Federal Court of Australia

Dalton v Attorney-General of the Commonwealth of Australia (No 2) [2025] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 50% of the respondent’s costs of and incidental to the proceeding, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J

1    On 13 June 2025, I made orders dismissing the applicant’s amended originating application for judicial review of decisions made by the respondent to refuse his release on parole, and to treat his application for release on licence as “void”: Dalton v Attorney-General (Cth) [2025] FCA 625 (Dalton (No 1)). Pursuant to those orders, the parties have now exchanged submissions on the question of costs.

2    Subject to any statutory provision to the contrary, the award of costs is in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) s 43(2). That discretion must be exercised judicially, by reference to relevant considerations and having regard to facts connected with the proceeding: Northern Territory v Sangare (2019) 265 CLR 164 at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). While the discretion may be guided by principles, it is not to be fettered or confined by rules: Sangare at [24]; Norbis v Norbis (1986) 161 CLR 513 at 519–520 (Mason and Deane JJ), 537–538 (Brennan J).

3    One of the most important guiding principles is that the successful party in litigation is ordinarily entitled to an award of costs against the other party, by way of compensation for or indemnity against the expense of litigation, unless such an outcome is displaced by the conduct of the successful party or some other relevant factor: Sangare at [25]; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [25] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11]–[12] (Black CJ and French J). Thus, the usual approach is that costs follow the event: see e.g. Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270 at [6] (French CJ, Kiefel, Nettle and Gordon JJ). Of course, there can be cases in which the “event” is contestable, including “where separate issues have fallen in different ways”: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] (Kiefel and Keane JJ). As the High Court noted in Grant v Richards (No 2), “[t]he disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires”: [2014] HCA 47; 89 ALJR 113 at [2] (French CJ, Hayne, Bell, Gageler and Keane JJ).

4    The applicant submitted that he should be awarded his costs of the proceeding, primarily on the basis that the Court found in his favour that the respondent failed to make a decision within a reasonable time on his application for release on licence under s 19AP of the Crimes Act 1914 (Cth): see Dalton (No 1) at [98]. In the applicant’s submission, he was substantively successful on Ground 1 of his application, and he would have been granted mandamus but for the fact that he is able to make a fresh application for a licence under s 19AP(2): Dalton (No 1) at [99]–[100]. The applicant submitted that the respondent’s unreasonable delay in making a decision on his licence application had contributed to the circumstances in which that application became stale. Further, the applicant submitted that there was utility in bringing the proceeding in order to clarify the rights of a cohort of federal prisoners incarcerated in State prisons, and the obligations of the respondent in relation to the review and supervision of their possible early release from prison. Although the applicant was unsuccessful in his challenge to the parole refusal decision, he submitted that it was not unreasonable to have raised those issues and that there should be no apportionment of costs.

5    The respondent submitted that there was no reason that costs should not follow the event, and that the applicant should therefore pay the respondent’s costs. In particular, the Court’s finding that there was an unreasonable delay by the respondent in making a decision on the application for a licence under s 19AP did not warrant any departure from the usual approach under which costs are awarded to the successful party. The respondent had argued at the trial that, even if the Court were to find unreasonable delay, it should decline to grant relief for discretionary reasons. The respondent submitted that it had been wholly successful in the proceedings, in that the amended originating application was dismissed.

6    In my view, while I consider that costs should be awarded in favour of the respondent, it is appropriate that those costs should be reduced to reflect the fact that the applicant had a measure of success in relation to Ground 1. As the applicant submitted, the respondent failed to make a decision whether to grant a licence under s 19AP of the Crimes Act within a reasonable time after the application was made on 29 October 2020. In so far as the respondent argued that relief on Ground 1 should be refused for discretionary reasons, that argument was advanced on the basis that the 2024 parole refusal decision was “the operative decision that is now keeping Mr Dalton in custody”. I did not accept the premise of that submission: Dalton (No 1) at [96]–[97]. The conclusion that the grant of relief lacked utility was reached on a different basis, arising from the applicant’s ability to make a fresh licence application based on his current circumstances. In contrast, the respondent’s submissions implicitly did not accept that it was open to the applicant to make a further licence application under s 19AP once parole had been refused.

7    The respondent’s conduct in failing to decide the application for a licence under s 19AB of the Crimes Act was in some respects unsatisfactory, and might be taken to have contributed to the applicant’s decision to commence these proceedings. On the other hand, the application for release on licence formed only one aspect of the proceedings, which were principally directed at the respondent’s decisions to refuse to grant parole. The respondent was successful in defending the validity of the 2024 parole refusal decision.

8    As Jackson J recently stated in Koolan Iron Ore Pty Ltd v Infrassure Ltd (No 4), rather than making specific orders as to the costs of discrete issues, “[t]he court may instead order that one party pay the other a proportion of the other party’s costs, based on an overall impression of the significance of issues, the way they were determined and the amount of time and cost spent on them”: [2024] FCA 894 at [7]; see also Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [17] (Bond J, with whom Sofronoff P and Callaghan J agreed). While it may be open to debate whether the finding of unreasonable delay in relation to the licence application is properly treated as an “issue” for such purposes, I am nevertheless inclined to regard it as relevant to an assessment of the outcome of the proceeding for the purposes of exercising the discretion in relation to costs. The licence application formed a prominent aspect of the background chronology, particularly prior to the expiration of the applicant’s non-parole period on 13 January 2024. Further, a more timely decision by the respondent in relation to that application might have reduced the scope of the controversy between the parties, as might a concession by the respondent that the licence application remained undetermined or that it remained open to the applicant to make a fresh application.

9    Taking into account all of these considerations, and based on an evaluative judgment and an overall impression of the parties’ comparative success or failure, I consider that the appropriate order is that the applicant should pay 50% of the respondent’s costs of and incidental to the proceeding.

Associate:

Dated:    1 July 2025