Ruddock And Others v Vadarlis And Others

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

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(Decision by: Black J, French J)

Ruddock And Others
v Vadarlis And Others

Court:

Judges:
Black JBeaumont J

French 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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Decision by:
Black J
French J

The Victorian Council of Civil Liberties (VCCL) and Mr Vadarlis commenced proceedings in the Federal Court seeking orders in the nature of habeas corpus and mandamus to compel the release and delivery into Australia of a group of non-citizens said to be detained by the Commonwealth on the vessel MV Tampa off the coast of Christmas Island. The appellants, the parties against whom VCCL and Mr Vadarlis commenced the proceedings, were the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minster for Defence and the Commonwealth. The primary judge made orders for the release of the non-citizens. The appellants appealed to the Full Court of the Federal Court and were successful on the appeal. Following the appeal, the appellants sought orders that VCCL and Mr Vadarlis pay the appellants' costs of the appeal and of the proceedings before the primary judge. The Full Court considered the appropriate costs order and the principles governing the award of costs.

Introduction

[1] On 31 August 2001, the Victorian Council of Civil Liberties (VCCL) and a Melbourne solicitor, Eric Vadarlis, commenced proceedings in this court seeking orders in the nature of habeas corpus and mandamus to compel the release and delivery into Australia of 433 non-citizens then said to be detained by the Commonwealth on the Norwegian vessel, MV Tampa, off the coast of Christmas Island.

[2] The factual background leading to the proceedings is set out in the judgments of the court in Ruddock v Vadarlis (2001) 183 ALR 1. Those named as respondents in the application at first instance were the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister of Defence and the Commonwealth.

[3] Orders were made by North J on 11 September after a 6-day hearing in the following terms:

1) Subject to para 2, the respondents release those persons rescued at sea who were brought on board MV Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001, and bring those persons ashore to a place on the mainland of Australia.

2) Paragraph 1 operates from 5 pm Australian Eastern Standard Time on 14 September 2001, or on the determination of any appeal from this decision to the Full Court of the Federal Court of Australia, whichever is later.

3) Paragraph 1 does not apply in respect of any of the said persons who indicate to the respondents that they do not wish to be released and brought ashore to a place on the mainland of Australia.

4) Liberty is granted to the parties to apply generally as to the implementation of the orders made in para 1.

5)(a)

Subject to (c) hereof the respondents are to pay to each of the applicants the costs of and incidental to the proceeding commenced by that applicant; and

b)

Subject to (c) hereof the respondents are to pay to Amnesty International Limited and the Human Rights and Equal Opportunity Commission their costs of and incidental to these proceedings; and

c)

Liberty is granted to the respondents to apply by 4.15 pm on 13 September 2001 to vary the orders made in subparas (a) and (b) hereof.

[4] An appeal was lodged by the Commonwealth and the ministers on the same day. Cross-appeals were lodged by VCCL and Vadarlis against the trial judge's finding of their want of standing to obtain injunctive orders and mandamus. In the event the appeal was expedited and, after a hearing on 13 September, the following orders were made on 17 September:

1. The appeal is allowed.

2. The cross-appeal is dismissed.

3. The orders made by North J on 11 September 2001 are set aside and in lieu thereof the application is dismissed.

4. The question of the costs of the application and of the appeal be the subject of written submissions within 14 days.

Submissions were subsequently lodged with the court.

[5] On 27 November, the High Court (Gaudron, Gummow and Hayne JJ) refused Vadarlis special leave to appeal but declined to make any order as to the costs of the application for special leave: see High Court of Australia Transcript, Vadarlis v Minister for Immigration and Multicultural Affairs, M93/2001 (27 November 2001). In refusing special leave to appeal the court pointed to the undisputed fact that in so far as Vadarlis sought to pursue a claim to or in the nature of habeas corpus, the essential claim made at trial and in the Full Court, namely the detention of the persons concerned aboard the MV Tampa, could no longer be made. All the rescued people had gone either to Nauru or to New Zealand under arrangements made by the Australian Government with the governments of those countries. So far as Vadarlis sought mandamus, he had pointed to no present duty the performance of which could be compelled by that remedy. Moreover, if as Vadarlis contended, the agreement of the parties made during the trial before North J obliged them to seek to have the court determine whether facts which no longer exist would have warranted the grant of relief, the dispute was hypothetical. It would give rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth. The court concluded:

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 s 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).

The application was dismissed. The court said there would be no order as to costs but did not give reasons in that respect. Further submissions were invited by this court on the costs of the appeal in these proceedings following the High Court decision.

[6] The appellants seek orders that VCCL and Vadarlis pay the appellants' costs of the appeal and of the proceedings before North J. Alternatively, they seek orders for a proportion of the costs to be paid by VCCL and Vadarlis. No order is sought against the other parties to the proceedings, namely the Human Rights and Equal Opportunity Commission and Amnesty International Limited.

The statutory framework -- the Federal Court of Australia Act 1976 (Cth)

[7] Section 43 of the Federal Court of Australia Act provides:

43(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

(1A) [Concerns only representative proceedings]

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

The statutory framework -- Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)

[8] Following the decision of the Full Court on this appeal the parliament passed an Act entitled the Border Protection (Validation and Enforcement Powers) Act 2001 which came into effect on 27 September 2001, the day it received the royal assent. Part 2 of the Act is entitled "Validation of certain actions". There is a defined "validation period" starting on 27 August 2001 and ending at the beginning of the commencement day of the Act: s 4(c). Part 2 is said to apply to any action taken during the validation period by the Commonwealth or by a Commonwealth officer or any other person acting on behalf of the Commonwealth in relation to the MV Tampa, another vessel called the Aceng or any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully. Section 6 provides:

All action to which this Part applies is taken for all purposes to have been lawful when it occurred.

Section 7 then purports to prohibit proceedings in respect of action to which Pt 2 applies:

7(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part applies, against:

(a)

the Commonwealth; or

(b)

a Commonwealth officer; or

(c)

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 on which this Act receives the Royal Assent; and

(b)

the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day.

The Act also contains amendments to the Customs Act 1901 (Cth) and the Migration Act 1958 (Cth). In particular, a new s 7A is inserted in the Migration Act, which provides:

7A. Effect on executive power to protect Australia's borders.

The existence of statutory powers under this 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.

Principles governing awards of costs

[9] The point of departure in ascertaining the principles that govern costs awards in the Federal Court is s 43 of the Federal Court of Australia Act 1976(Cth). It speaks of a judge having "jurisdiction" to award costs in all proceedings before the court. No doubt this is to be regarded as a reference to power in aid of jurisdiction rather than a grant of jurisdiction in the sense in which that term is used in Ch III of the Constitution. The power of the court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that "the Court has an absolute and unfettered discretion to award or not to award [costs]": per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case.

[10] The power that was the subject of consideration by the House of Lords in Donald Campbell was conferred by statute -- s 49 of the Judicature Act 1873. Their Lordships disapproved of a tendency by the Court of Appeal to review the exercise by trial judges of that discretion. In particular, the proposition was rejected that the trial judge in a non-jury case must give the successful defendant his costs except in certain defined circumstances: at 811. The same principle as that enunciated by the House of Lords applies generally in Australian jurisdictions where similar statutory provisions exist. So Bray CJ said in Cretazzo v Lombardi (1975) 13 SASR 4 at 11:

I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollak, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.

Zelling and Jacobs JJ both agreed with Bray CJ while publishing short concurring reasons. The principle has also been adopted expressly in relation to s 43: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732; Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450; BC200006175 at [2].

[11] Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

•

Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

•

Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

•

A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

See Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660 ; ATPR 40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v BHP Co Ltd (1987) 17 FCR 211 at 222 ; 78 ALR 407.

[12] The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for the applicant to bring the proceedings. If the applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it. The order made in such cases is compensatory:

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 [(1981) 53 FLR 108 at 111].

(Latoudis v Casey (1990) 170 CLR 534 ; 97 ALR 45 per Mason CJ at CLR 543; ALR 50; see to similar effect McHugh J at CLR 567; ALR 68.)

[13] It has been argued, in academic commentary, that the general compensatory principle rests upon two alternative rationales. The first is that the successful party is entitled to be compensated for its costs because it has been wronged at the hands of the unsuccessful party. Costs under this rationale function as a species of damages. But that characterisation is not always tenable. Where, for example, declaratory relief is sought because of genuine uncertainty about the interpretation of a document or a statute, it will not explain why the successful party should be reimbursed at the cost of its opponent where the legal issue is novel and has consequences extending beyond the particular litigation. The alternative rationale for the compensation principle is simply that the winner should not have to suffer financially for vindicating its rights. The criticism of this intuitively attractive approach is again that it does not necessarily follow that the obligation to compensate the winner should be imposed on the losing party. For the losing party may have had very good legal grounds for its position and have conducted itself in the litigation in an entirely reasonable way. Where the case is close or difficult and involves no obvious element of fault on the part of the loser the proposition that costs automatically follow the event may work unfairness. Moreover it may set up a significant barrier against parties of modest means even if the contemplated claim has substantial merit: see Tollefson, "When the 'Public Interest' Loses: The Liability of Public Interest Litigants for Adverse Costs Awards" (1995) 29 University of British Columbia Law Review 303 at 309-11; see also McCool, "Costs in Public Interest Litigation: A Comment on Professor Tollefson's Article" (1996) 30 University of British Columbia Law Review 309. These criticisms will not justify a global modification, in public interest cases, of the usual rule that costs follow the event. They do, however, indicate the desirability of avoiding calcification of the discretion with rigid rules governing its exercise.

[14] The compensatory principle was long subject to a limited public interest qualification at common law. Historically the Crown neither paid nor received costs in criminal cases albeit this has been abrogated by statute in summary cases. So criminal proceedings instituted by public officials in the name of or on behalf of the Crown were seen as being brought only when the public interest required it. This was the chief rationale for the Crown's immunity from costs: Latoudis v Casey per Mason CJ at CLR 538; ALR 46, Dawson J at CLR 557; ALR 62-3, and McHugh J at CLR 567; ALR 68. That case recognised that the old rule was displaced. Mason CJ said it "... could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings": at CLR 538; ALR 46. The discretion to award costs in criminal proceedings was not to be subjected to any presumption against the award of costs in favour of a successful defendant. The ratio of the decision did not involve any general proposition that the fact that proceedings are brought in the public interest can never be a relevant consideration in the exercise of the discretion to award costs. McHugh J observed (at CLR 569; ALR 70):

A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs.

This ground for depriving a successful defendant of costs, if applied, would undercut the parliamentary intention evidenced in the creation of the statutory discretion. Such considerations apply generically to criminal proceedings and would effectively set up a presumption against the grant of costs to successful defendants. In any event it must be recognised that the concept of the "public interest" is a very broad one. For that reason it may be difficult in the realm of civil litigation, without further identification of particular circumstances, to essay any useful general proposition about how the fact that the pursuit of proceedings was in the public interest can be a relevant consideration in the discretion to award costs. The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.

[15] Usually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings. The rules of court make specific provision for the case in which a judgment is obtained which is not more favourable than terms previously offered by a respondent: O 23 r 11. Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues: see for example Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 ; 42 FLR 213 at 220; Hughes v WA Cricket Association (Inc); 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 at 272. And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings: Latoudis v Casey at CLR 544; ALR 51; Cummings v Lewis (1993) 113 ALR 285 at 327 per Cooper J (Sheppard and Neaves JJ agreeing).

[16] The costs of an appeal, like those at first instance, are in the discretion of the appellate court. If an appeal succeeds then in the ordinary course the court will order the respondent to pay the costs of the appeal and of the action at first instance: Jamal v Department of Health (1988) 14 NSWLR 252 at 271-2. An order for payment of the costs of the successful party may, as in the case of proceedings at first instance, be refused or the costs ordered reduced. The discretion conferred on the court enables it to respond to the wide variety of circumstances that may arise in relation to the making of costs orders. Some examples are set out in Halsbury's Laws of Australia vol 20 [325-9530].

[17] Where an appeal raises a novel question of much general importance and some difficulty the appeal court may decline to order costs against the unsuccessful appellant: Re Mersey Railway Co (1888) 37 Ch D 610 per 188 ALR 143 at 150 Cotton LJ (at 619) and Lindley LJ, Bowen LJ agreeing (at 621). In a similar vein in Speight v Syme (1894) 20 VLR 107, Madden CJ delivering the judgment of the Full Court said (at 123):

As to the costs of this appeal, the defendant has substantially failed in the application to set aside judgment, but has succeeded in some part; and as the matter, as I have said, is a novel one, and beset with great difficulty, we think there ought to be no costs.

In Liversidge v Anderson [1942] AC 206 ; [1941] 3 All ER 338 Lord Atkin intimated to counsel for the Home Secretary who was the successful respondent that the case, being of very general importance, was not one in which costs should be asked for. Counsel for the Home Secretary replied (at AC 283):

... in those circumstances I should not dream of asking for them on behalf of the Home Secretary.

A more recent example of this approach may be seen in the Full Court of the Federal Court in Perrett v Commissioner for Superannuation (1991) 29 FCR 581 ; 23 ALD 257. That case was heard by a Full Court in the exercise of original jurisdiction pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In declining to make an order for costs in favour of the successful respondent the court said (at FCR 594; ALD 269):

The court should consider the matter of costs, bearing in mind the result of the appeal but also taking into account the reasonableness of the applicant in bringing that appeal and the general importance of the clarification of the law for such an authority as the respondent.

In this context Gaudron and Gummow JJ pointed out in Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 ; 152 ALR 83 at 95:

As the practice in this Court testifies, an applicant for special leave to appeal may be required to undertake to bear, in any event, an order for the costs of the other party to the appeal.

[18] That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs. As discussed earlier in these reasons, where a statutory discretion to award costs was created in order to overcome a pre-existing rule, said to be based on the public interest, that costs were not awarded against official complainants in summary criminal proceedings, the fact that such proceedings were able to be generically characterised as brought in the public interest, was of little or no relevance. This was in effect the decision in Latoudis v Casey. On the other hand, a trial judge in the Land and Environment Court of New South Wales operating under the Land and Environment Court Act 1979 (NSW) was entitled, in deciding not to award costs against an unsuccessful plaintiff, to have regard to the character of the litigation as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law": Oshlack v Richmond River Council. The motivation of the unsuccessful plaintiff in pursuing the public interest rather than personal gain in proceedings in the Land and Environment Court of New South Wales was held not irrelevant to the discretion whether to award costs to the successful defendant. There was a cautionary note in the joint judgment of Gaudron and Gummow JJ who said of the term "public interest litigation" (at CLR 84; ALR 91):

That is a "nebulous concept" unless given, as the primary judge did ... further content of a legally normative nature.

The designation "nebulous concept" applied to the public interest is taken from the judgment of Tadgell J in the Full Court of the Supreme Court of Victoria in South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307 at 311. His Honour's views largely accorded with those expressed in dissent in Oshlack by McHugh J.

[19] To say of a proceeding that it is brought "in the public interest" does not of itself expose the basis upon which the discretion to award or not award costs should be exercised. In contentious areas of public policy it may be said that there are many "public interests" and that it is the elected government which must seek to achieve a balance between those competing interests: Re Sierra Club of Western Canada v British Columbia (Chief Forester) (1995) 126 DLR (4th) 437 at 447, albeit that was a case decided on appeal on the basis, as in Oshlack, that the award of costs was a matter in the discretion of the trial judge and that the discretion had not miscarried at 446-7.

[20] The Australian Law Reform Commission, in its 1995 Report, Costs Shifting -- Who Pays for Litigation, recommended that statutory provision be made for public interest costs orders by federal courts and tribunals. In so doing it sought, in effect, to define public interest by setting out as conditions for the making of such orders that the court or tribunal be satisfied that:

1.

The proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community.

2.

The proceedings will affect the development of the law generally and may reduce the need for further litigation.

3.

The proceedings otherwise have the character of public interest or test case proceedings.

(ALRC 75, Recommendation 45.)

The ALRC's recommendation has not been adopted by government. The criteria for such an order probably accord with a broad understanding of the concept of public interest litigation: Campbell, "Public Interest Costs Orders" (1998) 20 Adelaide Law Review 245 at 253. But in the present state of the law, without more they are unlikely to lead to the refusal of an award of costs to a successful party. As Professor Campbell has accurately observed of these criteria, while to an extent they reflect those previously developed by the courts (at 255):

... they are so broadly framed as to embrace many cases of kinds which courts have not hitherto recognised as coming within the category of public interest litigation.

She described the criteria as "singularly vague".

[21] In Oshlack the trial judge had given content to the public interest considerations by listing the various factors and propositions which he took into account. The true issue was whether the subject matter, scope and purpose of the statute conferring the power to award costs was such that the considerations to which the trial judge had regard were extraneous to any object the legislature had in view in enacting it. The Full Court of the Federal Court in Friends of Hinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 put it another way when it identified the entitlement of the Court of Appeal of New South Wales to disturb the discretionary decision of the trial judge as the issue decided in Oshlack: the decision of the High Court, it was said, "... does not lay down a rule for application in other cases in the making of costs orders": at 188. A somewhat bleaker characterisation of the Full Court's decision is offered in an interesting note in the Sydney Law Review: Edwards, "Costs and Public Interest Litigation After Oshlack v Richmond River Council" (1999) 21 Sydney Law Review 680 at 697-9. But the general conclusion of the court is consistent with the observation of Kirby J made a few weeks later in South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 at 412 that nothing in Oshlack requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule. In that case the court ordered the unsuccessful applicants for special leave to pay the costs of their application notwithstanding the argument that the proceedings were in the public interest. The applicant sought to enforce environment laws said to be for the benefit of the general public and for the benefit of endangered species of flora and fauna in certain forest areas of Western Australia. As another Full Court put it, there is no general principle emerging from Oshlack that the usual order as to costs should not apply if the subject matter of the litigation is a matter of "public interest": Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; BC9804016; see also Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1 at 25 per Beaumont ACJ (Higgins and Gyles JJ agreeing).

[22] Importantly, however, although Oshlack was dealing with the particular provisions and subject matter of the Land and Environment Court Act 1979 (NSW), reference was made in the joint judgment to the practices and guidelines which have developed in the administration of the discretion of courts of general jurisdiction. In that context observations of Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 537 ; 65 ALR 12 at 28 were approved:

It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise.

It was in that sense, their Honours said, that the existence of "a general rule that a wholly successful defendant should receive his costs unless good reason is shown" should be understood: Gaudron and Gummow JJ at CLR 86; ALR 93, citing Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477; see also Kirby J at CLR 121; ALR 120-1.

[23] Milne v Attorney-General (Tas) (1956) 95 CLR 460 does not lay down any special principle governing the question whether costs should follow the event where public interest factors are invoked. Milne was a test case about private property rights. The Supreme Court declined costs orders in favour of the successful defendants because they had raised "technical" defences under the Statute of Frauds, on which they did not rely, and in which they were unsuccessful. The High Court (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ) held that the defendants were entitled and bound to raise those defences. Their failure on those points did not disentitle them to costs. The court was also of the view that the class to which the plaintiffs belonged was not shown to be substantially worse off than it would have been if their contentions had succeeded and in some respects the plaintiffs were better off. In this context the court said (at 477):

We should have thought that if there was ever a case in which the plaintiffs should be held to litigate at their own risks as to costs, this is that case.

[24] The factual and legal issues in Milne were quite different from those in this case. That decision does not excuse this court of the obligation to exercise its discretion by reference to all the circumstances of the case before it.

[25] The public interest may be seen to converge with that of the individual in cases in which the liberty of the individual is at issue. In Cabal v United States of Mexico (No 6) (2000) 174 ALR 747 Goldberg J said (at 753 [22]):

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.

The passage cited was approved (although not applied in relation to the appeal) by the Full Court in Cabal v Secretary, Department of Justice (Vic) [2000] FCA 1227; BC200005305: at [5] and [8]. As Brennan J said in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, citing Lord Herschell in Cox v Hakes (1890) 15 AC 506 at 527, the law of this country is very jealous of any infringement of personal liberty. The writ of habeas corpus safeguards against any such infringement. This is evidenced in the special feature that it may be applied for by any person: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 ; 169 ALR 616 per Gleeson CJ and McHugh J at CLR 600; ALR 618, Gummow J at CLR 627; ALR 639 and Kirby J at CLR 645-7; ALR 658-60. The special rule reflects the purpose to which the writ and orders in the nature of habeas corpus are directed -- the protection of individuals against the erosion of their right to be free from wrongful restraints upon their liberty: Jones v Cunningham 371 US 236 (1963) at 243. That is not to say, however, that a new rule is introduced to displace the ordinary rule in every case that concerns the liberty of the individual. The award of costs must remain an exercise of discretion having regard to all the circumstances of the case.

The effect of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)

[26] It was submitted for both VCCL and Vadarlis that the application for a costs order was or necessarily involved a continuation of the proceedings prohibited by s 7 of this Act which came into effect on 27 September.

[27] There may be a question to whom s 7 is addressed and, if addressed to the court, whether it is valid: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 36 ; 110 ALR 97. Assuming, however, that it validly operates to deprive this court of jurisdiction to entertain any continuance of the proceedings, this should not be read, absent express provision or necessary implication, as going to the power of the court to award costs in relation to the appeal and the application at first instance. The making of orders for costs does not, in ordinary parlance, constitute a continuance of the proceedings, but is the exercise of a statutory power incidental to the orders made in the judgment of the court on the appeal. In any event, having regard to the conclusion about costs reached in these reasons, the question is to some extent academic.

Discretionary considerations relevant to the present case

[28] There are a number of considerations relevant to the question whether costs should be awarded against the unsuccessful respondents, VCCL and Vadarlis. It is not in issue that no costs order should be made against the interveners, the Human Rights and Equal Opportunity Commission and Amnesty International Ltd. Considerations particular to the exercise of the discretion are:

1.

The Commonwealth and associated parties succeeded on the appeal.

2.

By reason of the orders made on the appeal the Commonwealth succeeded on the application at first instance.

3.

The Commonwealth may be expected to have incurred substantial legal costs in the proceedings at first instance and on appeal.

The preceding factors weigh in favour of an order for costs in accordance with "the usual rule". There are, however, particular features in this case that together point powerfully in the other direction:

4.

The proceedings raised novel and important questions of law concerning the alleged deprivation of the liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth) and Australia's obligations under international law.

5.

There was divided judicial opinion on these important issues, illustrating their difficulty.

6.

The Commonwealth Parliament has subsequently passed laws purporting to exclude the rights of VCCL and Vadarlis or any other person to pursue the matter further, albeit special leave to appeal in the High Court was refused on other grounds going to utility and jurisdiction.

7.

The Commonwealth Parliament has also legislated to establish, as a proposition of statute law, in accordance with the view of the majority in the Full Court, that the Migration Act does not prevent the exercise of the executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders.

8.

There was no financial gain to either VCCL or Vadarlis in bringing their claims.

9.

The legal representation for VCCL and Vadarlis was provided free of charge. The quality of the representation (on all sides) ensured that the proceedings, and the important questions to which they gave rise, were pursued and resolved with expedition and efficiency.

[29] This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which many of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J.

Interference with the executive power

[30] It is appropriate, in conclusion, to refer to a submission made on behalf of the Commonwealth that the litigation was not a matter of public interest in any relevant sense. The Commonwealth, it was said, was exercising an aspect of executive power central to Australia's sovereignty as a nation. The litigation was "... therefore an interference with an exercise of executive power analogous to a non-justiciable 'act of State'". The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope. Even in the United Kingdom, unencumbered by a written constitution, the threshold question whether an act is done under prerogative power is justiciable: see Re Ditford; Ex parte DCT (1988) 19 FCR 347 ; 83 ALR 265 per Gummow J at FCR 368-9 and the general discussion on non-justiciability at FCR 367-73.

[31] It is perhaps useful in this context to recollect that the Constitution, in s 75(v), makes express provision for the judicial review of executive power as an element of the original jurisdiction of the High Court. A like jurisdiction may be, and has been, conferred upon this court as a Ch III court. It was the express wish of those who drafted the Constitution to make such provision. The history of s 75(v) is discussed by the late Professor J A La Nauze in The Making of the Australian Constitution, 1972, at pp 233-4 and by Dr J Thomson, "Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution" in The Convention Debates (1891-1898) Commentary Indices and Guide, 1986, Legal Books Pty Ltd, p 173 at pp 178-80. Section 75(v) was inserted at the suggestion of Andrew Inglis Clark, the Tasmanian Attorney-General. At the time Inglis Clark was apparently the only delegate who had read the seminal decision of the Supreme Court of the United States in Marbury v Madison 5 US (1 Cranch) 137 (1803). The case is remembered primarily for the assertion by the United States Supreme Court of its authority to review the constitutional validity of legislation. It did so, however, in the context of a finding that it could not validly be given original jurisdiction under the Constitution to issue writs of mandamus to non-judicial officers of the United States. In proposing what became s 75(v) Inglis Clark sought to enshrine in the Constitution provision for judicial review of executive action. When Edmund Barton formally moved the insertion of the provision in March 1898 he referred to Marbury v Madison and the risk that, absent a specific provision in the Constitution it might be held "that the courts should not exercise this power, and that even a statute giving them the power would not be of any effect ...". The words of the power, he said, could not do harm and might "protect us from a great evil". Those words emphasise the importance attached to the justiciability of the limits of executive power.