Federal Court of Australia

Taylor v Minister for Home Affairs (No 2) [2022] FCA 401

ORDERS

THE COURT ORDERS THAT:

1.    Subject to paragraph 2, the applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

2.    There be no order for costs in respect of the hearings on 5 August 2021 and 25 August 2021.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    These reasons for judgment deal with the issue of costs. They should be read together with my reasons for judgment of 30 March 2022: Taylor v Minister for Home Affairs [2022] FCA 309. For the reasons there set out, I dismissed the applicant’s application.

2    The parties have each filed written submissions dated 6 April 2022 on costs. The applicant has filed written submissions in reply dated 13 April 2022.

3    The positions of the parties may be summarised as follows:

(a)    The applicant submits that there should be no order as to costs for the proceeding.

(b)    The Minister seeks the following costs orders:

(i)    the parties bear their own costs of the hearing on 5 August 2021; and

(ii)    the applicant otherwise pay the Minister’s costs of the proceeding.

4    The applicant submits that there are three features of this case that justify an order that there be no orders as to costs. The applicant’s submissions can be summarised as follows:

(a)    The proceeding concerned an application for habeas corpus. There is a “rich vein” of authority to the effect that a risk of an adverse costs order should not stand in the way of seeking liberty, absent some disentitling conduct during the litigation. The applicant refers, in particular, to: Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [22] per Goldberg J; Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497 (Te) at [74]-[81] per French, Sackville and Hely JJ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [19] per Griffiths J (with whom Thomas and Stewart JJ agreed); and DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [22]-[23] per Mortimer J.

(b)    The case raised a novel and important question of constitutional law, namely whether a person who became an Australian citizen by conferral and who subsequently renounced their citizenship is an “alien”. A proceeding raising a novel and arguable question of constitutional law is a recognised context in which a “no costs” order may be appropriate: see, eg, Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 955 (Helmbright) at [21] per Mortimer J.

(c)    The original date for the hearing (5 August 2021) was adjourned on the application of the Minister, so that he could adduce further evidence. The request for the adjournment was made on the evening before the hearing date. The costs of the hearing day were wasted.

5    The Minister submits that, apart from the costs of the hearing on 5 August 2021, costs should follow the event, in accordance with the usual rule as to costs. The Minister submits that, while it is true that habeas corpus was one of the forms of relief sought, there is no principle that an unsuccessful applicant for habeas corpus should not be ordered to pay costs of the unsuccessful litigation: see Te at [80].

6    The Minister submits that the observations in Te at [81] have at least equal (if not stronger) force here. The Minister submits that, insofar as the applicant’s case was that, despite not being an Australian citizen (or an Aboriginal Australian or Torres Strait Islander), he was a “non-alien”, it was irreconcilable with numerous binding authorities, including Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; Chetcuti v Commonwealth (2020) 95 ALJR 1 (confirmed in Chetcuti v Commonwealth (2021) 392 ALR 371) and Minister for Home Affairs v Lee [2021] FCAFC 89.

7    The Minister submits that, otherwise, the applicant’s case amounted to no more than (unsuccessfully) testing the affidavit evidence of a detaining officer, where he (and the previous detaining officer) had deposed to reasonably suspecting the applicant to be an unlawful non-citizen.

8    Section 43 of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a discretionary power to award costs. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [5] per Kenny, Edmonds and Rangiah JJ and cases there cited.

9    As set out above, the applicant relies on three matters to justify a departure from the ordinary position. The first of these is that the proceeding concerned an application for habeas corpus. As the Full Court judgment in Te makes clear, there is no principle or rule that costs will not be ordered in favour of the successful party where the case involves an application for a writ of habeas corpus: Te at [80]-[81] per French, Sackville and Hely JJ. Their Honours said at [81]:

In the circumstances of this case, we consider that a proper exercise of the discretion would have had regard to the sparseness of any evidence as to improper purpose and the very significant obstacles to the applicant’s case presented by the Full Court decision in Vo [v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371] and other Full Court decisions affecting it. While there was a period of departmental inactivity which his Honour regarded as “inexcusable” that did not evidence any improper purpose on the part of the department or the absence of an ongoing proper purpose for the detention. The great bulk of the delay has been as a result of Mr Te’s own legal proceedings and also, as mentioned earlier, his failure to cooperate promptly and fully with the department in facilitating the provision of travel documents which would have enabled his removal from Australia. In our opinion this is a case in which, on a proper exercise of the discretion, costs ought to have been awarded in favour of the minister at first instance.

10    In the circumstances of the present case, I do not consider that the fact that the applicant was seeking a writ of habeas corpus justifies a departure from the ordinary position as to costs. The applicant’s contention was that his detention was unlawful because the Minister had not established that an officer “knows or reasonably suspects that [the applicant] … is an unlawful non-citizen” (see s 189(1) of the Migration Act 1958 (Cth)). This contention was advanced in circumstances where it was common ground that the applicant was a non-citizen. Further, there was no real issue that he was an unlawful non-citizen. Accordingly, on the face of things, there was no particular reason to think that the detaining officer did not have the requisite state of mind.

11    The second matter relied on by the applicant is that the case raised a novel and important question of constitutional law. Insofar as the applicant relies on Helmbright, I consider that case to be quite different, in that it involved an issue of public importance arising from the judgment of the High Court in Love v Commonwealth (2020) 270 CLR 152. The constitutional issue in the present case is not of the same character. While it may be accepted that there was no case directly on point, it involved an application of well-established principles to the facts of the particular case. The point was raised for the benefit of the applicant himself, rather than on behalf of others. The case was not a “test case” of the kind considered by the Full Court in Minister for Immigration and Border Protection v CQZ15 (No 2) (2018) 259 FCR 569. For these reasons, I do not consider the second matter raised by the applicant to justify a departure from the ordinary position.

12    Even if the first and second matters relied on by the applicant are considered together, I do not consider that they provide a basis to depart from the usual costs position.

13    The third matter raised by the applicant relates to the adjournment of the original hearing date (5 August 2021). The application for the adjournment was made late. The reason for the adjournment was to enable the Minister to adduce further evidence. In my view, it is appropriate for the Minister to bear the costs of the adjournment. The usual order in this situation would be that the Minister pay the applicant’s costs thrown away by reason of the adjournment, which would include the costs of the hearing on 5 August 2021. However, in circumstances where the applicant had pro bono representation, and the details of the arrangements regarding that representation are not known to the Court, an order in the usual form may not operate in the usual way, in the sense that the applicant may not have incurred any relevant costs. With this in mind, I consider it fairer in the circumstances, to treat the costs of the hearing on 5 August 2021 (payable by the Minister) and the costs of the hearing on 25 August 2021 (payable by the applicant) as offsetting each other, and to make an order that there be no order as to costs for the hearings on 5 August 2021 and 25 August 2021.

14    For the above reasons, I will make orders that:

(a)    Subject to (b), the applicant pay the Minister’s costs of the proceeding, to be fixed by way of a lump sum.

(b)    There be no order for costs in respect of the hearings on 5 August 2021 and 25 August 2021.

15    I will also make standard directions for the fixing of the lump sum costs amount.

Associate:

Dated:    19 April 2022