Federal Court of Australia

Trail (A Pseudonym) v Secretary, Department of Home Affairs (Costs) [2023] FCA 1563

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to pay the respondent’s costs of the proceeding, other than with respect to the preparation for, and attendance at the adjourned hearings on 12 May 2022 and 14 September 2022, as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    On 8 September 2023, I made orders in these proceedings dismissing the application by the applicant for a writ of mandamus directing the respondent to perform or cause to be performed the duty in s 198(6) of the Migration Act 1958 (Cth) (Act) and published reasons for judgment: Michael Trail (A Pseudonym) v Secretary, Department of Home Affairs [2023] FCA 1061 (Judgment or J). These reasons assume a familiarity and should be read together with, the Judgment.

2    I also made an order on 8 September 2023, given the unusual procedural history of the matter, that the parties confer and seek to reach agreement on costs, and in the absence of agreement, they file submissions and the proposed orders that they seek. Costs would then be determined on the papers, unless either party sought an oral hearing.

3    The parties were not able to reach agreement on costs. They have now filed submissions in support of the position each has taken on costs. Neither party has sought an oral hearing.

4    The applicant is a stateless unlawful non-citizen who had exhausted all administrative and judicial review avenues to remain in Australia. At the time of the delivery of the Judgment, the applicant had been detained at the Villawood Immigration Detention Centre since 13 August 2018. I note that following the pronouncement of orders by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (Case S28/2023) on 8 November 2023, the respondent was released from detention. The High Court subsequently published reasons: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [8] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

5    Prior to the hearing before me on 9 and 10 May 2023 (2023 hearing), there had been two listed but ultimately adjourned hearings before Jagot J on 12 May 2022 and 14 September 2022 (2022 hearings). Each of the 2022 hearings was listed for hearing with an estimate of 2 days.

6    The applicant seeks his costs of preparation for, and attendance at, the vacated hearing before Jagot J on 12 May 2022 and that each party otherwise pay their own costs for the remainder of the proceedings.

7    The respondent contends that the applicant should pay the respondent’s costs of the proceedings. It submits that there is no proper basis for the respondent to pay the applicant’s costs of the hearing on 12 May 2022, and otherwise there be no order as to costs for that hearing.

B.    Procedural History

8    The hearing on 12 May 2022 was adjourned because of concerns expressed by Jagot J that the proceedings were not “conceptually appropriate”, given the issue was not whether the respondent had taken steps to remove the applicant, but rather whether those steps were sufficient for the respondent to have complied with their statutory duty. At the conclusion of the hearing on 12 May 2022, her Honour made orders, by consent, vacating the listing for the following day, 13 May 2022, and relisting the hearing for two days on 14 and 15 September 2022.

9    On the resumption of the hearing on 14 September 2022, Jagot J again expressed similar concerns as to whether the proceedings were “conceptually appropriate”. Her Honour observed that this was not a case where the respondent was denying its duty under s 198 of the Act and had not taken steps to seek to remove the applicant but rather, the applicant was contending that the respondent had “not done enough efficiently and effectively enough”. In those circumstances, her Honour was concerned that it would not be possible to frame a writ of mandamus in the form of “please, be more efficient and effective”. The respondent submitted that the hearing should proceed and that having regard to the evidence as it stood, no breach of duty had been established.

10    Her Honour ultimately concluded that the appropriate course, on discretionary grounds, was to adjourn the hearing again in order to give the respondent the opportunity to provide a further explanation of the steps that had been taken to effect the removal of the applicant, including to specific countries identified by the applicant. Her Honour made an order requiring the respondent to file and serve a further affidavit on 7 December 2022, addressing further steps that the respondent had taken to seek to remove the applicant since the making of the order (further steps affidavit) and otherwise, listed the matter for a further case management hearing on 13 December 2022. Her Honour also made an order that costs be reserved.

11    After the matter had been transferred to my docket, I made orders at a case management hearing on 21 November 2023 that the further steps affidavit be filed and served on or before 23 November 2023. I also made an order at a rescheduled further case management hearing on 12 December 2022 that the applicant file any further affidavit evidence by 20 January 2022.

12    At a further case management hearing on 8 February 2023, I listed the matter for hearing on 9 May 2023 with an estimate of two days.

C.    Legal principles

13    The principles governing an award of costs are well established and were not relevantly in dispute.

14    It is sufficient for present purposes to provide the following summary:

(a)    the Court has a broad discretionary power to award costs, but the discretion must be exercised judicially, not arbitrarily or capriciously, having regard to the relevant principles and the justice of the case in all the circumstances and cannot be exercised on grounds unconnected with litigation: s 43(2) of the Federal Court of Australia Act 1976 (Cth); Richards v Han (Costs) [2023] FCA 211 at [8] (and the cases cited therein);

(b)    the purpose of an award of costs is to compensate or indemnify the successful party, not to punish the unsuccessful party: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246 at [9] (Wigney J);

(c)    the usual rule is that a successful litigant is entitled to their costs, this has been stated to be a rule that “costs follow the event”: Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [14] (Kenny, Murphy and Beach JJ); Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J);

(d)    even in cases where a party has been wholly successful, it may be appropriate to make an order that the unsuccessful party be awarded their costs if the successful party has failed on a “clearly definable and severable issue, on which the otherwise successful party failed” and that issue has “occupied a significant part of the trial”: Paul v Cooke (Costs) [2012] NSWSC 1203 at [6] (Brereton J); Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61; [2016] FCAFC 27 at [301] (Bennett, Besanko and Beach JJ); and

(e)    any apportionment of costs must necessarily involve an evaluative discretionary judgment and any mathematical precision is illusory: EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9] (Emmett, Jagot, and Nicholas JJ).

D.    Submissions

D.1.    Applicant’s submissions

15    The applicant submits that the “vast majority” of the evidence filed in the proceedings was directed at the “failed contentions” of the respondent that “there remained prospects” that the applicant could be removed to Lebanon or the Palestinian Territories. He submits that the respondent was relying on this evidence to establish compliance with the respondent’s duty under s 198(1) of the Act. He submits that the contention that the respondent should have approached its fellow “Five Eyes partners” to secure removal of the applicant (Five Eyes contention) was only “a feature” of the 2023 hearing.

16    The applicant submits that the effect of the evidence relied upon by the respondent, as a whole, demonstrates that removal to Lebanon at all times since 2021 was a “hopeless prospect” and it was readily apparent to the respondent that Israel would “never let [the applicant] into Palestine unless he had Palestinian citizenship”.

17    The applicant submits that the failed position taken by the respondent with respect to his removal to Lebanon and the Palestinian Territories “dominated” the evidence prepared by the parties for each of the 2022 hearings and the 2023 hearing. He submits that an order that there be no order as to costs of the proceeding (other than the hearing on 12 May 2022), would be fairly compensatory, given “the sheer volume of material” directed at the prospect of his removal to Lebanon and the Palestinian Territories and the positions ultimately reached by the respondent and the Court on that issue. He submits that the Five Eyes contention, which he contends was the basis on which the respondent had succeeded, was a “discrete point” that was raised only in the 2023 hearing and involved “significantly fewer total costs than the Lebanon and Palestine issues”.

18    The applicant submits that he should be awarded costs for the hearing on 12 May 2022 given the respondent’s allegedly unreasonable maintenance of the position that there was a possibility of the removal of the applicant to Lebanon and the Palestinian Territories until the respondent filed further supplementary submissions on 28 April 2023, just prior to the 2023 hearing.

D.2.    Respondent’s submissions

19    The respondent submits that the applicant’s contentions are founded on a false premise, namely that the respondent was unsuccessful and had advanced a “failed” and “unreasonable” position on the applicant’s potential removal to Lebanon and the Palestinian Territories.

20    The respondent submits that the duty imposed on the respondent under s 198(6) of the Act to remove the applicant as “soon as reasonably practicable” is not breached simply because reasonable steps are taken to remove a non-citizen but then those steps are ultimately unsuccessful.

21    In that context, the respondent submits that:

6.    The applicant also fails to recall that, at the hearing on 14 September 2022, Jagot J expressed concerns about the utility of the proceeding and whether it was “conceptually appropriate”. Her Honour also observed that “the Minister is clearly doing things. Clearly. Things are happening”, and questioned what meaningful relief could be granted. In raising those matters, her Honour was “bending over backwards to help the applicant”. Notwithstanding the expression of those concerns, the applicant chose to press on. It was appropriate for the respondent to continue to defend the matter as she did.

(Citations omitted.)

22    Next, the respondent submits the Court had made positive findings that the respondent took reasonable steps to effect removal of the applicant to Lebanon and the Palestinian Territories, pursuing his removal to Lebanon and the Palestinian Territories could not be characterised as unreasonable given:

(a)    the applicant had been born in Lebanon and had been issued with a Lebanese travel document in 2017;

(b)    the hearing before Jagot J on 12 May 2022 had been adjourned, in part, to permit the respondent to pursue further steps to be taken in relation to the applicant’s potential removal to the Palestinian Territories; and

(c)    the orders made by Jagot J on 14 September 2022 required the respondent to adduce evidence of the further steps that the respondent had taken to remove the applicant, including to Lebanon and the Palestinian Territories.

23    Finally, the respondent submits that there is no basis for the applicant to be awarded costs with respect to the hearing on 12 May 2022 given the hearing was adjourned, by consent, to enable the respondent to take further steps that might lead to the applicant’s removal and, in addition, the applicant did not make any application for costs.

E.    Consideration

24    The applicant did not succeed in obtaining any of the relief that he sought. His application was dismissed.

25    In my view, for the following reasons, there should be no costs order with respect to the 2022 hearings, but I am otherwise satisfied that there should not be a departure from the usual rule that costs follow the event in respect of the proceedings.

26    First, to the extent the removal evidence was directed at a clearly “definable and severable issue”, that issue was whether the respondent had taken reasonable steps to effect the removal of the applicant from this country. It was not directed at seeking to establish that it was reasonably practicable to remove the applicant to Lebanon or the Palestinian Territories. It was no part of the respondent’s case that it was reasonably practicable to remove the applicant to Lebanon and the Palestinian Territories.

27    Second, I do not accept that the respondent “failed” on issues concerning the prospect of the applicant’s removal to Lebanon or the Palestine Territories. The respondent adduced extensive evidence of the steps that had been taken to remove the applicant, including to Lebanon and the Palestinian Territories. In the light of that evidence, I concluded that the respondent had taken reasonable steps to effect the removal of the applicant to Lebanon (at J [98]) and there had been “sustained, extensive and comprehensive” attempts to remove the applicant to a third country other than Lebanon, including the Palestinian Territories, by transiting through Egypt (at J [82]).

28    Third, the case initially advanced by the applicant before Jagot J was that the respondent had failed to take reasonable steps to remove the applicant to particular countries but was ultimately principally advanced before me on the basis that the applicant had failed to make a special approach to the Five Eyes partners. The Five Eyes contentions might only have taken up a relatively confined proportion of the overall proceeding, but they were advanced by the applicant only after the respondent had led evidence to demonstrate that sustained, extensive and comprehensive steps had been taken to remove the applicant to Lebanon and the Palestinian Territories. In my view, as I found at J [79]-[81] and [83], the belated decision to advance the Five Eyes contentions reflected an implicit acknowledgement by the applicant that the respondent may well have advanced sufficient evidence to establish that they had taken sustained, extensive and comprehensive steps to remove the applicant to Lebanon or the Palestinian Territories.

29    Fourth, the applicant did not contend before Jagot J, in the course of the 2022 hearings or in correspondence with the respondent that any approach to secure his removal to Lebanon or the Palestinian Territories would be futile. Rather, the orders made by Jagot J, expressly required the respondent to adduce evidence of further steps taken to remove the applicant, including to the Palestinian Territories. That those steps were ultimately unsuccessful does not establish that the respondent contravened the obligation to effect removal of the applicant as soon as reasonably practicable, or that, at all times, the respondent should have recognised that there was never any prospect of removal to Lebanon or the Palestinian Territories.

30    Fifth, the hearing on 12 May 2022 was adjourned by consent with no application for costs and, therefore, it would not be appropriate to make any order for costs with respect to the preparation for and attendance at the hearing. Further, in my view, there should be no order as to costs with respect to the preparation for and attendance at the hearing on 14 September 2022. The hearing was adjourned by the Court, on discretionary grounds, to enable the respondent to adduce further evidence of steps taken to effect removal of the applicant, including to Lebanon and the Palestine Territories.

31    Such an approach to the costs of the adjourned 2022 hearings also ensures that the applicant is only liable for costs for a single hearing in circumstances where the adjournments of the 2022 hearings were not due to any default by the applicant or the determination of any issue adversely to the applicant.

F.    Disposition

32    An order is to be made the applicant pay the respondent’s costs of the proceeding, other than with respect to the preparation for and attendance at the 2022 hearings, as agreed or taxed.

Associate:

Dated:    11 December 2023