Federal Court (Full Court). Can it be said that, "where special circumstances are present by way of a public interest element, the appropriate disposition is that there be no order as to costs"? Is the FCA's discretion to award costs "unfettered except for the fact that it must be exercised judicially"? Is it "extremely rare for the successful party to be ordered to pay the unsuccessful party’s costs"? Are "delay and increased expense brought about by improper conduct in the course of the litigation ... highly relevant factors in the discretion to depart from the usual order as to costs"?
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48 (PDWL (appeal)), an appeal from a decision of a single judge of the Federal Court (FCA), the Full Court of the FCA (FCAFC) held that, although the Minister's conduct (through his Department) was wanting in serious respects, the FCA was wrong in having exercised its discretion to withhold remedies against the Minister, essentially because such conduct did not amount to bad faith. In PDWL (appeal), the FCAFC invited the parties to apply for costs at first instance, as the position with respect to such costs was not straightforward. Only the first respondent (PDWL) made such an application. The Minister, rather than making such an application, opposed an order for costs at first instance in favour of PDWL.
Some of the questions to the FCAFC were as follows:
Question 1: Does the fact that the "Unlawfulness Findings made by the primary judge in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354 (as summarised in PDWL (appeal) at [17])... were not advanced by the respondent [before the FCA] and [PDWL] submitted that the primary judge led himself into error in this regard" justify a costs order against the Minister?
Question 2: PDWL "advanced that the Minister’s application for leave to adduce fresh evidence on appeal (which was granted) amounted to an “indulgence” of the Court and it is usual for the party seeking the indulgence to pay the costs of the application". Was that proposition correct as a matter of principle?
Question 3: If the answer to Question 2 is "yes", could this have bearing "on the question of costs at first instance in circumstances where the costs order for the appeal (that there be no such order) was determined in PDWL (appeal)"?
Question 4: Can it be said that, "where special circumstances are present by way of a public interest element, the appropriate disposition is that there be no order as to costs"?
Question 5: Is the FCA's "discretion to award costs under [s 43 of the Federal Court of Australia Act 1976 (Cth)] unfettered except for the fact that it must be exercised judicially"?
Question 6: Is it "extremely rare for the successful party to be ordered to pay the unsuccessful party’s costs"?
Question 7: In Oshlack, McHugh J held (at ([69]) as follows: "The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion... “Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute". Should the categories of disentitling conduct described by McHugh J in Oshlack be read as being closed or exhaustive?
Question 8: Can it be said that, "while delay and increased expense brought about by improper conduct in the course of the litigation are highly relevant factors in the discretion to depart from the usual order as to costs, they are not essential to the exercise of that discretion"?
Question 9: Did the fact that "the relevant conduct on the part of the Minister, through his Department, occurred well in advance of the proceedings before the primary judge which were concerned with the validity of the Tribunal’s decision" tell against making an order against the Minister for the proceedings determined by Flick J?
Question 10: Before the FCA, Perry J and then Wigney J dealt with PDWL's application for habeas corpus and the Minister's application to have his judicial review application expedited. That judicial review application was eventually decided by Flick J (i.e. the "primary judge"). Did the fact that PDWL receive a costs order in his favour on that habeas corpus application as the successful party tell against making an order against the Minister for the proceedings determined by Flick J?
Question 11: Does the fact that "the judicial review proceedings before the primary judge were brought by the Minister to challenge the validity of the Tribunal’s decision... [distinguish] the present case from instances where the instigation of proceedings is in effect caused by the conduct of the ultimately successful defendant"?
Question 12: Did the Minister's conduct (through his Department) have "the effect of prolonging or adding to the cost of the proceedings at first instance"?
The FCAFC answered those questions as follows: