Federal Court of Australia

Gogo v Attorney-General (Cth) [2022] FCA 70

ORDERS

THE COURT ORDERS THAT:

1.    Each of the applicants be granted leave to:

(a)    reopen their case in relation to costs;

(b)    file the additional evidence identified in the applicants’ outline of submissions dated 19 July 2021; and

(c)    make further submissions in support of their applications for costs.

2.    The applications by each of the applicants that the respondent pay their costs of their discontinued judicial review applications be dismissed.

3.    Each of the applicants pay the respondent’s costs referrable to their costs applications, including the costs of their application to reopen their case in respect of their costs applications that was filed on 16 June 2021.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    This matter is perhaps one of the last chapters in the sad and sorry saga involving the prosecution of young Indonesian fishermen for people smuggling offences by the Commonwealth authorities. This is a particularly sad and sorry chapter as it involves vigorously contested costs applications by the applicants in respect of judicial review applications that were ultimately discontinued and therefore not determined on the merits.

2    Ultimately, the question of costs in this case hinges on two main issues: first, whether, without conducting a hypothetical trial on the papers, or otherwise addressing the merits of the case in any substantive way, it is possible to conclude that the applicants would almost certainly have succeeded had the applications gone to trial; and second, whether, again without fully addressing the merits of the case, it is possible to conclude that there was such a marked difference in the reasonableness of the actions of the parties that costs orders in favour of the applicants are warranted.

3    For the reasons that follow, both of those questions must be answered in the negative with the result that the applicants’ costs applications must be refused.

BACKGROUND and brief chronology

4    On various dates between April 2010 and January 2012, the applicants were each convicted in the District Court of Western Australia of people smuggling: an offence pursuant to s 232A(1) of the Migration Act 1958 (Cth) of facilitating the coming to Australia of non-citizens, reckless as to whether the non-citizens had a lawful right to come to Australia. Each of the applicants was a young Indonesian fisherman who was a crew member on a fishing boat which transported prospective asylum seekers into Australian waters. Each of the applicants was sentenced to a mandatory term of imprisonment for five years with a non-parole period of three years.

5    In late 2010 and early 2011, the Australian Human Rights Commission began to raise concerns about the age of many of the young Indonesian fishermen who had been tried and convicted as adults in respect of people smuggling offences and subsequently incarcerated in adult correctional facilities. Particular concern was expressed about the means by which Commonwealth authorities had purported to determine that the young fishermen were over the age of 18 and therefore liable to be tried as adults. The Commission subsequently conducted an inquiry into those issues. It published its report in July 2012. The report was scathing of the Commonwealth authorities.

6    Meanwhile, no doubt prompted by the concerns that had been expressed by the Commission in the course of its inquiry, the respondent, the Attorney-General of the Commonwealth, directed the Attorney-General’s Department to conduct a review of 28 cases of persons convicted of people smuggling offences who had raised a question as to their age. One of the outcomes of the Department’s review was that between May and July 2012, each of the applicants was either released on licence, or released on parole prior to the expiration of their non-parole periods, pursuant to s 19AP or s 19AL of the Crimes Act 1914 (Cth). Each of them was subsequently returned to Indonesia.

7    Between 4 April 2019 and 8 August 2019, the solicitor acting for the applicants wrote to the Attorney-General and requested the Attorney-General to refer the applicants’ convictions to the Court of Appeal of Western Australia pursuant to s 140 of the Sentencing Act 1995 (WA). That section provides as follows:

140.    Petition for mercy may be referred to Court of Appeal

(1)    A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Appeal either —

(a)    for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or

(b)    for an opinion on any specific matter relevant to determining the petition.

(1a)    When making a referral under subsection (1)(a) the Attorney General, having regard to the petition, may specify the grounds of appeal to be heard and determined by the Court of Appeal.

(2)    The Court of Appeal must give effect to the referral.

8    It is convenient to refer to the aforementioned requests by the applicants’ solicitors in letter form as the referral applications, though as can be seen there is no formal procedure for an offender to apply to the Attorney-General for a referral pursuant to s 140 of the Sentencing Act. It should also be noted that while the Sentencing Act is obviously a state Act, the Attorney-General was able to refer an offender in respect of a federal offence to the Court of Appeal given the terms of s 68(2) of the Judiciary Act 1903 (Cth): see Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 145 at [10]-[12].

9    The referral applications requested that the case for each applicant be heard and determined by the Court of Appeal as if it was an appeal by the applicant against their conviction on the grounds that their trial and convictions constituted a miscarriage of justice. The alleged miscarriage of justice arose from what was said to be the defective and deficient manner in which the age of each of the applicants was determined for the purpose of establishing the trial court’s jurisdiction.

10    There was a fairly clear precedent for the referral applications. In Jasmin v The Queen (2017) 51 WAR 505; [2017] WASCA 122, a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender was referred to the Court of Appeal by the Attorney-General pursuant to s 140(1)(a) of the Sentencing Act. The Court of Appeal unanimously upheld the appeal, set aside the conviction and entered a judgment of acquittal on grounds essentially the same as those that each applicant had propounded.

11    The evidence as to what followed the making of the referral applications by each of the applicants is very briefly touched on later in these reasons. It suffices to say at this point that, while the referral applications were actioned by officers of a section of the Department called the Commonwealth Parole Office (CPO), no decision had been made by the Attorney-General by late October 2019. That actual or perceived delay in deciding the referral applications prompted the applicants, through their solicitor, to file applications for judicial review in this Court. Those applications were filed between 31 October 2019 and 13 November 2019.

12    In their judicial review applications, the applicants claimed that the Attorney-General had a duty to consider and determine the referral applications and that the Attorney-General’s failure to make a decision in relation to each of the referral applications constituted “unreasonable delay” within the meaning of s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). There was again some precedent for the making of such applications: see Yasmin at [103], [118], [123]-[124]. The relief sought by the applicants included an order that the Attorney-General determine the referral applications within 14 days.

13    The applicants’ applications were initially listed for hearing in Canberra on 24 and 25 March 2020. Regrettably, that hearing had to be vacated as a result of travel and other restrictions resulting from the COVID-19 pandemic. The applications were relisted for hearing on 15 and 16 June 2020.

14    On 10 June 2020, shortly before the hearing of the applicants’ judicial review applications was to commence, the Attorney-General filed evidence that provided an update in respect of the status of the referral applications. That evidence indicated that the referral applications had been “placed before” the Attorney-General for decision and that a decision in respect of each of the referral applications was expected within weeks. It would appear that in those circumstances the parties agreed that the applicants’ judicial review applications were essentially otiose or inutile and that the hearing which was to commence on 15 June 2020 should be vacated. It was, however, made tolerably clear that the costs of the applications remained a live issue.

15    As events transpired, between 11 June 2020 and 2 July 2020, the Attorney-General advised the applicants that he had made a decision in respect of each of the referral applications. That decision was, in each instance, not to refer the applicants’ cases to the Court of Appeal pursuant to s 140(1)(a) of the Sentencing Act. The basis of that decision in each case was said to be that the Attorney-General’s power under s 140(1)(a) of the Sentencing Act had not been enlivened because the referral application was “not, in substance, a petition for the exercise of the royal prerogative of mercy”. The Attorney-General also determined that, even if the power had been enlivened, “a court of appeal could not reasonably conclude that a miscarriage of justice has occurred”. The Attorney-General concluded that the circumstances of each applicant’s case did not warrant the exercise of his discretion to refer the matter to the Court of Appeal.

16    The parties remained at loggerheads in respect of the question of costs. The Court eventually made consent orders in July 2020 that facilitated the determination of that question. Those orders included an order that all affidavits that had been filed in respect of the judicial review applications may be taken to be read in respect of the issue of costs. For reasons that will become apparent, it is regrettable that the parties jointly sought those orders and even more regrettable that the Court agreed to make them. The orders also allowed the parties to file further evidence and written submissions. While it was initially suggested by the parties, or at least the Attorney-General, that the Court could determine the question of costs on the papers, ultimately the applicants requested there to be an oral hearing. That hearing occurred on 18 November 2020.

17    More will be said later in respect of the evidence relied on by the parties on the question of costs. It suffices to say that the affidavit and documentary evidence was voluminous. So too were the written submissions. The hearing occupied more than half a day. Judgment was reserved.

18    That was regrettably not the end of the matter.

19    On 16 June 2021, the applicants together filed an interlocutory application seeking leave to reopen their respective cases in relation to costs and leave to adduce further evidence and make further submissions. The event or occurrence which prompted the filing of those interlocutory applications was that, in September 2020, six of the eight applicants filed applications in the Court of Appeal for leave to appeal their convictions. More significantly, on 18 May 2021, in answer to those applications for leave to appeal, the Commonwealth Director of Public Prosecutions (CDPP) conceded in each case that a miscarriage of justice had occurred, that the appeals should be allowed and that a verdict of acquittal should be entered. The other two applicants (the fourth and eighth applicants in these proceedings) had not filed applications for leave to appeal as they had already exhausted their appeal rights.

20    On one view at least, the position taken by the CDPP in respect of the applications for leave to appeal rather made a mockery of the Attorney-General’s decision not to accede to the referral applications, particularly given that the Attorney-General had concluded that the Court of Appeal could not reasonably conclude that a miscarriage of justice had occurred. It should also be noted in that context that the Attorney-General had, as perhaps would be expected, consulted the CDPP in 2019 in respect of the referral applications. The upshot of that consultation was that the CDPP did not object to the referrals being made. The CDPP’s position in respect of the referral applications plainly did not greatly influence the Attorney-General.

21    The Attorney-General opposed the applicants’ application for leave to reopen and to adduce further evidence and make further submissions. While it was again suggested that it might be appropriate to determine the application on the papers, the applicants again requested an oral hearing. Orders were made in July 2021 for the filing of evidence and written submissions in relation to the question of leave to reopen. It was made clear, however, that so as to avoid the possibility of having to have two further hearings (one to determine the application for leave to reopen and one to consider the further evidence and submissions should leave be granted), the evidence should include the evidence that would be adduced if leave to reopen was granted and the submissions should similarly include the submissions that would be made if leave to reopen was granted. That prompted the filing by the parties of further voluminous affidavit and documentary evidence and further lengthy written submissions. The hearing of the application to reopen took almost half a day.

22    Judgment was reserved in respect of the application for leave to reopen. It was made clear that the Court would hand down one judgment that determined both the application to reopen and the question of costs generally.

RELEVANT PRINCIPLES

23    The Court undoubtedly has a broad discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth).

24    The exercise of the discretion in relation to costs is usually relatively straightforward when there has been a hearing on the merits and there is a clear outcome of the proceedings. In such cases, costs usually follow the event: Latoudis v Casey (1990) 170 CLR 534 at 543, 566-568. Where, however, there has been no hearing on the merits because the moving party no longer wishes to pursue the action, usually because of some supervening event, the situation is not so clear. General principles have emerged to guide the exercise of the costs discretion in such cases.

25    In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, an applicant for a protection visa, whose application had been refused by the Minister for Immigration and Ethnic Affairs and who had failed in review proceedings before the Refugee Review Tribunal, commenced proceedings against the Minister for prerogative relief. Shortly after the proceedings were commenced, the Minister exercised his discretion to grant a protection visa to the applicant. That obviously meant that it was unnecessary for the applicant to proceed with her action against the Minister. The applicant did, however, seek her costs on the basis that the Minister should have advised her prior to the commencement of the proceedings that he was reconsidering her application. In that context, McHugh J said (at 624-625):

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. …

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... But such cases are likely to be rare.

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.

(Footnotes omitted)

26    The principles enunciated by McHugh J in Lai Qin were not particularly new or novel, but were derived from a number of earlier cases. The principles have also been adopted and applied in subsequent cases too numerous to mention. It is necessary to refer to only one further case, if only to emphasise or underline the height of the hurdle over which a party in a case such as the present case must leap in order to persuade a court to make a costs order if, to resolve the question of costs, the court would have to address the merits of the settled or discontinued proceeding, or consider voluminous evidence concerning contested facts.

27    In Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681, the plaintiff company commenced proceedings against the defendants (a former employee and his associates) alleging that the employee had taken the company’s confidential information. Interim orders were made against the defendants. Those interim orders led to the inspection of the defendants’ electronic devices and the destruction of any of the company’s information found on those devices. The plaintiff company subsequently abandoned its claim for compensation and the balance of the proceeding was resolved by consent save as to costs. The consent orders included orders permanently restraining the defendants from using the relevant information, though there was no determination as to whether that information was confidential or had been used by the former employee or his associates.

28    The parties invited the unfortunate judge who heard the subsequent costs applications to read all the affidavit and documentary evidence filed in the proceedings. That evidence ran to over 200 pages. The judge did not rule on any of the objections which had been made in respect of the evidence. There was no cross-examination of the deponents. The judge ordered the defendants to pay the plaintiff company’s costs, apparently on the basis that the defendants had “capitulated”, or that the plaintiff company would “almost certainly” have succeeded, or that the company had acted reasonably in commencing the proceeding and the defendants had acted unreasonably in defending the proceeding. Those findings were based on the judge’s reading of the voluminous affidavits. The defendants successfully appealed those orders.

29    Payne JA, with whom Basten and Meagher JJA agreed, referred to Lai Qin and some subsequent authorities and summarised the principles in the following terms (at [30]):

If both parties to a proceeding which has been settled without a hearing on the merits 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.

30    Payne JA found that the approach taken by the primary judge was contrary to the principles espoused in Lai Qin and subsequent cases. In particular, his Honour found (at [54]) that the case was not one where the plaintiff company “could make good its claim that, without addressing the merits, the primary judge could be satisfied that it would have succeeded in any event” or that it was a case where “without addressing the merits, it was clear that [the plaintiff company] had acted reasonably in commencing and prosecuting the claim and [the defendants] had acted unreasonably in defending the claim”. Payne JA also noted that a number of the factual findings made by the primary judge were not available, or could not be made “on the papers” and without cross-examination. That was because the facts were in issue and (at [47]) “permitting the cross-examination of witnesses to determine costs issues in a case determined other than on the merits, is antithetical to the principles explained in Lai Qin”.

31    While Basten JA agreed with Payne JA, his Honour also set out his own statement of principle so as “to avoid any reagitation of matters which should not have been agitated below” (at [11]). His Honour’s statement of principle included as follows (at [2] and [3]):

Where the parties resolve their differences, except as to the costs already incurred in litigation, they should usually expect that the court will not award costs. That is because the general rule applicable in civil litigation in superior courts is that costs will “follow the event”. That rule is frequently paraphrased by reference to its purpose, namely that the successful party should generally recover its costs from the unsuccessful party. But where there has been no trial there is no “event” because, except in unusual cases, it is not possible to say that one party has been successful and the other unsuccessful. The orders made by consent may or may not demonstrate capitulation by the “unsuccessful” party.

In unusual cases, it may be possible to identify success which is manifest on the face of the record. However, to manufacture a dispute in order to resolve that question is to disregard the statutory obligation imposed on the parties, their legal representatives and the court to conduct civil proceedings so as to facilitate the just, quick and cheap resolution of the “real issues in the proceedings.” As explained in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd:

“[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided.”

The court further stated:

“[59] It could hardly be suggested that the pursuit of satellite interlocutory proceedings of the kind here in question in any way fulfils the overriding purpose of the [Civil Procedure Act]. To the contrary, it is the very kind of conduct which should be avoided if those purposes are to be achieved.”

(Footnotes omitted)

32    In the course of considering a number of what were said to be “fundamental errors” by the primary judge in disposing of the proceedings in the way he had, Basten JA also made it clear that it was a fundamental error for the trial judge to have reviewed the voluminous affidavit evidence with a view to determining the reasonableness of the conduct of the parties. His Honour said as follows in relation to that issue (at [8]):

… although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon.

33    Like Payne JA, his Honour considered that the primary judge erred in making factual findings in respect of matters in dispute on the basis of the affidavit evidence. His Honour said, in that regard, that once it became apparent that the determination of the disputed issues could not occur without permitting the parties to challenge the other party’s witnesses, “the inquiry should stop” (at [10]).

THE RIVAL CONTENTIONS OF THE PARTIES

34    For reasons that will become apparent, if they are not already, it is unnecessary to dwell in great detail on the rival contentions of the parties relevant to the question of costs.

35    The applicants advanced five primary contentions which they submitted justified costs orders in their favour. The first contention was that the Attorney-General’s delay in deciding their referral applications was “patent”. The second contention was that, in those circumstances, they “acted reasonably” in commencing the proceedings. The third contention was that the Attorney-General’s delay had not been “reasonably explained”. The fourth contention was that the Attorney-General had “unreasonably defended” the proceedings. The fifth contention was that the applicants would “very likely have succeeded had they proceeded to judgment” and that the Attorney-General’s “unexplained progression” to determine the referral applications on the eve of the hearing represented a “surrender”.

36    The Attorney-General advanced four primary contentions in support of his submission that costs should not be awarded in favour of the applicants. The first contention was that the applicants had “not established that the [Attorney-General] invited the litigation by his unreasonable behaviour”. The second contention was that the applicants acted unreasonably in commencing the proceedings when they did, and that the proceedings were commenced prematurely. The third contention was that the Attorney-General did not act unreasonably in defending the proceedings. The fourth contention was that the Court could not be satisfied that the applicants would almost certainly have succeeded if the judicial review applications had continued to trial and that in fact it is likely that the applications would have been dismissed.

THE EVIDENCE RELIED ON BY THE PARTIES

37    It is, particularly in light of the principles referred to earlier, appropriate to give some brief consideration to the evidence relied on by the parties in respect of the question of costs.

38    Each of the applicants and the Attorney-General relied on all of the evidence which they had filed in the judicial review proceedings. None of the parties objected to that course or made any substantive objections to any of the affidavit evidence, save that some parts of the affidavit evidence were read as submissions rather than evidence. Nor was there any cross-examination. That scenario was extraordinary for at least two reasons: first, the affidavits (including their documentary annexures) filed in the judicial review proceedings were, to say the very least, voluminous; and second, aspects of the affidavit evidence, or at the very least the inferences or conclusions that each of the parties contended that the Court should draw from that evidence, were plainly contentious or controversial. In those circumstances, the approach taken by the parties would, at first blush at least, appear to be antithetical to the principles in Lai Qin and Nichols. It is difficult to see how the Court could possibly resolve the contentious facts and inferences raised by the voluminous documentary evidence in the absence of any cross-examination.

39    It is, in the circumstances, appropriate to give no more than a thumbnail sketch of the general nature and volume of the material relied on by the parties.

40    The applicants jointly relied on two affidavits affirmed by their solicitor, Mr Samuel Tierney, which were said to contain evidence relevant to each of the applications. They contained, amongst other things, a fairly detailed chronological account of the communications between the applicants’ solicitors and the Attorney-General, the Department, and the Attorney-General’s solicitor in respect of the referral applications generally. One of the affidavits, including its annexures, was 102 pages long.

41    Each of the applicants also relied on an additional affidavit sworn by Mr Tierney (and in the case of two of the applicants, two affidavits of Mr Tierney) that specifically related to their case. Some of those affidavits were lengthy. Including their annexures, they ranged between 24 and 179 pages in length.

42    The affidavit evidence relied on by the Attorney-General was, if anything, even lengthier. The Attorney-General relied on three common or “overarching” affidavits affirmed by Ms Jennifer Perrin, who is or was the Director of the CPO. Those affidavits were said to contain evidence that was common and relevant to each of the applications. That evidence included evidence in relation to the CPO, including its staffing and “caseload” and the CPO’s “general process” for assessing referral applications. The affidavits also included some general background information relevant to the applications and some evidence relating to the general progress of the applicants’ referral applications. Ms Perrin’s overarching affidavits, including annexures, together ran to almost 50 pages.

43    The Attorney-General also relied on an affidavit sworn by Mr Jonathan Hutton, a solicitor employed by the Attorney-General’s solicitor, the Australian Government Solicitor, which again was said to contain evidence common and relevant to each of the applications. That affidavit, which mostly contained and annexed documentary communications, was 59 pages long.

44    Finally, the Attorney-General relied on an additional eight affidavits affirmed by Ms Perrin which related to the individual circumstances of each of the applicants. These affidavits were generally voluminous and ranged between 110 and 226 pages in length.

45    For reasons that will become obvious, if they are not already, it is not proposed to refer at length, or at all, to the content of the affidavit evidence relied on by the parties.

46    Before leaving this brief excursion through the material relied on by the parties in relation to costs, it is worth noting two further relevant facts or circumstances.

47    First, both the applicants and the Attorney-General relied on detailed written submissions which contained extensive references, mostly in footnotes, to the affidavit evidence. It soon became apparent that the evidence references were contentious, in the sense that the Attorney-General disputed that many of the evidence references in the applicants’ submissions supported the contentions or submissions they were said to support. Similarly, the applicants disputed that many of the evidence references in the Attorney-General’s submissions supported the contentions or submissions they were said to support. The parties were directed to provide a schedule of the disputed evidence references.

48    Second, the Attorney-General did not seek to cross-examine the deponents of the applicants’ affidavits and the applicants did not seek to cross-examine the deponents of the Attorney-General’s applications. That was perhaps fortunate for them because no such cross-examination would have been permitted in any event. What the parties did not grapple with, however, was exactly how the Court could resolve the complex factual issues raised by the contentious evidence in the absence of any cross-examination.

LEAVE TO REOPEN

49    If things were not bad enough, as far as volume of material in the costs applications was concerned, they became much worse as a result of the applicants’ application to reopen their costs applications. The genesis of that application was referred to earlier.

50    In support of their applications to reopen their costs applications, the applicants relied on a 57-page affidavit, including annexures, affirmed by Mr Tierney, together with three affidavits sworn by another solicitor in Mr Tierney’s firm, Mr Mark Barrow. Mr Barrow’s three affidavits, including their annexures, were respectively 24 pages, 209 pages and 26 pages in length. The applicants also produced a “supplementary court book” in respect of the application to reopen which was 282 pages long.

51    The reopening application also resulted in the filing of a further 10 pages of written submissions in chief, plus nine pages in reply, by the applicants and 12 pages of written submissions by the Attorney-General.

52    It is unnecessary, and most definitely undesirable, to dwell at length on the reopening application. That is because the outcome of the application ultimately has no bearing on the outcome of the costs application. It is, however, necessary to determine the application, if only because it bears to some extent on whether there should be a costs order in respect of the costs application.

53    The Court undoubtedly has “an inherent power to reopen a trial after judgment has been reserved and before it has been delivered”: Frigger v Trenfield (No 7) [2020] FCA 1740 at [20]; Murray v Figge (1974) 4 ALR 612 at 613. The relevant principles in relation to the power to reopen were conveniently summarised by Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (at [24]):

The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].

54    The applicants contended that they should be granted leave to reopen to adduce fresh evidence which was not available or disclosed to them at the time of the hearing of the costs applications. That evidence was said to comprise documentary evidence filed by the CDPP in the successful appeal proceedings brought by some of the applicants in the Court of Appeal. That evidence was said to be directly relevant to issues that had arisen in the context of the costs application, in particular the reasonableness of the actions of the applicants in commencing and defending the judicial review proceeding.

55    The Attorney-General opposed the applicants’ application to reopen essentially on the basis that the fresh evidence had no bearing on the costs application. In the Attorney-General’s submission, the evidence not only failed to demonstrate that the Attorney-General acted unreasonably in defending the judicial review applications, it also demonstrated that the applicants had acted unreasonably in commencing the proceedings when they did.

56    There are two difficulties for the Attorney-General’s opposition to the reopening application. The first is that the evidence upon which the applicants sought to rely was unquestionably fresh evidence, in the sense that it was not available to, or was not disclosed to, the applicants at the time of the hearing of the costs application. The second problem is that, as will be seen, in opposing the costs application, the Attorney-General contended, amongst other things, that the applicants acted unreasonably in commencing the proceedings when they did and that the Attorney-General had acted reasonably in defending the proceedings. The fresh evidence would appear to be potentially relevant to both those contentions. That appeared to be implicitly conceded by the Attorney-General because he submitted that, contrary to the applicants’ contentions, the fresh evidence in fact demonstrated that the applicants acted unreasonably and that he acted reasonably.

57    On balance, the interests of justice are best served by granting the applicants leave to reopen their cases to adduce and make submissions concerning the fresh evidence.

58    That is not to say that the fresh evidence ultimately assists the applicants. Indeed, as will be seen, if anything the fresh evidence simply underlines the fundamentally misconceived approach taken by the applicants to the question of costs.

RESOLUTION OF THE question of costs

59    The problems facing the applicants in establishing a proper basis for a costs order in their favour are manifest.

60    For the applicants to establish that an order for costs should be made in their favour in the particular circumstances of this case, they must essentially demonstrate either that they would almost certainly have succeeded in their judicial review applications, that the Attorney-General effectively capitulated, or that they acted reasonably in commencing the proceedings and the Attorney-General acted unreasonably in defending the proceedings. Moreover, the applicants must be able to demonstrate one or more of those matters without requiring the Court to review large swathes of evidence, resolve disputed facts ‘on the papers’, or address the merits of the judicial review applications.

61    The first problem for the applicants is that it is simply not possible to conclude that they were almost certain to succeed, or that the Attorney-General surrendered or capitulated, without reviewing the voluminous evidence and without effectively determining the substantive merits of the judicial review applications. The applicants, in support of their costs application, essentially asked the Court to determine the merits of their judicial review applications on the basis of all of the voluminous affidavit evidence filed by the parties in respect of those applications, as well as the further evidence tendered by leave as a result of the application to reopen. That was despite the fact that much of the evidence, or at least the inferences to be drawn from the evidence, was contentious and there was to be no cross-examination of the deponents of the affidavits.

62    While the fact that the Attorney-General first advised that he was about to decide the referral applications on the eve of the final hearing of the judicial review applications might, at least at first blush, suggest a surrender or capitulation, the position may not be that simple. Other inferences may be available, including that it had simply taken the Attorney-General that long to consult interested parties and then consider and determine the referral applications. That is particularly the case given the legal and factual complexities inherent in the applications. It is tolerably clear that, in order to determine whether the Attorney-General’s actions in fact amounted to a capitulation, it would be necessary to closely analyse the hundreds of pages of evidence relied on by the parties and resolve the factual issues raised by that evidence. Those factual issues would also have to be resolved in the absence of any cross-examination of, for example, Ms Perrin.

63    The same problem arises in relation to the question of whether it can be concluded that the applicants were almost certainly going to succeed in their applications, or were even highly likely to succeed. While there may be some grounds for thinking that the Attorney-General’s significant delay in deciding the referral applications was unreasonable and unjustified in all the circumstances, particularly given the historical context, it could scarcely be said that the certainty or likelihood of the applicants succeeding in their applications was “manifest on the face of the record”: cf Nichols at [3] (Basten JA). It is almost self-evident that no such conclusion could be arrived at without effectively conducting a hypothetical trial, or without delving deeply into the merits of the judicial review applications, or without resolving factual issues raised by the voluminous evidence.

64    That point is demonstrated by the fact that the applicants were effectively driven to rely on all of the hundreds of pages of affidavit and documentary evidence that they had filed in support of their judicial review applications. The applicants’ lengthy written submissions in support of their costs applications made detailed reference to the evidence. Needless to say, the Attorney-General, in opposition to the costs applications, also relied on all the voluminous evidence he had filed in defence of the judicial review applications and made detailed reference to that evidence in his submissions. There could be no question that the evidence filed by the parties raised some difficult factual issues which would need to be resolved, in the absence of cross-examination, before any finding could be made about the applicants’ prospects of success.

65    It should also perhaps be added in this context that there were some legal issues that at least potentially stood in the way of the applicants’ success in their judicial applications. Those legal issues included whether the applicants’ referral applications could properly be regarded as petitions for the exercise of the Royal Prerogative of Mercy and, if they could not, whether that meant that the statutory referral power had not been enlivened and (unlike the circumstances that existed in Yasmin) the Attorney-General accordingly had no duty to make a decision in respect of the applications. Difficult issues might also have arisen in relation to the nature and ambit of any judicial review of the statutory referral power in light of the judgments handed down shortly after the decision was taken not to pursue the judicial review applications: see Holzinger v Attorney-General (Qld) & Anor (2020) 5 QR 314; [2020] QCA 165; Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180.

66    It is unnecessary to further consider, let alone resolve, those legal issues in the present context. It suffices to observe that the nature and complexity of those issues substantially undermines any contention that the likelihood of the applicants’ success was manifest.

67    The same difficulties also arise in relation to the issue as to the reasonableness of the conduct of the applicants in commencing the proceedings and the reasonableness of the Attorney-General in defending the proceedings. It is abundantly clear that the Court could not possibly make any findings about the reasonableness of the actions of the parties without delving deeply into the voluminous evidence. It could not possibly be said that any judgment in respect of the reasonableness of the actions of the parties would be “manifest by reference to known circumstances, not in dispute between the parties”: cf Nichols at [8] (Basten JA). The difficulties for the Court in making any findings concerning the reasonableness or otherwise of the actions of the parties are compounded by the fact that the deponents of the affidavits were not cross-examined. That is of course not to say that they should have been cross-examined. Any attempt to cross-examine the deponents would simply have highlighted the difficulties faced by the applicants.

68    It might equally be said that it would be impossible to reach a view concerning the reasonableness or otherwise of the actions of the parties in the particular circumstances of this case without effectively addressing the merits of the judicial review applications. That is because there is a substantial overlap between the central issue in the judicial review applications and the question of the reasonableness of the conduct of the parties in commencing and defending the proceedings respectively.

69    The central issue in the applicants’ judicial review applications was whether the Attorney-General’s failure to make a decision in respect of their referral applications, either as at the date they commenced the proceedings, or as at the date that the proceedings were to be heard, constituted “unreasonable delay” for the purposes of s 7(1) of the ADJR Act. The applicants essentially contended that they acted reasonably in commencing the proceedings because there had been an unreasonable delay. The Attorney-General essentially contended that the applicants acted unreasonably in commencing the proceedings because there had been no unreasonable delay. The parties’ contentions concerning the reasonableness of the Attorney-General’s conduct in defending the judicial review applications were based on essentially the same arguments.

70    It can readily be seen that to decide whether the parties acted reasonably in respect of the judicial review proceedings, the Court would have to essentially decide the central issue in those proceedings. It would also have to do so on the basis of all of the voluminous evidence filed by the parties in the proceedings and in the absence of any cross-examination in respect of contentious factual issues.

71    It would, in all the circumstances, be plainly contrary to the principles identified in Lai Qin and, more recently, in Nichols, for the Court to undertake the inquiry proposed by the applicants for the purposes of determining their costs application. To do so would be to conduct a hypothetical trial of the judicial review applications in circumstances where there was voluminous and contentious evidence and no scope for cross-examination.

72    It is not possible to conclude that the applicants would almost certainly have succeeded in the judicial review applications without effectively determining the merits of those applications and without conducting a detailed analysis of the voluminous and contentious evidence filed by the parties in respect of those applications. Likewise, it is not possible to conclude that there was such a marked difference in the reasonableness of the actions of the parties that costs orders in favour of the applicants are warranted without effectively determining the merits of the judicial review applications and without conducting a detailed analysis of the voluminous and contentious evidence.

73    The applicants’ costs applications in respect of the judicial review applications must accordingly be dismissed.

COSTS OF THE COSTS APPLICATIONS

74    The Attorney-General sought an order that the applicants pay his costs of the costs applications, including the costs of the applicants’ application to reopen.

75    The question whether the applicants should be ordered to pay the Attorney-General’s costs of the unsuccessful costs applications is fairly straightforward but for one consideration. That consideration is that, like the applicants, the Attorney-General approached the costs applications on the erroneous basis that the Court should effectively conduct a hypothetical trial of the judicial review applications.

76    The Attorney-General did not object to the applicants relying on all of the evidence they had filed in support of their judicial review applications. The Attorney-General also relied on all of the evidence he had filed in defence of the judicial review applications and urged the Court to make findings on the basis of all of the evidence, including a finding that the applicants commenced the proceedings prematurely and a finding that he did not act unreasonably in defending the proceedings. For the reasons already given, it was not possible for the Court to make any such findings without effectively determining the merits of the judicial review applications and without conducting a detailed analysis of the voluminous affidavit evidence without the benefit of any cross-examination. The Attorney-General’s approach to the costs applications was almost as misconceived and erroneous as the approach taken by the applicants.

77    It is, nevertheless, appropriate to order that the applicants pay the Attorney-General’s costs of the costs applications, including the applications to reopen. The applicants pressed for costs orders in their favour. They were unsuccessful. Costs should ordinarily follow the event. Perhaps more significantly, the Attorney-General offered to consent to the dismissal of the judicial review applications on the basis that there be no order as to costs. The Attorney-General also made it clear, in that context, that he would oppose any applications for costs by the applicants and would seek costs in the event that any such applications were made. The applicants rejected the Attorney-General’s offer and pursued their costs applications with vigour. That is a compelling consideration that weighs heavily in favour of a costs order in favour of the Attorney-General in respect of the applicants’ applications for costs.

78    As for the applicants’ application to reopen, while the applicants were successful in obtaining leave to reopen, the costs of that application should, in all the circumstances, be treated as costs of the costs applications.

79    It should be emphasised that each of the applicants should only be considered liable to pay costs fairly referrable to their individual costs application. That may be difficult to assess given that the applications for costs were effectively consolidated or heard together. The applicants also jointly pursued the application to reopen. That, however, is an issue for the officer called upon to assess costs in the unlikely event that it comes to that. The point is that it would be unfair for each applicant to be jointly and severally liable for the entirety of the Attorney-General’s costs in respect of the costs applications. The difficulty that the Attorney-General may face in executing or enforcing the costs orders, let alone actually recovering any costs from the applicants, all of whom now presumably reside in Indonesia, suggests that this issue may be somewhat academic in any event.

Associate:

Dated:    9 February 2022

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