Commonwealth to legal process in relation to the repatriation of citizens who are being detained by a third party overseas. 9 Having regard to these matters, I consider the appropriate order to be that each party bear its or their own costs of the proceeding. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.