Federal Court of Australia Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 955 File number: TAD 19 of 2020 Judgment of: MORTIMER J Date of judgment: 12 August 2021 Catchwords: COSTS – discretion to award costs – costs of hearing and determination of migration proceeding – whether to depart from usual costs rule – particular circumstances of the case justified departure from the usual costs rule – whether circumstances of application to intervene require order as to costs – each party to bear its own costs Legislation: Migration Act 1958 (Cth) Cases cited: Australian Securities and Investments Commission v Merlin Diamonds Limited (No 4) [2020] FCA 990 Buzzacott v Minister for Sustainability, Environment, Water, Population & Communities (No 3) [2012] FCA 744 Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 CFMEU v Queensland Coal and Oil Shale Mining Industry (Superannuation Ltd) [2003] FCA 1174; 132 FCR 516 Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647 Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872 Johnston v Cameron [2002] FCAFC 301 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 94 ALJR 198 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Minister for Home Affairs v Benbrika [2021] HCA 4; 95 ALJR 166 O'Toole v Charles David Pty Ltd [1990] HCA 44; 171 CLR 232 Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Singh v Commonwealth [2004] HCA 43; 222 CLR 322 Division: General Division Registry: Tasmania National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of last submissions: 20 July 2021 Date of hearing: Determined on the papers Counsel for the Applicant: SJ Kein SC with CJ Klease Solicitor for the Applicant: Sentry Law Counsel for the Respondent: S Lloyd SC with C Tran Solicitor for the Respondent: Australian Government Solicitor Counsel for the Intervener: R Webb QC with R Cunningham and T Goodwin Solicitor for the Intervener: King & Wood Mallesons ORDERS TAD 19 of 2020 BETWEEN: KENRICK HENARE HELMBRIGHT Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent MELYTHINA TIAKANA WARRANA ABORIGINAL CORPORATION Intervener order made by: MORTIMER J DATE OF ORDER: 12 AUGUST 2021 THE COURT ORDERS THAT: 1. Each party bear their own costs of the proceeding. 2. In relation to the costs reserved by the Court's orders made on 24 December 2020, each party bear its own costs of the intervention application by Melythina Tiakana Warrana (Heart of Country) Aboriginal Corporation. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MORTIMER J: 1 On 15 June 2021, the Court dismissed the applicant Mr Helmbright's application seeking a declaration that he is not an alien for the purposes of s 51(xix) of the Constitution: see Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647. These reasons should be read together with the Court's reasons for dismissing Mr Helmbright's application. 2 Melythina Tiakana Warrana (Heart of Country) Aboriginal Corporation (mtwAC) was a party to the proceeding, as a result of an interlocutory application seeking leave to intervene in the proceeding, filed on 12 November 2021. Mr Helmbright had supported mtwAC's application. The Minister had opposed it, but did not oppose leave being granted for mtwAC to appear as amicus curiae to make written and oral submissions. The Court determined this application in mtwAC's favour, but placed some limits and conditions on the grant of leave to intervene: see Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872 (intervention reasons). The costs of mtwAC's interlocutory application were reserved. 3 After final orders were made in the proceeding, the parties were given an opportunity to agree on appropriate costs orders. They have not been able to do so. Each party has subsequently filed submissions as to appropriate orders for the costs of the proceeding. 4 Mr Helmbright submits the Court should order that each party bear its own costs, or that there be no order as to costs. 5 The Minister seeks the following orders: 1. The applicant pay the respondent's costs of the proceeding (save for the costs borne by the intervener in accordance with order 2), to be determined by a registrar on a lump sum basis if not otherwise agreed. 2. The intervener pay the respondent's costs of the interlocutory application, to be determined by a registrar on a lump sum basis if not otherwise agreed. 6 mtwAC made no submissions as to how costs should lie as between Mr Helmbright and the Minister but submitted that: (a) there should be no order that mtwAC pay any other party's costs arising from its intervention in the proceeding; and (b) the respondent should pay mtwAC's costs in respect of its successful intervention application. 7 Accordingly, I deal with the costs of the substantive dispute and mtwAC's interlocutory application separately. Mr Helmbright's submissions 8 Mr Helmbright submitted the Court should consider several factors in favour of exercising its discretion to order that each party should bear its own costs. These factors essentially fall into two categories: (a) Factors that suggest that Mr Helmbright brought his application in good faith, in the genuine belief (which he continues to hold) that he is an Aboriginal person, with a reasonable factual and legal foundation to believe he was likely to be successful; and (b) Factors that suggest bringing the application for determination was in the public interest in clarifying a complex and novel issue of law, being an issue that has serious consequences for Aboriginal Australians and those who "assert they are Aboriginal". 9 Mr Helmbright accepted that costs usually follow the event, but emphasised that the issue of law raised by these proceedings was publicly important, and served to resolve uncertainty surrounding the way in which the High Court's decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 94 ALJR 198 (Love/Thoms) should be applied to individuals. Mr Helmbright submitted that on this basis it is appropriate that the parties bear their own costs: Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 and Buzzacott v Minister for Sustainability, Environment, Water, Population & Communities (No 3) [2012] FCA 744. The Minister's submissions 10 The Minister submitted that, save to accommodate the order for costs that the Minister seeks against mtwAC, there are no special circumstances warranting departure from the "ordinary rule" that costs follow the event. 11 The Minister submitted that the Court should order that costs follow the event in relation to the substantive proceeding because: (a) Mr Helmbright's case, that the appropriate test by which to assess whether a person is an Aboriginal Australian is that in the judgment of Deane J in Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam Case) and that Mr Helmbright is an Aboriginal Australian under this test, "failed entirely". Even on an "issued-based" approach to apportionment of costs Mr Helmbright should therefore pay the Minister's costs. (b) The Minister only cross-examined Mr Helmbright in relation to evidence about self-identification that could be relevant to the application of Deane J's remarks, and not because the evidence was in dispute in relation to the application of Brennan J's judgment in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1. (c) The Minister accepts that "in a very general sense" the issues raised were of general importance, but does not accept that it follows this should lead to departure from the usual order as to costs. He submits that costs orders have been made in comparable cases concerning liberty (Minister for Home Affairs v Benbrika [2021] HCA 4; 95 ALJR 166) and the aliens power (Singh v Commonwealth [2004] HCA 43; 222 CLR 322). 12 The Minister submits that there should be a costs order against mtwAC in respect of the Minister's costs of mtwAC's application to intervene because: (a) In granting leave to intervene, the Court reserved the costs of the application and noted that "the outcome of the proceeding [was] relevant to which party, if any, should bear the costs of the intervention application": intervention reasons at [58]. mtwAC was not successful in the proceeding on the approach jointly put by Mr Helmbright or on the submission it made in the alternative for "a more flexible approach to the community recognition limb" of Mabo (No 2). (b) The intervention application was not wholly successful, and despite the Court providing the opportunity to apply to adduce further evidence, mtwAC never took this opportunity, and thus "filled a typical role of an amicus by making submissions". The Minister had consented to mtwAC appearing as amicus in November 2020. (c) The timing of the application necessitated the filing of additional written submissions by the Minister, and this impact also supports the submission that an order as to costs of the interlocutory application is appropriate. mtwAC's submissions 13 mtwAC submits the rule that costs follow the event does not generally apply to interveners, and that costs are only ordered against interveners in special circumstances: CFMEU v Queensland Coal and Oil Shale Mining Industry (Superannuation Ltd) [2003] FCA 1174; 132 FCR 516 at [11]; Johnston v Cameron [2002] FCAFC 301 at [19]; Ruddock v Vadarlis; O'Toole v Charles David Pty Ltd [1990] HCA 44; 171 CLR 232 at 311; Australian Securities and Investments Commission v Merlin Diamonds Ltd (No 4) [2020] FCA 990 at [37]-[38]. It submits that no such circumstances exist here. mtwAC submits that its intervention did not materially increase the costs of either of the other parties. 14 mtwAC submits that its intervention was in the interests of justice given the public importance of the subject matter of the proceeding and that mtwAC's role was of significant assistance to the Court, especially because mtwAC's submissions "provided the Court with the test that was ultimately accepted". mtwAC submits that this outcome constitutes a special factor such that an order for the costs of the application to intervene should be made in its favour, and that alternatively there should be no order that mtwAC pay any other party's costs arising from its intervention in the proceeding. Resolution 15 Mr Helmbright's application was ultimately unsuccessful, although he failed on a narrow basis, and one which concerned the evidence adduced. As the Court noted in its reasons, it may well be that the necessary evidence can be supplied so that the second aspect of the mutual recognition limb can be seen to be satisfied. 16 The Minister's description of Mr Helmbright "failing entirely" is an exaggeration. 17 The purpose of an award of costs is to compensate a party: see Latoudis v Casey [1990] HCA 59; 170 CLR 534, Mason CJ at 543-544. It is not to punish, nor to send some kind of warning to future litigants who may seek access to justice. Even when costs are awarded on other than a party-party basis, the underlying purpose is compensatory. This compensatory purpose must be borne in mind when approaching the wide and expressly unfettered discretion in s 43 of the Federal Court of Australia Act 1976 (Cth), and when assessing the kind of factors that the parties have raised in their submissions in this proceeding. Costs of the proceeding 18 In my opinion the appropriate position is that each party should bear its own costs of this proceeding. Given that the parties made quite different submissions about the exercise of the costs discretion, it is appropriate there be an order to that effect. 19 I accept Mr Helmbright's submission that this proceeding had an aspect of public importance. It was the first contested trial on whether this Court was bound to apply the test in Mabo (No 2) when applying Love/Thoms, and as to what the content of that test was, including the Minister's submissions about the "native title approach" that was required. The parties' submissions, and the Court's reasons, demonstrate there were a considerable number of issues to be worked through, for the first time since the decision in Love/Thoms. 20 Added to the features of public importance is consideration of the substantive outcome in the proceeding. No party was wholly successful in the position it took. The applicant failed on his primary position that the Court could apply the Tasmanian Dam Case approach, and then on the evidence failed to meet the second aspect of the mutual recognition test in Mabo (No 2). The Minister's argument about how Love/Thoms should be understood was also rejected, leading to a rejection of the Minister's narrow "native title approach": see reasons at [215]-[275]. The Court adopted a broader application of the Mabo (No 2) test, which I accept was more akin to the alternative approach submitted by mtwAC. To identify these matters is not to engage in an issue-by-issue approach to the costs discretion (cf Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270 at [6]) but rather to illustrate that in this case if one recalls the purpose of a costs order being to compensate a party, there is no party in this proceeding whose position was so plainly vindicated that it is obvious that party should be compensated for the costs incurred in putting that position. 21 Although it is true, as the Minister submits, that costs orders were made against the unsuccessful individual parties in Singh and in Benbrika, that was at ultimate appellate level rather than at trial level. Different considerations may apply. Both the subject matter of the proceeding (eg, that it has a constitutional aspect) and what is at stake (a party's liberty) are factors which may contribute to the way in which the costs discretion is exercised, and it may be that such matters and their contribution to the proceeding having a character of public importance is greater at the trial level. 22 While the situation is not the same, the observations of Goldberg J in Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22] are in my respectful opinion persuasive in the current context: 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. 23 Goldberg J's decision related to an unsuccessful bail application under the Extradition Act 1988 (Cth). It was a first instance decision, as is this. Mr Helmbright's liberty is in jeopardy if his visa is cancelled, as is his ability to remain in Australia. To avoid that jeopardy, he is compelled to seek to prove what the Court found at trial had always been a feature of his family life – that his family, and he, have for several generations considered themselves Aboriginal Australians, as well as Maori People. As the Court found, this state of affairs existed for Mr Helmbright and his family long before Love/Thoms. Adapting what was said by Goldberg J in Cabal (No 6), even if the public importance of this proceeding is put to one side (which it should not be), in my opinion there is a public interest in ensuring that people in the position of Mr Helmbright are not inhibited in seeking to prove they are not aliens and therefore not subject to detention and removal from Australia. Especially in the context of the treatment of First Nations Peoples in this country, there should be no unnecessary obstacles placed in the way of those who identify as First Nations People in proving what they contend is their rightful status under the Constitution. Of course, if a proceeding is conducted vexatiously, irresponsibly, or in a way which unnecessarily and inappropriately causes other parties to incur costs, this kind of public interest may not prevail. There was no suggestion that Mr Helmbright conducted his case through his legal representatives other than responsibly and co-operatively, at every turn. 24 I do not consider the fact that Mr Helmbright was cross-examined tends one way or the other on the costs discretion. This was a trial; the Minister was entitled to cross-examine Mr Helmbright, and did so economically and only on particular issues. 25 Nor do I consider that the fact that the Minister's costs come from public funds is a factor which supports the making of a costs order (see [8] of the Minister's submissions). The Minister is charged with the administration of the Migration Act 1958 (Cth), and participation in litigation concerning powers exercised under that Act is a core aspect of discharging that responsibility. Likewise for the role of the Commonwealth in the maintenance and execution of the Constitution and the laws made under it. This factor tends neither for nor against the exercise of discretion in this case. 26 Similarly, the submission on behalf of Mr Helmbright that his legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion in this case. Costs of mtwAC's intervention 27 No costs were sought against mtwAC in relation to the trial. The only issue is whether the reserved costs of the intervention application should now result in a costs order against mtwAC, and in favour of the Minister. I apprehend the absence of a contention by the Minister that mtwAC should pay his costs of the trial recognises the "usual practice" that no costs orders are made against interveners: see Ruddock v Vadarlis at [53], as well as the other authorities upon which mtwAC relied. This raises the question whether the Minister's application for costs of the intervention application in effect seeks to circumvent this usual practice by seeking to recover some costs; namely those associated with the intervention application itself. mtwAC has not put that submission expressly so I do not consider it further. 28 However I do note that the "usual practice" is applied in cases where there is intervention in support of a party which is ultimately unsuccessful: see the discussion by O'Bryan J in Merlin Diamonds Ltd (No 4) at [37]-[38]. If that is the case, it is difficult to see why on first principles the Minister should get his costs of mtwAC's intervention application, contrary to the usual practice in relation to the proceeding itself. 29 In any event, I do not consider it is appropriate to order mtwAC to pay the Minister's costs of the intervention application. 30 The Minister opposed mtwAC's intervention application. He did so on a large number of bases, some of which were in my respectful opinion an overreach from the facts: see the intervention reasons at [51]. His opposition was unsuccessful. Although the Minister's submissions attempt to describe the role ultimately played in the trial by mtwAC as tantamount to an amicus, this was not the status the court's decision on the intervention application gave mtwAC. Over the Minister's detailed and lengthy opposition, the Court recognised mtwAC had its own interest in being a party to the proceeding. As a body which, as part of its functions, decides whether or not recognise individuals as members of the group of First Nations People it represents, its interests were capable of being affected by the decision: see intervention reasons at [41]-[44]. As it turned out, and as a result of what the Court found was required by Brennan J's approach in Mabo (No 2), a considerable amount of the Court's reasoning turned on mtwAC's status and functions, and its rules. The Court was assisted by mtwAC's submissions. Its intervention was meaningful and material. 31 In its ruling, the Court allowed for mtwAC to apply to adduce evidence; quintessentially a function of a party. The court's initial rejection of the evidence of Nicholas Cameron as an affidavit which could be read at trial (as opposed to on the interlocutory application) was because of the Minister's contentions about the prejudice he would suffer if that evidence were adduced, especially in light of the agreed facts process: see intervention reasons at [53]-[56]. 32 These circumstances lend force to the alternative submissions of mtwAC that the Minister should pay its costs of the intervention application. I have given serious consideration to that as an appropriate outcome. 33 However ultimately, given the conclusion I have reached on the costs of the proceeding as a whole, I consider the more appropriate course is for the parties to bear their own costs of mtwAC's intervention application. That has the benefit of a consistent approach to costs across the whole proceeding. 34 In my opinion, there may well be an ongoing role for organisations in the position of mtwAC in proceedings which raise the issue of whether a person is an alien, or an Aboriginal Australian. It is in the interests of the administration of justice that there be no chilling effect on such prospective parties, by reason of the imposition of a costs burden on them, when their participation is measured, effective and efficient. Certainly in mtwAC's case, the evidence suggests it is a community-based organisation of modest means, and I infer that may be a not uncommon description of similar First Nations organisations. Conclusion 35 There will be orders that each party bear their own costs of the intervention application, and of the proceeding. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate: Dated: 12 August 2021