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austlii:cth/HCASJ/2024/18
procedural. The application for no order as to costs was dismissed. Mr Spall was ordered to pay the Minister's costs of the discontinued removal application: [20]-[21].
Mr Spall stopped his High Court removal application after the constitutional issue it raised had been resolved in another case. He asked the Court not to make him pay the Minister's costs. The Court accepted that filing the application was not unreasonable, but considered it incautious because there was no evidence he had asked why the Attorney-General had not filed the removal application previously announced. The Commonwealth had not promised to pay the costs of Mr Spall's application. Gleeson J dismissed the costs application and ordered Mr Spall to pay the Minister's costs.
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2,108 words · generated 03/10/2026
This judgment concerns the costs of a discontinued High Court application, not the underlying decision to cease Mr Spall's Australian citizenship. The question before Gleeson J was whether the usual costs consequence of discontinuance should be displaced by an order that there be no order as to costs.
9 cited instruments linked from this judgment.
Mr Spall had obtained Australian citizenship by conferral in 1997. In 2018, he was sentenced to 12 months' imprisonment for conduct from 1995-1996. On 7 May 2020, the Minister decided under s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) that Mr Spall's citizenship had ceased [5]. The Administrative Appeals Tribunal affirmed that decision. Mr Spall then commenced a Federal Court appeal and raised a constitutional question about the validity of s 34(2) [6].
In September 2022, the Australian Government Solicitor, acting for the Attorney-General, informed Mr Spall's solicitors that the Attorney-General had decided to apply to remove the Federal Court proceeding to the High Court [7]. Mr Spall's solicitor asked the Commonwealth to meet his reasonable costs in the High Court and questioned whether the Federal Court proceeding was a suitable vehicle for deciding the constitutional question. The Commonwealth declined the costs request. It said costs in a separate original-jurisdiction proceeding should be costs in the cause, and indicated that it would consent to a Full Court reference if Mr Spall commenced a separate proceeding confined to the constitutional question [8].
There is no evidence of further relevant communications before Mr Spall filed his own removal application on 9 February 2023 [9]-[10]. The Minister opposed that application. One reason was that the constitutional question was already before the High Court in Jones v The Commonwealth; another was that the constitutional issue might not be reached in a Federal Court appeal from the Tribunal [13]. Mr Spall later accepted that Jones had resolved the constitutional issue he had raised [14], and discontinued the removal application on 5 January 2024 [1].
The costs application was decided without an oral hearing under r 13.03.1 of the High Court Rules 2004 (Cth) [3]. Gleeson J dismissed it and ordered Mr Spall to pay the Minister's costs of the discontinued application [20]-[21].
The Court began from the ordinary costs rule for a discontinued application. Paragraph 15 describes the Rules as providing a default that the discontinuing party pays the respondent's costs, while emphasising that the Court has a broad discretion to make a different order. There is a numbering inconsistency in the supplied judgment text: paragraph 1 refers to r 26.08.2, while paragraph 15 refers to r 28.08.2. The reasons do not explain that difference.
Gleeson J referred to Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin for the proposition that where both parties have acted reasonably, and the litigation becomes futile or is settled, the costs discretion will usually result in no order as to costs [15]. The reasons also refer to the distinction discussed in ONE.TEL v Deputy Commissioner of Taxation. As summarised at [17], that distinction is between a party effectively surrendering after litigation and a case where a supervening event or settlement removes or modifies the dispute, leaving costs as the only remaining issue.
Gleeson J placed this case in the latter category [19]. That mattered to the framework for considering costs, but did not automatically mean there should be no order. The Court also examined why Mr Spall had filed the removal application and what the Commonwealth had communicated.
Mr Spall's submission was that he was justified in filing because the Attorney-General had intervened in the Federal Court proceeding and procured an adjournment for the purpose of removal, followed by a period of delay while the Commonwealth identified Mr Jones's case as a preferable test case [18]. The Court accepted that filing the application was not unreasonable. But the fact that the Attorney-General had earlier said he intended to file did not establish that the Attorney-General would do so, or that Mr Spall's own application would be useful in the circumstances that had since developed.
The critical point was the absence of evidence that Mr Spall had asked why the Attorney-General had not filed the application he had announced [19]. In Gleeson J's assessment, filing without that inquiry meant Mr Spall took the risk that there was a reason for the delay that could affect the utility of his own removal application. The Court called the application “incautious”, while expressly saying it was not unreasonable [19]. This was a measured assessment of conduct, not a finding that the application was improper.
The communications about costs also counted. Mr Spall had raised the costs issue with the Commonwealth. The response was that costs in a separate original-jurisdiction proceeding should be costs in the cause. Gleeson J found that nothing in the communications indicated the Commonwealth would agree to bear the Minister's costs of a removal application brought by Mr Spall [20]. Taken together, the lack of inquiry and absence of a costs undertaking led the Court to order Mr Spall to pay the Minister's costs.
The judgment does not announce a new general costs test or purport to alter the established approach. It applies a broad discretion against the background of a usual rule requiring a discontinuing party to pay the respondent's costs [15]. It also uses two familiar analytical considerations stated in the reasons: whether the litigation ended because one party effectively surrendered, or because a supervening event removed or changed the dispute; and whether the parties' conduct was reasonable [15]-[17].
Before this decision, the reasons identify Lai Qin as authority for the usual approach that reasonable conduct on both sides, followed by settlement or futility, will usually support no order as to costs [15]. They cite ONE.TEL for distinguishing a surrender from a dispute overtaken by a supervening event [17]. They also note that similar discretion had been exercised in other Australian courts [16].
After applying those principles, the decision illustrates that a supervening event resolving the substantive issue does not, by itself, require each side to bear its own costs. The court may still consider the applicant's conduct in commencing the application and the parties' communications about costs. Here, the application was not unreasonable, but was considered incautious because no inquiry had been made about the Attorney-General's delay [19]. The absence of any indication that the Commonwealth would meet the costs of Mr Spall's application supported the result [20].
The decision should therefore be read as a fact-specific application of the costs discretion, rather than as a change to the general rule or a categorical rule that an applicant must inquire before filing. The reasons do not say that a failure to inquire will always be decisive. They explain why it mattered on these facts, alongside the Commonwealth's stated costs position and the subsequent resolution of the constitutional issue.
At [15], the reasons state that the Court has “a broad discretion” to depart from the default costs rule. In plain English, the usual order is not automatic in every discontinued case. The court can consider whether the circumstances justify a different result.
At [17], the judgment adopts the distinction between a litigant who effectively surrenders and a dispute whose subject matter is removed or changed by a later event. In plain English, discontinuance can happen for different reasons. Where the dispute has been overtaken by events, the court may need to decide costs without a clear winner on the substantive issue.
At [19], Gleeson J states: “Although not unreasonable, the removal application was incautious.” That wording is important. The Court did not find that Mr Spall acted unreasonably merely by filing. It considered the lack of inquiry about the Attorney-General's delay a relevant risk-taking feature of the application.
Also at [19], the Court said Mr Spall took the risk that there was “some reason why the Attorney-General had failed to make his own removal application” that might affect the utility of Mr Spall's application. In plain English, the earlier statement of intention did not remove the need to account for the fact that no application had followed. The Court considered that the reason for the delay could matter to whether Mr Spall's application was useful.
At [20], Gleeson J observed that the Commonwealth had said costs in an original-jurisdiction proceeding should be costs in the cause, but had not indicated that it would bear the Minister's costs of a removal application brought by Mr Spall. In plain English, the costs position communicated to Mr Spall was not a promise that the Commonwealth would pay the other side's costs if he filed his own application.
The decision is most directly relevant to costs disputes after an application has been discontinued, where a later event has resolved or altered the substantive dispute. Its reasoning is especially relevant if the applicant asks the court to depart from the usual order that the discontinuing party pay the respondent's costs.
The case also illustrates a fact pattern in which the applicant files after another party has announced an intention to bring a related procedural application, but that announced application has not materialised. The Court considered the lack of evidence of an inquiry into the delay material [19]. The reasons do not establish a universal duty to make such an inquiry; they show that, in this case, the absence of inquiry formed part of the costs assessment.
Another relevant feature was prior communication about costs. Mr Spall had asked the Commonwealth to pay his costs, and the Commonwealth had declined that request and stated its view that costs should be costs in the cause [7]-[8]. Gleeson J later treated the absence of any commitment to bear the costs of Mr Spall's removal application as relevant [20].
The case should not be treated as deciding the merits of the citizenship decision or the constitutional validity of s 34(2) of the Citizenship Act. The reasons state that Mr Spall accepted Jones had resolved the constitutional issue, and the judgment decides only the costs application arising from discontinuance [14], [21].
The supplied judgment contains no discussion of later judicial treatment of Spall v Minister for Home Affairs. It therefore does not establish whether a later court has followed, distinguished, or otherwise applied this decision.
The authorities it itself cites are earlier authorities, not later treatment of Spall. Those citations show the legal materials Gleeson J used: Lai Qin on the exercise of a costs discretion [15], ONE.TEL on the distinction between surrender and a supervening event [17], and several other Australian decisions identified as examples of similar discretion [16]-[17]. Jones is referred to as the case that resolved the constitutional issue raised by Mr Spall [13]-[14], rather than as an authority on the costs issue.
Accordingly, any account of how courts have treated Spall after 17 May 2024 would require later sources not included in the supplied judgment. No claim about subsequent judicial treatment can be grounded in this text alone.
The judgment does not detail the full procedural history of the Federal Court proceeding, the adjournment said to have been procured, or the precise period and circumstances of the alleged “stalling” described in Mr Spall's submission [18]. It records the submission and the Court's response, but does not make broader factual findings about every stage of the Federal Court matter.
Nor does it state what explanation, if any, the Commonwealth had for not filing its own removal application. Gleeson J focused on the fact that the record contained no evidence that Mr Spall had asked for an explanation [19]. The reasons do not decide whether the Commonwealth was obliged to provide one, or whether an inquiry would necessarily have changed the costs outcome.
The judgment also does not define how much weight should generally be given to an applicant's earlier request for a costs undertaking, or what wording would amount to an agreement to bear costs. It decides only that the communications shown in this record did not indicate the Commonwealth would meet the Minister's costs of Mr Spall's removal application [20].
Finally, the supplied text uses two different rule numbers for the discontinuance costs provision: r 26.08.2 at [1] and r 28.08.2 at [15]. The judgment as provided does not explain the difference, so this analysis does not resolve it.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON J
SPALL APPLICANT
AND
MINISTER FOR HOME AFFAIRS RESPONDENT
[2024] HCASJ 18
Date of Judgment: 17 May 2024
M11 of 2023
ORDER
1. The application is dismissed.
Representation
The applicant is represented by Carina Ford Immigration Lawyers.
The respondent is represented by Australian Government Solicitor.
GLEESON J. On 5 January 2024, the applicant ("Mr Spall") discontinued his application for removal of Federal Court of Australia proceeding number VID750/2021 ("the Federal Court proceeding") into this Court under s 40 of the Judiciary Act 1903 (Cth) ("the removal application"). Mr Spall now seeks an order under r 26.08.2 of the High Court Rules 2004 (Cth) that there be no order as to costs in the proceeding, departing from the usual order that the discontinuing party pay the respondent's costs under that rule. The respondent ("the Minister") opposes Mr Spall's application.
In support of his application, Mr Spall relies upon: (1) an affidavit of his solicitor, Carina Ford, affirmed on 24 January 2024; and (2) written submissions. The Minister relies upon: (1) an affidavit of Michelle Elizabeth Stone, a lawyer in the employment of the Australian Government Solicitor, affirmed on 9 March 2023; and (2) written submissions.
Pursuant to r 13.03.1 of the High Court Rules 2004 (Cth), I direct that the application for costs be determined without an oral hearing.
For the following reasons, the application should be dismissed.
Mr Spall obtained Australian citizenship by conferral in 1997. In 2018, he was sentenced by the County Court of Victoria to 12 months' imprisonment for conduct that occurred in 1995-1996. On 7 May 2020, the Minister decided under s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") that Mr Spall's citizenship had ceased.
The Administrative Appeals Tribunal ("the Tribunal") affirmed the Minister's decision. On 14 December 2021, Mr Spall commenced the Federal Court proceeding, appealing from the Tribunal's decision. On 6 July 2022, Mr Spall filed a notice under s 78B of the Judiciary Act 1903 (Cth) stating that the Federal Court proceeding involves a matter arising under the Constitution or involving its interpretation, namely whether s 34(2) of the Citizenship Act was invalid ("the constitutional question").
By letter dated 6 September 2022, the Australian Government Solicitor ("AGS"), acting for the Attorney-General of the Commonwealth ("the Attorney-General"), informed the solicitors for Mr Spall and the Minister that the Attorney-General had decided to apply to remove the Federal Court proceeding into this Court. By letter dated 7 September 2022 to AGS, Ms Ford requested that the Commonwealth agree to pay Mr Spall's reasonable costs in this Court. Ms Ford's letter also questioned whether the Federal Court proceeding was an appropriate vehicle for a challenge to the validity of s 34(2) of the Citizenship Act.
By letter dated 19 September 2022, AGS acting for both the Attorney-General and the Minister, declined Mr Spall's request for the Commonwealth to pay his costs and stated that the Commonwealth considered that costs should be in the cause in any proceeding to decide the constitutional question. As to whether the Federal Court proceeding was a suitable vehicle, AGS responded as follows:
"We consider there is a good argument that the proposed Ground 1A is a question of law that can be the subject of an appeal under 44 of the Administrative Appeals Tribunal Act 1975 (Cth). However, we acknowledge there is some prospect that the High Court might disagree.
Given that your client is willing to commence separate proceedings in the original jurisdiction of the High Court of Australia to decide the constitutional question, we agree that is a practical way to avoid the risk identified above.
If your client were to commence proceedings of this kind, confined to the constitutional question in proposed Ground 1A and on the basis of the facts as found in the AAT's decision, the Commonwealth would consent to the matter being referred to a Full Court of the High Court for decision."
By email dated 26 September 2022, Ms Ford told AGS that she was seeking Mr Spall's instructions on the 19 September 2022 letter.
There is no evidence of any further relevant communications until, on 9 February 2023, Mr Spall filed his removal application.
On 14 February 2023, AGS informed Ms Ford that they did not have any further instructions in the Federal Court proceeding "at this stage". On 15 February 2023, AGS informed Ms Ford that they had received instructions overnight "not to concede" the Federal Court proceeding but did not have instructions about the removal application. On the same day, Ms Ford asked AGS to "confirm if your client will support" the removal application and, if not, explain why not. Ms Stone acknowledged receipt of Ms Ford's communication and said that AGS would respond when instructions were received.
On 3 March 2023, Ms Stone wrote to the High Court Registry seeking an extension of time for the Minister to file a response to the removal application.
On 9 March 2023, the Minister filed his response to the removal application. In that response, the Minister opposed the removal application for two reasons. The first reason was that the constitutional question was already before the Court in Jones v Commonwealth & Ors (B47/2022). A writ of summons had been filed in that matter on 10 October 2022, and an order was made referring the matter to a Full Court of this Court on 23 February 2023. The second reason was that, as the Federal Court proceeding was an appeal from a decision of the Tribunal, the constitutional issue may not be reached.
Mr Spall now accepts that Jones v The Commonwealth1 resolved the constitutional issue raised by him.
"If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases."
A similar discretion has been exercised in other Australian courts.3
However, in ONE.TEL v Deputy Commissioner of Taxation, Burchett J explained:4
In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
In support of Mr Spall's contention that he should not pay the Minister's costs of the removal application, Mr Spall advances a single submission, namely, that he was justified in filing the application in circumstances where: (1) the Attorney-General had intervened in in the Federal Court proceeding and procured an adjournment of that proceeding for the purpose of removing the matter into this Court; and (2) thereafter "there [had been] a stalling of [the] proceeding whilst the Commonwealth had identified another case, Mr Jones's case, as a preferable test case".5
This case is of the latter type identified by Burchett J in ONE.TEL.6 While it was not unreasonable for Mr Spall to file the removal application, the application was filed after Mr Spall had been told that the Attorney-General intended to file a removal application but had not done so. There is no evidence that Mr Spall made any inquiry to find out why the Attorney-General had not done what he said he would do. In those circumstances, by filing the removal application, Mr Spall took the risk that there was some reason why the Attorney-General had failed to make his own removal application, which might affect the utility of a removal application filed by Mr Spall. Although not unreasonable, the removal application was incautious.
Furthermore, Mr Spall had raised the question of costs with the Commonwealth and was told that the Commonwealth considered that the costs of an application by Mr Spall in this Court's original jurisdiction should be costs in the cause, that is, costs should follow the event. AGS said nothing to indicate to Mr Spall that the Commonwealth would agree to bear its costs of any removal application brought by him. In those circumstances, I consider that the proper costs order is that Mr Spall should pay the Minister's costs of the discontinued application.
[2023] HCA 34; (2023) 97 ALJR 936. ↩
(1997) 186 CLR 622 at 625 (footnotes omitted). ↩
See, e.g., O'Neill v Mann [2000] FCA 1680 [11]-[13], [20]; Kennedy v Griffiths [2014] QSC 43 at [68]; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 at 688 [30], 692 [54]; Gibson v Minister for Home Affairs [2022] FCAFC 94 at [19]. ↩
(2000) 101 FCR 548 at 552-553 [6]. See also Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5]; Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [79]; Kitay (as Liquidator of Computer Accounting & Tax Pty Ltd) v Frigger [2021] WASCA 78 at [36]-[38]. ↩
Applicant's submissions at [5]. ↩
(2000) 101 FCR 548. ↩
Spall
Minister for Home Affairs [2024] HCASJ 18
(2023) 97 ALJR 936
(1997) 186 CLR 622
(2018) 97 NSWLR 681
(2000) 101 FCR 548
The application for no order as to costs was dismissed. Mr Spall was ordered to pay the Minister's costs of the discontinued removal application: [20]-[21].