FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Home Affairs [2014] FCA 745

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

2.    Order 2 of the Orders made on 27 May 2014 is set aside.

3.    There be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

1    On 12 February 2014, the applicant filed an originating application for judicial review of a decision made by the former Minister for Home Affairs and Justice pursuant to s 156(2)(b) of the Law Enforcement Integrity Commissioner Act 2006 (Cth). By that decision, the former Minister had refused to authorise a special investigation into allegations of corruption raised by the applicant.

2    The final hearing was set down for 10 June 2014. On 29 May 2014, the applicant was notified that the respondent had decided to revoke the decision under review and make a further decision. The revocation of the decision makes it unnecessary for the Court to determine the substantive issues raised in the application. It is appropriate that the originating application be dismissed.

3    However, the costs of the proceeding remained in dispute. The respondent submitted that a costs order already made against the applicant in respect of an application for discovery should stand, but that the Court should otherwise make no order as to the costs of the proceeding. The applicant submitted that the costs order previously made against him should be revoked and that there should be no order as to the costs of the proceedings, or, alternatively, that the respondent should pay his costs of the proceeding. As the applicant is self-represented, any order for costs in his favour would be limited to outlays.

4    Consequently, I ordered that the parties file written submissions on the question of costs. The applicant filed substantive submissions. Belatedly, the respondent conceded that the costs order previously made against the applicant should be revoked and that there should be no order as to the costs of the proceedings. I accept that this is the appropriate order to make, but wish to record my reasons for that conclusion.

5    The applicant has succeeded in having the decision under review revoked. The decision to revoke suggests an implicit acceptance by the respondent that the decision under review involved an error of law. In order to obtain that vindication, the applicant has undergone a lengthy legal battle.

6    The decision under review was made on 6 July 2012. The applicant applied on 15 October 2012 for an extension of time to file an application for judicial review of that decision. That application was opposed by the respondent and a judge of this Court dismissed the application on the basis that the proposed proceeding lacked sufficient merit to warrant the grant of an extension of time: Mentink v Minister for Home Affairs [2013] FCA 68. The applicant was successful in his appeal to the Full Court, which gave him leave to commence the present proceeding: Mentink v Minister for Home Affairs [2013] FCAFC 113.

7    In administrative law proceedings, 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 settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the Court will make no order as to the costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625.

8    Prima facie, it would be an anomalous result for the applicant to be successful in his application for review, yet be substantially out of pocket as a result of having to pay the costs of the discovery application that were awarded in favour of the Minster.

9    The applicant seems to have been encouraged to apply for discovery by the observation of the majority of the Full Court at [45] that, “Further relevant evidence may be adduced as a result of interlocutory processes in the proceeding, such as discovery”. It does not appear unreasonable for the applicant to have made his application.

10    The application for discovery was listed for hearing on 27 May 2014, but as the applicant did not appear, I dismissed the application with costs. The applicant has now sworn that he did not attend the discovery hearing because he had not realised that it was listed on that date. It appears that when the date of the hearing was allocated, the application was returned to him electronically with a coversheet bearing the date and time of the hearing. The applicant deposes that for previous listings he had also received a separate notice by post. He did not receive any notice of the listing by post in this instance and did not realise it had been listed for hearing on 27 May 2014. In the circumstances, I accept the applicant’s explanation for the reason for his non-attendance. While that explanation is not one which excuses his non-attendance, some latitude should be allowed because of the applicant’s previous course of dealings with the Court.

11    The decision of the Full Court was given almost eight months ago, on 21 October 2013. The respondent has not advanced any explanation for why he took until less than two weeks before the hearing, and two days after the date for which the discovery application was listed, to make a decision to revoke the decision under review. This is not a criticism of the respondent, but if the decision to revoke the decision under review had been made earlier, the application for discovery would have been unnecessary.

12    The applicant is likely to have incurred some outlays in presenting his case. Account may be taken of such expenditure which was incurred, as it turned out, unnecessarily. One way to take it into account might be by awarding the applicant his costs as a counter-balance to those awarded in favour of the Minister. Another way could be by regarding such expenditure as a factor to take into account in deciding whether to revoke the costs order made in favour of the Minister.

13    In the particular circumstances of this case, I consider that the order which would best serve the interests of justice is to set aside the costs order of 27 May 2014 and to order that each party to bear its own costs of the proceedings.

Associate:

Dated:    15 July 2014