Federal Court of Australia

Rodgerson v Attorney-General [2025] FCA 1570

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time to apply for leave to appeal from order 2 of the orders made in Rodgerson v Attorney-General [2024] FCA 1354.

2.    Leave to appeal be refused.

3.    The application filed on 26 August 2025 otherwise be dismissed.

4.    The applicant pay the respondent’s costs of the application as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The applicant (Mr Rodgerson) seeks an extension of time and leave to appeal from a costs order.

2    The primary judge ordered Mr Rodgerson to pay the respondent’s costs as set out in order 2 (the Costs Order) of the orders made by the primary judge in Rodgerson v Attorney-General (Cth) [2024] FCA 1354 (the primary judgment or PJ). The proceedings before the primary judge involved an unsuccessful application made by Mr Rodgerson for judicial review of a decision made by a delegate of the respondent to refuse to release him on parole pursuant to s 19AL of the Crimes Act 1914 (Cth).

3    For the reasons that follow, I am satisfied that an extension of time should be granted, but leave to appeal should be refused.

2.    THE APPLICATION AND THE EVIDENCE

4    Mr Rodgerson expressed the grounds of his application substantially in the following way:

(a)    the primary judge erred in principle by exceeding the Court’s discretionary jurisdiction under s 43(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) (Ground 1);

(b)    the costs ordered are disproportionate to the conduct, complexity, and outcome of the proceeding (Ground 2);

(c)    the public-interest nature of his matter rendered the Costs Order unjust (Ground 3); and

(d)    the Costs Order failed to take into account that he had made multiple reasonable attempts to resolve the matter prior to the final hearing (Ground 4).

5    In support of his application, Mr Rodgerson relied upon the following materials:

(a)    an affidavit of Mr Rodgerson affirmed on 12 August 2025; and

(b)    the attachments to the submissions filed by Mr Rodgerson on 31 October 2025, including:

(i)    a certificate of taxation dated 12 August 2025 and signed by a Registrar of this Court; and

(ii)    an extract from the respondent’s bill of costs.

6    By consent, the parties requested that I determine the application on the papers, without the need for an oral hearing. However, on 3 December 2025, I conducted a short hearing to enable Mr Rodgerson to formally read the evidence in support of his application and to ascertain whether the respondent objected to or disputed any of these evidentiary materials. During the course of that short oral hearing, the respondent indicated that it did not object to any of Mr Rodgerson’s evidentiary materials and did not dispute certain assertions of fact made in Mr Rodgerson’s submissions which were not contained in his affidavit. In addition, the respondent has now also provided to the Court a copy of the respondent’s written submissions dated 27 July 2024 and filed in the proceedings before the primary judge.

3.    EXTENSION OF TIME

7    Rule 36.05 of the Federal Court Rules 2011 (Cth) (the FC Rules) provides that the Court may grant an extension of the time within which an appeal is to be filed.

8    The principles applicable to the grant of an extension of time are settled. The power to extend time involves an exercise of discretion, but that discretion must be exercised judicially and, as with other powers, it is to be exercised bearing in mind the overarching dictates enshrined in s 37M of the FCA Act. I addressed the relevant principles recently in Kitoko v University of Technology Sydney (No 3) [2025] FCA 915 at [10]–[14]. In short:

(a)    Mr Rodgerson bears the onus of establishing that an extension should be granted: Khondoker v Minister for Immigration & Citizenship [2012] FCA 654 at [56] (Foster J);

(b)    the overarching consideration when determining whether to grant an extension of time is whether injustice may arise by a strict application of the time limit: Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 at [11] (Thawley J);

(c)    the Court generally considers matters such as: the length of the delay; whether an acceptable explanation for the whole of the delay has been provided; the likelihood of leave to appeal being granted; and the consequences of granting or refusing the extension, including any prejudice to the respondents: see AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [35] (Raper J; Wigney and Lee JJ agreeing);

(d)    leave to appeal will generally be refused unless the applicant for leave establishes that: (i) the decision giving rise to the orders is attended by sufficient doubt to warrant it being considered by a Full Court; and (ii) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398 –99 (Sheppard, Burchett and Heerey JJ). These considerations are cumulative and leave to appeal will not be granted unless each limb of the test is made out: AIX20 v Director-General of Security [2025] FCAFC 38 at [13] (Murphy, Bromwich and Shariff JJ).

(e)    when considering whether to grant leave to appeal from interlocutory orders, account is taken of the subject matter of those orders and whether they relate to points of procedure or determine substantive rights: AZO24 at [33] (Raper J);

(f)    it will seldom be in the interests of justice to grant an extension of time for leave to appeal where that application would have little or no prospects of success, given the additional resources that would be required of the parties and the Court, and the impact on other litigants and users of the Court: see by analogy at [62] (MZBAP First Instance);

(g)    in considering Mr Rodgerson’s prospects of success, the Court is not to conduct a summary hearing of the appeal but the grounds should be considered on their face and examined at a “reasonably impressionistic level” without descending into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J, as her Honour then was) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)); Katoa v Minister [2022] HCA 22; 276 CLR 579 at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

9    In the present case, the Costs Orders were made on 25 November 2024 and Mr Rodgerson’s application for leave to appeal was not filed until 7 August 2025. Mr Rodgerson submits that the period of time is explained by the fact that (a) the primary judgment was delivered on 25 November 2024 when he remained incarcerated, (b) he did not have access to computers and legal materials and electronic filing facilities were severely limited, and (c) therefore, lodging an application for leave to appeal from prison was “practically impossible”. Mr Rodgerson further submits that he was released from parole on 4 June 2025, and filed his application for leave to appeal within approximately 60 days of being so released whilst still under parole conditions and arranging for housing and employment, and did so without legal assistance once he was able to access legal materials. In these circumstances, Mr Rodgerson submits that the delay was “short, fully explained, and causes no prejudice” to the respondent.

10    Mr Rodgerson further submits that he has reasonable prospects in establishing that the Costs Orders are attended by sufficient doubt and would cause substantial injustice. He points out the quantum of costs is $30,140.34 and includes disbursements for Sydney based Counsel to appear in Melbourne including costs of flights and accommodation, which costs and disbursements are said to be disproportionate to the effect upon a litigant in person especially when there were competent locally based Counsel who could have appeared for the respondent. Mr Rodgerson submits that the interests of justice would dictate the likelihood of leave to appeal being granted in circumstances where:

(a)    his litigation was in the public interest in that it had public-law significance as the primary judgment has been subsequently cited; and

(b)    leaving the Costs Orders undisturbed would lead to disproportionate effects on litigants as it would discourage them from mounting public-interest challenges against the Commonwealth.

11    In opposing the application for an extension of time, the respondent submits that the delay was extensive and the explanation given for the delay needs to be viewed in light of the fact that Mr Rodgerson ran the substantive hearing before the primary judge whilst in custody. However, the respondent acknowledges that there would be no prejudice if an extension of time was granted.

12    In my view, whilst there was a delay here of approximately 12 months, there is an explanation for that delay which is unchallenged. Mr Rodgerson says that there was a practical impossibility in him filing an application for leave to appeal whilst he was in custody and that he had restricted ability to do so after he was released. I have not received any detailed evidence as to the precise circumstances that Mr Rodgerson confronted in custody and the limits to his access to electronic means and materials, including research tools. However, as his evidence was unchallenged, I am prepared to accept it. Having regard to these peculiar circumstances, I am therefore prepared to accept that there is an explanation for the period of the delay that was attributable to Mr Rodgerson’s time in custody.

13    As for the period of approximately two months that elapsed following Mr Rodgerson’s release from custody but before the filing of his application, Mr Rodgerson submits that the further delay was attributable to his parole conditions, as well as his need to arrange housing and employment. These matters were raised in Mr Rodgerson’s written submissions but were not adverted to in his affidavit. In those circumstances, and as noted at the outset, I conducted a brief hearing and raised the matter with the parties. The respondent did not object to the relevant portion of Mr Rodgerson’s submissions being treated as evidentiary material for the purposes of assessing Mr Rodgerson’s explanation for the delay. In the absence of any objection, I am prepared to accept them as unchallenged explanations as to the relevant delay involved (especially in circumstances where the parties asked me to otherwise determine the matter on the papers). I do not consider that this additional delay was particularly lengthy and, having regard to the fact that Mr Rodgerson is a litigant in person, I do not consider that this aspect of the delay is without explanation: cf Mehajer (A Bankrupt) v SC Lowy Primary Investments, Ltd (A Company Inc in Hong Kong) [2020] FCA 125 (Markovic J) at [27].

14    As the respondent accepted that he suffered no prejudice from the delay, I consider it an appropriate exercise of my discretion to extend time for Mr Rodgerson for leave to appeal. Having regard to these particular circumstances, I do not consider it necessary to determine the merits of Mr Rodgerson’s claims in assessing whether to grant him an extension of time.

4.    LEAVE TO APPEAL

15    Section 24(1A) of the FCA Act provides that the bringing of an appeal from an interlocutory judgment requires leave to appeal. In the present case, both parties agreed that leave to appeal was required to appeal the Costs Order, which accords with the prevailing view of this Court: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 229 FCR 224 (Colvin, Stewart and Feutrill JJ) at [6]–[13] (Harvard v Dimension); Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd (Costs) [2024] FCAFC 155; 306 FCR 13 (Perram, Downes and O’Sullivan JJ) at [5].

16    As noted above, leave to appeal will generally be refused unless the applicant for leave establishes that: (i) the decision giving rise to the orders is attended by sufficient doubt to warrant it being considered by a Full Court; and (ii) substantial injustice would result if leave were refused.

17    I am not satisfied that the Costs Order is attended by sufficient doubt.

18    Section 43(1) of the FCA Act confers upon the Court jurisdiction to award costs in all proceedings before the Court and s 43(2) provides that the award of costs is in the discretion of the Court or Judge. Although the discretion is a wide one, settled principles guide its exercise and require that it be exercised “judicially”: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [65] (McHugh J, Brennan CJ agreeing), [134] (Kirby J), cited in Harvard v Dimension. Such a requirement “avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power”: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

19    An appeal from a discretionary exercise of power, including an award of costs, requires an appellant to demonstrate error of the kind articulated in House v The King [1936] HCA 40; 55 CLR 499 (Dixon, Evatt and McTiernan JJ). In the present case, I discern no error as a matter of principle or otherwise in the primary judge’s decision on costs, which suggests to me that the Costs Order is attended by doubt.

20    The usual rule is that costs follow the event, in the sense that the successful party is entitled to its costs, unless there are exceptional or special circumstances warranting departure from that position: see Dalton v Attorney-General of the Commonwealth of Australia (No 2) [2025] FCA 718 at [3] (Horan J) and Rainforest Reserves Australia Inc v Minister for the Environment and Water (Costs) [2025] FCA 702 at [17]–[19]. As Mr Rodgerson was the unsuccessful party, the ordinary position was that he would be liable to pay the respondent’s costs.

21    In the proceedings below, the respondent sought costs in the event Mr Rodgerson’s application was unsuccessful. This is made clear in the respondent’s written submissions filed in the proceedings before the primary judge. Mr Rodgerson did not contend before the primary judge for any different order in the event that his application was unsuccessful. In other words, he put no case to the primary judge that costs should not follow the event at first instance, and did not contend that there were any exceptional, special or other circumstances warranting a departure from the general rule as to costs. In those circumstances, Mr Rodgerson’s application for leave to appeal and appeal raises grounds that were not advanced before the primary judge.

22    In any event, I do not consider that any of Mr Rodgerson’s proposed grounds of appeal raise sufficient doubt as to the correctness of the Costs Order.

23    Mr Rodgerson submits that leave to appeal “should be granted because the proposed appeal raises a real and arguable question of principle concerning when costs should be imposed on persons with limited financial means or self-represented litigants bringing bona fide public-interest proceedings against the Commonwealth”. I do not agree with this submission.

24    Mr Rodgerson’s claims before the primary judge related to his personal interests in seeking a review of the decision to refuse his application to release him on parole. Mr Rodgerson claimed that in making the refusal decision the respondent failed to take relevant considerations into account which resulted in a failure to afford him procedural fairness and that the respondent displayed apprehended bias in not bringing an impartial and unprejudiced mind to the making of the decision. Contrary to Mr Rodgerson’s submissions, a review of the primary judgment discloses that these grounds of review raised no particular point of principle and were resolved in accordance with settled law as applied to the particular facts of Mr Rodgerson’s application for early release and its refusal. I am not satisfied that the Costs Order was attended by sufficient doubt as Mr Rodgerson contends in Ground 3 in circumstances where the proceedings did not raise any public interest challenge or “real and arguable question of principle concerning … costs”.

25    Mr Rodgerson’s contention that the primary judge failed to take account of his limited financial circumstances does not assist him. This submission appears to be advanced in support of Ground 1, by which he contends that the costs discretion miscarried. As noted above, Mr Rodgerson did not raise this point before the primary judge. In any event, irrespective of whether the point was raised, the impecuniosity of an unsuccessful party is not a consideration that bears upon the entitlement of a successful party to recover its costs: see Sangare at [26]–[32] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

26    As such, even if the point was not raised before the primary judge, I do not consider that it casts sufficient doubt on the correctness of the Costs Order.

27    Further, I note that Mr Rodgerson submits that he does not, by his appeal against the Costs Order, seek to “avoid all liability for costs” but submits simply that “full recovery” is “disproportionate” (this being Ground 2). However, precisely where the metes and bounds of the line between some or all costs was to be drawn was unexplained. The essence of Mr Rodgerson’s complaint in this regard appears to concern the Registrar’s assessment of the reasonableness of the respondent’s costs rather than the liability to pay the respondent’s costs that arose under the Costs Order.

28    In the short hearing before me, I raised with Mr Rodgerson the distinction between a challenge to orders which impose an obligation to pay a successful party’s costs and a challenge to an assessment of the reasonableness of the costs claimed by the successful party. Mr Rodgerson acknowledged that he had the opportunity to take issue with the bill of costs but chose not to do so and also confirmed that he did not consider a line-by-line challenge would achieve the objects he ultimately sought.

29    Thus, in circumstances where Mr Rodgerson did not put any material before the primary judge as to why the usual order should not follow, and did not subsequently seek to challenge the assessment of the respondent’s costs, I am not persuaded that the reasons he now advances in support of the other grounds (being Grounds 2 and 4) cast sufficient doubt on the correctness of the Costs Order. Also, I am not satisfied that the Costs Order gives rise to substantial injustice in circumstances where the points Mr Rodgerson raises were not raised before the primary judge and he did not challenge the assessment as to the reasonableness of the costs incurred by the respondent.

30    Accordingly, the application for leave to appeal should be dismissed.

5.    DISPOSITION

31    For the foregoing reasons, I grant an extension of time under r 36.05 of the FC Rules, but dismiss the application for leave to appeal.

Associate:

Dated:    11 December 2025