Ruddock And Others v Vadarlis And Others

[2001] FCA 1865
(2001) 115 FCR 229
(2001) 188 ALR 143

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(Judgment by: Beaumont J)

Ruddock And Others
v Vadarlis And Others

Court:

Judges: Black J

Beaumont JFrench J

Subject References:
Practice and procedure
Costs
Principles governing award of costs
Matter of public interest and importance
Costs certificate

Legislative References:
Federal Court of Australia Act 1976 - s 43
Federal Proceedings (Costs) Act 1981 - s 6
Border Protection (Validation and Enforcement Powers) Act 2001 - The Act
Customs Act 1901 - The Act
Migration Act 1958 - The Act
Administrative Appeals Tribunal Act 1975 - s 44
Federal Proceedings (Costs) Act 1981 - The Act

Case References:
Latoudis v Casey - (1990) 170 CLR 534; 97 ALR 45
Oshlack v Richmond River Council - (1998) 193 CLR 72
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd - (1998) 194 CLR 247; 155 ALR 684
Donald Campbell & Co Ltd v Pollak - [1927] AC 732
Cretazzo v Lombardi - (1975) 13 SASR 4
Scott v Secretary, Department of Social Security (No 2) - [2000] FCA 1450
Hughes v Western Australian Cricket Association (Inc) - (1986) 69 ALR 660
Queensland Wire Industries Pty Ltd v BHP Co Ltd - (1987) 17 FCR 211; 78 ALR 407
Cilli v Abbott - (1981) 53 FLR 108
Scott v Secretary, Department of Social Security (No 2) - [2000] FCA 1450
Hughes v Western Australian Cricket Association (Inc) - (1986) 69 ALR 660
Queensland Wire Industries Pty Ltd v BHP Co Ltd - (1987) 17 FCR 211; 78 ALR 407
Trade Practices Commission v Nicholas Enterprises Pty Ltd - (1979) 28 ALR 201
Inn Leisure Industries Pty Ltd v D F McCloy Pty Ltd (No 2) - (1991) 28 FCR 172
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd - (1993) 26 IPR 261
Cummings v Lewis - (1993) 113 ALR 285
Jamal v Department of Health - (1988) 14 NSWLR 252
Speight v Syme - (1894) 20 VLR 107
Liversidge v Anderson - [1942] AC 206
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Liversidge v Anderson - [1942] AC 206
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Oshlack v Richmond River Council - (1998) 193 CLR 72; 152 ALR 83
South Melbourne City Council v Hallam (No 2) - (1994) 83 LGERA 307
Re Sierra Club of Western Canada v British Columbia (Chief Forester) - (1995) 126 DLR (4th) 437
Hinchinbrook Society Inc v Minister for the Environment (No 5) - (1998) 84 FCR 186
South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) - (1998) 154 ALR 411
Hollier v Australian Maritime Safety Authority (No 2) - [1998] FCA 975
Edgley v Federal Capital Press of Australia Pty Ltd - (2001) 108 FCR 1
Norbis v Norbis - (1986) 161 CLR 513; 65 ALR 12
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Cabal v United States of Mexico (No 6) - (2000) 174 ALR 747
Cabal v Secretary, Department of Justice (Vic) - [2000] FCA 1227
Cox v Hakes - (1890) 15 AC 506
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd - (2000) 200 CLR 591; 169 ALR 616
Jones v Cunningham - 371 US 236
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs - (1992) 176 CLR 1; 110 ALR 97
Marbury v Madison - 5 US (1 Cranch) 137
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Ruddock v Vadarlis - (2001) 183 ALR 1
Oshlack v Richmond River Council - (1998) 193 CLR 72; 152 ALR 83
Booth v Bosworth - [2001] FCA 1718
Anstee v Jennings - [1935] VLR 144
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Cooper Brookes (Wollongong) Pty Ltd v FCT - (1981) 147 CLR 297
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd - (1998) 194 CLR 247
Donoghue v Stevenson - [1932] AC 562

Hearing date: 14 December 2001
Judgment date: 21 December 2001

Melbourne

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Judgment by:
Beaumont J

Introduction

[32] At first instance, the primary judge (North J) stated (182 ALR 617 at 655 [171]) that "[t]he order for costs will require the [Commonwealth] to pay

188 ALR 143 at 156

[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 interveners 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 of Australia Act 1976 (Cth) 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 (Tas) (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 1939-45. 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 (2001) 183 ALR 1 at 35-8 [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.

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 ; 152 ALR 83.

[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 ; 97 ALR 45 at 62-3):

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 LC. See now in the UK, 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; BC200107623 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 CLR 542-3; ALR 50):

[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 CLR 566-7; ALR 68) 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 [1935] VLR 144 at 148. [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 CLR 89; ALR 95), 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) 29 FCR 581 ; 23 ALD 257. In refusing costs, Wilcox, Burchett and Ryan JJ specifically took into account (inter alia) (at FCR 594; ALD 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).

Interveners' costs

[53] North J ordered that the Commonwealth pay the costs of the interveners (Amnesty International Ltd (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 interveners, 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 placed 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 752-3 [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 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 Pt 2 applies. Part 2 applies to any action taken during the "validation period" (that is, 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 [that is, Pt 2] applies, against:

(a)

the Commonwealth; or

(b)

a Commonwealth officer; or

(a)

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 [that is, 27 September 2001] on which this Act receives the Royal Assent; and

(b)

the continuation, on or after the day [that is, 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 10 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 FCT (1981) 147 CLR 297 at 321 ; 35 ALR 151 at 170. 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 Vadarlis' application, the primary judge, North J, held that Mr Vadarlis 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 Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 ; 155 ALR 684, 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 2001 (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 ; [1932] All ER Rep 1), 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 615at 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 CLR 543; ALR 50):

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 for Immigration and Ethnic Affairs; Ex parte Lai Qin (1996) 186 CLR 622 at 629 ; 143 ALR 1 at 6 per McHugh J.)

[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, while 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 $6000.

[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)

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 interveners at first instance or on appeal.

Order

The parties each bear their own costs of the appeal and cross-appeal and of the proceedings before North J.