Federal Circuit and Family Court. The Minister sought to set-off a costs order made in the applicant's favour out of a costs order made in the Minister's favour in previous court proceedings. Can it be said that "there is a public interest in people challenging governmental decisions being adequately legally represented, and allowing a set-off in circumstances such as the present may discourage appropriate lawyers from acting"?
The history of this case is long and complex. It suffices for present purposes to note that the Court said as follows:
- This is an application for the applicant’s costs up to and including 20 January 2025 in relation to an application for a writ of habeas corpus. The applicant had been held in immigration detention from May or June 2018 until 16 October 2024, being the second day of the trial, but the Minister gave him a Bridging Visa E on that date. The habeas corpus application remains on foot.
- The respondents concede that the applicant is entitled to costs on an ordinary basis, as agreed or assessed, up to and including 20 January 2025. However, the applicant seeks indemnity costs.
- The respondents also seek that they be entitled to set-off the costs orders in favour of the first respondent, the Minister, in previous proceedings in this court and the Federal Court. The applicant opposes any set-off.
- On 30 May 2017, the applicant was charged with six criminal offences consisting of family violence... On 20 July 2017, he applied for a protection visa. On 24 August 2017, the applicant was granted a Bridging Visa C.
- On 20 October 2017, a delegate of the Minister cancelled the applicant’s Bridging Visa C.
- On 19 April 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Bridging Visa C. In doing so, the Tribunal found that Australia owed the applicant non-refoulement obligations.
- On 7 August 2024, the applicant’s solicitor wrote to the Minister requesting the immediate release of the applicant, for the reasons given in the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; (2023) 415 ALR 254; [2023] HCA 37. The applicant’s solicitor said in his letter that, if the applicant were not released by 5pm on Wednesday 14 August 2024, the applicant would commence habeas corpus proceedings on an urgent basis.
- On 11 September 2024, the applicant lodged an originating application in this court seeking: (a) a writ of habeas corpus; ... (c) costs.
- The main reason that the applicant gave for opposing the set-off was that his lawyers were working on a conditional costs basis, and eating into any costs order with a set-off would discourage lawyers from acting on such a basis for other people in the future. The applicant submitted that was contrary to the public interest.
Some of the questions to the Federal Circuit and Family Court (FCFC) were as follows:
Question 1: Is it the case that "the discretion to order indemnity costs must be exercised on grounds connected with the actual litigation and that conduct in the circumstances leading up to the litigation as opposed to conduct in the litigation itself is not a relevant type of connection unless it bears upon the conduct as a litigant"?
Question 2: Is it "a relevant sort of connection that the person has, in the circumstances which are the subject of the litigation, breached duties which they owe to one of the litigants, where that breach of duty is not itself the subject of the litigation"?
Question 3: Is the respondents' prior conduct of detaining the applicant relevantly connected with the litigation, in that "the respondents had a duty not to detain the applicant unlawfully", and that "breach of that duty was the subject matter of the present proceedings, which was primarily an application for the respondents to stop detaining the applicant"?
Question 4: The respondents submitted that, even if the answer to Question 3 were 'yes', their pre-litigation conduct was not unreasonable, because: "The applicant did not have a visa and he was required to be detained under s 189 of the Migration Act 1958 (Cth) (Act). He had earlier applied for a protection visa, but he was unsuccessful. It would have involved a failure of the Minister’s duty to detain the applicant if the applicant had been released purely on the basis of some (seriously questionable) findings made by a Tribunal in 2022". Can it be said that "in the absence of any explanation about why the Minister granted the applicant a Bridging Visa E on 16 October 2024, but did not grant such a visa earlier, it is difficult to avoid the conclusion that the delay in granting the applicant a visa, and releasing him from detention, was unreasonable"?
Question 5: Is the conclusion "unavoidable that the Minister granted the applicant the Bridging Visa E because the Tribunal’s non-refoulement findings were valid and sound"?
Question 6: Do the model litigant obligations have a bearing on whether indemnity costs ought to be awarded?
Question 7: Are the respondents in the present case essentially the Commonwealth, with the result that the litigants in the present and previous cases essentially the same?
Question 8: Can it be said that "there is a public interest in people challenging governmental decisions being adequately legally represented, and allowing a set-off in circumstances such as the present may discourage appropriate lawyers from acting"?
The FCFC answered those questions as follows: