Federal Court. Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"? If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent? In a real sense, was the judicial review application directed at the Applicant's liberty?
The Federal Court (FCA) described the case as follows:
1 At one time this proceeding raised interesting and important questions of statutory interpretation, and an asserted right or entitlement to be removed from Australia to a safe country and in the meantime to be held in immigration detention in the residential home of a friend. After the hearing of the case, but before delivery of judgment, the applicant, who brings this proceeding under a pseudonym, was granted a visa under s 195A of the Migration Act 1958 (Cth) (the Act). That was a better result for him than he could have achieved in the litigation. Now, all that remains of the dispute is who should pay the costs of the proceeding...
7 The matter was heard on an expedited basis on 9 November 2021 and judgment was reserved.
8 On 12 November 2021, the Minister for Home Affairs exercised her power under s 195A of the Act to grant the applicant a Humanitarian Stay (Temporary) (subclass 449) visa and a Bridging E (subclass 050) visa (the visa). The applicant now has the status of a “lawful non-citizen” and is living in the community.
9 On 13 November 2021, the applicant’s solicitors wrote to the Court advising that the application no longer need to be determined by the Court. On 7 January 2022, by consent of the parties, I ordered that the applicant have leave to file a notice of discontinuance, the parties file and serve any evidence and submissions as to costs, and the question of costs be determined on the papers.
Some of the questions to the FCA were as follows:
Question 1: Does the principle according to which costs ordinarily follow the event "answer the question as to whether costs should be ordered when, as in the present case, the application was not determined"?
Question 2: If the Applicant would have been substantially successful, had he not been granted the visa, is this a circumstance that favours costs being awarded against the Respondent?
Question 3: The FCA said as follows: "when my chambers were notified that the applicant had been granted the visa and therefore wished to discontinue the proceeding, I had substantially completed drafting the orders and reasons for judgment. Had I been required to decide the application I would have made orders substantially in line with those the applicant sought in the proceeding". In these circumstances, would a positive answer to Question 2 "involve making an impermissible prediction about the outcome of a hypothetical case"?
Question 4: With regards to the "principle that no order should be made as to costs in proceedings where the matter has not been heard on its merits", is an exception to this principle "where one of the parties has acted so unreasonably that the other party should obtain the costs of the action"?
Question 5: With regards to the "principle that no order should be made as to costs in proceedings where the matter has not been heard on its merits", is an exception to this principle "where one party would almost certainly have succeeded if the matter had been fully tried"?
Question 6: In a real sense, was the judicial review application directed at the Applicant's liberty?
The FCA answered those questions as follows: