FEDERAL COURT OF AUSTRALIA Ruddock v Vadarlis [2001] FCA 1865 COSTS - discretion - general principles - public interest litigation - novel questions of public importance - liberty of individual - effect of public interest considerations generally - whether negated on basis that proceedings constitute interference with executive power. Federal Court of Australia Act (1976) (Cth) s 43 Border Protection (Validation and Enforcement Powers) Act 2001, s 6, s 7 Migration Act 1958 (Cth) s 7A Donald Campbell & Co Ltd v Pollak [1927] AC 732 followed Cretazzo v Lombardi (1975) 13 SASR 4 cited Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 approved Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 followed Latoudis v Casey (1990) 170 CLR 534 discussed Jamal v Secretary Department of Health (1988) 14 NSWLR 252 cited In re Mersey Railway Co (1888) 37 Ch D 610 cited Speight v Syme (1894) 20 VLR 107 cited Liversidge v Anderson [1942] AC 206 cited Perrett v Commissioner for Superannuation (1991) 23 ALD 257 cited Oshlack v Richmond River Council (1998) 193 CLR 72 discussed South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 cited Re Sierra Club of Western Canada v British Columbia (Chief Forester) (1995) 126 DLR (4th) 437 cited Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 cited South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 cited Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 cited Edgley v Federal Capital Press of Australia Pty Ltd (2001) FCR 1 cited Norbis v Norbis (1986) 161 CLR 513 cited Milne v Attorney-General (Tas) (1956) 95 CLR 460 discussed Cabal v United States of Mexico (No 6) (2000) 174 ALR 747 approved Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 cited Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited Cox v Hakes (1890) 15 AC 506 cited Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 cited Jones v Cunningham 371 US 236 (1963) cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 cited Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297 cited Marbury v Madison (1803) 5 US (1 Cranch) 137 cited Tollefson, "When the "Public Interest" Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) University of British Columbia Law Review 303 McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article"(1996) University of British Columbia Law Review 309 Halsbury's Laws of Australia (Vol.20), Sydney, Butterworths, 1991 -, Australian Law Reform Commission Report No. 75, Costs Shifting - Who Pays for Litigatio?, ALRC, Sydney, 1995 Campbell, "Public Interest Costs Orders" (1998) 20 Adelaide Law Review 245 Kelly, "Costs and Public Interest Litigation After Oshlack v Richmond River Council" [1999] 21 Sydney Law Review 680 JA La Nauze, The Making of the Australian Constitution, Melbourne University Press, Melbourne, 1972 Thomson, "Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution" in The Convention Debates (1891-1898) Commentary Indices and Guide), Legal Books Pty Ltd, 1986 THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA AND WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED V1007 OF 2001 THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER OF DEFENCE AND THE COMMONWEALTH OF AUSTRALIA v VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED V 1008 OF 2001 BLACK CJ, BEAUMONT AND FRENCH JJ 21 DECEMBER 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V1007 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE COMMONWEALTH OF AUSTRALIA SECOND APPELLANT WILLIAM JOHN FARMER THIRD APPELLANT AND: ERIC VADARLIS FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT JUDGES: BLACK CJ, BEAUMONT & FRENCH JJ DATE OF ORDER: 21 DECEMBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The parties each bear their own costs of the appeal and cross appeal and of the proceedings before North J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1008 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE HONOURABLE DARYL WILLIAMS ATTORNEY-GENERAL SECOND APPELLANT THE HONOURABLE PETER REITH MINISTER OF DEFENCE THIRD APPELLANT THE COMMONWEALTH OF AUSTRALIA FOURTH APPELLANT AND: VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT JUDGES: BLACK CJ, BEAUMONT and FRENCH JJ DATE OF ORDER: 21 DECEMBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The parties each bear their own costs of the appeal and cross appeal and of the proceedings before North J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V1007 OF 2001 BETWEEN: THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE COMMONWEALTH OF AUSTRALIA SECOND APPELLANT WILLIAM JOHN FARMER THIRD APPELLANT AND: ERIC VADARLIS FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1008 OF 2001 BETWEEN: THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE HONOURABLE DARYL WILLIAMS ATTORNEY-GENERAL SECOND APPELLANT THE HONOURABLE PETER REITH MINISTER OF DEFENCE THIRD APPELLANT THE COMMONWEALTH OF AUSTRALIA FOURTH APPELLANT AND: VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT JUDGES: BLACK CJ, BEAUMONT & FRENCH JJ DATE: 21 DECEMBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT (ON COSTS) BLACK CJ AND FRENCH J: Introduction 1 On 31 August 2001, the Victorian Council of Civil Liberties ("VCCL") and a Melbourne solicitor, Eric Vadarlis, commenced proceedings in this Court seeking orders in the nature of habeas corpus and mandamus to compel the release and delivery into Australia of 433 non-citizens then said to be detained by the Commonwealth on the Norwegian vessel, MV Tampa, off the coast of Christmas Island. 2 The factual background leading to the proceedings is set out in the judgments of the Court in Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1297. Those named as respondents in the application at first instance were the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister of Defence and the Commonwealth. 3 Orders were made by North J on 11 September after a six day hearing in the following terms: "(1) Subject to paragraph 2, the respondents release those persons rescued at sea who were brought on board MV Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001, and bring those persons ashore to a place on the mainland of Australia. (2) Paragraph 1 operates from 5.00pm Australian Eastern Standard Time on 14 September 2001, or on the determination of any appeal from this decision to the Full Court of the Federal Court of Australia, whichever is later. (3) Paragraph 1 does not apply in respect of any of the said persons who indicate to the respondents that they do not wish to be released and brought ashore to a place on the mainland of Australia. (4) Liberty is granted to the parties to apply generally as to the implementation of the orders made in paragraph 1. (5) (a) Subject to (c) hereof the respondents are to pay to each of the applicants the costs of and incidental to the proceeding commenced by that applicant; and (b) Subject to (c) hereof the respondents are to pay to Amnesty International Limited and the Human Rights and Equal Opportunity Commission their costs of and incidental to these proceedings; and (c) Liberty is granted to the respondents to apply by 4.15pm on 13 September 2001 to vary the orders made in subparagraph (a) and (b) hereof." 4 An appeal was lodged by the Commonwealth and the Ministers on the same day. Cross-appeals were lodged by VCCL and Vadarlis against the trial judge's finding of their want of standing to obtain injunctive orders and mandamus. In the event the appeal was expedited and, after a hearing on 13 September, the following orders were made on 17 September: "1. The appeal is allowed. 2. The cross appeal is dismissed. 3. The orders made by North J on 11 September 2001 are set aside and in lieu thereof the application is dismissed. 4. The question of the costs of the application and of the appeal be the subject of written submissions within fourteen days." Submissions were subsequently lodged with the Court. 5 On 27 November, the High Court (Gaudron, Gummow and Hayne JJ) refused Vadarlis special leave to appeal but declined to make any order as to the costs of the application for special leave: See High Court of Australia Transcript, Vadarlis v Minister for Immigration and Multicultural Affairs, M93/2001 (27 November 2001). In refusing special leave to appeal the Court pointed to the undisputed fact that in so far as Vadarlis sought to pursue a claim to or in the nature of habeas corpus, the essential claim made at trial and in the Full Court, namely the detention of the persons concerned aboard the MV Tampa, could no longer be made. All the rescued people had gone either to Nauru or to New Zealand under arrangements made by the Australian Government with the governments of those countries. So far as Vadarlis sought mandamus, he had pointed to no present duty the performance of which could be compelled by that remedy. Moreover, if as Vadarlis contended, the agreement of the parties made during the trial before North J obliged them to seek to have the Court determine whether facts which no longer exist would have warranted the grant of relief, the dispute was hypothetical. It would give rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth. The Court concluded: "It is unnecessary to form, or express, any concluded view on the several other issues sought to be raised by the application. However, in the light of the reasoning in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, the question of standing to seek injunctive and other relief under s 75(v) of the Constitution to compel observance of the law is an important constitutional question and might, in an appropriate case, attract the grant of special leave. The same is true of the question of executive and prerogative power examined in the Full Court, and also of the question of the validity of the Border Protection (Validation and Enforcement Powers) Act (Cth)." The application was dismissed. The Court said there would be no order as to costs but did not give reasons in that respect. Further submissions were invited by this Court on the costs of the appeal in these proceedings following the High Court decision. 6 The appellants seek orders that VCCL and Vadarlis pay the appellants' costs of the appeal and of the proceedings before North J. Alternatively, they seek orders for a proportion of the costs to be paid by VCCL and Vadarlis. No order is sought against the other parties to the proceedings, namely the Human Rights and Equal Opportunity Commission and Amnesty International Limited. The Statutory Framework - The Federal Court of Australia Act (1976) (Cth) 7 Section 43 of the Federal Court of Australia Act provides: "43(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (1A) [Concerns only representative proceedings] (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." The Statutory Framework - Border Protection (Validation and Enforcement Powers) Act 2001 8 Following the decision of the Full Court on this appeal the Parliament passed an Act entitled the Border Protection (Validation and Enforcement Powers) Act 2001 which came into effect on 27 September 2001, the day it received the Royal Assent. Part 2 of the Act is entitled "Validation of certain actions". There is a defined "validation period" starting on 27 August 2001 and ending at the beginning of the commencement day of the Act (s 4(c)). Part 2 is said to apply to any action taken during the validation period by the Commonwealth or by a Commonwealth officer or any other person acting on behalf of the Commonwealth in relation to the MV Tampa, another vessel called the Aceng or any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully. Section 6 provides: "All action to which this Part applies is taken for all purposes to have been lawful when it occurred." Section 7 then purports to prohibit proceedings in respect of action to which Part 2 applies: "7(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part applies, against: (a) the Commonwealth; or (b) a Commonwealth officer; or (c) any other person who acted on behalf of the Commonwealth in relation to the action. (2) This section applies to: (a) the institution of proceedings on or after the day on which this Act receives the Royal Assent; and (b) the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day." The Act also contains amendments to the Customs Act 1901 (Cth) and the Migration Act 1958 (Cth). In particular, a new s 7A is inserted in the Migration Act, which provides: "7A. The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders." Principles Governing Awards of Costs 9 The point of departure in ascertaining the principles that govern costs awards in the Federal Court is s 43 of the Federal Court of Australia Act 1976. It speaks of a judge having "jurisdiction" to award costs in all proceedings before the Court. No doubt this is to be regarded as a reference to power in aid of jurisdiction rather than a grant of jurisdiction in the sense in which that term is used in Chapter III of the Constitution. The power of the Court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that "the Court has an absolute and unfettered discretion to award or not to award [costs]": per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case. 10 The power that was the subject of consideration by the House of Lords in Donald Campbell was conferred by statute - s 49 of the Judicature Act 1873. Their Lordships disapproved of a tendency by the Court of Appeal to review the exercise by trial judges of that discretion. In particular, the proposition was rejected that the trial judge in a non-jury case must give the successful defendant his costs except in certain defined circumstances (at 811). The same principle as that enunciated by the House of Lords applies generally in Australian jurisdictions where similar statutory provisions exist. So Bray CJ said in Cretazzo v Lombardi (1975) 13 SASR 4 (at 11): "I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollak, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation." Zelling and Jacobs JJ both agreed with Bray CJ while publishing short concurring reasons. The principle has also been adopted expressly in relation to s 43: See Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 (at 732); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 (at [2]). 11 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: · Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. · Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. · A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. See Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 (at 48,136); approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 (at 222). 12 The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for the applicant to bring the proceedings. If the applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it. The order made in such cases is compensatory: "If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott [(1981) 53 FLR 108 (at 111)]" - Latoudis v Casey (1990) 170 CLR 534 per Mason CJ (at 543); see to similar effect McHugh J (at 567). 13 It has been argued, in academic commentary, that the general compensatory principle rests upon two alternative rationales. The first is that the successful party is entitled to be compensated for its costs because it has been wronged at the hands of the unsuccessful party. Costs under this rationale function as a species of damages. But that characterisation is not always tenable. Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: See Tollefson, "When the 'Public Interest' Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) 29 University of British Columbia Law Review 303 at 309-311; see also McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article" (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do however indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise. 14 The compensatory principle was long subject to a limited public interest qualification at common law. Historically the Crown neither paid nor received costs in criminal cases albeit this has been abrogated by statute in summary cases. So criminal proceedings instituted by public officials in the name of or on behalf of the Crown were seen as being brought only when the public interest required it. This was the chief rationale for the Crown's immunity from costs: Latoudis v Casey per Mason CJ (at 538), Dawson J (at 557), and McHugh J (at 567). That case recognised that the old rule was displaced. Mason CJ said it "… could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings" (at 538). The discretion to award costs in criminal proceedings was not to be subjected to any presumption against the award of costs in favour of a successful defendant. The ratio of the decision did not involve any general proposition that the fact that proceedings are brought in the public interest can never be a relevant consideration in the exercise of the discretion to award costs. McHugh J observed (at 569): "A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs." This ground for depriving a successful defendant of costs, if applied, would undercut the parliamentary intention evidenced in the creation of the statutory discretion. Such considerations apply generically to criminal proceedings and would effectively set up a presumption against the grant of costs to successful defendants. In any event it must be recognised that the concept of the "public interest" is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event. 15 Usually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings. The rules of Court make specific provision for the case in which a judgment is obtained which is not more favourable than terms previously offered by a respondent: O 23 r 11. Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues: see for example Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 42 FLR 213 (at 220); Hughes v WA Cricket Association (Inc) ; Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 201 (at 272). And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings: Latoudis v Casey (at 544); Cummings v Lewis (1993) 113 ALR 285 (at 327) (Cooper J, Sheppard and Neaves JJ agreeing). 16 The costs of an appeal, like those at first instance, are in the discretion of the appellate court. If an appeal succeeds then in the ordinary course the Court will order the respondent to pay the costs of the appeal and of the action at first instance: Jamal v Secretary Department of Health (1988) 14 NSWLR 252 (at 271-272). An order for payment of the costs of the successful party may, as in the case of proceedings at first instance, be refused or the costs ordered reduced. The discretion conferred on the Court enables it to respond to the wide variety of circumstances that may arise in relation to the making of costs orders. Some examples are set out in Halsburys Laws of Australia (Vol 20) at [325-9530]. 17 Where an appeal raises a novel question of much general importance and some difficulty the appeal court may decline to order costs against the unsuccessful appellant: In re Mersey Railway Co (1888) 37 Ch D 610 per Cotton LJ (at 619) and Lindley LJ, Bowen LJ agreeing (at 621). In a similar vein in Speight v Syme (1894) 20 VLR 107, Madden CJ delivering the judgment of the Full Court said (at 123): "As to the costs of this appeal, the defendant has substantially failed in the application to set aside judgment, but has succeeded in some part; and as the matter, as I have said, is a novel one, and beset with great difficulty, we think there ought to be no costs." In Liversidge v Anderson [1942] AC 206 Lord Atkin intimated to counsel for the Home Secretary who was the successful respondent that the case, being of very general importance, was not one in which costs should be asked for. Counsel for the Home Secretary replied (at 283): "…in those circumstances I should not dream of asking for them on behalf of the Home Secretary." A more recent example of this approach may be seen in the Full Court of the Federal Court in Perrett v Commissioner for Superannuation (1991) 23 ALD 257. That case was heard by a Full Court in the exercise of original jurisdiction pursuant to s 44 of the Administrative Appeals Tribunal Act 1975. In declining to make an order for costs in favour of the successful respondent the Court said (at 269): "The court should consider the matter of costs, bearing in mind the result of the appeal but also taking into account the reasonableness of the applicant in bringing that appeal and the general importance of the clarification of the law for such an authority as the respondent." In this context Gaudron and Gummow JJ pointed out in Oshlack v Richmond River Council (1998) 193 CLR 72 (at 89): "As the practice in this Court testifies, an applicant for special leave to appeal may be required to undertake to bear, in any event, an order for the costs of the other party to the appeal." 18 That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs. As discussed earlier in these reasons, where a statutory discretion to award costs was created in order to overcome a pre-existing rule, said to be based on the public interest, that costs were not awarded against official complainants in summary criminal proceedings, the fact that such proceedings were able to be generically characterised as brought in the public interest, was of little or no relevance. This was in effect the decision in Latoudis v Casey. On the other hand, a trial judge in the Land and Environment Court of New South Wales operating under the Land and Environment Court Act 1979 (NSW) was entitled, in deciding not to award costs against an unsuccessful plaintiff, to have regard to the character of the litigation as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law": Oshlack v Richmond River Council. The motivation of the unsuccessful plaintiff in pursuing the public interest rather than personal gain in proceedings in the Land and Environment Court of New South Wales was held not irrelevant to the discretion whether to award costs to the successful defendant. There was a cautionary note in the joint judgment of Gaudron and Gummow JJ who said of the term "public interest litigation" (at 84): "That is a 'nebulous concept' unless given, as the primary judge did…further content of a legally normative nature." The designation "nebulous concept" applied to the public interest is taken from the judgment of Tadgell J in the Full Court of the Supreme Court of Victoria in South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 (at 311). His Honour's views largely accorded with those expressed in dissent in Oshlack by McHugh J. 19 To say of a proceeding that it is brought "in the public interest" does not of itself expose the basis upon which the discretion to award or not award costs should be exercised. In contentious areas of public policy it may be said that there are many "public interests" and that it is the elected government which must seek to achieve a balance between those competing interests: Re Sierra Club of Western Canada v British Columbia (Chief Forester) (1995) 126 DLR (4th) 437 (at 447), albeit that was a case decided on appeal on the basis, as in Oshlack, that the award of costs was a matter in the discretion of the trial judge and that the discretion had not miscarried (at 446-447). 20 The Australian Law Reform Commission, in its 1995 Report, Costs Shifting - Who Pays for Litigation recommended that statutory provision be made for public interest costs orders by federal courts and tribunals. In so doing it sought, in effect, to define public interest by setting out as conditions for the making of such orders that the court or tribunal be satisfied that: 1. The proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community. 2. The proceedings will affect the development of the law generally and may reduce the need for further litigation. 3. The proceedings otherwise have the character of public interest or test case proceedings. - ALRC 75, Recommendation 45. The ALRC's recommendation has not been adopted by government. The criteria for such an order probably accord with a broad understanding of the concept of public interest litigation: Campbell, "Public Interest Costs Orders" (1998) 20 Adelaide Law Review 245 (at 253). But in the present state of the law, without more they are unlikely to lead to the refusal of an award of costs to a successful party. As Professor Campbell has accurately observed of these criteria, while to an extent they reflect those previously developed by the courts (at 255): "…they are so broadly framed as to embrace many cases of kinds which courts have not hitherto recognised as coming within the category of public interest litigation." She described the criteria as "singularly vague". 21 In Oshlack the trial judge had given content to the public interest considerations by listing the various factors and propositions which he took into account. The true issue was whether the subject matter, scope and purpose of the statute conferring the power to award costs was such that the considerations to which the trial judge had regard were extraneous to any object the legislature had in view in enacting it. The Full Court of the Federal Court in Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 put it another way when it identified the entitlement of the Court of Appeal of New South Wales to disturb the discretionary decision of the trial judge as the issue decided in Oshlack: The decision of the High Court, it was said, "…does not lay down a rule for application in other cases in the making of costs orders" (at 188). A somewhat bleaker characterisation of the Full Court's decision is offered in an interesting note in the Sydney Law Review: Kelly, "Costs and Public Interest Litigation After Oshlack v Richmond River Council" (1999) 21 Sydney Law Review 680 (at 697-699). But the general conclusion of the Court is consistent with the observation of Kirby J made a few weeks later in South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 (at 412) that nothing in Oshlack requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule. In that case the court ordered the unsuccessful applicants for special leave to pay the costs of their application notwithstanding the argument that the proceedings were in the public interest. The applicant sought to enforce environment laws said to be for the benefit of the general public and for the benefit of endangered species of flora and fauna in certain forest areas of Western Australia. As another Full Court put it, there is no general principle emerging from Oshlack that the usual order as to costs should not apply if the subject matter of the litigation is a matter of "public interest": Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; see also Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1 (at 25) (Beaumont ACJ, Higgins and Gyles JJ agreeing). 22 Importantly, however, although Oshlack was dealing with the particular provisions and subject matter of the Land and Environment Court Act (NSW) reference was made in the joint judgment to the practices and guidelines which have developed in the administration of the discretion of courts of general jurisdiction. In that context observations of Brennan J in Norbis v Norbis (1986) 161 CLR 515 (at 537) were approved: "It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise." It was in that sense, their Honours said, that the existence of "a general rule that a wholly successful defendant should receive his costs unless good reason is shown" should be understood: Gaudron and Gummow JJ (at 86), citing Milne v Attorney-General (Tas) 95 CLR 460 (at 477); see also Kirby J (at 121). 23 Milne v Attorney-General (Tas) (1956) 95 CLR 460 does not lay down any special principle governing the question whether costs should follow the event where public interest factors are invoked. Milne was a test case about private property rights. The Supreme Court declined costs orders in favour of the successful defendants because they had raised "technical" defences under the Statute of Frauds, on which they did not rely, and in which they were unsuccessful. The High Court (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ) held that the defendants were entitled and bound to raise those defences. Their failure on those points did not disentitle them to costs. The Court was also of the view that the class to which the plaintiffs belonged was not shown to be substantially worse off than it would have been if their contentions had succeeded and in some respects the plaintiffs were better off. In this context the Court said (at 477): "We should have thought that if there was ever a case in which the plaintiffs should be held to litigate at their own risks as to costs, this is that case." 24 The factual and legal issues in Milne were quite different from those in this case. That decision does not excuse this Court of the obligation to exercise its discretion by reference to all the circumstances of the case before it. 25 The public interest may be seen to converge with that of the individual in cases in which the liberty of the individual is at issue. In Cabal v United States of Mexico (No 6) (2000) 174 ALR 747; [2000] FCA 651 Goldberg J said (at 753, [22]): "Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained." The passage cited was approved (although not applied in relation to the appeal) by the Full Court in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 (at [5] and [8]). As Brennan J said in Re Bolton; Ex parte Beane (1987) 162 CLR 514 (at 523), citing Lord Herschell in Cox v Hakes (1890) 15 AC 506 (at 527), the law of this country is very jealous of any infringement of personal liberty. The writ of habeas corpus safeguards against any such infringement. This is evidenced in the special feature that it may be applied for by any person: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 per Gleeson CJ and McHugh J (at 600), Gummow J (at 627) and Kirby J (at 625-7). The special rule reflects the purpose to which the writ and orders in the nature of habeas corpus are directed - the protection of individuals against the erosion of their right to be free from wrongful restraints upon their liberty: Jones v Cunningham 371 US 236 (1963) (at 243). That is not to say, however, that a new rule is introduced to displace the ordinary rule in every case that concerns the liberty of the individual. The award of costs must remain an exercise of discretion having regard to all the circumstances of the case. The effect of the Border Protection (Validation and Enforcement Powers) Act 2001 26 It was submitted for both VCCL and Vadarlis that the application for a costs order was or necessarily involved a continuation of the proceedings prohibited by s 7 of this Act which came into effect on 27 September. 27 There may be a question to whom s 7 is addressed and, if addressed to the Court, whether it is valid: See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (at 36). Assuming, however, that it validly operates to deprive this Court of jurisdiction to entertain any continuance of the proceedings, this should not be read, absent express provision or necessary implication, as going to the power of the Court to award costs in relation to the appeal and the application at first instance. The making of orders for costs does not, in ordinary parlance, constitute a continuance of the proceedings, but is the exercise of a statutory power incidental to the orders made in the judgment of the Court on the appeal. In any event, having regard to the conclusion about costs reached in these reasons, the question is to some extent academic. Discretionary considerations relevant to the present case 28 There is a number of considerations relevant to the question whether costs should be awarded against the unsuccessful respondents, VCCL and Vadarlis. It is not in issue that no costs order should be made against the intervenors, the Human Rights and Equal Opportunity Commission and Amnesty International Limited. Considerations particular to the exercise of the discretion are: 1. The Commonwealth and associated parties succeeded on the appeal. 2. By reason of the orders made on the appeal the Commonwealth succeeded on the application at first instance. 3. The Commonwealth may be expected to have incurred substantial legal costs in the proceedings at first instance and on appeal. The preceding factors weigh in favour of an order for costs in accordance with 'the usual rule'. There are, however, particular features in this case that together point powerfully in the other direction: 4. The proceedings raised novel and important questions of law concerning the alleged deprivation of the liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth) and Australia's obligations under international law. 5. There was divided judicial opinion on these important issues, illustrating their difficulty. 5. The Commonwealth Parliament has subsequently passed laws purporting to exclude the rights of VCCL and Vadarlis or any other person to pursue the matter further, albeit special leave to appeal in the High Court was refused on other grounds going to utility and jurisdiction. 6. The Commonwealth Parliament has also legislated to establish, as a proposition of statute law, in accordance with the view of the majority in the Full Court, that the Migration Act does not prevent the exercise of the executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders. 8. There was no financial gain to either VCCL or Vadarlis in bringing their claims. 9. The legal representation for VCCL and Vadarlis was provided free of charge. The quality of the representation (on all sides) ensured that the proceedings, and the important questions to which they gave rise, were pursued and resolved with expedition and efficiency. 29 This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J. Interference with the Executive Power 30 It is appropriate, in conclusion, to refer to a submission made on behalf of the Commonwealth that the litigation was not a matter of public interest in any relevant sense. The Commonwealth, it was said, was exercising an aspect of executive power central to Australia's sovereignty as a nation. The litigation was "…therefore an interference with an exercise of executive power analogous to a non-justiciable "act of State"". The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope. Even in the United Kingdom, unencumbered by a written constitution, the threshold question whether an act is done under prerogative power is justiciable: Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 per Gummow J at (368-369) and the general discussion on non-justiciability (at 367-373). 31 It is perhaps useful in this context to recollect that the Constitution, in s 75(v), makes express provision for the judicial review of executive power as an element of the original jurisdiction of the High Court. A like jurisdiction may be, and has been, conferred upon this Court as a Chapter III court. It was the express wish of those who drafted the Constitution to make such provision. The history of s 75(v) is discussed by the late Professor JA La Nauze in The Making of the Australian Constitution (1972) (at 233-234) and by Dr J Thomson, "Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution"in The Convention Debates (1891-1898) Commentary Indices and Guide, Legal Books Pty Ltd, 1986 ( at 173 at 178-80). Section 75(v) was inserted at the suggestion of Andrew Inglis Clark, the Tasmanian Attorney-General. At the time Inglis Clark was apparently the only delegate who had read the seminal decision of the Supreme Court of the United States in Marbury v Madison (1803) 5 US (1 Cranch) 137. The case is remembered primarily for the assertion by the United States Supreme Court of its authority to review the constitutional validity of legislation. It did so however in the context of a finding that it could not validly be given original jurisdiction under the Constitution to issue writs of mandamus to non-judicial officers of the United States. In proposing what became s 75(v) Inglis Clark sought to enshrine in the Constitution provision for judicial review of executive action. When Edmund Barton formally moved the insertion of the provision in March 1898 he referred to Marbury v Madison and the risk that, absent a specific provision in the Constitution it might be held "that the courts should not exercise this power, and that even a statute giving them the power would not be of any effect…". The words of the power, he said, could not do harm and might "protect us from a great evil". Those words emphasise the importance attached to the justiciability of the limits of executive power. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justice French. Associate: Dated: 21 December 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1007 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE COMMONWEALTH OF AUSTRALIA SECOND APPELLANT WILLIAM JOHN FARMER THIRD APPELLANT AND: ERIC VADARLIS FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1008 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE HONOURABLE PHLIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST APPELLANT THE HONOURABLE DARYL WILLIAMS ATTORNEY-GENERAL SECOND APPELLANT THE HONOURABLE PETER REITH MINISTER OF DEFENCE THIRD APPELLANT THE COMMONWEALTH OF AUSTRALIA FOURTH APPELLANT AND: VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT AMNESTY INTERNATIONAL LIMITED THIRD RESPONDENT JUDGES: BLACK CJ, BEAUMONT & FRENCH JJ DATE: 21 DECEMBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT (ON COSTS) BEAUMONT J: INTRODUCTION 32 At first instance, the primary Judge (North J) stated (at 171) that "[t]he order for costs will require the [Commonwealth] to pay [Victorian Council for Civil Liberties Inc's] [and Mr Vadarlis'] costs … on the principle that costs follow the event …". In allowing the Commonwealth's appeals and dismissing Victorian Council for Civil Liberties Inc's ("VCCL") and Mr Vadarlis' cross-appeals, this Full Court ordered that the final orders made by North J on 11 September 2001 be set aside; and that in lieu thereof, the applications be dismissed. We directed that the question of costs of the applications and of the appeals be the subject of written submissions. In those submissions, the Commonwealth seeks its costs, both at first instance and on the appeals. For their part, VCCL and Mr Vadarlis contend that there should be no order for costs. The intervenors do not seek, and have never sought, their costs. THE COURT'S JURISDICTION OVER COSTS WHERE A DEFENDANT IS WHOLLY SUCCESSFUL 33 Section 43(1) of the Federal Court Act of Australia 1976 invests the Court or a Judge with jurisdiction to award costs. Section 43(2) provides, relevantly, that the award of costs is in the discretion of the Court or Judge. 34 Since the matter of the award of costs for present purposes is now governed by statute, the ancient position at common law, including the principle (or convention) that the Crown was not liable for and did not receive costs, need not be considered. 35 The general rule governing the exercise of the statutory power to award costs where a defendant is wholly successful is well established by High Court authority. As Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said in Milne v Attorney-General for the State of Tasmania [1956] 95 CLR 460 (at 477): "It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary". 36 In Milne, the defendants were wholly successful; and it was held by the High Court that no reason "to the contrary" was shown in that case. The circumstances were that a number of plaintiffs commenced an action in the Supreme Court of Tasmania against several Tasmanian Ministers of State and the State Director of Land Settlement. The plaintiffs sued severally, but the claims arose out of the same set of circumstances. The case of Milne being typical, it was agreed that it should be the only case heard. Although the basis of Milne's claim was contractual, it arose by reason of certain legislation enacted in and after 1945, which had, for its object, the settlement on the land in Tasmania of discharged members of the forces who had served in the war of 1939 – 1945. The action was heard before Morris CJ, who held that judgment should be entered for the defendants, but refused to make an order in their favour for costs. Milne's appeal to the High Court from the dismissal of his proceedings on the substantive issues was unsuccessful. Turning to the adjectival question of costs, Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ said (at 477): "We should have thought that, if there ever was a case in which plaintiffs should be held to litigate at their own risk as to costs, this is that case." 37 Accordingly, the judgment at first instance was varied by adding an order that the plaintiffs pay the defendants' taxed costs of the action. Subject to that variation, the appeal to the High Court was dismissed, also with costs. WAS THE COMMONWEALTH A WHOLLY SUCCESSFUL DEFENDANT? 38 In my view, it is appropriate that this question be addressed in several different contexts. (a) The interlocutory proceedings before the primary Judge 39 The history of the interlocutory proceedings, which took place on 31 August 2001 and 1 and 2 September 2001, and which included the grant of an interim injunction and the conduct of an interlocutory mediation by a Court Registrar, is explained by French J in his reasons for allowing the appeal (see Ruddock v Vadarlis [2000] 183 ALR 1 (at [140] – [145]). Given these circumstances, especially the fact that interim relief was granted, and that mutual advantages to the parties flowed from the incidental mediation process, it would not be right, in my view, to say that, at the interlocutory stages of the proceedings, the Commonwealth was wholly successful. Rather, it would be more accurate to say that the outcome was a mixed one for the parties. That being so, it is appropriate, in my view, that costs should follow this outcome, or event, of that aspect of the litigation; that is, that there be no order for those costs. (b) The final hearing of the claim for habeas corpus before North J on 3, 4 and 5 September 2001 40 As has been said, this Full Court ordered that North J's orders be set aside, so that the Commonwealth was ultimately wholly successful. It must follow, as was held in Milne, that the Commonwealth should be compensated by an award of taxed costs "unless good reason is shown to the contrary". 41 On behalf of VCCL and Mr Vadarlis, a number of circumstances were urged upon us, especially the "test case" or "public interest" aspect, as constituting a good reason to depart from the general rule. Reliance was placed upon Oshlack v Richmond River Council (1998) 193 CLR 72. 42 In my opinion, VCCL and Mr Vadarlis have failed to demonstrate a good reason to depart from the usual rule. 43 In explaining the English origins of the modern rule in the award of costs, Dawson J has said (in Latoudis v Casey (1990) 170 CLR 534 (at 557)): "After the Judicature Acts, all costs were within the discretion of the court. By rule it was provided in England that in civil jury trials costs followed the event unless the court should for good cause order otherwise. In non-jury cases the costs were left to the discretion of the court. Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non-jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party 'except for some reason connected with the case': Donald Campbell & Co. v. Pollak, per Viscount Cave L.C. See now in the U.K., O. 62, r. 3(3) of the Rules of the Supreme Court 1965." (Emphasis added) 44 There is not here, in my view, any "facts leading up to or connected with the litigation", such as to constitute good reason for depriving a wholly successful defendant of its costs. Specifically, as Branson J has observed (Booth v Bosworth [2001] FCA 1718 (at 26), even if proceedings could be characterised as a "test case", it would not follow that this of itself was sufficient to deprive a successful party of the usual order for costs; and, of course, Milne was itself a "test" case. 45 In this connection, it must be borne in mind that the object of an award for costs is not to punish an unsuccessful plaintiff, but to compensate a wholly successful defendant. As Mason CJ said in Latoudis (at 542 – 543): "[I]n exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott." (Emphasis added) 46 McHugh J (at 566 – 567) said: "An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation: Kelly v. Noumenon Pty. Ltd. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v. Abbott, Keely, Toohey and Fisher JJ. pointed out that ' the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings': see also Anstee v. Jennings." (Emphasis added) 47 It is not I think necessary, or helpful, to rehearse the particular circumstances that were held to be significant in the cases cited to us, where there was a departure from the usual order. It will suffice for our purposes to mention two as illustration of the need to acknowledge the particular context which, necessarily, will limit the guidance we obtain from such cases as precedents. 48 In Oshlack, the question, which was whether the trial Judge's discretion had miscarried, arose in the context of environmental legislation which made specific provision for costs and which, as Gaudron and Gummow JJ observed (at 89), was "not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation". 49 Another example of a specific legislative costs context is Perrett v Commissioner for Superannuation (1991) 23 ALD 257. In refusing costs, Wilcox, Burchett and Ryan JJ specifically took into account (inter alia) (at 268) that the Tribunal had no power to award costs. 50 In the present case, there was no peculiar legislative provision with respect to costs. The question for North J was whether, in the context of a federal constitutional challenge, a common law remedy, namely habeas corpus, should be granted, accompanied by a direction that the MV Tampa occupants be brought onto the Australian mainland. Unlike Oshlack, no peculiar costs provision was engaged. Rather, costs here are to be awarded pursuant to the general provisions of s 43 of the Federal Court of Australia Act. 51 In my view, Milne is indistinguishable in principle from the present case. As McHugh J noted in Latoudis, even if it might be said that VCCL or Mr Vadarlis may have "nearly succeeded" or "acted reasonably" in commencing the litigation, in principle, the fact of a dissent in the Full Court is not to be regarded as a good reason for depriving a wholly successful defendant of its costs. To hold otherwise, would be to undermine the Court's settled practice in allocating costs, a practice established by High Court authority. Accordingly, the costs of the final hearing before North J on 3, 4 and 5 September 2001, should follow the ultimate event, that is, the dismissal of the principal proceedings. (c) The costs of the appeal 52 Again, in my opinion, the circumstances here are on all fours with those in Milne. Costs must follow the event. However, in my view, both VCCL and Mr Vadarlis are entitled to a cost certificate under the Federal Proceedings (Costs) Act 1981 (see below). INTERVENORS' COSTS 53 North J ordered that the Commonwealth pay the costs of the intervenors (Amnesty International Limited ("Amnesty") and the Human Rights and Equal Opportunity Commission ("HREOC"). However, upon the hearing of the appeal, both Amnesty and HREOC accepted, correctly, that his Honour's order was contrary to the usual practice in this area. In accordance with that practice, I propose that there be no order for the costs of the intervenors, both at first instance and on the appeals. OTHER FACTORS RELIED UPON BY VCCL AND MR VADARLIS 54 For completeness, reference should be made to a number of matters mentioned in submissions by VCCL and Mr Vadarlis as reasons why the Commonwealth should receive no costs. As will be seen, in my view, none of them detracts from the conclusion I have reached. (a) Special orders for costs in detention cases 55 On behalf of VCCL and Mr Vadarlis, reliance is place upon the exceptional approach taken in this area, due weight being given to the importance of upholding "the liberty of the subject" (see Cabal v United Mexican States (2000) 174 ALR 747 at 752 – 753 par [21] per Goldberg J). 56 In my view, this exception (in truth, one of necessity) has no application here, where the real object of the litigation is not to uphold the liberty of the subject, but to bring of non-citizens into Australia. (b) Border protection legislation 57 After the decision of this Full Court in these appeals on 17 September 2001, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) ("the Act") was enacted, and came into effect, on 27 September 2001. Section 7(1) of this Act (the provisions of which are set out below) prohibits the institution or continuation of proceedings in respect of action to which Part 2 applies. Part 2 applies to any action taken during the "validation period" (i.e. 27 August 2001 to 27 September 2001) by an officer or other person acting on behalf of the Commonwealth, in relation to, inter alia, the MV Tampa. Section 6 provides that all action to which Part 2 applies "is taken for all purposes to have been lawful when it occurred". The Act also inserted a provision in the Migration Act 1958 (Cth) (s 7A) that the existence of statutory powers under that Act "does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders". 58 The provisions of s 7(1) of the Border Protection legislation are: "7(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part [i.e. Part 2] applies, against: (a) the Commonwealth; or (b) a Commonwealth officer; or (c) any other person who acted on behalf of the Commonwealth in relation to the action. (2) This section applies to: (a) the institution of proceedings on or after the day [i.e. 27 September 2001] on which this Act receives the Royal Assent; and (b) the continuation, on or after the day [i.e. 27 September 2001] on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day". (Emphasis added). 59 On behalf of the Victorian Council for Civil Liberties Inc ("VCCL"), it is submitted that the Commonwealth's application for costs "is, or necessarily involves", a continuation in this Court of a civil proceeding against the Commonwealth and Commonwealth officers; and that the continuation of such a proceeding is prohibited by s 7(1) of the Border Protection legislation. 60 As a matter of statutory interpretation, I cannot accept the submission, whether the relevant prohibition is construed literally on the one hand, or purposively on the other. 61 If one were to take a literal approach to the meaning of s 7(1), an application by the Commonwealth for costs of proceedings already determined in its favour by their dismissal cannot, in my view, be said to be a "continuation" of those proceedings in any literal sense. The relevant dictionary (Macquarie) meaning of "continue" is: "6. to go on with or persist in: to continue an action". Taken literally then, the prohibition enacted in s 7(1) is directed at a party who has already (pre-Act) instituted a proceeding against the Commonwealth who is prohibited from going on with, or persisting in, that party's own proceeding. In other words, viewed literally, s 7(1) says nothing about the Commonwealth seeking costs in respect of a proceeding instituted against it, which has been already dismissed before s 7(1) was in force. 62 The same conclusion is, I think, arrived at, alternatively, by adopting a purposive construction, so that regard is had to the object of the Border Protection legislation, considered in the context of the relevant known circumstances. For this purpose, it will be necessary to recall the chronology of the relevant events. The proceedings at first instance were commenced before North J on 31 August 2001; on 11 September 2001, North J ordered that the Commonwealth release the MV Tampa occupants and bring them ashore on the Australian mainland; and that the Commonwealth pay to each of VCCL and Mr Vadarlis their costs of, and incidental to, the proceedings. However, on 17 September 2001 in each proceeding, this Full Court allowed the Commonwealth's appeal and dismissed the cross-appeal of VCCL and Mr Vadarlis, then directing that "the question" of costs of the principal proceedings and of the appeal "be the subject of written submissions filed within 14 days". In its written submission filed on 1 October 2001 in pursuance of this direction, the Commonwealth has applied for costs, both at first instance and on appeal. 63 Although it was clearly within the power of this Full Court, and quite common in complex litigation, to seek assistance from the parties on the question of how the costs of proceedings ought to be borne by the parties, it was not a step, from the Court's perspective, that was necessary or essential. The Full Court could have, instead, adopted the approach, sometimes taken, of dealing, provisionally or finally, with costs in its reasons for judgment on the appeal itself. Indeed, this was the approach taken by North J at first instance. It will be remembered that his Honour dealt with costs relevantly thus: "Costs The order for costs will require [the Commonwealth] to pay the … costs of [VCCL and Mr Vadarlis] on the principle that costs follow the event…. As I have heard no argument on the question of costs, liberty will be reserved to all parties … to apply by 4.15 pm on 13 September 2001 to vary the orders as to costs." 64 No application to vary this order was in fact made (the appeals were instituted before 13 September 2001). 65 The point of explaining how North J dealt with costs is merely to give an illustration of the facts (a) that there is a well known rule that costs of litigation in this Court ordinarily follow the event; and (b) that courts sometimes deal with costs, at least provisionally, without specifically hearing the parties on costs. 66 In enacting the Border Protection legislation, the Parliament may be presumed to have been aware of the direction given on the question of costs by the Full Court on 17 September 2001. The Summary of the outcome of the appeals published that day on the Internet stated: "7 The appeals will therefore be allowed and the orders made by Justice North set aside. The parties will have liberty to make submissions on the question of costs." 67 It could hardly have been the intention of the Parliament of the Commonwealth to deprive the Commonwealth of its accrued right to seek costs pursuant to the direction given by this Full Court ten days earlier. Plainly, this was not the object of the Border Protection legislation. Indeed, to interpret s 7(1) to operate so as to achieve that outcome would be "irrational" and thus "unintended" in the sense explained by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 321). Such an interpretation should be rejected accordingly. (c) The application to the high court for special leave to appeal 68 Mr Vadarlis applied to the High Court for special leave to appeal from the judgment of this Full Court. In refusing the application, Gaudron J, speaking for herself, Gummow and Hayne JJ said: "Upon Mr Vardarlis' application, the primary judge, North J, held that Mr Vardalis lacked the standing to seek the relief sought, apart from relief in the nature of habeas corpus. The respondents had conceded standing in respect of habeas corpus but submitted that those taken aboard the MV Tampa were not detained in the sense required for such an order. Justice North rejected that submission and made an order that the first to third of the present respondents (that is, the Minister, the Commonwealth and Mr Farmer, the Secretary and Chief Executive Officer of the Department) release those who had been taken aboard the MV Tampa and bring all except those who expressed a contrary wish, 'ashore to a place on the mainland of Australia'. The Full Court, by majority (Beaumont and French JJ, Black CJ dissenting), set aside the orders of North J and ordered that the proceedings be dismissed. The Full Court unanimously dismissed a cross-appeal by Mr Vadarlis against the decision of North J respecting his limited standing. Upon the present application to this Court, the applicant's claim to orders compelling the Commonwealth respondents to bring the persons concerned to Australia is central. Without such an order, the applicant's other claims to relief have either been overtaken by events or would be of no practical significance. In so far as the applicant now seeks to pursue a claim to or in the nature of habeas corpus, it is common ground that the essential claim made at trial and in the Full Court of the Federal Court, namely, the detention of the persons concerned aboard the MV Tampa can no longer be made. None of the persons concerned is now aboard either the MV Tampa or the HMAS Manoora, the vessel to which they had been transferred by the time the trial judge made his orders; all have now gone either to Nauru or to New Zealand pursuant to arrangements made with the governments of those countries. If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country touching that question. That detention, if any, was not the subject of the proceedings in the Federal Court, and, the agreement dated 10 September 2001 between the governments of Australia and Nauru notwithstanding, habeas corpus cannot now issue with respect to that detention, at least in these proceedings. Habeas corpus issues to require justification for the continued detention of a person who is in detention at the time the writ issues; it does not issue to inquire into the lawfulness of detention that is at an end. So far as the applicant seeks mandamus, he points to no present duty, the performance of which could be compelled by that remedy. There is a further point. If, as the applicant contends and the Commonwealth respondents deny, an agreement of the parties, made during the course of the trial before North J, obliges the parties to seek to have this Court determine whether facts which no longer exist would have warranted the issue of a writ of habeas corpus, the dispute is hypothetical. It gives rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth. It is unnecessary to form, or express, any concluded view on the several other issues sought to be raised by the application. However, in the light of the reasoning in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, the question of standing to seek injunctive and other relief under section 75(v) of the Constitution to compel observance of the law is an important constitutional question and might, in an appropriate case, attract the grant of special leave. The same is true of the question of executive and prerogative power examined in the Full Court, and also of the question of the validity of the Border Protection (Validation and Enforcement Powers) Act (Cth)." 69 Gaudron J then pronounced the orders of the Court as follows: "The application must be dismissed. There will be no order as to costs." 70 Although the High Court gave no express reasons for not ordering costs, it appears, from the reasons for refusing special leave cited above, that the decision not to order costs was based, at least in substantial part, upon the impact of the several supervening events mentioned. These events, of course, occurred after this Full Court's decision. In my view, they can have no significance in considering how the Court should deal with costs. (d) Pro bono representation 71 It appears that the legal representatives of VCCL and Mr Vadarlis acted without fee. As Justice Brian Cohen, speaking extrajudicially, has pointed out (by reference to the representation of the appellant in Donoghue v Stevenson (1932 AC 562)), it is essential that important cases raising difficult questions should reach the higher courts with the assistance of skilled lawyers who, if necessary, were prepared to act without fee in cases deemed worthwhile (see (1992) 66 ALJ 615 at 616). Of course, in an ideal world, legal aid should be available to provide some, albeit moderate, level of remuneration for professional assistance to the courts in all appropriate cases. But whether or not legal aid should have been provided here is not a matter for us to decide. The question is how, as between the parties, the costs and expenses of litigation should be borne. 72 It is established that the fact that legal aid has been made available is not a relevant consideration on costs. In Latoudis v Casey, above, Mason CJ said (at 543): "The availability of legal aid might be regarded as a possible reason for refusing to award costs. But no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind." (Emphasis added) (See also Re Minister or Immigration and Ethnic Affairs; Ex parte Lai Qin (1996) 186 CLR 622 per McHugh J at 629.) 73 In my view, these observations provide a suitable analogy here. It equally would not be right to draw a distinction between parties based on receipt of professional services without fee. In other words, whilst the fact of pro bono representation may be important for other purposes in the administration of justice, it cannot bear upon the specific question of the allocation of costs as between the parties. GRANT TO vcCL AND MR VADARLIS OF COSTS CERTIFICATES UNDER THE FEDERAL PROCEEDINGS (COSTS) ACT 74 Both VCCL and Mr Vadarlis have applied for the grant of a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). In my view, each should be granted such a certificate. 75 Section 6 deals with costs certificates for respondents in federal appeals relevantly as follows: · Subject to the Act, where a "Federal appeal" (defined so as to include an appeal (as here) to the Full Federal Court from a judgment of a single Judge of the Court (s 3(1))) succeeds on a question of law (as here), the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal (s 6(1)). · A costs certificate under s 6(1) is to state that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that are required (as here in my view) to be paid to the appellant in pursuance of an order of the court (s 6(3)). · The Attorney-General shall not authorise payment in respect of a costs certificate in relation to an appeal that exceeds the prescribed maximum amount (s 18(2)). Under the Federal Proceedings (Costs) Regulations (reg 4), the prescribed maximum amount is $6,000. 76 Each of VCCL and Mr Vadarlis thus qualifies for a costs certificate. COSTS ORDERS PROPOSED 77 Accordingly, I propose the following orders: 1. Make no order for the costs of the interlocutory proceedings before North J on 31 August 2001, 1 and 2 September 2001. 2. Order that VCCL and Mr Vadarlis pay the taxed costs of the Commonwealth of: (a) The final hearing of the principal proceedings before North J on 3, 4 and 5 September 2001; and (b) (c) The appeals (including the cross-appeals). 3. Grant a certificate under the Federal Proceedings (Costs) Act to VCCL and to Mr Vadarlis. 4. Make no order for the costs of the intervenors at first instance or on appeal. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont . Associate: Dated: 21 December 2001 Counsel for the Appellants: Mr D M J Bennett QC SG and Mr RRS Tracey QC with Mr D Star and Mr G Hill Solicitor for the Appellants: Australian Government Solicitor Counsel for the First Respondent in V1007 of 2001: Dr G Griffith QC and Mr HI Fajgenbaum QC with Ms DS Mortimer and Mr C Horan Solicitor for the First Respondent in V1007 of 2001: Riordan & Partners Counsel for the First Respondent in V1008 of 2001: Mr JWK Burnside QC and Mr CM Maxwell QC with Solicitor for the First Respondent in V1008 of 2001: Mr JP Manetta Counsel for the Second Respondent: Counsel for the Third Respondent: Solicitor for the Third Respondent: Holding Redlich Ms K Eastman Mr B Zichy-Woinarski QC and Mr GT Pagone QC with Mr AD Lange Slater & Gordon Date of Last Submission: 14 December 2001 Date of Judgment: 21 December 2001