Federal Court of Australia

Merriman v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FCA 46

ORDERS

THE COURT ORDERS THAT:

1.    The costs of and incidental to the interlocutory injunction first sought by way of oral application made on 12 July 2024, including the costs of and incidental to determining the costs of that application, are costs in the cause.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern an issue about the costs of an interlocutory application in this proceeding.

2    I described the procedural history in Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 (Merriman (No 1)). In brief, the applicant sought an interlocutory injunction pending the outcome of an application for leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) which itself had refused an interlocutory injunction. This Court granted an interim injunction for a short period, and subsequently extended it, so that the injunction application could proceed in an orderly way. But the applicant withdrew the application to continue the interim injunction, approximately one hour before I was due to deliver judgment on that application. It is convenient from now on to refer to the application for an interlocutory injunction as the IA.

3    The first respondent (Minister) seeks his costs of the IA. That is because, he submits:

(a)    by operation of r 40.04(a) of the Federal Court Rules 2011 (Cth), if no costs order is made, costs, 'follow the event of the order on 30 July 2024', being the orders made in Merriman (No 1); and

(b)    if the applicant's abandonment of the IA is taken to be a discontinuance for the purposes of r 26.12, then under r 26.12(7), in the absence of an order of the Court, costs will follow the event.

4    The Minister seeks his costs on a lump sum basis, fixed at $31,780.

5    The applicant opposes these orders, although it is not abundantly clear what costs orders he seeks, if any. His written submissions say that '[o]n one view, the Minister should be disentitled to [his] costs', because he acted unreasonably (as described below). The applicant submits in the alternative that 'there should be no lump sum amount awarded now'. That is said to be because of doubt about the amount claimed, but also because the application for leave to appeal 'actually remains on foot and the applicant may ultimately be successful before the docket judge' (emphasis in original). On the basis of that last submission, I understand the applicant to be seeking a determination that there is to be no order as to the costs of the IA, alternatively an order that the costs be in the cause.

6    In this case neither r 40.04(a) nor r 26.12 give rise to any default position or presumption in favour of the Minister in the ways that he submits. As to r 40.04(a), with respect the Minister misapprehends the effect of Merriman (No 1) and the orders that were made on that occasion. The Minister characterises those orders as dismissing the IA, but they did not. The only orders made were to extend the time for costs submissions. It is true that the reasons made it clear that if the IA had been pressed, it would have been dismissed. But whatever was said in the reasons does not permit the Minister to rely on r 40.04(a); that rule is expressed to operate only 'if an order is made in favour of any party'. That was not the outcome of Merriman (No 1).

7    As for r 26.12, the Minister develops arguments as to why the IA was a 'proceeding' for the purposes of that rule and why the applicant's abandonment of the IA should be taken to be a discontinuance of that 'proceeding'. But even assuming (without deciding) that those arguments are correct, r 26.12(7) requires the discontinuing party to pay costs '[u]nless the terms of a consent or an order of the Court provide otherwise'. The applicant is seeking an order that will provide otherwise. In that situation, the (assumed) filing of a notice of discontinuance does not give rise to a presumption that the Minister should have his costs of the proceeding. The 'proper approach … is to determine the applications for costs by reference to all of the circumstances known to the Court, and without any predisposition in favour or against either application': Leadenhall Australia Pty Ltd v Australian Securities and Investments Commission [2018] FCA 1792 at [7] (Charlesworth J).

8    That is the approach I will take here. The principles to be applied in determining the costs of interlocutory injunction applications were summarised in Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd (No 3) [2011] WASCA 203 (S) at [11] (citations removed):

It is the usual practice to order that the costs of an application for an interlocutory injunction be costs in the cause - that is to say, borne by the ultimate loser of the substantive proceedings. That is because the determination of the application does not involve the determination of substantive rights or obligations, but only the assessment of whether there is an arguable case for the relief sought, and where the balance of convenience lies. An application brought reasonably for the preservation of the status quo pending the final determination of the proceedings can usually be regarded as an incidental cost of those proceedings, properly borne by the ultimate loser. However, different considerations apply if the application is brought or opposed unreasonably, or in a manner which unreasonably inflates the costs of the application to the parties.

9    If an application for an interlocutory injunction is refused, regard should be had to the reasons for the refusal, so that if the applicant failed to establish a serious question to be tried, that may justify a departure from the usual practice referred to above. But it is important not to elevate that to an inflexible rule; a broad discretion is being exercised and it may be necessary to keep in mind the interdependence, for the purposes of an interlocutory injunction application, between the strength of the case to be tried and the balance of convenience: see Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (Unreported, Supreme Court of New South Wales, Equity Division, 24 July 1985) at 2 (Young J); Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57 (S) at [6] (Beech J); Romeg Holdings Pty Ltd v Kelly [2010] WASC 404 (S) at [19]-[21] (Allanson J).

10    In accordance with those principles, and although the Minister's reliance on r 40.04(a) of the Federal Court Rules is misplaced, it is appropriate to have regard to the fact that, if pressed, the IA would have been dismissed. In Merriman (No 1) I found that there was no serious question to be tried: see [38]-[41] and [46]-[49]. That could justify an order that the costs of the IA be the Minister's in any event.

11    However, in this case there is a countervailing factor which persuades me that it is not appropriate to exercise the discretion that way. It is that, as the applicant points out, on 23 July 2024, being the morning of the day on which judgment on the IA was to be delivered, the Minister filed an outline of written submissions which said that, if the IA was refused, 'the Minister will, in any event, comply with Migration Practice Note - Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2) and will provide 48 hours' notice of any proposed removal'. The applicant submits that it was unreasonable for the Minister not to communicate that position at the outset.

12    23 July 2024 was indeed the first time that the Minister communicated that position. Counsel for the applicant advanced it as one of the reasons why the IA was withdrawn shortly before judgment was due to be delivered. There is no reason to doubt that it was a substantial reason why the IA was withdrawn. For one thing, it gave the applicant comfort that he would have 48 hours within which to apply for any new injunction to restrain his removal, when the Minister's previous conduct suggested that he was not prepared to give that much time. But further, the Minister's submission implied that the Minister had no present intention to remove the applicant. That is because it referred to 'any' proposed removal after the refusal of the IA. The point of what the Minister was saying was that after that refusal, and if an intention to remove was formed, 48 hours' notice would be given before the removal was effected.

13    That was a marked change of position for the Minister. The applicant's Subclass 651 eVisitor visa was cancelled when he was at Perth Airport on Wednesday, 10 July 2024, and the Minister had expressed an intention to remove the applicant on the morning of Saturday, 13 July 2024. Hence the need for the Court and the parties to deal with the matter on the evening of Friday, 12 July 2024, and hence the need for the Court to grant and extend a short term interim injunction to enable the IA to be resolved on an orderly basis: see the procedural history in Merriman (No 1) at [8]-[10]. At no stage before 23 July 2024 did the Minister indicate that he did not intend to remove the applicant, or that he would give 48 hours' notice before doing so. To the contrary, as is apparent from the procedural history above, the Minister's position was that, in the absence of an injunction, the applicant would be removed from Australia as soon as practicable.

14    Subject to what follows, the Minister gave no explanation as to why he changed his position on 23 July 2024. He was aware from the hearing on 23 July 2024 that this change was one of the reasons why the applicant sought to abandon the IA. He was also aware after the applicant filed written submissions concerning costs that the applicant relied on it in opposition to the Minister's proposed costs orders, and yet he did not seek leave to put on any further affidavit or submissions. The only relevant explanation given was in the Minister's own costs submissions, which say that there could not be:

… any surprise in the Minister's adherence to the Migration Practice Note - Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2) and the requirement to give reasonable notice of any proposed removal given his intention to make the partner visa application. The practice note was a public document specifically directed to the Minister and the Minister is a model litigant.

15    It is true that the undertaking (loosely so called) that the Minister gave on 23 July 2024 was given in the context of a submission that also addressed the ability of the applicant to make a partner visa application (for the second time, his first attempt having been determined to be invalid). But any link between the undertaking and any fresh partner visa application was neither apparent, nor clearly drawn in the submissions. Further, nothing in the practice note cited by the Minister requires 48 hours' notice; it relevantly requires the Commonwealth to afford 'a full, reasonable and practicable opportunity to … file an application with the Court in relation to their involuntary removal': para 3.5. In view of the procedural history just mentioned, before the submission of 23 July 2024 the applicant could have been forgiven for thinking that the Minister was intent on his immediate removal, and that the Minister considered that a matter of hours between the primary judge's refusal of the injunction on 12 July 2024 and the morning of 13 July 2024 gave sufficient opportunity to make the IA.

16    In my view the Minister's approach made it necessary for the applicant to seek the injunction in order to avoid being removed from Australia right away. While Merriman (No 1) suggests that the applicant might have decided that the IA should not have been made, if he had been properly advised and had time for reflection, the reality is that the Minister's approach meant that time was not available.

17    No reasonable explanation having been furnished as to why the Minister changed that approach, I infer that none is available. That being so, it cannot be said that the IA was brought unreasonably, despite the apparent weakness of the applicant's case. Ultimately, whether leave to appeal should be granted and any appeal allowed will be a matter for the Court and, in accordance with the principles set out above, that outcome should determine the parties' entitlement to the costs of the IA, which is properly seen as an incidental cost of the proceeding. Another matter in favour of that outcome is that, as explained in Merriman (No 1) at [28]-[31], the issues in the IA overlap significantly with the issues in the proceeding as a whole.

18    Obviously, this outcome means that it would be premature to make any lump sum costs order as sought by the Minister. There will be an order that the costs of the IA (including the costs of the costs issue) will be in the cause.

Postscript

19    On the afternoon before delivery of this judgment, the applicant lodged a notice discontinuing the appeal under r 36.73 of the Federal Court Rules. On being accepted for filing, the notice will take effect as an order dismissing the appeal: r 36.73(2). But the applicant has provided no context for the notice, including whether any agreement has been reached as to costs. So as far as the Court is aware, the controversy as to the appropriate costs orders in respect of the IA remain on foot. Since the notice of discontinuance was lodged at the eleventh hour, I have determined to publish the above judgment unaltered. The parties should confer on directions to resolve any remaining issues as to costs, which may now be confined to quantification of the lump sum.

Associate:

Dated:    5 February 2025