Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 15 June 2021 be dismissed.

2.    The interlocutory application filed on 15 June 2021 be dismissed.

3.    The applicants pay the respondent’s costs of the application and interlocutory application as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

GRIFFITHS J:

1    The applicants seek an extension of time and leave to appeal from a costs judgment and orders made by a Judge of this Court on 26 May 2021, whose reasons for judgment are reported as MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559 (Costs Judgment). After hearing argument, the primary judge ordered that there by no order as to costs in relation to the now respondent’s failure below to obtain an order in the nature of habeas corpus: see MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442.

2    By way of an interlocutory application filed on 15 June 2021, the applicants also seek leave to adduce further evidence on the application for leave to appeal and any appeal, being annexures HDD-1 and HDD-2 to the affidavit of Hervee Dupont Dejean affirmed on 9 June 2021.

3    The primary judge referred at [4] of the Costs Judgment to the Full Court’s decision in Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497. There, the Full Court (French, Sackville and Hely JJ) referred to the principle stated by Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22], to the effect that there is a public interest in ensuring that persons who are detained against their will are not inhibited from seeking their liberty, including by the impediment of an adverse costs order. The primary judge in the present proceeding noted at [4] MB’s concession that Te makes clear that the Cabal principle should not be applied as an “inflexible rule of law”. In my view that is undoubtedly correct. The primary judge proceeded to determine the issue of costs on the basis that the Cabal principle was nevertheless relevant to the exercise of the Court’s discretion, along with other factors. This approach was consistent with the now applicants’ position as summarised by the primary judge at [5], where they are recorded as accepting that the Cabal principle was a relevant, but not determinative, factor.

4    The primary judge gave detailed reasons for rejecting each of the contentions advanced by the now applicants in favour of an order of costs being made in their favour. In particular, the primary judge addressed their contention below that the proceedings were “significantly analogous to that in Te”. At [6], the primary judge noted the applicants’ proposition that, consistently with Te, there was no evidence contrary to the applicants’ primary case which had been accepted by the Court in the substantive proceeding. His Honour then noted the applicants’ separate submission concerning costs that delay in providing MB with medical attention had not been an issue in the case. The primary judge explained why he rejected both those contentions at [8]-[14].

5    His Honour stated at [8] that the question of delay in MB’s medical treatment and proposition that there was no conflicting evidence “are inherently interrelated in the facts in MB”. His Honour noted at [9] that MB had been brought to Australia from Nauru for the temporary purpose of receiving medical treatment for his gastrointestinal condition and that, in the light of affidavit evidence in the substantive proceeding that MB had been provided with some basic medical treatment, he still needed further medical treatment (at [11]). Accordingly, the primary judge noted at [12] that it was in these circumstances that MB accepted that the temporary purpose for which he had been brought to Australia remained to be satisfied.

6    His Honour then added at [13] of the Costs Judgment that, absent that evidence, MB could have contended that he had been brought to Australia for a temporary medical purpose which had not been fulfilled. His Honour then said that, importantly, he need not speculate as to how that question may have been determined (because plainly it did not arise) but he said that “it might have been argued that those facts were sufficient to enable the Court to conclude that the temporary purpose was no longer operative”.

7    At [14], the primary judge found that delay was an issue in the case from the time it was commenced and that it remained a live issue until the Minister’s affidavit was filed and MB accepted that he required further medical treatment.

8    The primary judge concluded at [22] that although MB had failed in obtaining habeas corpus, all his contentions on the substantive issues were at least arguable.

9    Accordingly, the primary judge said that, having regard to the particular circumstances of the case, together with the matters raised by Goldberg J in Cabal, the Court should exercise its broad discretion to depart from the normal rule that costs follow the event. His Honour ordered that there be no order as to costs.

10    The applicants’ draft notice of appeal raises the following proposed grounds (emphasis in original):

Grounds of appeal

1.    The primary judge proceeded on a mistake of fact, or alternatively took into account an irrelevant consideration, in finding that “it would have been open to [MB] to contend that he had been brought to Australia for a temporary medical purpose which had not been fulfilled”.

Particulars

(a)    No such contention was in fact ever made by the first respondent (MB) when the proceedings were first filed in the Supreme Court of Victoria, or afterwards.

(b)    MB’s own filed evidence was that the temporary medical purpose had not yet been fulfilled.

(c)    The appellants will seek leave to adduce new evidence on appeal proving that delay in providing medical evidence was not a matter raised by the respondent at the commencement of the proceeding, on the basis that:

i.    the primary judge’s finding about what was or could have been in issue at the commencement of proceedings as opposed to what was in issue by the final hearing of the proceeding was not a matter adverted to by MB in seeking a special costs order; and

ii.    the appellants have been denied procedural fairness and would have put on this evidence had the point been relied upon by MB.

In the light of such evidence, the primary judge’s factual finding is either incorrect at most or materially incomplete at least.

(d)    What could have been raised at the commencement of the proceeding but was not ever raised as part of MB’s case does not bear rationally upon the respondent’s entitlement to a special costs order.

2.    The primary judge should be understood to have applied the principle in Cabal v United Mexican States [No 6] (2000) 174 ALR 747 at [22] (Cabal) as a rule, and thus acted upon a wrong principle.

Particulars

The matters relied upon by the primary judge at [13]-[14] (delay in providing medical treatment), [15]-[19], [22] (arguability of the respondent's case) and [21] (chilling effect) go no further than the principle in Cabal.

11    The fresh evidence the subject of the interlocutory application goes to ground 1 of the proposed notice of appeal, namely that the primary judge proceeded on a mistaken fact or, alternatively, took into account an irrelevant consideration in finding that “it would have been open to [MB] to contend that he had been brought to Australia for a temporary medical purpose which had not been fulfilled”. The applicants submitted that the new evidence which they sought leave to adduce is intended to demonstrate that delay in providing medical treatment was not a matter raised by MB at the commencement of the trial.

Consideration and determination

12    Both parties conducted the proceeding on the basis that leave to appeal was required (referring to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act)), as well as an extension of time. I have acted on that basis. It accords with what has been described recently by the Full Court as the “prevailing view” being that a costs order, even when made as part of the final disposition of a matter (as is the case here), is interlocutory in nature and therefore requires leave (see Aldi Foods Pty Ltd v Transport Workers’ Union of Australia [2020] FCAFC 231; 282 FCR 174 at [69]-[71] per Besanko, Bromberg and O’Bryan JJ). I add that, even if leave to appeal was not required, the applicant would still need an extension of time and, in that context, an assessment of the strength or weakness of the grounds of appeal would arise in any event (see, for example, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ and CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1441 at [4] per Colvin J).

13    It is well settled that discretionary costs orders are, as a general rule, matters of practice or procedure (see, for example, Hudson v Sigalla [2016] FCA 1204 at [38] per Katzmann J and Gorczynski v Annandale Services Pty Ltd [2004] NSWCA 7 at [16] per Santow JA (with whom Meagher and Ipp JJA agreed)).

14    It is equally well settled that appellate courts are loathe to grant leave to appeal on matters of practice or procedure. As the Full Court (Jacobson, Siopis and Foster JJ) stated in Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 at [113] (in the context of whether to grant leave to appeal from a costs order):

There is no doubt that appellate courts are loathe to overturn discretionary costs orders made by single judges. This reluctance reflects a history of caution expressed by appellate courts when asked to overturn discretionary judgments generally.

(To similar effect, see Tenser v Quigley [2016] FCAFC 178 at [28]-[30] per Nicholas, Katzmann and Markovic JJ; Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306 at [69] per Logan J, Bromberg and Charlesworth JJ agreeing and Zreika v Royal [2019] FCAFC 82; 271 FCR 65 at [317] per Besanko, Farrell and O’Callaghan JJ.)

15    It is apt to set out what Gleeson J said in Snowside Pty Ltd atf Snowside Trust, in the matter of Boart Longyear Ltd [2019] FCA 2159 regarding an application by a non-party for leave to appeal from a costs order (which principles are also apposite to the present proceeding) (emphasis in original):

56    As the costs order involved the exercise of discretion, to succeed on any appeal the Snowside parties will be required to establish error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v The King) at 505-506: Cleland v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [69].

57    In Samsung, after referring to House v The King, the Full Court added at [39]:

In later cases, justices of the High Court have said that, in respect of appeals against decisions involving discretionary judgment, there is a strong presumption in favour of the correctness of the decision appealed from and that that decision should be affirmed unless the appeal court is satisfied that it is clearly wrong (see Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto J; and Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 634 per Wilson J).

58    The correct approach to the evaluation of the prospects of a party’s success on appeal is to consider the proposed grounds of appeal “at a reasonably impressionistic level and enquire whether a ground is ‘sufficiently arguable’ or ‘has reasonable prospects of success’”: EBT17 v Minister for Home Affairs [2019] FCA 200 at [4].

59    In Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71 at [167], Rangiah J noted:

[T]he appeal from the judgment of the primary judge is an appeal by way of rehearing: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]. The powers of the appellate court are only exercisable where the appellant can demonstrate that the judgment is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. The views and conclusions of the trial judge ultimately have to be shown to be wrong, and should not be laid to one side and a simple re-argument of the case take place: Branir at [30].

16    Whether or not leave to appeal should be granted in this case also raises the question whether the applicants’ proposed grounds raise an arguable case that the primary judge erred in the exercise of his discretion within the principles in House v King [1936] HCA 40; 55 CLR 499.

17    Applying those general principles here, putting to one side for the moment the strength or weakness of the applicants’ case, I accept that the explanation for the applicants’ delay and the short period of time involved weighs in favour of an extension of time being granted. For the following reasons, however, I do not consider that this is an appropriate case in which to grant an extension of time or leave to appeal.

18    First, there is the general reluctance to grant leave to appeal in respect of matters of practice or procedure and the applicants have not persuaded me that this case warrants a departure from that approach.

19    Secondly, I am not persuaded by the applicants’ argument that they have a sufficiently strong case that the primary judge’s costs order is the result of some legal, factual or discretionary error within the principles of House v King. The primary judge correctly acknowledged that the Cabal principle is not an inflexible rule of law. It was nevertheless relevant to the exercise of the Court’s discretion on costs (which as noted above the applicants do not dispute). No arguable error has been demonstrated in respect of the primary judge’s analysis and conclusions regarding the question whether delay was an issue in the case. On the material before his Honour, it was reasonably open to him to find that delay was an issue, at least up until MB accepted that he required further medical treatment. It is also important to note that the primary judge expressly declined to speculate how the substantive case may have been determined if it had been argued that the temporary purpose for which MB had been brought to Australia had been fulfilled. Nor am I persuaded that the applicants here have identified any arguable irrelevant consideration taken into account by the primary judge.

20    Thirdly, I am not persuaded that substantial injustice would result if an extension of time or leave to appeal is refused, supposing the primary judge’s order to be wrong (see Décor Corporation Pty Ltd v Dart Industrial Inc (1991) 33 FCR 397 at 399-400 per Sheppard, Burchett and Heerey JJ). MB has been effectively in immigration detention for eight years. He is presumably impecunious and arguably has no assets or funds, at least in Australia, to satisfy an order for costs against him. Nor would any such order have any administrative value in terms of preventing MB’s re-entry to Australia because he has the indelible status of an “unauthorised maritime arrival”, which itself will bar him from being granted a visa unless a personal non-compellable power is exercised in his favour. Moreover, as MB points out, it is difficult to see how this matter raises any broader issue of general principle regarding the award of costs in unsuccessful habeas corpus cases in circumstances where the High Court has recently ruled by majority that this remedy is generally not available in cases such as this (see Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567).

21    Finally, I have great difficulty seeing how the primary judge’s Costs Judgment has any precedential value as it turns very much on its own facts and circumstances.

Interlocutory application

22    Assuming that the interlocutory application is directed to the Court’s power to admit fresh evidence on an appeal (see s 27 of the FCA Act), the following two requirements arise:

(a)    whether the further evidence is such that, had it been adduced below, the result would very probably have been different; and

(b)    the party seeking to adduce the evidence must demonstrate that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence (for a summary of the relevant principles which guide the exercise of the Court’s discretion under s 27, see Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] per Griffiths and White JJ and District Council of Streaky Bay v Wilson [2021] FCAFC 181 at [149]-[150] per Mortimer, Perry and SC Derrington JJ).

23    Neither of those requirements has been satisfied here (including for the purpose of having the new evidence adduced in support of the application for leave to appeal). It is difficult to see how the correspondence which the applicants seek to adduce would very probably have produced a different costs order if the correspondence had been adduced below. The fresh evidence comprises letters dated 16 December 2020 and 18 December 2020 from the parties’ respective solicitors. The 16 December 2020 letter, which was in effect a letter before action, expressly raised the issue of delay when it was claimed that MB had been “deprived of his liberty by or as a result of actions of your client for over 7 years…”. The letter serves to reinforce the fact that delay was an issue.

24    Secondly, it is even more difficult to see how the applicants can satisfy the second requirement described above in circumstances where, at the time of the trial, they necessarily were in possession and aware of both letters, being correspondence between the parties’ respective solicitors.

25    For these reasons, I would dismiss the interlocutory application.

Conclusion

26    For these reasons, I consider that the application for an extension of time and leave to appeal filed on 15 June 2021 and the interlocutory application filed on 15 June 2021 should both be dismissed, with costs.

Associate:

Dated:        8 November 2021

REASONS FOR JUDGMENT

(Revised from transcript)

THOMAS J:

27    I agree with the reasons of Griffiths J and the orders that his Honour proposes.

Associate:

Dated:        8 November 2021

REASONS FOR JUDGMENT

(Revised from transcript)

STEWART J:

28    I agree with the proposed orders and the reasons of Griffiths J. I wish to add only some brief observations of my own.

29    The applicants accept that they require leave to appeal against the costs order in this case. They also accept that one of the requirements for such leave is that a substantial injustice would result if leave were refused, supposing the decision to be wrong. The substantial injustice that they identify is that the applicants are governmental parties with the result that the costs that are at stake amount to public money. They also submit that this case has consequences for costs in other cases and warrants consideration “in circumstances where [the costs judgment] is at odds with the decision in Te” (i.e., Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497).

30    With regard to the first point, the applicants have not shown that a costs order in their favour is worth anything; they have not shown that the respondent, who arrived in Australia as an unauthorised maritime arrival and who has been in immigration detention for more than eight years, would have any ability to pay any costs order in their favour now or in the future. On the face of it, there would appear to be little prospect that he would be in a position to pay any costs order against him, and the applicants have not suggested to the contrary. All that they have been able to say in that regard is that the future is uncertain.

31    In those circumstances, not only is there no basis to their submission that they would suffer substantial injustice on account of not getting a deserved costs order in their favour, but they have spent further public money pursuing an empty costs order.

32    One might also observe that significant public resources have been taken up in the time and attention of three judges of this Court, as well as staff of the Court in various roles, having to deal with the applicants’ application.

33    In the circumstances, the applicants’ first justification for pursuing costs against the respondent in this proceeding is entirely hollow.

34    With regard to the second point, a decision on costs is a discretionary decision based on the particular facts and circumstances of the case. There is no credible respect in which the costs judgment in this matter is any significant precedent, in particular in circumstances where the applicants’ submission is that it creates prejudice because it is at odds with a unanimous decision of the Full Court. If indeed it was at odds with the decision in Te, then it would be no precedent at all.

35    In those circumstances, the applicants fail to satisfy a basal threshold for leave to appeal.

Associate:

Dated:    8 November 2021