Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Leave to discontinue 7 Rule 26.12 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules") provides for the discontinuance of a proceeding. A notice of discontinuance may be filed by a party without the leave of the Court in circumstances including at a point of time before the first return date of an Originating Application or with the consent of an opposing party. The leave of the Court, however, is otherwise required. And the discontinuing party is normally required to pay the costs thrown away by the discontinuance. 8 Rule 26.12(7) thus provides as follows: Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued. Rule 26.12(7), it has been said, "creates a presumption that the discontinuing party will pay the costs of the other side, unless for a good reason shown, the Court orders otherwise": Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 at [7] per Barker J. His Honour had previously made similar observations in Croft v Evertop Investments Pty Ltd [2014] FCA 1098 at [66] ("Croft"). Rule 26.12(7) has also been referred to as creating "a prima facie entitlement on the part of the party not discontinuing to costs": Travaglini v Raccuia [2012] FCA 620 at [36] per McKerracher J. 9 In El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474, (2014) 141 ALD 611 ("El-Debel"), Foster J repeated the reference to there having to be "good reason" but expressed the policy behind r 26.12(7) more broadly as follows: [17] … r 26.12(7) reflects a more general policy of the law to the effect that a party should always be permitted to discontinue its proceedings but, in the modern setting, should usually have to pay the costs of the other parties occasioned by the bringing of the proceedings and their subsequent abandonment. This is not to gainsay the broad discretion in respect of costs given to the court by s 43 of the Federal Court of Australia Act 1976 (Cth). None the less, the court should give effect to this general policy when making costs orders unless there is some good reason for declining to do so. Other cases have also repeated the reference to there having to be "good reason" not to order the discontinuing party to pay costs: e.g., Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Building and Construction Commissioner [2017] FCA 1062 at [2] per Perram J ("CEPU v ABCC"). Some reservation may be expressed as to whether such a constraint otherwise unexpressed in the terms of r 26.12(7) should nevertheless be implied. But, however that reservation may ultimately be resolved, there could be no cavilling with a proposition that a discontinuing party must bring forward some explanation as to why costs should be ordered in a manner different to that provided for in the Rules. The more so is this the case where the form of the current r 26.12(7) departs from the former O 22 r 2(1) of the now repealed Federal Court Rules 1979 (Cth) which left the question of costs entirely to the discretion otherwise conferred by s 43 of the Federal Court of Australia Act 1979 (Cth). See: Armstrong v Australian Community Pharmacy Authority [2012] FCA 577 at [9] per Rares J; Travaglini v Raccuia [2012] FCA 620 at [15] to [27]. 10 Nor could there be any cavilling with the proposition that the onus remains on the discontinuing party to demonstrate or bring forward some explanation as to why costs should not be ordered in accordance with r 26.12(7). 11 And, and as further explained by Barker J in Croft [2014] FCA 1098 at [67], "it is not the function of the Court to make a prediction as the outcome of a hypothetical case when exercising the Court's discretion following the discontinuance of a proceeding". 12 The discretion to be exercised is not confined to proceedings of a particular kind in respect to which this Court has jurisdiction - it is a discretion which can just as readily be exercised in cases arising under the Migration Act as in other matters over which this Court has jurisdiction.

The discretion exercised 13 In the absence of explanation, an order that a discontinuing party should either not be required to pay the costs of the Respondent Minister - or even an order that the Respondent Minister should pay the costs of the discontinuing party - may be appropriate in circumstances where there has been delay on the part of the Respondent Minister in the making of a decision, and where the discontinuing party has had no option but to commence a proceeding compelling a decision to be made. 14 Such, so Mr Taylor submits in the present case, is the situation he was confronting in August 2020 when he filed his Originating Application in this Court. 15 In a context removed from migration legislation, instances can be provided of an order being made not requiring the payment of costs where there has been a subsequent development in a case "for which no one is responsible": e.g., CEPU v ABCC [2017] FCA 1062 at [7]. 16 Although it is no part of the function of the Court to attempt to resolve in any conclusive fashion the ultimate fate of the proceeding had it not been discontinued, some preliminary assessment may be undertaken to test Mr Taylor's submission that he had long awaited a Ministerial decision and one was not forthcoming. Even though he may only have commenced the proceeding in this Court in August 2020, he has been in detention since December 2018. Any order to be made pursuant to r 26.12 of the Federal Court Rules, of course, would be an order confined to the costs incurred in respect to the present proceeding. 17 Whatever may be said in respect to the period immediately following his detention in December 2018 up to mid-2019, any scrutiny of the reasons for the continued detention of Mr Taylor thereafter relevantly commences in July 2019. Although it was in August 2018 that Mr Taylor had been convicted of the charges leading to his imprisonment, an appeal against both conviction and the sentence imposed was only ultimately resolved by the Court of Appeal of the Supreme Court of Victoria in July 2019: Taylor v R [2019] VSCA 162, (2019) 59 VR 163. In dismissing the appeal, the Court comprised of Priest and Beach JJA observed that neither the appeal against sentence or conviction "ha[d] any substance": [2019] VSCA 162 at [5], (2019) 69 VR 163 at 165. 18 Thereafter, the materials available to the Court expose the facts (inter alia) that: in late October 2019 steps were being taken within the Department to allocate to Mr Taylor a "case officer"; an email in mid-December 2019 records a note that "our clients and their representatives may continue to provide information up until a decision is made"; a letter dated 10 December 2019 from a firm of solicitors to the Department stating inter alia that they had "recently been engaged to act on behalf of [Mr Taylor]" and requesting that "no decision is made on the revocation of decision to cancel his visa until 28 days after [they] receive a response to our Freedom of Information request"; on 31 January 2020 an email was forwarded from the Department to Mr Taylor, albeit then addressed as Mr Barr, advising that the "request for revocation [was] being progressed, and once a determination [had] been made, [he would] be notified"; on 7 February 2020 an email was forwarded from Mr Taylor to the Department contending that he had been "assimilated and become part of Australia" and that s 501 of the Migration Act "cannot constitutionally apply to [him]"; an email from Mr Taylor in February 2020 to the Department contending that it seemed to be "a tragic waste of a valuable human resource for Australia to deport a person who has taught STEM subjects to VCE students and possesses the mathematics and engineering skills this country is so desperately crying out for"; on 3 April 2020 a letter was forwarded from the Department to Mr Taylor advising that "your correspondence of 21 February 2020 … concerning the cancellation of your visa … was forwarded to Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP, as it falls within his portfolio" and a response from Mr Taylor on 28 April 2020; Departmental consideration in June 2020 of a submission made by Mr Taylor addressing the contention that "British citizens have a special status" and that "they are not aliens according to the Migration Act"; and in September 2020 submissions being forwarded to the Department supporting Mr Taylor, those submissions setting forth such matters as the assistance he had provided to other detainees and his value as an employee. Even accepting that it may well have been premature to have made a decision on Mr Taylor's request for revocation of the decision to cancel his visa prior to the Court of Appeal decision in July 2019 challenging his conviction, considerable reservation may be expressed as to why it thereafter took over a year for the Respondent Minister to ultimately make a decision. 19 But an application by Mr Taylor to be relieved of the obligation to pay the costs associated with the discontinuance of his proceeding in this Court is not the occasion for any more extensive review of the facts, and certainly not the occasion to make any finding as to whether the time being taken to make a decision was unreasonable or unwarranted. No finding is made that the filing of the Originating Application in this Court was a necessary step to be taken by Mr Taylor in order to "force the hand" of the Respondent Minister and to compel a decision to be made in respect to his application for revocation. The decision-making task to be undertaken was - at least to some extent - dictated by further submissions being advanced by or on behalf of Mr Taylor. 20 There is, with respect, no reason for the Court when exercising the discretion conferred by r 26.12(7) to depart from the normal position that a party who seeks to discontinue a proceeding should normally be expected to pay the costs of the opposing side.

CONCLUSIONS 21 Rule 26.12(7) of the Federal Court Rules provides that a party who files a notice of discontinuance pursuant to r 26.12(2) "is liable to pay the costs of each other party to the proceeding…". The Rule was a deliberate departure from the prior practice of the Court as set forth in O 22 r 2(1) of the now-repealed Federal Court Rules 1979 (Cth). 22 Rule 26.12(7) can accurately be described a creating a "presumption" that a discontinuing party should normally pay the costs of the other side. 23 No reason has been exposed by Mr Taylor to relieve him of the liability imposed by r 26.12(7).

THE ORDERS OF THE COURT ARE:

1. Leave is granted to the Applicant to discontinue the proceeding.
2. The application made by the Applicant to be relieved of the liability to pay costs imposed by r 26.12(7) of the Federal Court Rules 2011 (Cth) is dismissed.
3. The proceeding is dismissed.
4. The Applicant is to pay the costs of the Respondent. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick.